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<br />DECISIONS PE'RTINENT TO PROPOSED WATER RIGHTS Ar::r
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<br />I I Con!'To<s to regula!.e commerce also to
<br />nut tl,ere wa" t. Ie power,,! d 'f" 'bl That Federal power
<br />be COllsidered uncI hnrmonIzc 1 pOSSl c. ,
<br />said the i':iupreme Court- 'I '
<br />when the 6llbjccts of thnt POW?T nre n~t.innal iT~ thl~;~~~~I~f/aNl L~lf~c~~b~I:,lb~
<br />The Constitutiun docs Hot. provide th:lt 11It.cr,:,ta~c ~.~s left. free except as Congress
<br />the grant of this cxcl.usivc )l.owcrf to rC~Il:at.c ~' l~ dc'tcrmincrt tiw.t the fn.i1urc of
<br />might jmpo~o rcstnl.ln~. I hc~e ore,.1 ,1:1.8 ?C ase is n.n expression of itg will that
<br />Con!!;rcss to exercise thiS C'xclu51\'c ri"!''t~r 1I~ ~~)i~J~osition8 upon it by the several
<br />the I>ubjcct shull be free from Td ble .IOS~ te in th~ exercise of its acknowledged
<br />States II' ... '" aud if 0. la~\' pn~.sc y t 'If the Con~rcss and the State cannot
<br />powers comes j~t.o conOlct With th~n w~o'\'crei IIties, because the Constitution
<br />occupy t,he positiOn of eqll~:laOt~r~h~ law.., pa.~scd in pursuance thereof * .( .0.
<br />declares ltf'l supremacy am t .'cld to t.hat whieh is supreme * .... pp.
<br />Thnt which is not supreme mus ) I
<br />. o55-55G) , 'd
<br />'1, 'ng back to the State police powers, the Court S~I :
<br />\Irnt 'I f I 'f I
<br />. dIre what. !'hould be an nrtlc eo. aVo II
<br />If . '" "'. (the St.ate. had pm~cr .to e\~'l.\'ill dc{'lared that ardent spirits a~ld
<br />commerce In the pnrtlculn.r St.lte, llJdh itl fhcy had cea:3cd to be commerCial
<br />wines w~r~ dcletcriou!'ldto hmur~~ s, :1~hC ~~li~~ flower attD.ch~d, nnd cOllsequently
<br />commodltlcs thcrc, an t at !Un. ] tl 1 the 'lrnmOllnt paWN of Con-
<br />the powcrR of Congress coul? not. Interfere \'c;ellllatc~;l'limitationj for it takes
<br />grcss to regulate commerce IS hU~t:!~t tOthe po~'er to determine the commodities,
<br />from Congress, and leave;. t~ t e th~ s~~bjects of lawful commerce. Congress may
<br />or articles of property, w lC arc. "h t o;;1;nll or shall not be regulated. Upon
<br />regulate, but the Statcs dctcrmlne '" n. - 'in~tend ~f being pnramount over the
<br />this theory the power to rbe~ud:,tt~tco~~n~h~C~'tnt~ police power. '" . (p.558)..
<br />subject would become 8U or lIl.l. C '. .
<br />Tln;s fl\r the Court had t.alked 01 powers, St~to and Federal"fin~;llyg
<br />. cl.d t s n. li1.W to regulate commerce spera . '
<br />th~t 11 Congr~ss 's t~O aJfo~~ the laws of the Stat,e to operate upon It,
<br />OCr m sucshllaad\\~:e:ebY indicated its will that such commerce should be
<br />ongres , b'
<br />Iree and untranuuelled. ThiS ell1g so: .
<br />h C n ress acted nt nil the result of Its
<br />It followed as a. corollary, that ~'ten 0 t~at'perfe('t fre('do~ which its silence
<br />action must be to opernte as n. restrain upon
<br />insured. .' h \V'l on Act 26St.at. 3131, and declared
<br />Congrf'!los has now spokenllll ennctlllg tel S 'vn\ ','n a Stnte fnll within the
<br />. , I' 'd sh'\11 upon arT! .. .. , ..
<br />that imported 11(1lIOr,~ ~r IqUl :'1. :1' t Is the law open to constItutIOnal
<br />category of domestic artIcles of a Slml ar nn ure.
<br />objection? (pp. 559-560).
<br />The Supreme Court held t,hat it was not. , .
<br />. t.' laws so called have been sURtallled lB,
<br />The principle upon which local op IOn . i'I ' ower to r'nake a law, it can make
<br />tha.t while the lcgi:'llature crull~u.t. d~l?~atc 1\ P Ie to determine some fact or
<br />& IQ... "'hich lea.ves it to mllTllC"lpnhtles or. tie peop d dO. 0
<br />.... .. . tl t" f the law mav epen . .
<br />state of things, upon .whlch I Ie .~cCon 0 S. chooses to provide that certain deslg~
<br />1.'\0 rca~on is perceived W lY, 1 OIl~r('::>11 b overned by 8. rule which divests
<br />Dated subjects of intClstate com~erce sl,1a.d t tfme than would otherwise be the
<br />them of that character at an earher peno 0
<br />case it is not within its competency tQ do 50. '"
<br />' ...
<br />. ., -:" . tended that the legi!>lative power of
<br />The framers of the C;:om:;t~tutlOn never ~~ ill of 8. sub'cct matter specifically
<br />the !'olaHon should find Itself lllcapable of dfo;~~~t gdiSPositidn brought into deter-
<br />committed tQ its .charge.d .Thej manner r~und for ~djudging the act of Congress
<br />mination upon tlll~ recor In vo ves no g
<br />inoperative and VOid (p. 502). . . 1. di
<br />Accordingly, Co?gress may by If\it~emo!ie~ a ~~es~.tuT~~r :t;o~
<br />ment to the exercIse b:y a Stat de 01 ' tI! CoP that States ordinarily
<br />will 'U S' V R'lO Gran e mga wn. ,
<br />nohte ill . to' d' tennine what shaJJ be their water pohey except,
<br />have t e power e
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<br />DECISIONS PERTINENT TO PROPOSED WATER RIGHTS Ar::r 3
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<br />as here, insofar as that State policy may conflict with the exercise 01
<br />cOllstitutiollill PO\\.'CJ"S by Congress.
<br />2. ]Ill11e City IVolcr Co. v. Haker (19G U. S. 119 (1905)), inserted
<br />bere for COJHlllU'itLivc purposcs, involved fL dispute bctwecn t,WQ
<br />locat.iolls on the sltme mining ground. Baker's locntion \\":1S udjug-ed
<br />invnlid by I.he trial court" and its decision w~s affirmed by the l\{ontnna
<br />Supreme Court" on the ground of fL failure to comply \vith cert.ain
<br />1\10nt.n.nn. slntutcs. Those stn.t.ut.es conta.ined regulfl.tions concerninrr
<br />the location of mining claims which wcre in addition to those prcscribed
<br />by acts of Conc>'res5. Those acts of Congress, among- othcr things,
<br />had declured nlF valuable mineml deposits in lauds belonging to tbe
<br />United SI.ntes to be open to explomtion-
<br />according to th0 local cust'lms or rules of miners in the several mining districts
<br />so f~lr as the same are applica.ble and not inconsistent with the laws of the United
<br />States (H.C\.. Stat. i:>ec. 2~19).
<br />Section 2322 gave the locators the exclusive right of possession and
<br />enjoyment of the surface--
<br />so long as thf'Y comply with the laws of the United States, and with State. Tcrri~
<br />torial, and local regulations not in conflict with the laws of the United States gov~
<br />ernillg their po.ssessor)' title.
<br />It wns argued that the Stl1t.es could have no authority in the matter,
<br />because the Constitution vest,ed in the Congress t,he power to dispose
<br />of the public lands. The following excerpts not only show t.he dis-
<br />position of this argument by the Court, they show its reasoning:
<br />Acting upon the belief that they were fully authorized, nearly all, if not nil, the
<br />StA.tes in the mining regions ha\.e passed .statutes prescribing additionA.l regula~
<br />tioml '" '" *.
<br />This court has in many CDses recognized the validity of such State legislation
<br />* '" '" (p. 124).
<br />The validity of such State legislation has been affirmed by the supreme court ot
<br />se....erlll Stntes '" '" *.
<br />What (then] i" t.he ground. upon which the validity of the!':C' sllpplemcnt:Iry
<br />regulations prescribed by a SM.te is [now] challenged? It is insisted that the dis-
<br />posal of the puhlic land!.'l is an 3d of lel,":islntive power, and that it is not within
<br />the competency of a legislature to delegate to another body. the exercise of its
<br />power; that Congress alone 11:lS the right to dispose of the public bnds, and cannot
<br />transfer its authority to any Stute legisluture or other body >I< '" '" (p. 125).
<br />'" '" ... In other words, Congrcss is the body to which is given the power to
<br />determine the conditions upon which public lands shall be disposed of .; .. *.
<br />While the disposition of thto'se bnds i.s provided for by congressional legislation,
<br />such legislation &D.vors somewhat of mere rules prescribed by an owner of property
<br />for it~ disposal. It is not a legisl:ltin character in the hig;hest sense of the term,
<br />and as nn owner mn}" deleg:He to his principal agent tho right to emplo.\' suborcti-
<br />natell, giving them n limited discretion, so it would seem that Congress might
<br />rightfully entrust to the local legislature the determination of ;ninor matters
<br />re:::pect.illg the disposal of thesc lands.
<br />Further, section 2324 distillctl.v grants to the miners of each mining district the
<br />power to make reg Illations, and the validity of this gra.nt has been expressly
<br />afirme-d by t.his COlJrt . '" '" (p. 126).
<br />Now, if COIl~re:-;s has power to dl'legate to a body of miners the making of
<br />additional reglllations respecting lOl~ation, it cannot be doubted that it ha.s equal
<br />power to dt?l('~nte ,<;imilar authoTit.y to Cl. Sta.te It?gislature.
<br />Fina.lly, it must be observed that this legislation was ena.ctcd by Congres!
<br />more than 30 year!:! ago. It ha.s been acted upon as valid through all the mining
<br />regions of the country. Property rights have been built on the faith of it. To
<br />strike it down would unsettle cOllntless titles and work manifold injury to the
<br />great mining int.crests of the Far West. While, of course, consequences may not
<br />determine a decision, yet in a doubtful case the court may well pause before thereby
<br />it unsettles interests so many and so va.st-interests which have been built up on
<br />the faith not merely of congressional action but also of judicia.} decisions at mll1ly
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