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<br />" <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />001114 <br /> <br />poses shall have preference over those using the same for manufacturing purposes." <br /> <br />As the rights desired by the city accrued prior to the adoption of these con- <br />stitutional provisions. a well-under-stood rule of construction. applicable alike <br />to constitutions and statutes, exempts this case from the operation of the oon- <br />stitution in this respect. That instrument operates prospectively only. unless <br />a contrary intention clearly appears from the words employed. Cooley's Const. <br />Limitations, seos. 62.63. No suoh intention appears in the provision quoted; <br />in faot the use of the words "not heretofore appropriated," in section 5. and <br />"unappropriated waters," in seotion 6. clearly indicate an intention to lilllit the <br />application of these provisions to the future. If. as urged by plaintiff in <br />error, these provisions were intended to confer upon cities. towns or individuals <br />the right to take without oompensation. for domestic use. water appropriated for <br />agrioultural and other purposes before its adoption, they would fall under the <br />ban of the fourteenth amendment to the federal constitution. which provides that <br />no person shall be t1deprived of life. liberty or property without due process of <br />law." As we have already seen. a priority to the use of water is a property <br />right. <br /> <br />The construction contended for 'Would also bring the provisions quoted from the <br />state constitution in conflict with Il6veral other provisions of that instrument. <br />notably section 3 of the Bill of Rights, in which it is declared. t1 That all <br />persons have certain rights, among which may be reckoned that of acquiring, <br />possessing and protecting preperty;" and section 15. which provides that t1private <br />property shall not be taken or damaged for public or private use without just <br />compensation;" and section 25, whioh contains the same language as that just <br />quoted from the national constitution. And for this reason it should be rejected <br />it being equally open to a construction that will at once ha.nnonize and IIl9.ka <br />effective the entire provisions of the instrument in relation to the subject. <br />Our conClusion, therefore. is that the constitutional provisions relied upon <br />were not intended to affect. and do not affect, prior vested rights, but that <br />all owners of such rights are entitled to compensation therefor before the same <br />can be taken or injuriously affected. This is in acoordance with the express <br />terms of the statute under which the city is attempting to acquire a supply <br />of water, as the same was enacted at the first session of the legislature con- <br />vened after the adoption of the constitution. <br /> <br />"They shall have the right and privilege of taking water in sufficient <br />quantity. for the purpose hereinbefore mentioned. from any stream. oreek. gulch <br />or spring in the state; provided. that if the taking of water in such quantity <br />shall materially interfere with or impair the vested rights of any person or <br />persons or corporation heretofore acquired. residing upon such creek. gulch <br />or stream, or doing any milling or manufacturing business thereon, they shall <br />first obtain the oonsent of such person or persons or corporation, or aoquire <br />the right of domain. by condemnation, as prescribed by the constitution and <br />laws upon the subject. and make full compensation or satisfaotion for all the <br />damages thereby occasioned to suoh person or persons or corporation.t1 Sec. 73. <br />Gen. Stat. 18€B. p. 974. <br /> <br />The statute is instructive as a contemporaneous legislative interpretation <br />of the constitution, aside from the argument to be based upon the fact of the <br />city being purely a creature of statute. and can therefore only exercise the <br /> <br />-8- <br />