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Show states to control the appropriation and distribution of water of non-naviga- ble rivers. Fundamentally this right arises from the federal constitution providing for distribution of powers in our dual (state and federal) form of government. The tenth amendment of the Federal Constitution Reserves to the states full control of their internal affairs. The federal government is one of enumerated powers« Powers not delegated to the United States by the Constitution nor prohibited by .it. to the. states* are reserved to the states respectively or to the people. In the case of Kansas vs. Colorado (206 U« So 46)* where the question of .conflict of powers between the federal and state jurisdictions arose* the government relied upon the doctrine of sover- eign and inherent power. It was there contended by the government that no legislative powers belong to a state government other than those which af- fect solely the internal affairs of the state" and that consequently all powers which are national in their scope must be found vested in the Con- gress ot the United States. This position was rejected by the Supreme Court in the following language! wThe argument of counsel ignores the principal factor in this article* to-wit, *the people** Its principal purpose was not the distribution of power between the United States and the s-fcates* but a reservation to the people of all powers not grant* ecU" In the case of United States v. Appalachian Electric Power Co* * 197 F* 2d 769* supra* decided in-November 1939* involving an interstate river, the Court¦ stated* • ¦*¦¦,. l!In this case* which so directly involves state and, feder- al rights* it is important to steadily keep in mind our consti- tutional distribution of power between the state and federal governments.1* Again in the same case the Court held that the control of water in a non-navlgable stream represented an exercise of the rights of the state* under th.e reserve powers of the Constitution* to control its internal af- fairs* The Court further saidt nTo prohibit the us.e of t£e river for a dam or other pur- pose, lawful under state laws* irrespective of navigation* -, , would be taking property without compensation.M Th.« national interest and a. coordinate plan of development are not con- trary to the recognition of states* rights in the water* but the idea of centralized control by the federal government of water of non**aavigable streams is abhorrent to those interested in the utilization of the water ire- sources of the west» The contentions of the federal government* above men- tioned* liave found expression in- many important water oases. This challenge to the spates' rights in water must be met on every occasion. Since the law respecting interstate waters* except, for the question of federal claims* which I have discussed* seems to be well established by a number of decisions of the. United States Supreme Court* there would seem to -58- |
