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is now being taken, that is, the 60 per cent. rule applying instead of cutting the candidates down to two, but that after the new ballot comes in, after the fifth ballot comes in, the list be cut down

to two.

George C. Manly:

In view of the importance of having a definite rule, I think this proposed change or amendment should be reduced to a definite written form before it is voted upon.

We may subject ourselves to the criticism of changing a rule during the game, and that sometimes is dangerous, as was illustrated here in the early days, in a gambling house, where a man had four kings, and bet rather heavily on the hand, and he was rather astonished to see another man rake in the stakes, but his attention was called to a sign on the wall of the room that the ace and deuce of hearts, three of spades and four of clubs and five of hearts constituted what was known as a "lulu", and led all other hands. (Laughter.) Our friend anxiously awaited for a "lulu" and by a miracle he got one, and started in to rake the stakes, when they called his attention to a sign on the other side of the room that the "lulu" could be played but once in an evening! (Laughter.)

Of course there was a rough house there.

Now, we have here present a hundred members of the Bar, and fifteen hundred members of the Bar have consented to definite

rules of this game. It seems to me we ought to proceed with caution for fear that some members of the Bar who are not present at this meeting may think we have put up another rule about this "lulu" here.

I think at least we ought to have this rule definitely set down in writing before we vote on it, so that after we get away from here we will not quarrel about what we actually agreed to here.

Charles C. Butler:

The reporter wants to know whether he should spell "lulu" with a capital L! (Laughter.)

President Dubbs:

The chair advises that he is unable to understand Mr. Manly's allusion. (Laughter.)

Charles C. Butler:

It is a "lulusion"! (Laughter.)

President Dubbs:

The chair simply stated its understanding of Judge Stimson's suggestion, in order to clarify the situation. Whether the chair has correctly understood Judge Stimson's suggestion or not it seems to me to be entirely proper that the resolution be put in formal shape. Whether Mr. Kelly desires to have the stenographer read the statement of the chair's understanding, and make that the basis of a written motion or not is entirely immaterial to the chair. I agree with the suggestion that we want to be absolutely certain here all along the line.

Harry E. Kelly:

I have no pride in framing this motion. Of course naturally I would not have, considering the condition it was in.

President Dubbs:

The chair understands that allusion!

Harry E. Kelly:

But I think we better have Mr. Lawrence Lewis, who has given most attention to this, draft a motion which he thinks puts into force the correct rule, and present it. I withdraw my motion in order to give him opportunity to do that. That may be presented under new business, and we can go ahead with the papers.

President Dubbs:

Is that the wish of the meeting? If there is no objection the chair will adopt the suggestion made so that we may proceed to the next order of business, which is address by Mr. L. Ward Bannister of Denver, on "The Question of the Federal Control of State Waters in the Priority States."

(For the address, see the Appendix.)

President Dubbs:

We will now have any discussion on Mr. Bannister's interesting address.

Millard Fairlamb:

I think the argument advanced by Mr. Bannister is the argument advanced in the presentation of this question before the District Court of the Seventh Judicial District, Water District No. 40, in which I heard Mr. Ward's very able argument, and advanced what I could in opposition thereto.

The position taken by the Government in that water adjudication was that they had the right by departmental reservation to reserve thirteen hundred second-feet of water claimed for the Uncompahgre Valley Reclamation Project. They did not attempt to prove appropriation and beneficial use, for the canal at that time had only run some three hundred and fifty second-feet of

water.

The argument advanced by Mr. Ward was that the Government was the appropriator and owner of water, but water was nothing but a mineral, and that as the Government could reserve proprietorship over the minerals in the public lands, as indeed it did by the enabling act, it had by virtue of ownership of the mountain ranges upon which the waters of Colorado fell, the right of proprietorship to those waters.

I think the argument has been wel! answered by my friend Mr. Bannister. Indeed it seems to me that if the Government permitted the waters to flow from land of which it was the possessor, just as the owner of a mill would lose tailings that would go from the mill down the stream and were abandoned and hence became a part of the soil of the lower proprietor, so the Government by not keeping the water on its own property would lose title thereto.

Another thing that militates against the idea that has been advanced is the fact that the lands of our State are steadily advancing into private ownership and there will be in the future no more reason for the Government contending that the ownership of water is vested in the Government than there is in the State of Iowa, where every foot of land on which rainfall comes is in private ownership. The tide of immigration and settlement of this country has been clearly indicated by Mr. Bannister.

It seems to me, with due deference to the able jurist who pronounced this decision in the Seventh Judicial District, Judge Cavender, that he did not take into consideration the eighth section of the reclamation act, which provides that the Government in building these reclamation projects shall conform to the laws of the State, and that in the acquisition of water rights, priority of appropriation and beneficial use shall be the measure and extent of the rights obtained by the Government in fathering these irrigation projects.

It seems to me that Mr. Bannister's presentation of the argument is one that can not be overthrown. I believe we need have no fear but that our Colorado doctrine of the right of sovereignty over the running waters of our State will stand. (Applause.)

Harry N. Haynes:

The interesting paper of Mr. Bannister reflects credit upon its author. It presents a subject of deep concern. The Federal Supreme Court naturally has refrained from exact definition of

the border line between state and national sovereignty except when essential to the particular facts before it.

The status of the national government having within its proper province the right of eminent domain over private lands, also proprietorship in other lands over which the State has general sovereignty, the exact dividing line and the true rule of comity between the two sovereignties, present very interesting questions in American constitutional law. Many of them must yet be solved by the gradual process of inclusion and exclusion through judicial opinion, as facts in special cases require.

Mr. Bannister's paper presents several matters of much interest.

I refer to one slight historic error which may have occurred in the early part of the paper, i. e., a statement to effect that the doctrine of riparian proprietorship has until recently been the only judicial doctrine in history.

In a limited sense, referring to judicial expression in England and in this republic before the gold discoveries in California, his statement is perhaps correct.

But in a broader sense, it is open to question. The Supreme Court of Arizona in Clough vs. Wing, reported in the 17th Pacific, in effect, says that in England the problem to be solved was how best to drain the water off the land and get rid of it, not how to save it to aid the husbandman. The latter has been the problem in the arid portions of the earth, where the custom of appropriating and using water for irrigation has been recognized long before the beginnings of the common law and is older than history. Evidences of it are found all over Arizona and New Mexico in the ancient canals of prehistoric people.

It is an interesting fact that both in the Eastern and Western hemispheres the emergence from the second to third stages of barbarism (on Fiske's classification) and from barbarism to civilization, was among those aggregations of mankind attracted from nomadic life to more fixed industry through the art of irriga

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