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the proposed State of Oklahoma shall be submitted to the people thereof for ratification or rejection, and submitting separately to the people of the proposed State of Oklahoma the proposed prohibition article, making substantially the terms of the enabling act uniformly applicable to the entire State, for ratification or rejection, and for the election of certain State, district, county, and township officers provided for by said proposed constitution, and for the election of members of the legislature of said proposed State of Oklahoma and for five Representatives to Congress,” is hereby ratified and shall be valid for all the purposes hereof." (Thorpe's Constitutions, op. cit., v. 7, p. 4271, 4323, 4339).

12. OREGON

Oregon had already adopted a constitution when it applied for admission into the Union. Congress in the preamble to the act of admission, of February 14. 1859, stated that it was "republican in form”; (11 Stat. 383 c. 33) but made certain propositions to the State (See Part I, No. 12, above). The Oregon constitution of 1857 contained no provision concerning water rights or public lands. (Thorpe's Constitutions, op. cit., v. 5, p. 2998–3018).

13. SOUTH DAKOTA

The enabling act of South 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. 13, 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 South Dakota on November 2, 1889 (26 Stat. 1549-1551).

The South Dakota constitution of 1889 contained the following provisions:

CONSTITUTION OF SOUTH DAKOTA, 1889

“ARTICLE XXII.--COMPACT WITH THE UNITED STATES “The following articles shall be irrevocable without the consent of the United States and the people of the State of South Dakota expressed by their legislative assembly :

Second. That we, the people inhabiting the State of South Dakota, do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundary of South Dakota ..."

ARTICLE XXVI.—SCHEDULE AND ORDINANCE

"Section 18. That we, the people of the State of South Dakota, do ordain: ...

“Second. That we the people inhabiting the State of South Dakota, do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries of South Dakota

"These ordinances shall be irrevocable without the consent of the United States, and also the people of the said State of South Dakota expressed by their legislative assembly.” (Thorpe's Constitutions. op. cit., v. 6, p. 3393–3394, 3400, 3401).

14. TEXAS

In the preamble to the joint resolution of December 29, 1845 for admission of Texas as a State into the Union, it is stated that the people of Texas had adopted a constitution and erected a new State with a republican form of government and that they had assented to the conditions in the joint resolution of March 1, 1845, (See Part I, No. 14, above) for annexing Texas (9 Stat. 108 No. 1).

The Texas constitution of 1845 made the following provision :

“CONSTITUTION OF TEXAS, 1845

"ARTICLE XIII.-SCHEDULE

“Section 13. The ordinance passed by the convention on the fourth day of July, assenting to the overtures for the annexation of Texas to the United States, shall be attached to this constitution and form a part of the same.”

There was no provision in the constitution concerning water rights, other than this assent to the conditions in the act of annexation. (Thorpe's Constitutions, op. cit., v. 6, p. 3568.)

15. UTAH

The enabling act of Utah, approved July 11, 1894 (28 Stat. 108–109 c. 138 4) provided for formation of a constitution and for an ordinance irrevocable without the consent of the United States. The same were to be submitted to the people and if they voted for the constitution the governor was to certify same to the President. If the provisions of the enabling act had been complied with the President was to issue a proclamation announcing the result of the election and thereupon Utah "shall be deemed admitted by Congress into the Union.” The President proclaimed the admission of Utah into the Union on January 4, 1896 (29 Stat. 876–877).

The Utah constitution of 1895 contained the following provisions:

“CONSTITUTION OF THE STATE OF UTAH, 1895

"ARTICLE III.--ORDINANCE

“The following ordinance shall be irrevocable without the consent of the United States and the people of this State:

“Second. The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof ...

“ARTICLE XVII.-WATER RIGHTS

“Section 1. All existing rights to the use of any of the waters in this State for any useful or beneficial purpose are hereby recognized and confirmed.” (Thorpe's Constitutions, op. cit., v. 6, p. 3705, 3728.)

16. WASHINGTON

The enabling act of Washington, 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. 16, 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 bad 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 Washington into the Union on November 11, 1889 (26 Stat. 1552–1553). The Washington constitution of 1889 contained the following provisions :

“CONSTITUTION OF THE STATE OF WASHINGTON, 1889

“ARTICLE XV.-HARBORS AND TIDE WATERS “Section 1. The legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city or within one mile thereof upon either side. The state shall never give, sell or lease to any private person, corporation or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than 600 feet of such harbor line (as the commissioners shall determine) be sold or granted by the State, nor its right to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets and other conveniences of navigation and commerce.

“Section 2. The legislature shall provide general laws for the leasing of the right to build and maintain wharves, docks and other structures upon the areas mentioned in section 1 of this article, but no lease shall be made for any term longer than thirty years, or the legislature may provide by general laws for the building and maintaining upon such area, wharves, docks and other struc

tures.

“Section 3. Municipal corporations shall have the right to extend their streets over intervening tide lands to and across the area reserved as herein provided.

“ARTICLE XVII.--TIDE LANDS

"Section 1. The State of Washington asserts its ownership to the beds and shores of all navigable waters, in the state up to and including the line of ordinary high tide, in waters where the tide ebbs and flows, and up to and including the line of ordinary high water within the banks of all navigable rivers and lakes: Provided, That this section shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state.

“Section 2. The state of Washington disclaims all title in and claim to all tide, swamp and overflowed lands patented by the United States: Provided, The same is not impeached for fraud.

"ARTICLE XXI.-WATER AND WATER RIGHTS

"Section 1. The use of the waters of the state for irrigation, mining and manufacturing purposes shall be deemed a public use.

“ARTICLE XXVI.—COMPACT WITH THE UNITED STATES

“The following ordinance shall be irrevocable without the consent of the United States and the people of this state: * * *

“Second. That 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 of this state * * *” (Thorpe's Constitutions, op. cit., 1. 7, p. 3999–4000, 4401, 40044005).

17. WYOMING

The act of admission of Wyoming, approved July 11, 1890 "accepted, ratified and confirmed”, the Wyoming constitution of 1889 (26 Stat. 222 c. 664 81). The following provisions in this constitution relate to water rights:

“WYOMING CONSTITUTION OF 1889

“ARTICLE NO. 1.-DECLARATION OF RIGHTS “Section 31. Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the State, which is providing for its use, shall equally guard all the varied interests involved.

ARTICLE NO. VIII.-IRRIGATION AND WATER RIGHTS “Section 1. The water of all natural streams, springs, lakes or other collection of still water, within the boundaries of the State, are hereby declared to be the property of the State.

“Section 2. There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisions; which shall under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion and of the various officers connected therewith. Its decisions to be subject to review hp the courts of the State.

“Section 3. Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests.

“Section 4. The legislature shall by law divide the State into four (4). water divisions and provide for the appointment of superintendents thereof.

“Section 5. There shall be a state engineer who shall be appointed by the governor of the State and confirmed by the senate; he shall hold his office for the term of six (6) years or until his successor shall have been appointed and shall have qualified. He shall be president of the board of control and shall have general supervision of the waters of the State and of the officers connected with its distribution. No person shall be appointed to this position who has not such theoretical knowledge and such practical experience and skill as shall fit him for the position.

“Ordinances

“The following article shall be irrevocable without the consent of the United States and the people of this State: .

“ 'Section 3. 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 ...'" (Thorpe's Constitutions, v. 7, p. 4119, 4138–4139, 4154).

REBECCA NOTZ

American Law Division. April 11, 1956.

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