prietor could interfere with the State or its laws, and the United States Government should not attempt to do so.

In addition to the oral arguments, the following statement, setting forth the legal and constitutional objections to these bills in more orderly form, is submitted:

Statement of points in connection with Senate bills 4733 and 5486, wherein said bills exceed the authority of the United States under the Constitution of the United States and invade the authority and rights of the respective States, including the prohibition with respect to unequal taxation and the invasion of the police powers of the State by the Federal Government.

Referring first to Senate bill No. 4733, section 2: Without discussing whether or not the Government may withdraw from disposition and entry the public land, it is clear that under the Constitution it can not withdraw or withhold from the States, and those authorized by the States, authority to construct roads, highways, canals, transmission, telephone, telegraph lines, and railways for the purpose of communication between different portions of the State and the development of its resources by the State and its authorized agents or citizens. Whether the Federal Government may or may not permanently withdraw and withhold the lands within a State from disposition, it certainly can not suspend the right of eminent domain in the State which extends over the government lands as well as other lands, and which may either be provided for by permitting actions in eminent domain or by acts of Congress allowing such uses as could be acquired by eminent domain without restrictions, except such as are reasonable to protect the proprietary rights of the Government, and not such as permit its exercising any sovereign power or imposing any restrictions or charges otherwise unauthorized by the Constitution.

Section 3: This memoranda is not designed to deal with the question of classification of these lands, and, therefore, neither affirms or denies the authority of the Federal Government to make such classifications. In no event, however, could such classifications be used for the purpose of interfering with or obstructing the police powers of the State, or the development of its resources.

Section 8: It will be observed this section provides that the proceeds realized shall be two-thirds retained by the Federal Government and one-third paid to the States for certain restricted uses. Without discussing this question, it may be observed that obviously the Federal Government could not dictate the uses to which the State could put the money if it was authorized to receive the same.

Section 9: This memoranda is not intended to deal with or discuss the question of the mineral lands or oil or coal lands. You will observe, in passing, however, that unless the uses and transactions referred to otherwise fall under the provision of the act approved July 2, 1890, referred to, that no condition could be appended to any transactions concerning the public lands that could make them subject to a law otherwise inoperative within the State.

As to section 11: While this section is not within the scope of this argument, it ought to be observed that the apparent effect of its provisions would be to withdraw from homestead entry the lands so

classified as forest lands, which we presume is not the intention of Congress, if any portion thereof are suitable for the making of homes.

Section 12 exceeds the constitutional powers of the Federal Government and violates the rights and police powers of the several States in the following respects:

(1) The lands themselves, except such portions thereof as are necessary for rights of way, reservoirs, and structures in connection with power developments, should not be withdrawn at all, but should. be left open to agriculture or other uses. The provision for a lease of twenty-five years would clearly conflict with the public use thus to be initiated under the authority of the State. The right to the water being a public use and the development and sale of electricity being also a public use, the right and duty is in the State to regulate and compel a continuance of the service. Therefore the imposition of any term of use by the Federal Government would be the assumption of a power to deny such use and continued service, although required and compelled by the state laws.

Obviously no such restriction can be imposed by a private owner or the Government within a State with respect to a public use, the continued service of which the State has a right to enforce and compel. The provision for an income tax on "the gross earnings inuring directly or indirectly from the developments, operations, and uses of the water power" is so clearly violative of the constitutional inhibition against any excise tax not uniform throughout the United States, and is such a direct interference with the right and duty of the State to fix rates as to call for no discussion. The authorities which we have cited to the effect that the Federal Government, under the guise or cover of the public lands, could impose no such charge or restriction in any State are so conclusive that the subject merits no discussion.

The provision as to the business of the power company coming under the act approved July 2, 1890, is clearly unconstitutional. The business of the power company, if wholly within the State, is subject only to the regulation and laws of that State, and of course if the business of the company was such as to cause it to fall within the act referred to by virtue of its general provisions, the act would then be applicable in any event, but it can not possibly be maintained or successfully contended that the Government could cause a general law to operate within any State in connection with the public lands where it would not operate in the same way if there were no public lands therein. The decisions of the Supreme Court of the United States cited in our brief are perfectly conclusive upon this point.

Section 13: The provision of this section that the Secretary of the Interior is authorized to make rules and regulations is, of course, proper and applicable in so far as the act is for the purpose of disposing of the public lands or protecting the Government's property interest thereon. In so far, however, as such rules and regulations would apply to the collections of revenue, the conduct of business, or the imposition of any term or restriction within a State, the same is obviously violative of the constitutional rights of the State, because by no stretch of constitutional authority could the Secretary of the Interior exercise any powers within such State in conflict with or in

addition to the regular and sovereign powers of the State, or such as he could not exercise in a State having no public lands.

Referring to bill 5486.

(NOTE. The remarks in connection with bill No. 4733 where the two acts are substantially identical will not be repeated, but will be treated as applicable to this bill; but the other unconstitutional features of the bill will be pointed out.)

Wherever the act attempts to withdraw lands within a State from the police powers of the State or the enjoyment of rights of way and public uses thereover, it is clearly in conflict with the decisions. of the Supreme Court of the United States cited in our brief. It appears to be assumed in section 1 of the act that the Federal Government could acquire lands to which private persons were already entitled or were possessed of and could then assume a control thereover which such previous owner could not enforce or enjoy. The transfer of the title of such lands from such person to the Federal Government could in no manner affect the jurisdiction or control of the State thereover with relation to any of its police powers or the exercise of public uses thereon or thereover.

It may be here stated that it is amply shown in the authorities cited that the right of eminent domain exists in the State over the lands of the Government as well as of individuals, although the remedy may not be enforced against the Federal Government in the absence of appropriate legislation, but it is held that the Federal Government may not withhold such rights from the State and deny the enjoyment of public uses thereover or permit such uses upon terms which an individual could not enforce and which the Government could not enforce by general laws.

Section 2: This section appears to carry an indefinite number of impossible provisions. In so far as the requirements in connection with the application are in excess of those necessary to indicate the nature and extent of the use of government lands, they are matters over which the Government has no authority and which, therefore, should not be required. The entry fee of $1,000, if the maximum were imposed, would in many instances be prohibitive. The provision that "all the water rights acquired by applicant shall be made appurtenant to the lands," etc., is one which, clearly, no private owner could enforce, and which, therefore, the Government could not enforce, and, since the waters are to be used for the purpose of generating electric power and then be allowed to be used by others entitled thereto, the provision would be wholly at variance with the rights of the State and other users entitled to water under state laws; and the further provision that "all the water rights acquired by applicant " shall not only be made appurtenant to the land, but shall, upon conveyance to the United States," etc., "entitle the user to the benefits of the act," would seem to indicate an attempt upon the part of the United States to acquire from the State control over the subject-matter.

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Reflection, however, would convince anyone that, since the appropriator of water under state laws is the agent of the State entitled only to the beneficial use of the water, most certainly such agent could not convey away from the State that which does not belong to him. Neither could he, as an agent in charge of such public use, deprive the State of any of its powers, either over the subject-matter

or over himself, or convey any rights or powers to the Federal Government; and, of course, the provision that the applicant should convey to the Government his own rights of way passing over private lands (which might exceed tenfold what he was receiving from the Government) excludes the necessity of comment. That such a provision could not be enforced, either as against the State or the private owner, is too apparent under the authorities.

The provision for a lease of forty years or any other term for the right of way at variance with or in conflict with the right to the use of water under the state laws and the responsibility and duty to furnish and supply its product has already been commented on and is clearly an infringement of the police powers of the State and an attempted interference with its control over its own public uses. The consideration that in States where there are no government lands the private owner, and this is especially true as against the process of eminent domain, can exact no terms in interference with such public use and its perpetual continuance, and that no private owner within the State where the uses over the government lands are proposed to be installed could exact such terms is conclusive that the Government can not do so.

Section. 3. This section provides for the payment of so much per horsepower for the electricity generated, and is of course the equivalent of an income tax imposed on gross revenue, and falls within the comments already made, and, as stated with respect to that subject, is so closely in excess with the rights of the Federal Government as to call for no comment. The authorities which we have cited are conclusive. The other provisions under this head are designed to give the Federal Government control over a business entirely within the State, and entirely within its police control, and of course can not be enforced.

The provisions also that these matters shall be determined by the Secretary of the Interior are an obvious attempt to confer police powers in a federal official over a business wholly within the State, and of course this can not be done.

Section 4. This section provides for the fixing of rates for a corporation doing business wholly within a State and over which the State has complete and exclusive jurisdiction, and for forfeiture in case of violation of such provisions. No such suggestion has ever been made before in any proposed act of Congress to our knowledge, and, since the power proposed to be exercised would be one requiring investigation and examination by the Secretary of the Interior into the business of a company wholly subject to the jurisdiction of the State and in connection with which the Federal Government could exercise the same powers, no more and no less than it could exercise in a State having no public lands, we presume it is not necessary to offend the intelligence of any person at all familiar with the rights of the respective States of the Union and of the Federal Government by a discussion of the obvious conclusion that such a provision is totally void and without any force or effect whatever.

The provision that the Secretary of the Interior could declare a forfeiture not only of a right of way over the public lands, but, in this instance, apparently a right of way over private lands, and also of a water right held under state laws and, in effect, of all connected property, is of like significance, and would appear to express the

understanding that the courts of this country have ceased to exercise any authority or functions.

Section 5. The provisions of this section that a state corporation shall furnish to a federal officer reports and statement of a business wholly within a State and subject to jurisdiction of the State merely in connection with the government ownership of public lands falls clearly within the consideration that the Federal Government can exercise no such power under the Constitution, and as the proprietary owner of such lands could exercise no such power within a State, more especially in connection with a matter where the property is subject to the laws of eminent domain and the full jurisdiction and control of the State.

Section 6. The provisions for a renewal of this so-called lease and for an appraisement thereof by the Secretary of the Interior and the tender of a new lease by the Secretary would seem to imply the power in the Federal Government to assume complete police control and authority over this particular business and industry within a State and to proceed to sell the property, apparently including the water right held under state laws and rights of way over private lands to be based on the appraisal, presumably by the Secretary of the Interior, on the privileges and improvements (whatever may be meant thereby), whereupon the lessees shall be entitled to be compensated to the extent of the improvements only. The provision that if the lessee deems unreasonable the terms of renewal fixed by the Secretary of the Interior he may institute proceedings in a circuit or district court of the United States, etc., must proceed upon the assumption that an act concerning the uses of government land within a State may provide not only for an entire elimination of the State's authority, but may determine adversely to the State the question of jurisdiction of the court. The provision against assignment, which is already mentioned, would appear to prohibit-and in necessary effect would prohibit-an assignment of the water right and the privately owned right of way and other property, subject to be purchased and sold under the state laws, and is, of course, clearly outside of the authority of the Secretary of the Interior.

It is not the purpose of this memoranda. to indulge in arguments, but we would respectfully suggest that probably the provisions of this one section (sec. 6) carry with it more attempts to violate the Constitution of the United States, the rights and functions of the States wherein such lands are situated, and undertake to confer a wider range of authority upon the head of a federal bureau, and to interfere more with the functions of the State, the jurisdiction of the courts, the rights of property, and the functions of business than any other half dozen acts heretofore submitted to the Congress of the United States. It must be borne in mind that the supposed lessee is necessarily the owner of valuable property, not only in the nature of water rights and other rights of way, but property of indefinite extent and value connected with this leasehold right of way, which, as the owner of such property and as a citizen of the United States, he has the undeniable right to deal with, sell, and dispose of and otherwise handle as any owner of property may clearly do; yet we are asked to assume that the rights of property are to be disregarded; the functions and control of the State over its own citizens and busi ness is to be wholly made subordinate to the Federal Government.