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

Mr.. Justice WHITE asked: Where did
he say that?'
II turned out that the saying was be-
fore the Constitution was adopted and
when Mr.. WILSON wss not a Supreme
Court Justice.
The counsel closed by saying that the
Department Of Justice took issue with
Colorado over her treatment OF the
waters and the Federal statutes, but only
az to her claim Of sovereignty o the
waters OF the river.
Whenever throughout the oral srgu-
ments by tho representatives Of the
Administration the reserved rights OF a
State were under consideration they were
treated with intolerance.
A note in the printed publication Of a
stenogrsphio report OF all the oral argyll
ments that wa Hled on February 7, 1907,
seventeen days after the conclusion OF
those arguments, mentions that a the
Solicitor General had filed "a printed
abstract" of his oral argument a short
hand report of il is omitted. Therefore
the public cannot know precisely what
he uttered. nor the questions put by
members Of the court and his replies.
The printed abstract" was filed De-
cember "a, 1905, four days after the oral
delivery. Dates are again important.
The speech by Secretary Roof in New
York on the imparting to Congress Of
new national powers over tho States by
construction" was delivered on Deocm-
Der II, 1905. The startling letter from
the President to Mrs. NATHAN, threaten
ing astounding interference by the ma
ton with reserved rights Of the States,
was written early in the next January.
Both we're before the decision Of the
court, which was in the next March.
In the printed abstract" filed by the
Solicitor-General he refers to Mr.. Roor's
New York speech, putting a gloss on il
for which, it may be taken as quite
certain, the Secretary Of State has never
thanked the Solicitor General, and in
formed the court that the purport Of
Mr.. Roor's ~utterances has been mis-
conceived" Why was that said to the
court?
The obvious purpose Of those who
argued for the Administration was to
obtain from the court a judgment not
only that Congress has the right to regu-
late the flow Of waters of the Arkansas
River in Colorado and Kansas and TO
legislate as 1t deems needful for the
reclamation Of arid public lands within
the area of the litigation, but that the
source Of that right Is an inherent
power impaired by the Constitution be-
yond the recognized delegated" and
implied" powers. The Solicitor-Gen-
eral insisted that such inherent" power
is more than a theory and that 1T is
indeed established, although it's full de-
velopment Ia Of recent date He added
that Gin clear and concrete form IL has
perhaps only been applied once" His
reference was probably to what has
happened at Warrington during the last
half dozen years. but which wa the
one case in which the doctrine has been
applied "in a clear and concrete form?
The Solicitor General did not cite any
judgment by the Supreme Court uphold
ing the strange doctrine and rule that
he wished the court to apply. On tho
contrary, and as il realizing the efron-
terry, he frankly declared that it chal-
lenged great decisions Of the court
Of which he protested hat he spoke
with reverence The expressions let
fall by two or three Justices In their opin-
ions on the legal tender cases az Wallace,
4s7) were not judgments, nor authorities
moi precedsnts controlling tho Arkansas
River case. The expressions can be
looked upon as treating Of the inherent
power mentioned by WILSON in 1857
and the resulting power mentioned
by STORY as the implied power i'm
parted by the eighteenth power enumer-
ated in the Constitution, which power
the court by the pom OF MARSHALL ex-
pounded for all time.
Indeed the Solicitor General rested
the inherent power on the implied
power, tho expansion OF the implied
beyond the boundary fxed by MARSHALL
lying very close, no said, to the exist
enc Of the inherent" The implied
power inheres, as We all know, in that
| clause of the Constitution which reads
that Congress shall have power TO
make all laws which shall be necessary
and proper for carrying into execution
the foregoing powers, and all other
powers vested by this Constitution in
| the Government Of the United States"