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Show supreme, and in respect to them the National Government is powerless. To preserve the even balance between these two Governments and hold each in its separate sphere is the peculiar duty of all courts, preeminently of this-a duty often- times of great delicacy and difficulty/1 (Mr, Justice Brewer in South Carolina v. United States, 199 United States, 1+37, I4J4.8, decided in I905O "Each State Is subject only to the limitations prescribed by the Constitution and within its own territory is otherwise supreme. Its Internal affairs are matters of its own discretion." (id,, h&k*) "The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, arid all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States." (Justice Brewer in Kansas v« Colorado, 206 U. S., lj.6, 90.) In the case of Kansas y» Colorado, last above cited, the United States inter- vened, in effect claiming national control of the waters of Western streams to be administered under the doctrine of prior appropriation* In answer to the primary question of national control, regardless of the rights of the States, inter sese, Justice Brewer, after observing that the United States had an interest in the public,lands within the Western States and might legislate for their recla- mation, subject to State laws, thus disposed of the claim of national control of Yfestern interstate streams? "Turning to the enumeration of the powers granted to Congress by the eighth section of the first article of the Constitution, it is enough to say that no one of them by any implication refers to the reclamation of arid lands. * * * No independent and unmentioned power passes to the National Government or can right- fully be exercised by the Congress. * * * But it is useless to pursue the inquiry further in this direction* It is enough for the purpose of this case that ea.cn State has full jurisdiction over the lands within its borders, including the beds of streams and other waters. (Citing cases). * * * It may determine for itself whether the common law rule in respect to riparian rights or that dootrine wlnich obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress can not enforce either rule upon any State. * * * One cardinal rule, underlying all the relations of the States to each other, is that of the equality of right. Each State stands on the seme level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none." (Kansas v. Colorado, 206 U. S., I46, 87-97-) In concluding the above decision, the Supreme Court dismissed the case -with- out prejudice to the right of Kansas to institute new proceedings, "whenever it shall appear that through a material increase in the depletion of the waters o£ the Arkansas by Colorado * * * the substantial interests of Kansas are being in- jured to the extent of destroying the equitable apportionment of the benefits between the two States resulting from the flow of the river*" (206 U. S» h£>, 1170 (Note 1 Since the foregoing memorandum was written the U. S« Supreme Court decided, in Wyoming v. Colorado, that in cases between two States both of which recognize the doctrine of prior appropriation as a matter of local law, the -9- |
