We can think of no constitutional objection to such a proceeding, when it is clearly established that with respect to surrounding circum stances and conditions the use is a public use; and, while it has been held that the law of the state is not conclusive upon this subject, the Supreme Court of the United States in numerous cases has determined that such a use as here described in the project under consideration is a public use. In Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 161, 17 Sup. Ct. 56, 64 (41 L. Ed. 369), the Supreme Court had under consideration the validity of the law of the state of California providing for the organization and government of irrigation districts. It was contended that the proceedings under the act with respect to an assessment upon certain land within the district, if upheld as constitutional, would result in the taking of the property of one person or class of persons and giving it to another-"an act," it was said, "of pure spoliation." It had been held by the Supreme Court of the state of California that the use of water for irrigation purposes under the provision of the state act was a public use, and a corporation organized by virtue of the act for the purpose of irrigation would be a municipal corporation, and organized for the promotion of the prosperity and welfare of the people. The Supreme Court of the United States, reviewing the provisions of the act and the considerations for its enactment, said: "Viewing the subject for ourselves and in the light of these considerations, we have very little difficulty in coming to the same conclusion reached by the courts of California. The use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect. In general, the water to be used must be carried for some distance and over or through private property, which cannot be taken in invitum if the use to which it is to be put be not public, and if there be no power to take property by condemnation it may be impossible to acquire it at all. The use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation. Cole v. La Grange, 113 U. S. 1 [5 Sup. Ct. 416, 28 L. Ed. 896]. A private company or corporation without the power to acquire the land in invitum would be of no real benefit, and at any rate the cost of the undertaking would be so greatly enhanced by the knowledge that the land must be acquired by purchase that it would be practically impossible to build the works or obtain the water. Individual enterprise would be equally ineffectual. No one owner would find it possible to construct and maintain waterworks and canals any better than private corporations or companies, and unless they had the power of eminent domain they could accomplish nothing. If that power could be conferred upon them, it could only be upon the ground that the property they took was to be taken for a public purpose. While the consideration that the work of irrigation must be abandoned if the use of the water may not be held to be or constitute a public use is not to be regarded as conclusive in favor of such use, yet that fact is in this case a most important consideration. Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual obstacle will therefore remain in the way of the advance of a large portion of the state in material wealth and prosperity. To irrigate, and thus to bring into possible cultivation, these large masses of otherwise worthless lands, would seem to be a public purpose, and a matter of public interest, not confined to the landowners, or even to any one section of the state." The conditions referred to in that case are almost identical with the conditions in the present case, and the opinion of the court is peculiarly applicable to the question under consideration. In Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, the action was brought in the state court of Utah by an individual landowner as plaintiff to condemn a right of way to enable the plaintiff to enlarge a ditch belonging to the defendants for the conveying of water across the land of the defendants for the purpose of irrigating plaintiff's land. The trial court found the facts to be that plaintiff's land was arid land and would not produce without artificial irrigation, but that with artificial irrigation the same would produce abundantly of grain, vegetables, fruits, and hay; that the use of the surplus waters of a certain creek which it was proposed to convey to plaintiff's land by the enlarged ditch was a public use; and that the plaintiff was entitled to a decree condemning a right of way across defendants' land for the purpose of carrying such surplus waters to the plaintiff's land. The case was taken to the Supreme Court of the United States as involving a constitutional question in the taking of defendants' land for a private use. Upon the facts stated in the findings of the trial court and having reference to the conditions stated it was held that the proceedings did not in any way violate the Constitution of the United States. In Strickley v. Highland Boy Mining Co., 200 U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, the action was also brought in a state court of Utah to condemn a right of way under a statute of the state for an aërial bucket line across defendant's placer mining claim. It was objected that the right of way was solely for private use, and that the taking of the land for that purpose was in violation of the Constitution of the United States. The statute was held to be constitutional, and the proceeding upheld by the Supreme Court of the state, and the decision affirmed by the Supreme Court of the United States. In the case of Bacon v. Walker, 204 U. S. 311, 316, 27 Sup. Ct. 289, 290, 51 L. Ed. 499, it was said with respect to the last-named case that it "was the recognition of the power of the state to work out from the conditions existing in a mining region the largest welfare of the inhabitants." This is the theory upon which the laws relating to the irrigation and reclamation of arid lands is based, and justifies the laws of the states upon the subject and the co-operation of the United States under the act of June 17, 1902. The objection that the United States has no constitutional authority to enter into such co-operation and engage in the business of organizing and maintaining irrigation and reclamation projects of the character provided by the act of June 17, 1902, is equally untenable. The act was held constitutional by this court in United States v. Hanson, 167 Fed. 881, 93 C. C. A. 371, and we can add but little to what was said in that case. But, considering the provisions of the act in view of the specific objections against its constitutionality in this case, we must say that our opinion is not shaken as to the correctness of that decision. The policy of reclaiming the arid region of the West for a beneficial use open to all the people of the United States is as much a national policy as the preservation of rivers and harbors for the benefit of navigation. President Roosevelt, in his message to Congress in 1901, in urging the legislation which resulted in the passage of the reclamation act, made use of language applicable here. He said: "It is as right for the national government to make the streams and rivers of the arid region useful by engineering works for water storage as to make useful the rivers and harbors of the humid region by engineering works of another kind. The storing of the floods in reservoirs at the headwaters of our rivers is but an enlargement of our present policy of river control, under which levees are built on the lower reaches of the same streams." Again he says in the same message: "The reclamation and settlement of the arid lands will enrich every portion of our country, just as the settlement of the Ohio and Mississippi Valleys brought prosperity to the Atlantic states. The increased demand for manufactured articles will stimulate industrial production, while wider home markets and the trade of Asia will consume the larger food supplies and effectually prevent Western competition with Eastern agriculture. Indeed, the products of irrigation will be consumed chiefly in upbuilding local centers of mining and other industries, which would not otherwise come into existence at all. Our people as a whole will profit, for successful home making is but another name for the upbuilding of the nation." That the United States may, where the circumstances and conditions require it, reserve the waters of a river flowing through its public lands for a particular, beneficial purpose, was held by this court in Winters v. United States, 143 Fed. 740, 74 C. C. A. 666, and 148 Fed. 684, 78 C. C. A. 546. This decision was affirmed by the Supreme Court of the United States in Winters v. United States, 207 U. S. 564, 577, 28 Sup. Ct. 207, 212, 52 L. Ed. 340, where the court said: "The power of the government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 702 [19 Sup. Ct. 770, 43 L. Ed. 1136]; United States v. Winans, 198 U. S. 371 [25 Sup. Ct. 662, 49 L. Ed. 1089]." To the same effect was the decision of this court in Conrad Inv. Co. v. United States, 161 Fed 829, 831, 88 C. C. A. 647. The authority of the United States to reserve the waters of its streams in the arid region for a beneficial purpose has been recently extended to the settlement of a long-standing controversy between the United States and Mexico respecting the use of the waters of the Rio Grande. By the Act Feb. 25, 1905, c. 798 (33 Stat. 814), the provisions of the reclamation act of June 17, 1902, were extended to the portion of the state of Texas bordering upon the Rio Grande which could be irrigated from a dam constructed near Engle in the territory of New Mexico. This act was passed for the purpose of enabling the United States to carry into effect the terms of a proposed treaty or convention with Mexico, which was afterwards signed on May 21, 1906 (34 Stat. 2953). This treaty or convention provided that: "After the completion of the proposed storage dam near Engle, New Mexico, and the distributing system auxiliary thereto, and as soon as water shall be available in said system for the purpose, the United States shall deliver to Mexico a total of 60,000 acre-feet of water annually, in the bed of the Rio Grande at the point where the head works of the Acequia Madre, known as the Old Mexican Canal, now exist above the city of Juarez, Mexico." By the Act March 4, 1907, c. 2918 (34 Stat. 1357), an appropriation of $1,000,000 was made available as needed, and to be expended under the direction of the Secretary of the Interior, for the construction of the above-mentioned dam in connection with the irrigation project on the Pio Grande. By the Act June 12, 1906, c. 3288, 34 Stat. 259 (U. S. Comp. St. Supp. 1909, p. 603), the provisions of the reclamation act were extended so as to include and apply to the state of Texas, where there never has been any public lands of the United States, but where such streams as the Pecos and the Rio Grande, rising in New Mexico, a territory of the United States, and flowing into Texas, have become important factors in the irrigation and reclamation of the arid lands of that state. This legislation illustrates the scope of the reclamation act and its purpose in preserving the waters and reclaiming the arid lands of the Western states, where, as said in Kansas v. Colorado, supra: "The national government is the most considerable owner, and has power to dispose of and make all needful rules and regulations respecting its property." The judgment of the Circuit Court is affirmed. UNITED STATES v. ALLEN et al.† (Circuit Court of Appeals, Eighth Circuit. June 8, 1910.) ON ALIENATION BY ALLOTTEES 1. INDIANS (§ 15*)-LANDS-RESTRICTION RIGHT OF UNITED STATES TO ENFORCE BY SUITS. The plan of the United States government in dissolving the Five Civilized Tribes of Indians and distributing their lands in severalty was a great governmental project, having for its object the social and industrial advancement of the Indians, and the various acts pertaining thereto must be construed in consonance with such purpose and not merely as real estate transactions, The relation of the government to the Indians is not to be measured by the law governing the ordinary relation of guardian and ward, nor are the limitations imposed on the alienation of land governed by the strict rules of law relating to grantor or grantee, but the United States, by virtue of its peculiar relationship to the Indians and to prevent the policy to be worked out through such legislation from being defeated may enforce such restrictions on alienation in the courts although retaining neither a legal nor an equitable estate in the lands after the allotment. [Ed. Note.-For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. Dig. § 15.*] 2. INDIANS (§ 15*)—LANDS--Right oF UNITED STATES TO MAINTAIN SUITS— CONSTRUCTION OF STATUTE. The provision of Act May 27, 1908, c. 199, § 6, 35 Stat. 314, that "nothing in this act shall be construed as a denial of the right of the United States to take such steps as may be necessary including the bringing of any suit to acquire or retain possession of restricted Indian lands in cases where deeds, leases or contracts * have been or shall be made contrary to law with respect to such lands prior to the removal therefrom of restrictions upon the alienation thereof, such suits to be brought on the recommendation of the Secretary of the Interior, without costs or charges to the allottees the necessary expenses incurred in so doing to be defrayed from the money appropriated by this act" is more than a saving clause and when read in connection with the part of the section appropriating $50,000 to cover the expenses incurred in such litigation is an implied grant of power to maintain such suits •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Rehearing denied August 20, 1910. and such power extends to suits relating to allotments which were freed from restrictions by section 1 of the act in respect to conveyances or contracts previously made. [Ed. Note. For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. § 15.*] 8. STATUTES (§ 185*)-CONSTRUCTION-IMPLIED PROVISIONS. That which is implied is as much a part of a statute as that which is expressed. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 264; Dec. Dig. § 185.*] 4. STATUTES (§ 217*)-CONSTRUCTION-EXTRINSIC EVIDENCE TO AID CONSTRUCTION. The effect of a statute actually passed by Congress cannot be narrowed by reference to a bill which was never voted on, but was merely proposed in committee. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 293; Dec. Dig. § 217.*] 5. INDIANS (8 31*)-PROTECTION OF RIGHTS BY UNITED STATES-EFFECT OF GRANTING CITIZENSHIP. The grant of citizenship to the Indians in Indian Territory by Act Feb. 8, 1887, c. 119, 24 Stat. 388, as amended by Act March 3, 1901, c. 868, 31 Stat. 1447, was intended for their protection, and was not a renunciation by the United States of the authority which it had always exercised to adopt such measures as in its judgment were wise for the protection of the Indian in his rights. [Ed. Note. For other cases, see Indians, Cent. Dig. § 23; Dec. Dig. § 31.*] 6. INDIANS (§ 15*)-SUITS RESPECTING LANDS-PARTIES. To a suit brought by the United States under the authority conferred by Act May 27, 1908, c. 199, § 6, 35 Stat. 314, to set aside a deed, lease, or contract made by an Indian allottee in violation of the statutory restrictions on alienation, the allottee is not an indispensable party. [Ed. Note. For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. § 15.*] 7. PARTIES (§ 51*)-INDISPENSABLE PARTIES-RULE GOVERNING. It is not the mere convenience of the parties before the court that renders absent parties indispensable, but the protection of the rights of those absent parties. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 76, 77; Dec. Dig. § 51.*] 8. EQUITY (§ 150*)-PLEADING MULTIFARIOUSNESS OF BILL. A bill filed by the United States to cancel a large number of separate conveyances made by individual Indian allottees to the several defendants as invalid, because made in violation of a statute imposing restrictions upon the alienation of the land by the Indians, is not multifarious. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 371-379; Dec. Dig. 150.*] 9. INDIANS (§ 31*)-RESTRICTION ON POWER TO ALIENATE LAND-POWER OF CONGRESS TO EXTEND. It is within the power of Congress to enlarge the period within which an Indian allottee is prohibited from alienating his land beyond that imposed when the allotment was made, so long as the land is held by the allottee, although in the meantime he may have been made a citizen. [Ed. Note. For other cases, see Indians, Cent. Dig. § 23; Dec. Dig. § 31.*] Adams, Circuit Judge, dissenting. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |