Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-13

for directing the refusal Of the ap-
plication.
Certainly public interest demands
that permit to lmpound or control
the waters of Powder river in con-
troversy here should only be granted
to such person or corporation as un-
der contract with the state will carry
out its plans to reclaim this desert
land, and It is the duty Of the state
engineer and board of control to act
with the Desert Land Board for the
accomplishment Of this purpose. AL
though plaintiffs may have in view
the furnishing Of water for irrigation
Of private lands or the creation Of
power, assuming, without deciding,
that the application states facts suf-
fcient for either purpose, yet the
much greater interest involved is the
reclamation of the desert public
lands and the evident purpose of the
plaintiff was to place itself in posi-
ton to compel the state to contract
with 1t for such reclamation. It is
within the province of the Board of
Control to see that both public and
private lands are reclaimed, rather
than only the latter. The reclama-
ton Of desert lands is subject to con-
tract with the state, and It should
have the right and opportunity to Sc
lect the person with whom 1t shall
contract, as well as a voice in deter
mining the terms of the contract, and
II there is any possibility OF reclaim
alton Of these lands 1t is necessary
that the granting of a reservoir per-
NIT be delayed until the state has
made some agreement with the ap-
plicant, otherwise the state will be
without power to secure proper con-
tracts; and these are some of the
matters that the statute contemplates
may be considered by the engineer
and Board of Control in determining
whether the permit would be a men
ace to the public welfare.
The reclamation Of the desert pub
lie lands is public enterprise and
Is under the control and direction of
the state, and the applicant for a
permit to appropriate or impound wa
ter for the reclamation thereof is to
some extent the agent of the state.
and has right to exercise the power
OF eminent domain and by statute is
to have lien upon the lands for the
repayment Of the amount of his ex-
penditures and interest. Therefore,
the private interests of the applicant
for a permit must be subordinate to
the public interest contemplated by
the statute.
AT the argument, and the briefs,
much stress was laid by plaintiffs
upon the use of the conjunction
"and," in Section AZ of the water
code, in the clause menace to the
safety and welfare of the public"
But the next sentence which author
lees the Board of Control to direct
the refusal of applications "lf the
public interest demands" indicates
that 1t was intended by the previous
clause that a menace to either safety
or welfare would be sufficient ground
to refuse the application. The use of
the disjunction conjunction was evil
IDENTIFY intended, and in constituting
the statute we are authorized to SO
treat it where 1t is necessary to carry
out the intent of the statute: II
Lewis Sutherlin, Stat. Const. e ed.)
Sec. S97; Ransom v. Rutherford
County, 1870 S. w. 1857, 1862 (Tenn.)
People ex rel " Rice, 1873 N. Y. 151.
The judgment of the lower court
Will be reversed and the cause re-
manded to the lower court with d.
rections to dismiss the writ.