contention of Colorado in respect to its claim | claimed by the respective litigants. Conof ownership, viz., that under the provisions of its Constitution it is the owner of all waters within that state. troversies between the states are becoming frequent, and, in the rapidly changing conditions of life and business, are likely to become still more so. Involving, as they do, the rights of political communities which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty. "The eighteenth paragraph is as follows: ""That neither the contention of the state of Colorado nor the contention of the state of Kansas is correct; nor does either contention accord with the doctrine prevailing in the arid region in respect to the waters 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 interests of the United States." " Messrs. S. S. Ashbaugh, N. H. Loomis, C. C. Coleman, and F. Dumont Smith for complainant. Messrs. Clyde C. Dawson, Platt Rogers, N. C. Miller, Joel F. Vaile, Charles D. Hayt, C. W. Waterman, F. E. Gregg, W. R. Ramsey, and I. B. Melville for defendant the state of Colorado. Messrs. David C. Beaman, Cass E. Herrington, and Fred Herrington for defendant the Colorado Fuel & Iron Company. Messrs. Platt Rogers, John F. Shafroth, and Frank E. Gregg for defendant the Arkansas Valley Sugar Beet & Irrigated Land Company. ed to the nation or reserved to the states (and for the description and limitation of those powers we must always accept the Constitution as alone and absolutely controlling), there was created a nation, to be known as the United States of America, and as such then assumed its place among the nations of the world. The first resolution passed by the convention that framed the Constitution, sitting as a committee of the whole, was "Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, judiciary, and executive." 1 Elliot, Debates, p. 151. In M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, Chief Justice Mar Mr. 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. Solicitor General Hoyt, Assistant Attorney General Campbell, and Mr. A. C. Campbell for intervener, the United States. efit," . See also Martin v. Hunter, 1 Wheat, 304, 324, 4 L. ed. 97, 102, opinion by Mr. Justice Story. 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: While we said in overruling the demurrer that "this court, speaking broadly, has jurisdiction," we contemplated further consideration of both the fact and the extent of our jurisdiction, to be fully determined after the facts were presented. We therefore commence with this inquiry. And first, of our jurisdiction of the controversy between Kansas and Colorado. served: "The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations, of the preceding one. But, when the present United States came into existence under the new government, it was a new political body, a 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 adop tion 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 peoIn 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 one state against another. ed powers. As said by Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264, 407, 5 L. ed. 257, 291: "The Amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states." See also South Dakota v. North Carolina, 192 U. S. 286, 48 L. ed. 448, 24 Sup. Ct. Rep. 269. In M'Culloch v. Maryland, 4 Wheat. 405, 4 L. ed. 601, Chief Justice Marshall said: "This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted." On the other hand, in article 3, which treats of the judicial department, and this is important for our present consideration, -we find that § 1 reads that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," etc., is not a limitation nor an enumeration. It is a definite declaration,-a provision that the judicial power shall extend tothat is, shall include the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but, if there are any, they must be expressed; for otherwise the general grant would vest in the courts all the judicial power which the new nation was capable of exercising. Construing this article in the early case of Chisholm v. Georgia, 2 Dall. 419, 1 L. ed. 440, the court held that the judicial power of the Supreme Court extended to a suit brought against a state by a citizen of another state. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453, L. ed. p. 454): "This question, important in itself, will depend on others more important still; and Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, and the parties to which or the property involved in which may be reached by judicial process, and, when the judicial power of the United States was vested in the Supreme and other courts, all the judicial power which the nation was capable of exercising was vested in those tribunals; and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against. the nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not, without its consent, subject to the controlling action of any of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa v. Polyblank, 205 U. S. 349, 51 L. ed. 834, 27 Sup. Ct. Rep. 526. Nor is it inconsistent with the ruling in Wisconsin v. Pelican Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, that an original action cannot be maintained in this court by one state to enforce its penal laws against a citizen of another state. That was no denial of the jurisdiction of the court, but a decision upon the merits of the claim of the state. These considerations lead to the propositions that when a legislative power is claimed for the national government the 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 answered, it is unnecessary to specially consider their defenses, for, if the case against Colorado fails, it fails also as against them. Colorado denies that it is in any substantial manner diminishing the flow of the Arkansas river into Kansas. If that be true, then it is in no way infringing upon the rights of Kansas. If it is diminishing that flow, has it an absolute right to determine for itself the extent to which it will dimin the water? And if it has not that absolute right, is the amount of appropriation that it is now making such an infringment upon the rights of Kansas as to call for judicial interference? Is the question one solely between the states, or is the matter subject to national legislative regulation? and, if the latter, to what extent has that regulation been carried? Clearly this controversy is one of a justiciable nature. The right to the flow of a stream was one recognized at common law, for a trespass upon which a cause of action existed. We may also notice a matter in respect thereto referred to at length in Missouri v. Illinois, 180 U. S. 208, 220, 45 L. ed. 497, 504, 21 Sup. Ct. Rep. 331, 336. The 9th article of the Articles of Confederation provided that "the United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause what-ish it, even to the entire appropriation of ever." In the early drafts of the Constitution provision was made giving to the Supreme Court "jurisdiction of controversies between two or more states, except such as shall regard territory or jurisdiction," and also that the Senate should have exclusive power to regulate the manner of deciding the disputes and controversies between the states respecting jurisdiction or territory. As finally adopted, the Constitution omits all provisions for the Senate taking cognizance of disputes between the states, and leaves out the exception referred to in the jurisdiction granted to the Supreme Court. That carries with it a very direct recognition of the fact that to the Supreme Court is granted jurisdiction of all controversies between the states which are justiciable in their nature. "All the states have transferred the decision of their controversies to this court; each had a right to demand of it the exercise of the power which they had made judicial by the Confederation of 1781 and 1788; that we should do that which neither states nor Congress could do,-settle the controversies between them." Rhode Islands v. Massachusetts, 12 Pet. 657, 743, 9 L. ed. 1233, 1268. Under the same general grant of judicial power jurisdiction over suits brought by the United States has been sustained. United States v. Texas, 143 U. S. 621, 36 L. ed. 285, 12 Sup. Ct. Rep. 488, 162 U. S. 1, 40 L. ed. 867, 16 Sup. Ct. Rep. 725; United States v. Michigan, 190 U. S. 379, 47 L. ed. 1103, 23 Sup. Ct. Rep. 742. The exemption of the United States to suit in one of its own courts without its consent has been repeatedly recognized. Kansas v. United States, 204 U. S. 231, 341, 51 L. ed. —, 27 Sup. Ct. Rep. 388, and cases cited. Turning now to the controversy as here presented, it is whether Kansas has a right to the continuous flow of the waters of the Arkansas river, as that flow existed before any human interference therewith, or Colo The primary question is, of course, of national control. For, if the nation has the right to regulate the flow of the waters, we must inquire what it has done in the way of regulation. If it has done nothing the further question will then arise, What are the respective rights of the two states, in the absence of national regulation? Congress has, by virtue of the grant to it of power to regulate commerce "among the several states," extensive control over the highways, natural or artificial, upon which such commerce may be carried. It may prevent or remove obstructions in the natural water ways and preserve the navigability of those ways. In United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770, in which was considered the validity of the appropriation of the water of a stream by virtue of local legislation, so far as such appropriation affected the navigability of the stream, we said (p. 703, L. ed. p. 1141, Sup. Ct. Rep. p. 775): "Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs to each state, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far, at least, as may be necessary for the beneficial uses of the government property. tion of this court from the beginning is that this government is one of enumerated powers. "The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given or given by necessary impli cation." Story, J., in Martin v. Hunter, 1 Wheat. 304, 326, 4 L. ed. 97, 102. "The government of the United States is one of delegated, limited, and enumerated powers." United States v. Harris, 106 U. S. 629, 635, 27 L. ed. 290, 292, 1 Sup. Ct. Rep. 601, 606. Second, that it is limited by the superior | As heretofore stated, the constant declarapower of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against any state action." It follows from this that if, in the present case, the national government was asserting, as against either Kansas or Colorado, that 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 territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado affects its navigability. for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof, is not the delegation of a new and making effective the powers theretofore men- It rests its petition of intervention upon its alleged duty of legislating for the rec-independent power, but simply provision for lamation of arid lands; alleges that in or near the Arkansas river, as it runs through Kansas and Colorado, are large tracts of those lands; that the national government is itself the owner of many thousands of acres; that it has the right to make such legisla-struction of the Constitution must allow to tive provision as, in its judgment, is needful for the reclamation of all these arid lands, and, for that purpose, to appropriate the accessible waters. the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, 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 deIn 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 the reclamation of arid lands is one of the powers granted to the general government. We must look beyond § 8 for congressional authority over arid lands, and it is said 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 needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." tion in the organic act, and that if, in the The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words "territory or other property." It is true it has been referred to in some decisions as granting political and legislative control over the territories as distinguished from the states of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this court in respect thereto. But clearly it does not grant to Congress any legislative control over the states, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Appreciating the force of this, counsel for the government relies upon "the doctrine of sovereign and inherent power;" adding, "I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference." His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the "We are not here confronted with a quesAmendments, 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 general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is |