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“Section 8. The general assembly shall provide by law that the board of county commissioners, in their respective counties, shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations" (Thorpe's Constitutions, op. cit., v. 1, p. 507).
The ordinance required to be provided by the constitutional convention concerning public lands (See Part I, No. 3, above) was not made a part of or attached to the constitution of 1876.
The act of admission of July 3, 1890 "accepted, ratified and confirmed” the constitution of Idaho of August 6, 1889, adopted by the people at the November 1889 election (26 Stat. 215 c. 656 8 1). Two provisions related to water rights :
“CONSTITUTION OF IDAHO, 1889
“ARTICLE 1.—DECLARATION OF RIGHTS “Section 14. The necessary use of lands for the construction of reservoirs or storage basins, for the purposes of irrigation, or for rights of way for the construction of canals, ditches, flumes, or pipes, to convey water to the place of use, for any useful, beneficial, or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the State, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the State.
“Private property may be taken for public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor.
"ARTICLE XV.-WATER RIGHTS
“Section 1. The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental, or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the State in the manner prescribed by law.
“Section 2. The right to collect rates or compensation for the use of water supplied to any county, city, or town, or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.
“Section 3. The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied. Priority of appropriation shall give the better right as between those using the water; but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall (subject to such limitations as may be prescribed by law) have the preference over those claiming for any other purpose; and those using the water for agri, cultural purposes shall have preference over those using the same for manufacturing purposes. And in any organized mining district, those using the water, for mining purposes, or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes. But the usage by such subsequent appropriators shall be subject to such provisions of law regulating the taking of private property for public and private use, as referred to in section fourteen of Article I, of this Constitution.
“Section 4. Whenever any waters have been, or shall be, appropriated or used for agricultural purposes, under a sale, rental, or distribution thereof, such sale, rental, or distribution shall be deemed an exclusive dedication to such use; and whenever such waters so dedicated shall have once been sold, rented, or distributed to any person who has settled upon or improved land for agricultural purposes with the view of receiving the benefit of such water under such dedication, such person, his heirs, executors, administrators, successors, or assigns, shall not thereafter, without his consent, be deprived of the annual use of the same, when needed for domestic purposes, or to irrigate the land so settled upon or improved, upon payment therefor, and compliance with such equitable terms and conditions as to the quantity used and times of use, as may be prescribed by law.
“Section 5. Whenever more than one person has settled upon, or improved land with the view of receiving water for agricultural purposes, under a sale, rental or distribution thereof, as in the last preceding section of this article, provided, as among such persons priority in time shall give superiority of right to the use of such water in the numerical order of such settlements or improve ments; but whenever the supply of such water shall not be sufficient to meet the demands of all those desiring to use the same, such priority of right shall be subject to such reasonable limitations as to the quantity of water used and times of use as the Legislature, having due regard, both to such priority of right and the necessities of those subsequent in time of settlement or improvement, may by law prescribe.
“Section 6. The Legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold, rented or distributed for any useful or beneficial purpose.”
The following provision relates to public lands:
ARTICLE XXI.-SCHEDULE AND ORDINANCE
“Section 19. . . And the people of the State of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof ..." (Thorpe's Constitutions, op. cit., v. 2, p. 920, 943–944, 952).
The act of admission, of January 29, 1861 stated, in the preamble that the Kansas constitution of July 29, 1859, “republican in form,” was ratified and adopted by the people at an election in October, 1859 (12 Stat. 126 c. 20). The act of admission after granting certain lands to Kansas, required the State to pass an ordinance concerning public lands (See, Part I, No. 5 above).
There was no provision in this constitution of 1859 concerning public lands or ownership and control of water, but the following resolution was included among the "Resolutions" attached to the constitution:
"Resolved, That Congress be further requested to pass an act appropriating fifty thousand acres of land for the improvement of the Kansas river from its mouth to Fort Riley" (Thorpe's Constitutions, op. cit., v. 2, p. 1261).
However, the act of admission stated :
“That nothing in this act shall be construed as an assent by Congress to all or to any of the propositions or claims contained in the ordinance of said constitution of the people of Kansas, or in the resolutions thereto attached” (12 Stat. 129 c. 20 § 3).
6. MONTANA The enabling act of Montana, approved February 22, 1889 (25 Stat. 679 c. 180 § 8) provided for formation of a constitution and passage of a certain ordinance by the constitutional convention (See Part No. 6, above) and for submission of same to the people. If the people voted for the constitution the result of the election was to be certified by the governor to the President. If the constitution was republican in form and if the provisions in the enabling act had been complied with, the President was to issue a proclamation announcing the result of the election and thereupon the State should be “deemed admitted by Congress into the Union”. The President proclaimed the admission of Montana on November 8, 1889 (26 Stat. 1551–1552).
The Montana Constitution of 1889 contains the following provisions concerning waters:
"MONTANA CONSTITUTION, 1889
"ARTICLE III.-A DECLARATION OF RIGHTS OF THE PEOPLE OF THE STATE OF MONTANA
“Section 15. The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use and the right of way over the lands of others, for all ditches, drains, flumes, canals and acqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use. Private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof, shall be first determined by a jury, and such
amount together with the expenses of the proceeding shall be paid by the person to be benefited.” (Thorp's Constitutions, op. cit., v. 4, p. 2302)
Appended to the constitution is the following ordinance:
"ORDINANCE NO. 1-FEDERAL RELATIONS
"Be it Ordained: First,
“Second. That the people inhabiting the said proposed State of Montana, do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof * * *
“Sixth. That the Ordinances in this Article shall be irrevocable without the consent of the United States and the people of said State of Montana.” (Thorpe's Constitutions, op. cit., v. 4, p. 2338)
The Nebraska act of admission, approved February 9, 1867 (14 Stat. 391-392 C. 36 § 1) "accepted, ratified and confirmed” the constitution of 1866, but required the State to accept the fundamental condition that there should be no denial of the elective franchise or any other right by reason of race or color. The assent to this condition was to be transmitted to the President and the President was to announce the fact by proclamation, “whereupon said fundamental condition shall be held as a part of the organic law of the State, and thereupon, and without any further proceeding on the part of Congress, the admission of said State into the Union shall be considered as complete". The President proclaimed admission on March 1, 1867 (14 Stat. 820–821).
The Nebraska constitution of February 9, 1866 provided :
“Section 1. The State shall have concurrent jurisdiction on all rivers bordering on this State, so far as such river shall form a common boundary to the State and any other State or Territory now or hereafter to be formed and bounded by the same. And the river Missouri, and the navigable waters leading into the Missouri, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the State as to the citizens of the United States, without any tax, impost, or duty therefor.
“Section 6. This constitution is formed, and the State of Nebraska asks to be admitted into the Union on an equal footing with the original States on the condition and faith of the terms and propositions stated and specified in an act of Congress approved April nineteenth, 1864, authorizing the people of the Territory to form a constitution and State government; the people of the State of Nebraska hereby accept the conditions in said act specified.” (Thorpe's Constitutions, op. cit., v. 4, p. 2358, 2360.)
The enabling act of Nevada, approved March 21, 1864 provided that in case a constitution was formed in compliance with the provisions of this act and the majority of the voters voted for same, the governor was to certify to same to the President and the President was to issue a proclamation declaring the state admitted into the Union, “without any further action whatever on the part of Congress”. (13 Stat. 31-32 c. 36 $5) The President proclaimed admission on October 31, 1864 (13 Stat. 749).
The Nevada constitution of 1864 provides :
“CONSTITUTION OF THE STATE OF NEVADA, 1864
"3. In obedience to the requirements of an Act of the Congress of the United States, approved March twenty-first, A. D. eighteen hundred and sixty-four, to enable the people of Nevada to form a Constitution and State Government, this Convention, elected and convened in obedience to said enabling Act, do ordain
as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada.
“Third. That the people inhabiting said Territory do agree, and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said Territory, and that the same shall be and remain at the sole and entire disposition of the United States * * *” (Thorpe's Constitutions, op. cit., v. 4, p. 2401–2402)
9. NEW MEXICO
The joint resolution to admit New Mexico as a State in the Union required New Mexico to make certain amendments to its constitution as a condition precedent to admission. These amendments had nothing to do with water rights. When the conditions of this joint resolution had been complied with, the President was to proclaim admission. Upon the issuance of said proclamation the proposed State so complying "shall be deemed admitted by Congress into the Union”. (37 Stat. 39–42, No. 8 § 1-6). The President proclaimed admission on January 6, 1912 (37 Stat. 1723).
The constitution of New Mexico adopted January 21, 1911 (N. M. Statutes, 1953, Ann. v. 1, p. 240-264) provides :
"NEW MEXICO CONSTITUTION OF 1911
“ARTICLE XVI.-IRRIGATION AND WATER RIGHTS
“Section 1. All existing rights to the use of any waters in this state for any useful or beneficial purposes are hereby recognized and confirmed.
“Section 2. The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.
“Section 3. Beneficial use shall be the basis, the measure and the limit of the right to the use of water.
“Section 4. The legislature is authorized to provide by law for the organization and operation of drainage districts and systems.
“ARTICLE XXI.-COMPACT WITH THE UNITED STATES
“In compliance with the requirements of the act of Congress, entitled, "An act to enable the people of New Mexico to form a Constitution and state government and be admitted into the Union on an equal footing with the original states; and to enable the people of Arizona to form a Constitution and state government and be admitted into the Union on an equal footing with the original states," approved June twentieth, nineteen hundred and ten, it is hereby provided :
“ 'Section 2. The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof * * * that no taxes shall be imposed by this state upon lands or property therein belonging to or which may hereafter be acquired by the United States or reserved for its use.
“ 'Section 7. There are hereby reserved to the United States, with full acquiescence of the people of this state, all rights and powers for the carrying out of the provisions by the United States of the act of congress, entitled, “An act appropriating the receipts from the sale and disposal of public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and acts amendatory thereof or supplementary thereto, to the same extent as if this state had remained a territory.
“ 'Section 9. This state and its people consent to all and singular the provisions of the said act of congress, approved June twentieth, nineteen hundred and ten, concerning the lands by said act granted or confirmed to this state, the terms and conditions upon which said grants and confirmations were made and the means and manner of enforcing such terms and conditions, all in every respect and particular as in said act provided.
“"Section 10. This ordinance is irrevocable without the consent of the United States and the people of this state, and no change or abrogation of this ordinance,
in whole or in part, shall be made by any constitutional amendment without the consent of congress." "
10. NORTH DAKOTA
The enabling act of North Dakota, approved February 22, 1889 (25 Stat. 679 c. 180 § 8) provided for formation of a constitution and passage of a certain ordinance by the constitutional convention (See Part I, No. 10, above) and for submission of same to the people. If the people voted for the constitution the result of the election was to be certified by the governor to the President. the constitution was republican in form and if the provisions in the enabling act had been complied with, the President was to issue a proclamation announcing the result of the election and thereupon the State should be "deemed admitted by Congress into the Union". The President proclaimed the admission of North Dakota on November 2, 1889 (26 Stat. 1548-1549). The North Dakota constitution of 1889 provides:
"CONSTITUTION OF NORTH DAKOTA, 1889
"ARTICLE 16.-COMPACT WITH THE UNITED STATES
"Section 203. The following article shall be irrevocable without the consent of the United States and the people of this state:
"2. The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof..
"This agreement shall take effect and be in force from and after the admission into the union, as one of the United States of America, of either the State of North Dakota or the State of South Dakota." (Thorpe's Constitutions, op. cit., v. 5, p. 2880-2881.)
The enabling act of Oklahoma of June 16, 1906 (34 Stat. 271, c. 3335 § 4) provided for formation of a constitution, which was to include certain specified provisions. (See Part I, No. 11 above) The constitution was to be submitted to the people and if the majority of the votes was for the constitution, the governor was to certify the result to the President. If the constitution complied with the requirements in the enabling act, the President was to issue a proclamation announcing the result of the election and Oklahoma was to be "deemed admitted by Congress into the Union". The President proclaimed admission of Oklahoma into the Union on November 16, 1907 (35 Stat. 2160-2161).
The following provisions are incorporated in the Oklahoma constitution of 1907:
"CONSTITUTION OF OKLAHOMA, 1907
"ARTICLE I-FEDERAL RELATIONS
"Section 3. The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof. . .
"Public roads, highways, and internal improvements
"Levees, Drains, and Ditches
"Section 3. The legislature shall have power and shall provide for a system of levees, drains, and ditches and of irrigation in this State when deemed expedient, and provide for a system of taxation on the lands affected or benefited by such levees, drains, and ditches and irrigation, or on crops produced on such land, to discharge such bonded indebtedness or expenses necessarily incurred in the establishment of such improvements; and to provide for compulsory issuance of bonds by the owners or lessees of the lands benefited or affected by such levees, drains, and ditches or irrigation.
"Section 36. The ordinance adopted by the constitutional convention, entitled, "An ordinance, providing for an election, at which the proposed constitution for