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The question being an open one in the Supreme Court let us, with deference, assume to consider what the decision ought to be.

In the ensuing discussion, the phrase "political state”, tautological though it may be, will be used as the equivalent of the term "state" in political science

“A particular portion of mankind viewed as an organized unit”. 17

and in contradistinction from a member state of the Union. For such a member, the word state or commonwealth is reserved. Viewed from the standpoint of political science the federal government and the commonwealth are but agencies of that one of the world's political states, called the United States of America.

With confusion of terms out of the way the first thing for us to do is to acknowledge the distinction 18 between sovereignty and ownership, between imperium and dominium. For it may be said that if prior to the statehood of the priority states the relation to the United States to the running streams was one of ownership or property, either in the waters themselves or in their use, then the United States is the owner still, for it is not permissible to argue that there is anything in the conferment of statehood, which, any more requires a transfer to the state of property in respect to waters, than in respect to lands or anything else. All that is necessary is a transfer not of property but of sovereign jurisdietion. Of whaterer, on conferment of statehood, the United States remained the owner, of that, congress, under the constitutional provision already alluded to, retained full power of disposition. But if the relation of the United States to the waters was one of sovereign jurisdiction and not of ownership, then, it may be that the power of disposition passed, upon conferment of statehood, to the states and now belongs to them.

1. Burgess on Political Science and Constitutional Law, p. 53.

19 Mobile vs. Eslava, 41 V. S., 233; Willey et al vs. Decker et al., 11 Wyoming, 496.

There are some who, assuming that the United States had a property in the waters or in the use of them, contend that the property right passed to such of the priority states as had state constitutional provisions asserting state or public ownership of the waters. If this be the only theory of supporting a power in the state to dispose of the waters, only some of the states would have the power, for only some have constitutional provisions of this character. Furthermore, since the primary purpose of the process of admitting a state into the Union is to admit it into the Union rather than to make contracts transferring property of the United States to the state, there are good reasons to doubt, especially as to certain states, whether such provisions should have the contractual effect thus ascribed to them.

Let us recur to the distinction between sovereignty and ownership. For a political state to exercise sovereignty throughout its geographical sphere is one thing; to own in a strict proprietary sense what is within that sphere is another. With applications of this distinction, we are already familiar. The very ground on which this annual meeting is held is not the property of any political state. It is private property.

It is private property. Yet over it the state of Colorado exercises the general sovereign jurisdiction-the jurisdiction for all purposes except the delegated few in respect to which the federal government also exercises jurisdiction.

Most political states do not own the greater number of things within their borders, but permit them to be owned privately, exercising, however, sovereign jurisdiction over them. Many things, of course, political states actually own; for example, governmental buildings, museums, libraries, and frequently public service instrumentalities. In these instances the political states sustain the dual relation of sovereign and owner. More things, indeed everything, could be owned by the political state if the latter wanted to become the owner. All that would be necessary would be the

Such a

exercise of the sovereign jurisdiction in that behalf. complete exercise, however, would be unwise, and is unlikely. We sometimes loosely speak of political states "owning'

" things which they do not own. From the deck of our steamer we may spy an island and be told that the island “belongs” to or is "owned” by France and this without regard to whether the muniments would show title in France or in some of her citizens. Evidently, in such a case, all that is meant, is, that France is the political state exercising sovereignty over the island. If such a relation be "ownership" then there are two kinds of ownership political and proprietary, from which no confusion will arise if only we remember that the former is jurisdiction, control, regulation—not property at all. In this discussion the term "ownership”, in the absence of special indication to the contrary, will be used only as the equivalent of "proprietary ownership”.

As to lands of the United States situated within a state, the relation of the United States thereto is one of ownership, not of sovereignty, while that of the state is one of sovereignty, not ownership, except that where the lands are bought by the consent of the state legislature for "forts, magazines, arsenals, dockyards and other needful buildings", the sovereign and proprietary powers are, under the federal constitution 19 united in the United States. Said the United States Supreme Court, in Pollard vs. Ilagan,20 in a case involving the relation of the United States to certain of its lands within a state

“The United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted”.

19 U. S. Const.. Art. 1, Sec. 8, Clause 16. 30 3 Howard (U. S.), 212.

The same court, in Kansas vs. Colorado, 21 declared :

“These arid lands are largely within the territories, and over them by virtue of the second paragraph of section 3 of Article IV, heretofore quoted, or by virtue of the power vested in the national government to acquire territory by treaties, congress has full power of legislation, subject to no restrictions other than those expressly named in the constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states, at least of the western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found, mainly if not only in the western and newer states, yet the powers of the national government within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto congress has acted in disregard to this limitation".

The distinction between sovereign jurisdiction and ownership is not one of quantity—as between the whole and the partbut of cause and effect. It is one of the functions of sovereign jurisdiction to create ownership-in other words, to determine what things are not subject to ownership and what things are, and as to the latter who shall own them and how the ownership may come about, and what shall be the estates in the things owned. The ownership created may be either private or in the political state itself, but whether in the one or in the other, or not created at all, the political state still possesses what is greater, although different—the supreme power of sovereign jurisdiction over persons and things within its geographical sphere, and through its exercise, now in this direction, now in that, may accomplish this or that result of legal significance, whether it be ownership, rule or contract, definition of crime, or whatnot. It is to be noted, however, that because sovereign jurisdiction has the power to accomplish this or that result we are not to infer necessarily that it has done so. A result can not exist before it is caused. There are many things which sovereign jurisdiction can do, but which it has not done. Declaring all crimes capital is one of them. Making statutes of limitations different from what they are is another. Possibly to come directly to our question and to take the United States as an example, the creation of ownership or property in the United States either in running waters, or in the use of the running waters, on the public domain later and now included within the priority states, is yet another.

21 206 U. S., 46, 92.



The weakness in the advocacy of the Colorado doctrine has been too much mere assertion that the power of disposition of the waters is in the state as an incident of state sovereignty, without showing why. The advocates of the California doctrine have been, on the other hand, equally presumptuous in expecting us to take for granted their fundamental premise that prior to statehood the United States owned the waters or owned rights of using the same in a proprietary sense.

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