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contention of Colorado in respect to its claim | claimed by the respective litigants. Conof ownership, viz., that under the provisions troversies between the states are becoming of its Constitution it is the owner of all frequent, and, in the rapidly changing conwaters within that state.
ditions of life and business, are likely to “The eighteenth paragraph is as follows: become still more so. Involving, as they do,
“ 'That neither the contention of the state the rights of political communities which in of Colorado nor the contention of the state many respects are sovereign and independof Kansas is correct; nor does either con- ent, they present not infrequently questions tention accord with the doctrine prevailing of far-reaching import and of exceeding difin the arid region in respect to the waters ficulty. of natural streams and of flood and other It is well, therefore, to consider the founwaters. That either contention, if sustained, dations of our jurisdiction over controverwould defeat the object, intent, and purpose sies between states. It is no longer open to of the reclamation act, prevent the settle- question that by the Constitution a nation ment and sale of the arid lands belonging to was brought into being, and that that inthe United States, and especially those with strument was not merely operative to esin the watershed of the Arkansas river west tablish a closer union or league of states. of the 99th degree west longitude, and would 'Whatever powers of government were grantotherwise work great damage to the intered to the nation or reserved to the states ests of the United States.'»
(and for the description and limitation of
those powers we must always accept the Messrs. S. S. Ashbaugh, N. H. Loomis, C. Constitution as alone and absolutely conC. Coleman, and F. Dumont Smith for com- trolling), there was created a nation, to plainant.
be known as the United States of America, Messrs. Clyde C. Dawson, Platt Rogers, N. and as such then assumed its place among C. Miller, Joel F. Vaile, Charles D. Hayt, the nations of the world. C. W. Waterman, F. E. Gregg, W. R. Ram
The first resolution passed by the consey, and I. B. Melville for defendant the vention that framed the Constitution, sitstate of Colorado.
ting as a committee of the whole, was "ReMessrs. David C. Beaman, Cass E. Her- solved, That it is the opinion of this comrington, and Fred Herrington for defendant mittee that a national government ought to the Colorado Fuel & Iron Company.
be established, consisting of a supreme legisMessrs. Platt Rogers, John F. Shafroth, lative, judiciary, and executive." 1 Elliot, and Frank E. Gregg for defendant the Ar- | Debates, p. 151. kansas Valley Sugar Beet & Irrigated Land In M'Culloch v. Maryland, 4 Wheat. 316, Company.
405, 4 L. ed. 579, 601, Chief Jusuice MarMr. C. C. Goodale for defendant the Gra. shall said: ham Ditch Company.
"The government of the Union, then Mr. C. E. Gast for defendant the Fort (whatever may be the influence of this fact Lyon Canal Company.
on the case), is, emphatically and truly, a Mr. F. A. Sabin for defendants the Rocky government of the people. In form and in Ford Canal, Reservoir, Land, Loan, & Trust substance it emanates from them. Its powCompany, the Catlin Consolidated Canal ers are granted by them, and are to be exCompany, the Oxford Farmers Ditch Com-ercised directly on them, and for their benpany, and the Lake Canal Company.
efit.” Solicitor General Hoyt, Assistant Attor- See also Martin v. Hunter, 1 Wheat, 304, ney General Campbell, and Mr. A. C. Camp- 324, 4 L. ed. 97, 102, opinion by Mr. Jusbell for intervener, the United States.
In Scott v. Sandford, 19 How. 393, 441, Mr. Justice Brewer delivered the opinion 15 L. ed. 691, 715, Chief Justice Taney obof the court:
served : While we said in overruling the demurrer “The new government was not a mere that “this court, speaking broadly, has ju. change in a dynasty, or in a form of govrisdiction, we contemplated further con ernment, leaving the nation or sovereignty sideration of both the fact and the extent of the same, and clothed with all the rights, our jurisdiction, to be fully determined aft- and bound by all the obligations, of the preer the facts were presented. We therefore ceding one. But, when the present United commence with this inquiry. And first, of States came into existence under the new our jurisdiction of the controversy between government, it was a new political body, a Kansas and Colorado.
new nation, then for the first time taking its This suit involves no question of bound place in the family of nations." ary or of the limits of territorial jurisdic- And in Miller on the Constitution of the tion. Other and incorporeal rights are United States, p. 83, referring to the adoption of the Constitution, that learned jurist may, perhaps, be ultimately resolved into said: “It was then that a nation was born.” one no less radical than this,-Do the peo
In the Constitution are provisions in sep-ple of the United States form a nation?” arate articles for the three great depart- In reference to this question attention ments of government,—legislative, execu- may, however, properly be called to Hans v. tive, and judicial. But there is this sig. Louisiana, 134 U. s. 1, 33 L. ed. 842, 10 nificant difference in the grants of powers Sup. Ct. Rep. 504. to these departments : The first article, The decision in Chisholm v. Georgia led treating of legislative powers, does not make to the adoption of the 11th Amendment to a general grant of legislative power. It the Constitution, withdrawing from the jureads: "Article 1, § 1. All legislative pow- dicial power of the United States every suit ers herein granted shall be vested in a in law or equity commenced or prosecuted Congress,” etc.; and then, in article 8, against one of the United States by citizens mentions and defines the legislative powers of another state or citizens or subjects of a that are granted. By reason of the fact that foreign state. This amendment refers only there is no general grant of legislative pow- to suits and actions by individuals, leaving er it has become an accepted constitutional undisturbed the jurisdiction over suits or rule that this is a government of enumerat- actions by state against another. ed powers.
As said by Chief Justice Marshall in In M'Culloch v. Maryland, 4 Wheat. 405, Cohen v. Virginia, 6 Wheat. 264, 407, 5 4 L. ed. 601, Chief Justice Marshall said: L. ed. 257, 291: "The Amendment, there
“This government is acknowledged by all fore, extended to suits commenced or proseto be one of enumerated powers. The prin cuted by individuals, but not to those cipal that it can exercise only the powers brought by states.” See also South Dakogranted to it would seem too apparent to ta v. North Carolina, 192 U. S. 286, 48 L. have required to be enforced by all those ed. 448, 24 Sup. Ct. Rep. 269. arguments which its enlightened friends, Speaking generally, it may be observed while it was depending before the people, that the judicial power of a nation extends found it necessary to urge. That principle is to all controversies justiciable in their nanow universally admitted."
ture, and the parties to which or the propOn the other hand, in article 3, which erty involved in which may be reached by treats of the judicial department,--and this judicial process, and, when the judicial power is important for our present consideration, of the United States was vested in the Su-we find that s 1 reads that "the judicial preme and other courts, all the judicial powpower of the United States shall be vested er which the nation was capable of exercisin one Supreme Court, and in such inferior ing was vested in those tribunals; and uncourts as the Congress may from time to less there be some limitations expressed in time ordain and establish." By this is the Constitution it must be held to emgranted the entire judicial power of the na- brace all controversies of a justiciable nation. Section 2, which provides that "the ture arising within the territorial limits of judicial power shall extend to all cases, in the nation, no matter who may be the parlaw and equity, arising under this Constitu- ties thereto. This general truth is not intion, the laws of the United States,” etc., consistent with the decisions that no suit is not a limitation nor an enumeration. or action can be maintained against the It is a definite declaration,-a provision nation in any of its courts without its conthat the judicial power shall extend to— sent, for they only recognize the obvious that is, shall include—the several matters truth that a nation is not, without its conparticularly mentioned, leaving unrestrict- sent, subject to the controlling action of any ed the general grant of the entire judicial of its instrumentalities or agencies. The power. There may be, of course, limitations creature cannot rule the creator. Kawananon that grant of power, but, if there are akoa v. Polyblank, 205 U. S. 349, 51 L. ed. any, they must be expressed; for otherwise 834, 27 Sup. Ct. Rep. 526. Nor is it inconthe general grant would vest in the courts sistent with the ruling in Wisconsin v. Peliall the judicial power which the new nation can Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 was capable of exercising. Construing this Sup. Ct. Rep. 1370, that an original action article in the early case of Chisholm v. cannot be maintained in this court by one Georgia, 2 Dall. 419, 1 L. ed. 440, the court state to enforce its penal laws against a citiheld that the judicial power of the Supreme zen of another state. That was no denial of Court extended to a suit brought against a the jurisdiction of the court, but a decision state by'a citizen of another state. In an- upon the merits of the claim of the state. nouncing his opinion in the case, Mr. Jus- These considerations lead to the propositice Wilson said (p. 453, L. ed. p. 454):
tions that when a legislative power is “This question, important in itself, will claimed for the national government the depend on others more important still; and question is whether that power is one of those granted by the Constitution, either in | rado the right to appropriate the waters terms or by necessary implication; whereas, of that stream so as to prevent that continuin respect to judicial functions, the ques-ous flow, or that the amount of the flow is tion is whether there be any limitations ex- subject to the superior authority and superpressed in the Constitution on the general visory control of the United States. While grant of national power.
several of the defendant corporations have We may also notice a matter in respect answered, it is unnecessary to specially conthereto referred to at length in Missouri v. sider their defenses, for, if the case against Illinois, 180 U. S. 208, 220, 45 L. ed. 497, Colorado fails, it fails also as against them. 504, 21 Sup. Ct. Rep. 331, 336. The 9th Colorado denies that it is in any substanarticle of the Articles of Confederation pro- tial manner diminishing the flow of the Arvided that "the United States in Congress kansas river into Kansas. If that be true, assembled shall also be the last resort on then it is in no way infringing upon the appeal in all disputes and differences now rights of Kansas. If it is diminishing that subsisting or that hereafter may arise be- flow, has it an absolute right to determine tween two or more states concerning bound for itself the extent to which it will diminary, jurisdiction, or any other cause what. ish it, even to the entire appropriation of ever.” In the early drafts of the Constitu- the water? And if it has not that absolute tion provision was made giving to the Su- right, is the amount of appropriation that preme Court "jurisdiction of controversies it is now making such an infringment upon between two or more states, except such as the rights of Kansas as to call for judicial shall regard territory or jurisdiction," and interference? Is the question one solely bealso that the Senate should have exclusive tween the states, or is the matter subject to power to regulate the manner of deciding national legislative regulation? and, if the the disputes and controversies between the latter, to what extent has that regulation states respecting jurisdiction or territory. been carried? Clearly this controversy is As finally adopted, the Constitution omits one of a justiciable nature. The right to the all provisions for the Senate taking cogni- flow of a stream was one recognized at comzance of disputes between the states, and mon law, for a trespass upon which a cause leaves out the exception referred to in the of action existed. jurisdiction granted to the Supreme Court. The primary question is, of course, of naThat carries with it a very direct recogni- tional control. For, if the nation has the tion of the fact that to the Supreme Court right to regulate the flow of the waters, we is granted jurisdiction of all controversies must inquire what it has done in the way between the states which are justiciable in of regulation. If it has done nothing the their nature. "All the states have trans- further question will then arise, What are ferred the decision of their controversies to the respective rights of the two states, in the this court; each had a right to demand of absence of national regulation? Congress it the exercise of the power which they had has, by virtue of the grant to it of power to made judicial by the Confederation of 1781 regulate commerce "among the several and 1788; that we should do that which states,” extensive control over the highways, neither states nor Congress could do,-set- natural or artificial, upon which such comtle the controversies between them.” Rhode merce may be carried. It may prevent or Islands v. Massachusetts, 12 Pet. 657, 743, remove obstructions in the natural water 9 L. ed. 1233, 1268.
ways and preserve the navigability of those Under the same general grant of judicial ways. In United States v. Rio Grande Dam power jurisdiction over suits brought by the & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, United States has been sustained. United 19 Sup. Ct. Rep. 770, in which was considStates v. Texas, 143 U. S. 621, 36 L. ed.ered the validity of the appropriation of the 285, 12 Sup. Ct. Rep. 488, 162 U. S. 1, 40 water of a stream by virtue of local legisL. ed. 867, 16 Sup. Ct. Rep. 725; United lation, so far as such appropriation affected States v. Michigan, 190 U. S. 379, 47 L. ed. the navigability of the stream, we said (p. 1103, 23 Sup. Ct. Rep. 742.
703, L. ed. p. 1141, Sup. Ct. Rep. p. 775): The exemption of the United States to “Although this power of changing the suit in one of its own courts without its common-law rule as to streams within its consent has been repeatedly recognized. dominion undoubtedly belongs to each state, Kansas v. United States, 204 U. S. 231, 341, yet two limitations must be recognized: 51 L. ed. 27 Sup. Ct. Rep. 388, and First, that in the absence of specific authorcases cited.
ity from Congress a state cannot, by its Turning now to the controversy as here legislation, destroy the right of the United presented, it is whether Kansas has a right States, as the owner of lands bordering on a to the continuous flow of the waters of the stream, to the continued flow of its waters; Arkansas river, as that flow existed before so far, at least, as may be necessary for the any human interference therewith, or Colo- beneficial uses of the government property. Second, that it is limited by the superior | As heretofore stated, the constant declarapower of the general government to secure tion of this court from the beginning is that the uninterrupted navigability of all nav- this government is one of enumerated powigable streams within the limits of the “The government, then, of the United United States. In other words, the juris- States, can claim no powers which are not diction of the general government over in- granted to it by the Constitution, and the terstate commerce and its natural highways powers actually granted must be such as are vests in that government the right to take expressly given or given by necessary impli. all needed measures to preserve the navi- cation.” Story, J., in Martin v. Hunter, 1 gability of the navigable water courses of Wheat. 304, 326, 4 L. ed. 97, 102.
“The the country, even against any state action." government of the United States is one of
It follows from this that if, in the present delegated, limited, and enumerated powers." case, the national government was asserting, United States v. Harris, 106 U. S. 629, 635, as against either Kansas or Colorado, that 27 L. ed. 290, 292, 1 Sup. Ct. Rep. 601, 606. the appropriation for the purposes of irri- Turning to the enumeration of the powgation of the waters of the Arkansas was ers granted to Congress by the 8th section affecting the navigability of the stream, it of the 1st article of the Constitution, it is would become our duty to determine the enough to say that no one of them, by any truth of the charge. But the government implication, refers to the reclamation of makes no such contention. On the contrary, arid lands. The last paragraph of the secit distinctly asserts that the Arkansas riv. tion which authorizes Congress to make all er is not now and never was practically nav- laws which shall be necessary to proper igable beyond Fort Gibson in the Indian for carrying into execution the foregoing territory, and nowhere claims that any ap- powers, and all other powers vested by this propriation of the waters by Kansas or Col-Constitution in the government of the Unitorado affects its navigability.
ed States, or in any department or officer It rests its petition of intervention upon thereof, is not the delegation of a new and its alleged duty of legislating for the rec- independent power, but simply provision for lamation of arid lands; alleges that in or making effective the powers theretofore mennear the Arkansas river, as it runs through tioned. The construction of that paraKansas and Colorado, are large tracts of graph was precisely stated by Chief Justice those lands; that the national government is Marshall in these words [4 Wheat. 421, 4 itself the owner of many thousands of acres; L. ed. 605]: “We think the sound conthat it has the right to make such legisla-struction of the Constitution must allow to tive provision as, in its judgment, is needful the national legislature that discretion, with for the reclamation of all these arid lands, respect to the means by which the powers and, for that purpose, to appropriate the it confers are to be carried into execution, accessible waters.
which will enable that body to perform the In support of the main proposition it is high duties assigned to it, in the manner stated in the brief of its counsel:
most beneficial to the people. Let the end “That the doctrine of riparian rights is be legitimate, let it be within the scope of inapplicable to conditions prevailing in the the Constitution, and all means which are arid region; that such doctrine, if applicable appropriate, which are plainly adapted to in said region, would prevent the sale, rec- that end, which are not prohibited, but conlamation, and cultivation of the public arid sist with the letter and spirit of the Constilands, and defeat the policy of the govern- tution, are constitutional,”—a statement ment in respect thereto; that the doctrine which has become the settled rule of conwhich is applicable to conditions in said arid struction. From this and other declarations region, and which prevails therein, is that it is clear that the Constitution is not to the waters of natural streams may be used to be construed technically and narrowly, as irrigate and cultivate arid lands, whether an indictment, or even as a grant presumriparian or nonriparian, and that the prior-ably against the interest of the grantor, and ity of appropriation of such waters and the passing only that which is clearly included application of the same for beneficial pur- within its language, but as creating a sysposes establishes a prior and superior right.” tem of government whose provisions are de
In other words, the determination of the signed to make effective and operative all rights of the two states inter sese in regard the governmental powers granted. Yet, to the flow of waters in the Arkansas river while so construed, it still is true that no is subordinate to a superior right on the independent and unmentioned power passes part of the national government to control to the national government or can rightfully the whole system of the reclamation of arid be exercised by the Congress. lands. That involves the question whether We must look beyond $ 8 for congressionthe reclamation of arid lands is one of the al authority over arid lands, and it is said powers granted to the general government. 'to be found in the second paragraph of $ 3 of article 4, reading: “The Congress shall, such assumption should ever find justificahave power to dispose of and make all need- tion in the organic act, and that if, in the ful rules and regulations respecting the ter--| future, further powers seemed necessary, ritory or other property belonging to the they should be granted by the people in the United States; and nothing in this Consti- manner they had provided for amending tution shall be so construed as to prejudice that act. It reads: "The powers not deleany claims of the United States, or of any gated to the United States by the Constiparticular state.”
tution, nor prohibited by it to the states, The full scope of this paragraph has never are reserved to the states respectively, or to been definitely settled. Primarily, at least, the people.” The argument of counsel igit is a grant of power to the United States nores the principal factor in this article, of control over its property. That is im- to wit, “the people.” Its principal purpose plied by the words “territory or other prop- was not the distribution of power between erty.” It is true it has been referred to in the United States and the states, but a some decisions as granting political and leg. reservation to the people of all powers not islative control over the territories as dis- granted. The preamble of the Constitution tinguished from the states of the Union. declares who framed it,"we, the people of It is unnecessary in the present case to the United States," not the people of one consider whether the language justifies this state, but the people of all the states; and construction. Certainly we have no dispo- article 10 reserves to the people of all the sition to limit or qualify the expressions states the powers not delegated to the Unitwhich have heretofore fallen from this court ed States. The powers affecting the internal in respect thereto. But clearly it does not affairs of the states not granted to the grant to Congress any legislative control United States by the Constitution, nor proover the states, and must, so far as they are hibited by it to the states, are reserved to concerned, be limited to authority over the the states respectively, and all powers of a property belonging to the United States national character which are not delegated within their limits. Appreciating the force to the national government by the Constiof this, counsel for the government relies tution are reserved to the people of the upon “the doctrine of sovereign and inherent United States. The people who adopted the power;" adding, "I am aware that in ad- Constitution knew that in the nature of vancing this doctrine I seem to challenge things they could not foresee all the quesgreat decisions of the court, and I speak tions which might arise in the future, all with deference.” His argument runs sub- the circumstances which might call for the stantially along this line: All legislative exercise of further national powers than power must be vested in either the state or those granted to the United States, and, the national government; no legislative after making provision for an amendment to powers belong to a state government other the Constitution by which any needed addithan those which affect solely the internal tional powers would be granted, they reaffairs of that state; consequently all pow- served to themselves all powers not so deleers which are national in their scope must gated. This article 10 is not to be shorn of be found vested in the Congress of the Unit- its meaning by any narrow or technical coned States. But the proposition that there struction, but is to be considered fairly and are legislative powers affecting the nation liberally so as to give effect to its scope as a whole which belong to, although not and meaning. As we said, construing an expressed in the grant of powers, is in di- express limitation on the powers of Conrect conflict with the doctrine that this is a gress, in Fairbank v. United States, 181 U. government of enumerated powers. That S. 283, 288, 45 L. ed. 862, 865, 21 Sup. Ct. this is such a government clearly appears Rep. 648, 650: from the Constitution, independently of the “We are not here confronted with a ques. Amendments, for otherwise there would be tion of the extent of the powers of Congress, an instrument granting certain specified but one of the limitations imposed by the things made operative to grant other and Constitution on its action, and it seems to distinct things. This natural construction us clear that the same rule and spirit of of the original body of the Constitution is construction must also be recognized. If made absolutely certain by the 10th Amend- powers granted are to be taken as broadly ment. This Amendment, which was seeming. granted and as carrying with them authorly adopted with prescience of just such con- ity to pass those acts which may be reasontention as the present, disclosed the wide-ably necessary to carry them into full execuspread fear that the national government tion; in other words, if the Constitution in its might, under the pressure of a supposed grant of powers is to be so construed that general welfare, attempt to exercise powers Congress shall be able to carry into full effect which had not been granted. With equal the powers granted, it is equally imperative determination the framers intended that no l that, where prohibition or limitation is