The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-07-06
"a Great Opinion"

Ofcdt ppsuiOus
The source of the novel and therefore
unknown legislative powers the exer-
else Of which President ROOSEVELT,
members Of his Administration and his
political admirers have within the last
half dozen years advocated Is residing
in Congress has been a profound mys-
terry : those who have e~ndeavored to be
careful students Of the Constitution and
the opinions thereon Of the Supreme
Court since Chief Justice MARSHALL
began his luminous expositions.
The mystery has at last been revealed
by those who represented the Admins
tration in its intervention in the con-
troversy in the Supreme Court between
Kansas and Colorado over the use Of the
waters of the Arkansas River for iri-
eating purposes. That controversy was
begun by Kansas in 1901. After many
inevitable delays during nearly three
years the cause came TO an issue and
the contentious Of the adverse parties
in matters OF fact and law were appsr-
ent. Kansas claimed that she has a right
TO the continuous flow OF the river as
that flow existed before interference with
it by Colorado, and asked the court
to restrain the interference. Colorado
replied that she had sovereignty over
waters within the State and the right to
a reasonable use Of them to provide for
the necessities Of her people.
On March IA, 1904 dates are signih-
can't here, A%ttorney-G General KNOX asked
the court for leave to intervene on behalf
Of the United States. His petition was
granted, and a week later IL was filed,
setting forth that il the court upheld all
the contention of either Of the ~litigants
irreparable damage would be caused to
the nation, and its policy in respect TO its
own arid lands would be jeopardized If
not entirely defeated.
On May IS, 1904, the court appointed
a special commissioner TO take the tes-
timony Of all witnesses in the case.
Attorney General KNOX retired from
Office about this time and presumably
his successor, Mr.. MOODY, gave direction
for preparation Of the ADMINISTRATORS
contention.
The taking of evidence began on
August IS. 1904, and was continuous
during ten months. II filed $500 type
written pages. The Attorney-Gen
produced forty-eight witnesses, whose
testimony occupied 1850 pages. chiefly
devoted to arid lands owned by the
United States in the Territories and put
side the area in controversy.
The matters put in issue were by
the court finally set for argument on
October 0. 1906, and all briefs ordered
on file before hat day. The arguments
did not, however. begin till December
II. 1905. They occupied four days.
On September 5, 1905, the Department
Of Justice fled an elaborate brief of more
than 200 printed pages. 1t was signed
by A. C. CAMPBELL, Special Assistant to
Attorney General; F. l.. CAMPBELL. As
sistant Attorney-Gencral; HENRY NJ.
Horn, Solicitor General, and WILLIAM II.
MOODY, Acknowledgement
Mr.. MOODY, having meanwhile become
q member Of the court. took no part in
the decision of the case as a %footnote
Of the opinion Of the court carefully
declares.
Tho oral arguments on behalf OF the
Department of Justice were made in the
middle Of December, 1908, by the Special
Assistant, by the Assistant to the Attor-
nsy-General and by the Solicitor-Gen-
eral. Acknowledgement BoNAPARTE did
not take part therein.
Mr.. A. c. CAMPBELL had not progressed
far in his oral argument to show how
tho possible decision OF the controversy
between Kansas and Colorado might
affect the sale and reclamation OF the
nations arid lands when members Of
the court began to ply him with ques-
lions regarding the relevancy Of his argu-
pnent to the issue. Mr.. Justice WHITE,
for example, asked il Mr.. CAMPBELL
supposed that a hundred acres of public
land in a State CAV to Congress power
to destroy the lay of the State. Later
the counsel was pressed by other Judges
70 make a deduction, practical and peril
nent TO the issue, from his national arid
land contention. Finally Mr.. Justice
HOLMES asked: What rule do you say
should be entered?' Mr.. CAMPBELL's
reply vas that the rule should be an ap-
pliCation of the doctrine Of Mr.. Justice
WILSON, which was, he said, that the
inherent porer OF the nation exists,
outside Of the enumerated powers Of the
Constitution, in cases where the object is