Daily capital journal. (Salem, Oregon) 1903-1919, 1913-12-26
COURT SAYS FEDERAL
POWER SUPREME THERE
State in Exercise of Its Sovereign Au-
thority Cannot Interfere With
Power Of Congress.

The contention of the government
that power companies can not secure
rights of way across national forests
without complying with the regulations
of the secretary of agriculture has been
completely sustained, according to the
Officers of the forest service, by the
opinion of the circuit court of appeals
filed on November IA in the case of
the United States versus the Utah Pow.
er and Light company.
In its decision, the court announces
that congress has assumed complete con.
troll Of the water-power question, so far
as the public lands are affected, and
that state in the exercise of its SOW.
ereign authority can not interfere with
or transcend this constitutional power
of congress.
Since December 10, 1900, the Utah
Power and Light company has operated
its hydro-electric power works on cert
ain public lands in the state Of Utah
now forming part Of the Cache nat
ioal forest, The federal government
sought to enjoin the occupancy Of these
lands until the company should comply
with the provisions Of the act of May,
IA, 1896. This act empowered the gov
ernment to permit the use Of, or rights
of way upon, public lands and national
forests, for the purpose Of generating,
manufacturing, and distributing cleo
tric energy, The power company, on
the other hand, alleged that its rights
were secured and protected by the act
of July 26, 1866, now section 2339 Of
the revised statutes. The decision of
the court is that the later act repeals
that of 1866, insofar as it related to
the subject of electric power and that
the company must acquire its rights Of
way in accordance with the provisions
of the later act.
1t was contended by the company
that it was protected in its tenure by
the laws by the state of Utah. On
this point the court says, "The propo-
sition that absolute and perpetual rights
in the public lands may be acquired
for private gain by mere appropriation
without purchase or compensation, and
in the exercise Of state sovereignty
which transcends che constitutional pow
er of the congress, is somewhat start
ling one.
Shorn Of its legal phraseology, the
court S decision may be summed up as
follows; That the constitution pro-
vides that congress has the power to
dispose of and regulate the use Of the
territory belonging to the United States
and that the people of Utah, in forming
their constitution and state government,
forever disclaimed all right and title
to the public lands within their state
until these have been disposed Of by
the government, The terms Of this pro-
vision were later made part of the
constitution Of the state Of Utah, and
the federal government, therefore, was
secured in the full control Of the public
lands within the state, not only by the
federal constitution but by that of the
state itself
Moreover, the act of May II, 1896,
which specifically provides for federal
Regulation Of electric power on govern
ment lands, was passed before the Utah
Power and Light company claimed any
rights under the act of 1866. Therefore
nce the power company has not avail
ed itself Of the provisions Of the later
statute which provides for permit, otis
rights, if any, are subordinate to those
of the government -