execution of the extent of the surplus water available?

another way of saying it, public confidence in justice is better than new investments without it; and a good name is better than great riches.

There is often an inclination, even when studying history, to attribute the main results to purely material means, forgetting that visible results could not have come without moral strength and confidence behind them. It was the latter that chiefly weighed in the scale. If this lesson of history is neglected, we drift slowly but inevitably to drawing up procedural schemes as though they had intrinsic value. "Lest we forget," it was overconfidence in efficiency that exchanged the Recessional for the Hymn of Hate, with unenviable result. If either impartiality must be sacrificed or efficiency, there should be no hesitation in the choice.

If this be agreed, it becomes less important to inquire whether superior efficiency is obtained by subordinating the courts to the administrative in this instance.66 If the inquiry be made, however, there should be no offense in taking note that administrative experts have their lapses like other people; and while their work is excellent in many ways, their efficiency in producing certainty should not be assumed further than is merited.

67

It is apt to turn into a considerable measure of personal discretion in practice. Lack of knowledge wherewith to check the

66 We read: "It must be conceded that it would be much more expensive and troublesome to applicants to be compelled to resort to the district court where they would have to employ lawyers, subpoena witnesses, and pay them per diem and mileage than it would be to have their applications determined by the state engineer, upon affidavits, and, perhaps, without attorneys, as has often been done in the past." In re Application 7600, 225 Pac. 605, 608 (Ut., 1924). But the tacit assumption which the quotation makes that the result is better because it is cheaper does not necessarily follow. In this as in other matters one is apt to get about what one pays for.

"The

67 The benefit of expert knowledge and equipment, which has become indispensable in many fields, has been emphasized by Henry Wolf Biklé, "Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action," 38 HARV. L. REV. 6; Felix Frankfurter, "Hours of Labor and Realism in Constitutional Law," 29 HARV. L. REV. 353; Ray A. Brown, Functions of Courts and Commissions in Public Utility Rate Regulation," 38 HARV. L. REV. 141. The last-named article concedes, at the same time, that "It is doubtless true that in many cases commissions and boards have acted arbitrarily and in defiance of the dictates of reason and justice." At p. 179.

administrative list of rights makes it an act of creation in which the administrative officers exercise considerable freedom, and their list contains a considerable element of re-distribution of property. It becomes much as they choose to make it, and their adjudication of rights is qualified, in addition, by reservations like the following:

the specification of a definite amount of water per acre, in these findings, shall not be taken as granting that specific amount of water to any water user, but shall only be taken as a rule and guide for the water master in the distribution of a maximum amount of water to any water user." 68

In an instance in another state where there were about four hundred and thirty ranches, a different priority was assigned to different portions of each ranch, thus listing a total of about two thousand five hundred priorities, without assortment and unclassified. The owner of a supposed position, as one or more units on a string of beads, was placed in a heap of two thousand five hundred beads shaken from a bag unstrung. None could see who came before or after him, nor negotiate for the purchase or sale of a known position in the list. The administrative is thereby left to follow its personal inclinations as freely as with rights confiscated. The following is also added:

"In defining the distribution of water to appropriators the State Engineer and Water Commissioners of the various districts shall give due consideration to the head required to distribute the water over the land and to the water which returns to the stream-system and becomes available for the use of other appropriators," and a "due allowance" for losses in transmission; while the state engineer's order for fall and spring irrigation and for stock-watering during the nonirrigating season is an award of title reading each user shall be entitled, in his proper proportion and priority, in such reasonable amount as necessary" (without disclosing any indication of the pro

68 In re Waters of Umatilla River, 88 Ore. 376, 401, 168 Pac. 922 (1918), 172 Pac. 97, 100 (1918). The court said: "The water-master is an administrative officer charged with the duty of carrying out decrees fixing water rights. The provision above quoted from the decree vests the water-master with large powers out of harmony with the statute and with sound principles. That portion of the decree will be eliminated."

portion, priority or reasonable amount which the administrative contemplates).

When the owner is not told what his position will be in a series in which a large number of people may be entitled ahead of him, then "what a man does not know and cannot find out is chance as to him "; 69 and chance becomes the end of the campaign for certainty and of administrative finality.

VIII

To say that the subject has already reached its permanent form would be premature. It will probably go through progressive stages like other things. Regulation of streams when the users are numerous cannot be made by mechanical division according to past data. It is a matter of adjusting present daily needs of many people to conditions that are constantly changing. The contention for finality in these determinations will probably decline as the results are found to fall short of what was promised, because the contention promised too much.

It sought to reduce the matter to the civil engineering ideal of a fixed formula, a course to which the matter is not adaptable. Just as it is said that specialization of living organisms is the first step toward extinction, so it is probably no mistake to say that the movement to restore rigidity to priorities has taken the step that will eventually lessen priority as a controlling factor. The title determinations are after all not an end in themselves, and are only incidental to regulation. The latter cannot remain always with the past, growing ever more remote. If one may prophesy, there will come a time when the principles of repose-prescription, estoppel, laches, acquiescence and the like will force themselves into recognition and establish the status quo of the present as the legal right, however different from the past it may be.

69 Dillingham v. McLaughlin, 44 Sup. Ct. Rep. 362, 363 (1924), per Mr. Justice Holmes.

Since this was written, the administrative in the 2,500 priority case has prepared a chronological segregation of rights at the court's direction.

70 See notes 5 and 7, supra.

To minister to present conditions, and not to past ones, will be found to be the proper field. We need not be surprised if a time comes when the administration will proceed to this with a frank recognition of the fact, which their results are already indicating, that discretion must be the main reliance. The administration will come frankly to apportion the water among the users with equal consideration and without discrimination, much as public service commissions do in distributions of another kind. The large and well-maintained projects must and undoubtedly will have their priorities observed with considerable fidelity. That is no more than keeping public faith with them. But their number is limited in comparison with the army of appropriations that no longer have well-defined bounds.

With the frank recognition that discretion is indispensable to administration among the latter, there will come from them an equally strong demand for enactment of free and open access to the courts for any complaints against abuse of that discretion. The efficiency of the administrative will find liberal and sufficient protection in the already established principle that application must first be made to the administrative for voluntary correction, and in the presumption of its correctness when the courts are reached.

IX

The good intention of the advocates of finality in the administrative is not doubted. We have to remember, though, that in all connections, and not in any respect confined to waters, theirs is the political theory against which constitutional government arose. The latter keeps legislators, judges, and executives apart because of the tradition of hard experience received from the days of the old way when all power was in the same hands, and due process is guaranteed because of the experience that men in power grow more concerned in the pleasure of exercising it than in the manner. It is universally admitted that some overlap in the distribution of powers is unavoidable. Few deny, however, that policy demands that the overlap be kept as small as possible. A balance was secured which does not pretend to make government perfect, but comes the nearest to a result "under

which good government is made easy and bad government is made difficult." "1

71

No more famous case appears in the reports than the pronouncement of Chief Justice Marshall that the courts will entertain litigation even against members of the president's cabinet in certain instances." The ordinary man has since then been so used to knowing that if he feels wronged by public officials he can turn to the courts for as impartial a hearing as human nature permits, that it is hard to realize that the contention for administrative finality, wherever made, contemplates a situation with the courts gone. Yet in the end it can mean only that, and for its result the following, a not overdrawn description, retains its vitality:

"The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress." 73 (Italics ours.)

At the last election the advocates of legislative supremacy assumed that if Congress passed laws twice they would all be good laws. So here the great good which administration can do in numerous fields if well conducted leads many to decline to face the fact that if it is not well conducted it is capable of doing just as much harm. In their eagerness to make the executive supreme they say to the courts, "Prophesy not unto us right things, speak unto us smooth things." They tender curtailed judicial epilogues grudgingly appended by statutes to administrative action as a perfunctory scene to close a play, a period to an accomplished act

71 Cuthbert W. Pound, "Constitutional Aspects of American Administrative Law," 9 AM. BAR ASSN. J. 409, 416.

72 Marbury v. Madison, 1 Cranch (U. S.) 137 (1803).

73 THE FEDERALIST, No. 78.