The National tribune., 1907-06-13
IRRIGATION LAW ENDANGERED.
Disturbing Uerances by Justice Brewer the Kansas Colorado
Case-Magnude of the Governments Irrigation Work.

pany brought it here. The decision of
Judge Stafford in the District Supreme
Court was unfavorable to the company,
which then appealed to the Supreme
Court of the United States, the attor-
neys having agreed, as already stated,
to confine the arguments to the ques-
ton of jurisdiction. A suit had pre-
Courts against the United States con-
tractors on the Yuma project, but the
company lost.
Justice Brewers Words.
Justice Brewers comments in the
course of the Kansas-Colorado decision,
by which he intimated that the irriga-
tion act is unconstitutional is styled by
irrigation lawyers here as "obiter dc
, tum," or as outside the case before the
court. 1t has been suggested, how truly
cannot be told, that he was speaking
entirely on his own responsibility, that
the comments were put in by the JUS
tice without consulting the Court, as
has occasionally happened. 1t is also
claimed that some of Justice Brewer 5
comments are in themselves contradic-
tory. In the course of his opinion JUS
tice Brewer said:
THE determination of the rights of
the TWO States (of Kansas and Colo
rado. to the flow of the ArkansasRiver
is subordinate to the superior right on
The part of the National Government to
control the whole system of the reclaim
alton of arid lands That involves the
question whether the reclamation of
arid lands is one of the powers granted
to the General Government The con-
stant declaration of this court from the
beginning is that this Government is
one of enumerated powers. The Gov
ernment, then, of the United States can
claim no powers which are not granted
10 ii by the Constitution, and the pow
ers actually granted must be such as
are expressly given or given by neces-
Sary implication. The Government of
the United States is one of delegated,
| limited powers
Turning to the enumeration of the
! Constitution, it is enough to say that
no one of them by any implication re-
fers to the reclamation of arid lands.
I'VE must look beyond Sec. s for
Congressional authority over arid lands.
and it is said to be found in the second
paragraph of Sec. of Article ~, read
ing: Congress shall have power to dis
pose 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"
Has the Government Power to Irrigate /:
Justice Brewer in these comments of
such vital interest to the people in the
arid land States and Territories further
discusses the subject as follows: AT
the time of the adoption of the Consti-
tuition within the known and conceded
| limits of the United States there We're
no large tracts of arid land. and moth
| ing which called for any further action
Legislature of the State in which any
particular tract of such land was to be
| found, and the Constitution, therefore.
makes no provision for Il National con-
| troll of the arid region or their reclama-
tion. But as our National territory has
been enlarged we have within our bor-
ders extensive tracts of arid lands which
ought to be reclaimed, and it may well
| be that no power is adequate for their
reclamation other than that of the Ma
tional Government But if no such
power has been granted none can be
exercised
ut does not follow from this that the
| National Government is entirely power
| less in respect TO this matter. These
arid lands are largely within the Ter
! ritories and over them. by virtue of Sec.
of Article w, heretofore quoted, or
| by virtue of the power vested in the
National Government to acquire terri
! tory by treaties. Congress has full power
of legislation, subject to no restrictions
other than those expressly named in the
| Constitution, and therefore it may legis-
late in respect to all arid lands within
their limits. AS to those lands within
the limits of the States. at least of the
/ Western States. the National Govern
ment is the most considerable owner,
and has the power to dispose of and
make all needful regulations respecting
! L Il
Legislation can override State laws in
respect 10 the general subject of rec
| lanation. While arid lands are to be
| found mainly if not only in the Western
and newer States. yet the powers of the
| National Government within the limits
of those States are the same Ono great
er and no less) than those within the
limits of the original IL. and it would
be strange If, in the absence of a defin-
ite grant of power the National Gov
ernment could enter the territory of the
States along the Atlantic and legislate in
respect to improving by irrigation or
| otherwise the lands within their bor-
ders. Nor do we understand that hith-
erto Congress has acted in disregard to
this limitation"
This is practically all that Justice
Brewer says on the subject of the irri-
CATION law outside of Il few citations
| The friends of the irrigation law say the
Justices expressions are clearly conjec-
| tural and do not indicate the real view
of the court. In some of his comments,
they say. he shows q leaning toward the
constitutonality of the law and in 9th
ers leaning toward its unconstitution-
ality. They claim that his sentence
| Nor do we understand that hitherto
| Congress has acted in disregard to this
limitation is especially significant II
is also claimcd in behalf of the law that
| Congress has not legislated for arid
lands in the States, but for its own pub
lie lands. Private lands are included in
irrigation projects by the Federal Gov
ernmcnt only when they show will
ingness To be included, and there is M
law, it is conceded. TO compel them to
come in and sell their property to the
Government or 10 acquiesce in the regu-
lations for the sale Of water. Justice
Brewers statement that these arid
lands are largely within the Territories
is clearly mistaken. because the statis-
tics show that most of them are within
States Oklahoma Territory is only arid
for about one-fifth Of its area.
Suggestion.
(Buffalo News.)