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The right of the state to recover depends upon the validity of an act of the legislature (Sec. 8, Chapter 252, Laws of 1907) which provides that:
"Every municipality, corporation, or private person now diverting the water of streams or lakes with outlets for the purpose of a public water supply shall make annual payments . . . to the state treasurer for all such water hereafter diverted in excess of the amount now being legally diverted: Provided, however, no payment shall be required until such legal diversion shall exceed a total amount equal to one hundred (100) gallons daily per capita for each inhabitant of the municipality or municipalities supplied, as shown by the census of one thousand nine hundred and five."
The city of Trenton contended: (1) That it may divert, without limitation as to quantity and without license fee, all the water from the Delaware River required for the use of the city and its inhabitants under a right acquired by the Trenton Water Works by grant direct from the state, March 24, 1852, which right the city acquired by purchase from the water company; (2) that the Act of the Legislature, supra, imposing a fee or charge, offends against the contract clause of the federal Constitution, and that it takes property owned by the city in its private or proprietary capacity for public use without just compensation and without due process of law, in violation of the due process clause of the Fourteenth Amend
As to this contention of the city, the United States Supreme Court held in substance that:
The state has the power and it is its duty to control and conserve its water resources for the benefit of all its inhabitants, and the Act of 1907, supra, was passed in accordance with the policy of the state to prevent waste of its water resources. The determination of the conditions of diverting water is a legislative function, and the state may grant or withhold the privilege at its pleasure. The city could acquire the right to divert water for the use of its inhabitants only by grant from the state or by authorized purchase or condemnation from one to whom the state had granted the right.
Although the Trenton Water Works, the grantor, had received from the state a perpetual right, unencumbered by license fee or other charge, to take all the water needed for the use of the city and its inhabitants, it does not therefore follow that the state as against the city, the grantee, is bound by the contract and is powerless to impose such a charge as the act provides for. The city cannot possess a contract with the state which the state cannot change or regulate by legislation. The relations that existed between the state and the water company were not the same as those existing between the state and the city. The water company was organized for profit, and its property and rights were privately owned and therefore protected by the contract clause and the due process clause of the federal Constitution which the city here seeks to invoke against the Act of 1907, supra. The city is a political subdivision of the state cre
ated as an agency to exercise such governmental powers as are entrusted to it, and the state may grant, withhold, or withdraw powers and privileges as it sees fit. The state has power to divert water from the sources of supply for the use of its inhabitants and it may grant this power, subject to regulation, to a water company, or perform it directly, or delegate it to bodies politic created for that purpose, or to the municipalities of the state.
The power of the state over the rights and property of cities held and used for governmental purposes is unrestrained by the contract clause or the due process clause of the Fourteenth Amendment. The distinction between the governmental and proprietary capacities of a municipality confers no right upon the city to invoke the contract clause or the due process clause of the Fourteenth Amendment of the federal Constitution against the state's imposing a license fee or charge on the taking of water from streams, though the city takes such water under rights acquired by the purchase of the property of a water company, to which the state had granted. such right.
The contention of the city that the imposition by the state of a fee or charge on the diversion of water violates the federal Constitution raises no substantial federal question on writ of error to the state court.
The language of the court is clear. The decision is unquestionably right in principle, and it is also in harmony with the former opinions of the court in the cases of East Hartford v. Hartford Bridge Co. 10 How. 511; Barnes v. District of Columbia 91 U. S. 540; Mt. Pleasant v. Beckwith 100 U. S. 514; Worcester v. Street Railway Co. 196 U. S. 539; Hunter v. Pittsburgh 207 U. S. 161; and other cases cited by the court.
It is a settled principle under our system of constitutional government that the legislature of each state is vested with general legislative powers and may do anything that is legislative in character, if it be not prohibited by the constitution of the state or of the United States. And under this general power to legislate, the legislature not only may provide, but it is its duty to provide by law (where the state constitution itself makes no provision) for the creation, powers, alteration, and abolition of all kinds of public corporations.
C. MARTIN ALSAGER.
PROPERTY-ESTATES CUTTING DOWN A FEE. Whatever be the rule in case of deeds (I. L. R. XIV 152, 153, 225, 226, 458) it is settled that a fee may be cut down by subsequent language in a will: Ashley v. McClintock 271 Ill. 259, 263; Defrees v. Brydon 275 Ill. 550; Bradley v. Jenkins 276 Ill. 162, 163; Boyle v. Moore 299 III. 573, 575; Boye v. Boye 300 Ill. 511; Bohn v. Irvington 303 Ill. 84, 85 (I. L. R. XVII 522). But the intention to give a conditional or determinable fee must be clear, as if, what the testator does is to give an absolute fee to start with, an attempted limitation
over of what may remain at the death of the first taker, does not pass anything for the very good reason that there is then no estate left to pass: Williams v. Elliott 246 Ill. 552. That situation is to be distinguished, however, from the one where the first taker gets less than a fee, but gets also a power to use as much of the fee as he may desire, and there is a remainder over of what may be left at his death: Bradley v. Jenkins 276 Ill. 163; Boyle v. Moore 299 Ill. 573; Boye v. Boye 300 Ill. 511; Bohn v. Irvington 303 Ill. 84, 85. In Cooper v. Martin 308 Ill. 225, N. E. ..., the conveyance was, X, testator, to his wife and to their children jointly, "my wife to enjoy her share during her life, after death to descend as provided by law." This the court said was a conveyance in fee in joint tenancy, and the provision that the wife's share descend "as provided by law" was nothing but a statement of what would happen to any estate in fee upon the death of the owner if he did not dispose of the fee in his lifetime. In other words, the language was as consistent with an intention for the wife to have the fee as it was with an intention to cut her estate down to a life estate or other estate less than a fee, for, in order to operate to cut down a fee, the language must be as clearly expressive of that intention as the clause giving the fee in the first place was to give the fee: Wiltfang v. Dirksen 295 Ill. 365.
E. M. L.
MUST THE COURT Examine THE EXHIBITS IN A LIQUOR CASE? -In State v. Mullen (Mont. 1922) 207 Pac. 634 the dissenting opinion (Galen, J.) says inter alia:
"The passage of the prohibition amendment to the federal Constitution did not inaugurate a reign of legislative despotism to be carried out by snooping constables or peace officers, as to them may seem expedient. The Constitution was amended, not abrogated, and searches and seizures are to be made today as yesterday, according to the law of the land.
"I do not believe that my learned and worthy associates fully appreciate the importance of the principle laid down in this decision. To my mind, it knocks at the very foundation of guaranteed constitutional rights of the people, and I feel that I should be derelict in the performance of my duty were I not to voice emphatic protest. Under this decision, every person who carries a container for liquids may be subjected to an invasion of personal rights and privileges-the messenger who flies from the dairy with pasteurized product of the cow, in basket or bottle, to the infant in the nursery, as well as the druggist clerk who carries a demijohn or flask which cheers the expiring moments of the sick or aged on their hospital cots. My brothers at the bar had best discard their green bags and portfolios for fishnets, in order to avoid inquisitive constables attracted by a bulging bag, from mussing their papers while forcing an inspection.
"The learned trial judge was in far better position, after the hearing and examination of the exhibits, to make determination of probable cause for the arrest of the defendant and the seizure of the grip and contents than the sheriff could possibly have been at the time of the arrest. The sheriff could only suspect and surmise, but the judge found,
among other facts, that the hand bag 'contained one two-gallon demijohn full of whisky of an excellent quality, and not of the moonshine variety.' It is not clear from the record, however, upon just what proof this judicial determination was made."
The proposition contended for by the minority perhaps throws some light on the reporter's note in Rex v. Turlington (Hilary Term I Geo. III, B. R. 1761) 2 Burr. 1115, which recites that "the court was now full again."
PROPRIETARY RIGHTS IN LANDS UNDERLYING LAKES AND STREAMS.-The case of Brewer-Elliott Oil & Gas Co. v. United States 43 Sup. Ct. Rep. 60 involved the contention there made by the appellants that the United States was not empowered to grant to Indians the rights in the beds of navigable streams, because the Louisiana Purchase Treaty bound it to give such navigable beds to the several states, and, therefore, the United States held them in trust for the public and could not make private grants thereof. The court, however, found it unnecessary to decide either that question, or the one that would follow its decision in favor of the public trust theory, whether or not the grant to the Indians was for a public purpose. Instead the court held that the river, ownership to the bed of which was thus in controversy, was a non-navigable river in fact.
But, in that decision, the court was confronted with another point of extreme nicety. What rules should govern to determine if the river was navigable in fact or non-navigable in fact-the state or the federal, for they are different (ILL. LAW REV. XVII 61)? Upon that question the court makes this refinement, apparently: That laws of the state apply to land titles in all cases except where the United States has not in any way provided otherwise, and that would be true even to the extent of applying a state rule of navigability of waters. That definition is good, so far as definitions go. But the question remains: When is there a situation where the United States has provided otherwise? Apparently, there was one such situation presented in the principal case by the fact that the grant to the Indians was of lands bounded on the one side "by the main channel of the Arkansas River." The effect of this language was to give title to land below the high water mark and to this extent the United States had "provided otherwise." (See "Some Observations on the Illinois Decisions Affecting Proprietary Rights in Illinois Lands Underlying Lakes and Streams": ILL. LAW REV. XI 540.)
E. M. L.
PROPERTY-ESTATES "DIE" WITHOUT ISSUE-VESTING AT EARLIEST POSSIBLE MOMENT.-In Bookless v. Charnoch 307 Ill. 578, the limitations were, X, testator, to A, her son [no designation of quality of estate given] subject to the following conditions: (1) A to pay part of the income to B, husband of X, and father of A, (2) If A die before B, then the income but not the fee to go to B,
(3) In the event of A dying without issue surviving him, then to C, a nephew of X, in fee. In the last limitation, the one to C, appeared the language: "this bequest not to negative any of the provisions or bequests in sections 2, 3 and 4 of this will, and not to interfere with the provisions in section 2 of this will in the event that my said husband shall die before my son." Section 2 contained the limitation above referred to as X, testator, to her son, and sections 2, 3 and 4 contained the rest of the problem above except the limitation to C, the nephew, which as already indicated appeared in section 5.
In the condition of title thus presented, B died before A, and the problem as presented in this litigation involved the inquiry: Did A get a fee simple title absolute, or was his interest conditional on his having issue living at his death? The court, looking for the intention of the testatrix found it to be that of vesting the son, A, with the fee simple interest if he survived B, his father, the provision over to C being only if A died before the death of B. The court was persuaded to this view, it would seem, largely by the inclusion in section 5 of the will of the language quoted above, and particularly by the provision that the bequest in that section should not interfere with section 2 if the husband died before the son, that contingency having happened. It is believed there can be no serious difference in opinion about the correctness of the conclusion.
But assume that this section 5 contained no such language as is quoted above. Should that have changed the result? Upon that it may be suggested that the limitation over that must be pointed to, to determine that question, is the one which gives the fee to the nephew, C, in the event of A dying without living issue of his body. And that at once provokes the inquiry, "When?" As of what time must A have died without living issue of his body?
A very similar case appears in Lee v. Roberson 297 Ill. 328, where the limitation was X, testator, to A, subject to dower of X's wife, A's mother, A to take care of his mother and raise the family. If A dies without heirs, then the estate to be divided among X's living heirs. The court applied the rule quoted in ILL. L. REV. XVII 630 that where the devise over is to take effect if the first taker dies under circumstances which may or may not happen, unless controlled by other provisions of the will, it will take effect upon the death of the first taker under the circumstances specified, either before or after the death of the testator. That conclusion gave A, in that case, a fee simple determinable only.
In that case, however, the limitation over was not coupled with any life interest or estate, and in that aspect of it should be distinguished from the principal case now under discussion. In the principal case the limitation over in express words contemplates the life interest of the father. That at once introduces into the limitation a stage with reference to which the rule vesting at the earliest moment may apply. Accordingly, it would seem, the same result might follow as was seen in the case of Risser v. Ayers 306 Ill. 293, commented upon in ILL. L. REV. XVII 620, with the result that while