Ivanhoe Irrigation Dist. v. McCracken

PETITIONER:Ivanhoe Irrigation Dist.
RESPONDENT:McCracken
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 122
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 357 US 275 (1958)
ARGUED: Apr 29, 1958
DECIDED: Jun 23, 1958

Facts of the case

Question

  • Oral Argument – April 29, 1958 (Part 1)
  • Audio Transcription for Oral Argument – April 29, 1958 (Part 1) in Ivanhoe Irrigation Dist. v. McCracken

    Audio Transcription for Oral Argument – April 29, 1958 (Part 2) in Ivanhoe Irrigation Dist. v. McCracken

    Earl Warren:

    Mr. Davis, you may proceed.

    John F . Davis:

    Mr. Chief Justice, if the Court please.

    When we rose for lunch, I was discussing the question of interpretation of the federal reclamation law.

    And I was addressing myself to the problem of reconciling the two provisions in the reclamation law, one of which says that the Secretary of Interior shall proceed in accordance with state law and the other which says that none of — no project water shall be distributed to acreage exceeding 160 acres in one — one ownership.

    And the problem which is before the Court is to determine whether which one — which of these provisions shouldn’t affect, prevail or whether they can both prevail in this instance.

    I think it’s made easier in this case because of the fact that the California law in the federal cooperation law specifically states that project water received by irrigation districts shall be distributed in accordance with the acts of Congress and rules and — applicable laws of Congress and rules and regulations thereunder.

    But in any event, I believe that the specific provision for 160-acre limitation must prevail over the more general provision which deals primarily with methods of appropriating water and in this case, of course, the Secretary of Interior, the Bureau of Reclamation has achieved its water rights through the state procedures of — of proper appropriation.

    Unfortunately, as far as the Central Valley Project is concerned, whatever the interpretation we might otherwise give to the statutes, subsequent actions in Congress make it clear that Congress intends the 160-acre limitation to apply.

    In both 1944 and 1945, specific acts were introduced in Congress to exempt the Central Valley Project from the 160-acre limitation and extensive hearings were held on this matter and in both cases, Congress refused to pass the statutes which would provide the exemption.

    Felix Frankfurter:

    You mean, the — the bills came up and they were voted down?

    John F . Davis:

    No,the bills died in committee, Mr. Justice.

    Felix Frankfurter:

    Well, you could make strong argument to fill the need of that argument.

    John F . Davis:

    I will say that bills were passed and those were the Appropriation Acts.

    The Secretary of Interior reported to Congress time and time again with respect to these specific contracts and this specific problem of a 160-acre limitation.

    And Congress, with this — with this information before them, proceeded to appropriate in the neighborhood of $400 million for the carrying of the project.

    And I may say also with respect to the Santa Barbara Project that a companion project where the water was to be delivered through underground sources to what the reclamation project was specifically designed to replenish underground water.

    Congress specifically in that case exempted the project from a 160-acre limitation and for the very easy reason that no one could distinguish between project water and non-project water when it was drawn out through wells.

    But the fact that Congress would specifically exempt this California Project from a 160-acre limitation would be an indication that when they didn’t exempt it, they meant it to apply.

    Felix Frankfurter:

    You go back to the Reclamation Act of 1902, do you not?

    John F . Davis:

    Well, that is where the 160-acre limitation first —

    Felix Frankfurter:

    Yes.

    John F . Davis:

    — appeared.

    The one that’s specifically applicable here is 26.

    Felix Frankfurter:

    I understand that.

    But in the course of all 60 odd years (Inaudible) in this provision, what has been the administrative practice.

    In other words, what project has been financed or regulated by the Department of the Interior with an application of the 160-acre limitation.

    John F . Davis:

    Congress has —

    Felix Frankfurter:

    (Inaudible) first, first, in the action of the Secretary, has any project do not have that provision?

    John F . Davis:

    The Secretary of Interior and Bureau of Reclamation have applied it in all projects except for those where Congress has made other — other provisions uniformly.

    Felix Frankfurter:

    Now, those project or — or projects subject expressly, manifesting that the property of the Interior and Bureau of Reclamation policy has been before Congress in some form or rather in the way in which we indicated (Inaudible) before Congress, is it not?

    John F . Davis:

    That is right.

    Felix Frankfurter:

    Is it —

    John F . Davis:

    I want to correct myself, Mr. Justice.

    I’m — I was carried away by my enthusiasm and I want to say that with respect to the Imperial Valley Project, there was an interpretation of — of the Secretary of Interior limiting, at one time, limiting the application of — I think exempting it from a 160-acre limitation.

    I don’t know why.

    It isn’t the present view but there is that exception to that uniform practice, and I don’t know the basis on which he did it but he said that the 160-acre limitation did not appear by — to that particular project at one time.

    Felix Frankfurter:

    But would you say that there is, within the term that has meaning to you, an administrative practice to apply it except — with the exception you just made?

    John F . Davis:

    Oh, absolutely.

    Felix Frankfurter:

    Those of the Department of the Interior from time to time had occasion either explicitly to report some of these projects or to lay them before the Congress as the basis of future appropriation.

    John F . Davis:

    They have indeed and we have collected in our — in the appendix to our brief because this is the strongest way to find out what happened.

    We have collected in many pages, I’m afraid, most of this case has many pages, we’ve collected in many pages, references to the reports — to specific reports of the Secretary of Interior and the actions which followed after this.

    On Central Valley Project?

    John F . Davis:

    On Central Valley and on Santa Barbara Project and the Cachuma Project too.

    But it — they’re — they’re specifically with reference to these projects.

    Felix Frankfurter:

    Now, can you — is there any (Inaudible) which our Committee who feels (Inaudible) these bills, the entire proposals to modify or to exempt through reports made by Congress — to Congress charging them with knowledge of this interpretation of their statute.

    Does the — is the demand on which you relied a little while ago or which you brought to your support by exempting legislation, is it fairly related to a report by the Secretary telling Congress that they’re enforcing (Inaudible)

    John F . Davis:

    Yes, yes, indeed.

    The — and that again is specifically pointed out in the appendix to our — to our brief.

    I think that it’s clear beyond doubt that Congress intended — intended and intends the 160-acre of limitation to apply and I think we can — we should pass on to the question of constitutionality.

    Congress in this case, the Federal Government in this case is acting under its welfare — under the Welfare Clause.

    It’s — it’s spending public funds for the public welfare.

    It is also managing its own property.

    And there is some question, the questions have been raised as to how much affirmative power the Federal Government has to impose requirements when it is spending its money.

    Felix Frankfurter:

    Its own property, meaning the money?

    John F . Davis:

    Money of using its own dams and — but — and disposing of water which is stored in its own dams.

    Felix Frankfurter:

    And part of that water entered into this?

    John F . Davis:

    Oh, yes, indeed.

    The Chester Dam and Friant Dam are both federal — federal dams.

    Felix Frankfurter:

    Would any — let me ask you this, Mr. Davis, is the — is the Federal Government by virtue of congressional legislation, the member of the executive department under a duty to do something?

    Are these — are these mandatory appropriation acts and directory — is this directory legislation?

    John F . Davis:

    Well —

    Felix Frankfurter:

    Or could have — could the executive department of this Government call its own and do nothing to (Voice Overlap) —

    John F . Davis:

    No, I think — I think that Congress approves of projects as submitted to Congress with the report by the Secretary of the Interior and Congress specifically approves the — the Interior Department going ahead with the project —

    Felix Frankfurter:

    Yes.

    John F . Davis:

    — and specifically appropriates money —

    Felix Frankfurter:

    I understand.

    John F . Davis:

    — was direct —

    Felix Frankfurter:

    Suppose he does nothing, could it be mandamus?

    Don’t forget about jurisdictional or judicial property.

    Were this (Voice Overlap) —

    John F . Davis:

    I think — I think it would be derelict in his duty.

    I don’t know what — whether there would be any — I don’t know what the — what the remedy would be, but I think that Congress has clearly adopted this reclamation project and wanted the Interior Department to go ahead and — and do it.

    Felix Frankfurter:

    And the — if he — and you, you passed you go on and move on from — to your satisfaction that this is a direction from — from the Government to allow him to impose the 160 —

    John F . Davis:

    Well, now that is a little different but they direct — what Congress instructs the Secretary of the Interior to do is to distribute the water, to sell the water to irrigation districts only if they will contract with him that they will not distribute it in any way which is inconsistent with the 160 -acre limitation.

    Felix Frankfurter:

    So, therefore, if he makes any contract and doesn’t enforce the hundred and doesn’t provide for the — for respect for the 160-acre limitation, he would be again there, wouldn’t he?

    John F . Davis:

    That is right.

    Felix Frankfurter:

    And therefore, my question a minute ago if Uncle Sam can fold his arms and do nothing then you’ll — you’re going to argue in a minute that by imposing this condition for which you say the statutory authority, he’s doing something that the Constitution has forbidden although they are under no compulsion by the Constitution to do this, is that right?

    This isn’t that — that the United Government doesn’t have to join in this.

    John F . Davis:

    That is right, that is right.

    Felix Frankfurter:

    The Congress has provided legislation, a regime, and the Secretary of the Interior you say, to your satisfaction is merely carrying out what he’s authorized to do and is therefore imposing a condition to action by the Federal Government, the appropriation of money which it need appropriate which it is free not to appropriate and which you say to appropriate on conditions which congressionally is authorized.

    John F . Davis:

    That is right, that is right.

    Felix Frankfurter:

    And now, you go on to —

    John F . Davis:

    And then I —

    Felix Frankfurter:

    — and add to the constitutional difficulty, what is it?

    John F . Davis:

    Then — well, really, the question is can he attach and I think it’s a reasonable, good condition but we’ll just say a condition, can he attach a condition to the benefits, to accepting the benefits which he has no specific affirmative power to attach.

    Let me give you a —

    Felix Frankfurter:

    But I thought you said the policy of 160 acres does require —

    John F . Davis:

    Well, I’m now talking about constitutional power, if you please, like in interstate commerce.

    Let me — I think my point will be made clear if I referred to Federal Trade Commission against Idaho where permission was given to a federal — to a power company to build lines across public lands and the Court felt that there was no affirmative power and they were talking about statutory power, but there’s no power to require the federal the — the power company to — to carry power for the Government except since they were granting a right to go across public lands.

    It was a reasonable condition to attach a condition and they could say, if you want to have this benefit, you must live up to the condition of carrying Bonneville Power across your lines, and that is the situation here.

    John F . Davis:

    We’re offering water to the irrigation districts and we say, here it is if you want it, but if you want it, you must follow a — a rule of distribution which to us seems to be a reasonable rule.

    Felix Frankfurter:

    Well, am I wrong in assuming that on — on the — that the state of the argument which you have reached, the question would be precisely to say that Congress in terms had written out in — in an act that is sometimes with a case who does the kind of a contract is one of the Secretary of Interior Design.

    John F . Davis:

    Which it has done so.I may have been — not have made myself clear but the Sections — they didn’t do it in 1902, but in the 1926 Act they say, the contract shall contain this provision and that’s the way the statute is — is worded.

    That the contracts of the irrigation district shall contain this provision within —

    Felix Frankfurter:

    But then why do you have to argue — why do you have to be dialectic about trying to prove the Secretary’s authority if (Inaudible)

    John F . Davis:

    [Laughs]

    I — I think the Secretary — the — the Court —

    Felix Frankfurter:

    The contract is there.

    John F . Davis:

    — the Supreme Court — the Supreme Court says that applies only to public lands.

    The — the appellees have another explanation.

    I think it’s perfectly clear that this authority is direct.

    Felix Frankfurter:

    So that we’re really are facing the question whether Congress has the power to impose its condition to the expenditures of its (Inaudible)

    John F . Davis:

    That is right, that is right.

    Now, if we would have a slightly different question if we were imposing this against the policy of the — of the legislature of — of California.

    I think our problem is somewhat simplified by the fact that California here said that in accepting project (Inaudible) the California irrigation districts shall distribute it in accordance with — with the federal law.

    And so, we come to the question whether or not it’d be unconstitutional to take from the large landowners rights which the California court says are vested in them to receive water in — or rather in — in accord with their — with their land holdings without any limitations.

    Felix Frankfurter:

    From this project.

    John F . Davis:

    From this project.

    We come to that question, does — does this — is this taking from the appellees in this case a vested right without due process of law.

    The first question of course is whether they’re taking anything from them since then refusing to deliver water but they are not preventing them from getting water from any other source which they might want to get it, but passing that question which is essentially a state question we come to this proposition which I think this Court has passed on very explicitly and that is that the United States, if it is taking a right is not necessarily unconstitutionally taking the right because we have the right of eminent domain and we would have to pay them for any rights which we are taking from them, which are — which are vested and which they probably state should be compensated.

    I say that the courts decided upon that and I refer the case to the Court of the United States against Gerlach whether in the same reclamation project, the United States in cutting off the flow of the river deprived some of the downstream holders of certain irrigation benefits which they got from the flooding, the river flooding over their lands.

    And in that case, it was held that it was — the Court held that this was a vested right, a right which was vested in those California owners, but it didn’t say the United States had no right to take it.

    The United States had a right to take it but the United States had to pay for that right.

    And so, I say here that if the excess landholders in — in the Central Valley do have a vested right in the water which we are not delivering to them, that compensates their right as to compensation not to prevent the project from going forward.

    None of us have discussed the provisions of the contracts which deal with the delivery of the water, the repayment of the funds and the title to the projects and the works.

    I think that these problems are even more than the 160-acre limitation, a question of construction of the federal statute and — and I must, of course, rely on our briefs to — to handle those problems.

    Charles E. Whittaker:

    May I ask you, sir, is it not true that the contracts to the question are made under 9 (e) of the Reclamation Act of 1939 which gives the — the Government Department the applicant to make such contracts in the lieu of payment for the works?

    John F . Davis:

    That is quite right.

    That is — that is specifically our — our argument that deny that Congress had specifically authorized this type of contract 9 (e).

    I have a small map of the Central Valley Project.

    John F . Davis:

    I’m not sure that it’s necessary for the Court to have the map before it.

    But I think it — it is useful background material and if I may, I submit a copy to each Justice.

    Earl Warren:

    It would be helpful.

    John F . Davis:

    Oh, and the Attorney General of California who’s hand — handed me similar maps for the Santa Barbara, the consumer project which I will send up at the same time.

    (Inaudible)

    John F . Davis:

    (Inaudible)

    Earl Warren:

    And it follows too.

    Felix Frankfurter:

    You said something a minute ago, Mr. Davis, that — that I didn’t quite catch about what the Gerlach case, from your point of view, established relevant to this — to the problem now before us.

    John F . Davis:

    That when there are state rights recognizable under state law which are infringed through carrying out this project the remedy of the California landowner is a remedy of condemnation.

    It’s a remedy of being paid for the right which is taken away, not a right to specific right to the water.

    In the — in the Gerlach case, there was no disposition to say that the United States had no right to cut off the water, with the Friant Dam.

    Felix Frankfurter:

    Gerlach case (Inaudible) question of constitutionality is it?

    Whether it’s a matter of construction of the reclamation —

    John F . Davis:

    Well, in — if — if — that is — that — that is quite true.

    There, the Federal Government was as here, acquiring its water rights pursuant to — to state law.

    There’s no question about that, just as they are here.

    Felix Frankfurter:

    Yes, but the question of whether Congress to do that except the entirety of who’s involved, does it?

    John F . Davis:

    No, except in passing, but it was in fact involved —

    Felix Frankfurter:

    (Inaudible)

    John F . Davis:

    — and it didn’t —

    Felix Frankfurter:

    — possibly the earlier cases of some of the (Inaudible)

    John F . Davis:

    That’s right.

    But it’s — it is — actually what — what happened in that case and what — what did it — maybe — maybe the Court didn’t — wouldn’t have had occasion to upset it.

    But what the Court did was to say they were entitled to compensation to these rights.

    Felix Frankfurter:

    It’s because you’re construing the statute because Congress expressed this — left that (Voice Overlap) —

    John F . Davis:

    I think that —

    Felix Frankfurter:

    — that’s right.

    John F . Davis:

    — yes.

    I think that is right, Your Honor.

    Earl Warren:

    Mr. Horton.

    Harry W. Horton:

    Mr. Chief Justice and Associate Justices, counsel for the appellees held and I hope with your consent, divided their arguments into three parts.

    I’ll take approximately 30 minutes on the — of the two counsel approximately the same time.

    The portion of the case that I would like to discuss with your permission deals with the historical fact, the record and background of this case, so that with that in mind, we may first discuss the question of jurisdiction and my argument will be directed very largely if not entirely to the question of jurisdiction.

    The historical background of the Central Valley Project is this.

    That in 1850, when California became a State, a statute was passed leading to an investigation of the impounding of waters in the northern areas and they’ve taken them to the areas where there was less water in the southern portion of the San Joaquin Valley and also portions of the Sacramento.

    Those studies continued by legislative enactment over a — an extended period of years.

    The interest in that as a State endeavor was evidenced by the fact that in one year, when the legislature forgot to make an appropriation, the Chambers of Commerce of the city of San Francisco and also of the city of Los Angeles raised $100,000 to provide the engineering staff of funds to continue the work as a state project.

    By 1913, it was realized that the system of water rights that existed in California which at that — up to that time has been one of merely going out and starting a diversion works in building a canal or after 1872, posting a notice and recording a notice that that system was not what should be.

    And in 1913, they passed what was known as The Water Commission Act.

    In that act, the existing rights were validated and recognized and the procedure which now exist in California was set up under the Water Commission Act which is the filing of an application with the state engineer now the division of water resource — Department of Water Resources and the proper division of it under which permits are issued of which are subject to certain degrees of discretion within the state engineers as to whether for that water shall be taken and the quantities that maybe used and whether or not the use and purpose proposed is a proper one under the state law.

    In 1921, the plan had proceeded far enough that in that year the legislature provided for what they called a state plan and further the studies on the basis of the state plan that encompassed a greater area than the San Joaquin and the — and the Sacramento Valleys.

    By 1927, the State realized the fact that the Water Law of California was primarily that of appropriation.

    And therefore, passed a statute which was not to direct free but mandatory in which required the Director of Finance of the State of California to file on all of the inappropriated waters of the State of California that might be necessary for any of these projects under this proposed state plan and in particular with reference to the Central Valley Project which was even at that time taking shape.

    Those filings were made by the Director of Finance in 1927 and we are interested in this case only on the filings on the San Joaquin River and incidentally on the filings of the Sacramento River because the water for these districts comes from the Friant Dam and the canal that comes to the Madera District from the Friant Dam and the canal that comes from Friant Dam through the area to the south and to the Ivanhoe District.

    So, what we’re concerned with are those — are those particular filings.

    Filing the — following the enactment of that legislation and the making of those filings in due form, the legislature took the next step and in 1933, created what was known as the Water Project Authority of California.

    Now, that agency was created as a body politic of the State of California with power to sue and be sued in what’s certain definite mandatory duties and certain discretionary duties, but their primary function was to build and construct and operate and maintain the Central Valley Project.

    At the same time of the creation of the Water Project Authority, the legislature created by definition the Central Valley Project.

    Following the organization or the creation of the Water Project Authority, that organization picked up the work that had previously been done and prepared a plan in detail, an engineering plan in detail of where this water was to be taken and what areas were to be served.

    And in that particular plan, both by description and by reference to a map contained in the document itself, the Ivanhoe District which had not yet been formed but the area of it defined and designated on the map was drawn out as an area to be served under these filings that had been made by the director of finance.

    The Madera District was already in — in existence but it was also encompassed by description on also upon these maps as one of the areas to be served from the Friant Dam and from the Madera Canal.

    Now, following the next step — the next one was the effort on the part of the Water Project Authority to proceed to construct the Central Valley Project of California.

    The Act authorized the authority to issue $170 million in bonds which at that time was the estimated cost of the works that were encompassed within the Central Valley Project.

    The bond market was not favorable due to the depression and the Water Project Authority came to Washington and filed with the reconstruction finance corporation an application for a loan on grant if you obtain the money so that the Water Project Authority might proceed with the construction under the statutes and the duty that was imposed upon it by that state legislation.

    The application was received and favorably acted upon until somebody suggested that it might be a lot easier to get the money under the works progress authority.

    And so, the first appropriation that was made, not as a loan on grant, but in the interest of employment during the depression was the advancement of $12 million on the order of the President to start the work on this project.

    The Bureau of Reclamation was assigned as the agency to do the actual construction work.

    And the bureau opened an office in Sacramento, California to start work on the project itself using the engineering data, the designs, the plans and the specifications and the details that had been proffered for the State of California.

    As they came in to California, the Water Project Authority entered into a series of contracts with the Bureau of Reclamation for certain engineering services which they were to render and also the contracts contained a provision that it was the intention of the parties that a contract be made within a reasonable period of time between the United States and the Water Project Authority whereby the Water Project Authority would proceed with the arrangements necessary for the distribution of the water and the collection of the revenues from that distribution of the waters and the repayment to the United States Government of the amount of money that it might invest in the project.

    That contract ran on for a period of time in an effort on the part of the officials of the State of California including the then Governor of California.

    Harry W. Horton:

    They tried to get the contract that was provided for.

    And I think it was Governor Rolph, if I’m not mistaken who wrote letters to the Secretary of the Interior and getting no results from the letters, finally sent telegrams which finally culminated in a meeting, two meetings in fact one, in San Francisco and one in Sacramento, in which the Governor then demanded that the United States live up to its agreement that its entry into the Central Valley Project of California would be as a construction agency and so that the Water Project Authority of California created by its legislator and imposed with the duty not a discretionary duty but imposed with the duty to construct, operate and maintain and collect the revenue from this project, might proceed with its work.

    The result of that conference was a flat refusal by a representative of the Department of Interior to even consider any participation on the part of the Water Project Authority in connection with making any contracts or having anything to do with the distribution of this water and the State was specifically advised, as I say the State, the Water Project Authority of California was specifically advised, that they were not to have anything to do with that phase of the case.

    The matter then proceeded for a few years with a impasse of that character.

    And finally, the Bureau of Reclamation proposed certain contracts which they circulated to various irrigation districts within the Central Valley Project.

    Those contracts are or generally in a formal rather modified in some particulars, but generally in the form of the Ivanhoe contract which we can take as an exemplar.

    Questioning of the local officials of the Bureau of Reclamation give us very little light on one of the things that we were particularly interested in and that is what was this 9 (e) contract?

    We were told that it was a contract by which water would be delivered.

    We asked questions as to what water right does the district have?

    What water right does the landowner have under that contract?

    We could not get a definite answer until we finally came back to Washington and then the conference with the Secretary of the Interior and the Commissioner of Reclamation, we were finally advised of the fact that this 9 (e) contract was a new type, a new thought in reclamation.

    It was a contract by which the Government was going to deliver water as a utility.

    The gentlemen in the Bureau of Reclamation and the Department of Interior gave the name which followed through on these contracts.

    It is a utility type contract.

    Under the law, they said they could not recognize a water right in the landowner or the district beyond the period of 40 years and at the end of it, there could be no agreement implied or expressed that they would renew the contract.

    The next question we raised will now — ordinarily under the reclamation law when the payments are made upon a contract there are some indication of how much you’re going to pay and when you were done in the payment of it and that had a twofold place in the case for the reason that under one provision of the reclamation laws when half of the cost to be repaid by the farmer or paid the acreage limitation is no longer applicable under another Section of the Reclamation Act when the full amount is paid off, it is payable by agriculture, the acreage limitation is no longer applicable.

    So we ask, when do we know and by what yardstick do we know of the credit and we were told it is not a repayment contract.

    There is no obligation on the part of the United States to give you credit for what you have paid and the United States has the right in perpetuity to continue to charge for water above all and then and even take that money and use it to construct another project elsewhere.

    Well gentlemen, I think you can realize that both of us in the west are used to billing with water on the basis of the fact that it is a pertinent for the land that the water right is permanent as the basis of our economy when you’re confronted with that sort of a situation, we were completely dumbfounded because of the impact to format on your land, your value, what have you, the answer — the soft answer if I may characterize it as such that was given to us is that, well do you think that the United States Government would take the water from an existing project and move it to another.

    Well, we found in the record inquiries made by some of the Congressmen to the officials of the Bureau of the Reclamation of the fact that they asserted the right to do just that.

    And consequently, we were effaced with that sort of a situation.

    Now, so far as the acreage limitation proposition that is merely an incident that is used as the big talking point by the appellants in this case because of the fact that it may have a popular appeal and I am not doing that to be critical of them.

    We can see that to be an incidental fact and that the water right situation as the predominant factor that we’re interested in preserving.

    This comes after we learned of what the situation was with respect —

    Felix Frankfurter:

    What is that — may I interrupt with you still, what does that mean in — in the concrete what you’re interested in the preserving the water right situation?

    Harry W. Horton:

    What we want to know that when we have a piece of land and it’s within a district.

    And that district has a contract for water that the district and the landowners within that district have a permanent and perpetual right subject only to continued beneficial use and need for it and that it is the pertinence of a land and cannot be taken away and think could be somewhere else.

    Felix Frankfurter:

    Does that mean that the 160-acre limitation is invalid, doesn’t it?

    Harry W. Horton:

    I don’t — I don’t think it has any relation to the 160-acre proposition.

    I think that’s an entirely separate proposition.

    Harry W. Horton:

    I don’t — I don’t see the —

    Felix Frankfurter:

    Are you not — are you not contesting that limitation in this contract?

    Harry W. Horton:

    We are contesting it in this contract.

    But, as I submit the — Mr. Justice Frankfurter that it should not be confused with the other because they are entirely separable.

    Although the right to water is a basis of the claim that they’re taking something away from the land and if I can get to the point of the — why these lands have that water right then I think maybe I can demonstrate what you’re talking about.

    Earl Warren:

    Mr. Horton, I may have — I may have failed to note what you — what you said but I — I didn’t recall that you stated when and just how this became a reclamation project as distinguished from its original concept.

    Harry W. Horton:

    Well —

    Earl Warren:

    Now, I think —

    Harry W. Horton:

    — I had — I hadn’t stated that —

    Earl Warren:

    You had not?

    Harry W. Horton:

    — Mr. Justice —

    Earl Warren:

    Well I think that’s —

    Harry W. Horton:

    — Warren.

    I hadn’t stated that and probably I should clear that up now.

    The project started out as I indicated and then it was discovered that there were some question as to the legality of the appropriations for the project and the Congress passed an Act in which they stated that they reauthorized the Central Valley Project as a reclamation project.

    Now, the reauthorization I think was to take care of that possible argument.

    But at that time, there’s no argument but what Congress said they were reauthorizing it or authorizing it as you may please as a reclamation project of the United States.

    Earl Warren:

    And how would I like to ask — to ask you is this, because of the background that you gave us before that, is it your position that the State of California and the United States Government are in a different relationship then they would be with any other reclamation project where they started from scratch in that — in that manner?

    Harry W. Horton:

    Well personally, I think they are but I don’t think its material to this case —

    Earl Warren:

    Well, is it — is it material and should we have to consider it from this case?

    Harry W. Horton:

    I think probably you may have to in connection with the question of water rights.

    Because I think that the question of state procedure and what recognition Congress has given to that state procedure which is a subject which Mr. Rockwell will touch on is something that you’re going to have to consider on the question of jurisdiction.

    Earl Warren:

    Well there’s a title to — is the title to water involved in this case?

    Harry W. Horton:

    Only to — not in the sense that are discussed by counsel and if I — I may digress at this point, although I — I hope I won’t use my time up —

    Earl Warren:

    I won’t take any more of your time.

    Harry W. Horton:

    All right.

    Thank you.

    That’s not the point, I welcome your questions —

    Earl Warren:

    Yes.

    Harry W. Horton:

    — but I still have a story to tell —

    Earl Warren:

    Yes.

    Harry W. Horton:

    — and I’d like to finish —

    Earl Warren:

    Yes.

    Harry W. Horton:

    — it now.

    The remark has been made by the Solicitor and is also echoed throughout the brief of the Attorney General.

    But whatever these waters are that whether in the State of California, wherever they may be, that is of no moment who owns them, whether the State of California or an irrigation district or a private owner owns them because they conceive of some overriding federal power possibly constitutional, probably not, that says that they can take these waters.

    Now, they say that they have to pay for them.

    But the end of their argument is this, not that they have to condemn them but all they have to do is walk in and take possession in there and if for chance, the landowner or the person having the right, doesn’t bring his suit with any time or doesn’t file an injunction proceeding to stop them from going ahead until they have followed the orderly process of condemnation that then they’re securing that right, that’s the end result of the type of right that they’re talking about and I’m not talking about that kind of a right.

    I’m not arguing that the United States might not, under constitutional powers, and under some congressional direction which I don’t think exists today, come in and condemn all the water rights of individuals within the State.

    Now, I don’t go so far as to say they could come in and condemn the water rights of the State of California.

    I’m not going to conceive that.

    But nevertheless, that is the distinction between what they’re arguing and what we’re arguing.

    And — and finally, proceed now in trying to get back to this point.

    Earl Warren:

    That’s right.

    Harry W. Horton:

    When these contracts were presented, they finally reached — a — a point where they had to be submitted to the District Securities Commission of the State of California.

    Now, that is the agency of the State of California had created, five members occupying official positions within the State whose job is to approve or reject these contracts and bonds that the districts may be offering.

    And their function is to determine the feasibility from an operating standpoint of financial feasibility.

    And when these contracts came before the District Securities Commission of California as is evidenced by the order in the Ivanhoe case, the Commission took the position that these contracts with respect to acreage limitation and with respect to water rights were not desirable contracts but took the position that the function of the Securities Commission was not judicial and that they should pass that on to the Court.

    And that conditional order, so that it might go on was then made by the District Securities Commission with the admonition of their disagreement with it.

    Disagreement being on legal grounds and also upon practical grounds of the impossibility and impracticability of the enforcement and application of the acreage limitation and the fact that the water rights which to us are sacred and must be in perpetuity and must be a pertinent to your land.

    After that had been done, the Attorney General of the State of California rendered an opinion on the question of the validity under California law of the very Act that the appellants were referred to, to what would they called the Federal Cooperation Act which is they act if they say gives irrigation districts authority to sign a contract to distribute water in any manner provided for by the Federal Government.

    The Attorney General of California determined in that opinion that the Federal Cooperation Act insofar as that imposed or — or insofar as that gave authority to an irrigation district to discriminate among its landowners in the quantity of land that they could own was an invalid Act under the law of State of California having no uniformity of — of application and that it violated the provisions of the California Constitution.

    The next up in the procedure was the filing of the — of the validation suit by Ivanhoe which was followed by the Madera case.At the time that that came up, the Attorney General of California joined in the case voluntarily upon the basis of the invalidity of the contract as seen by the Attorney General then on two bases, one, the question of the water right and two, the question of the acreage limitation.

    The case was about ready to proceed to trial when the new Attorney General came in and asked leave to file an amended answer.

    In that amended answer, the Attorney General set up the fact that the water within the State of California was the property of the State of California held in trust for the State of California for the benefit of the users.

    Now, there is much in the briefs and something has been said in oral argument condemning of our Supreme Court of California for its reference to the so-called trust theory.

    If you will turn to the portions of the amended answer of the State of California in this record, you will find that the State of California itself through its present counsel were the ones that planned the trust theory and also alleged that the filings by the director of finance upon these waters were such of such a nature as to give to these people within these districts to be served, a water right which was held was in trust for the benefit of those landowners and of those districts.

    Following that and before, the California Supreme Court had passed upon the appeal before it the Attorney General of California wrote another opinion having to do with relative water rights between certain areas in California in which he characterized the holding of these water rights by the State as being held in trust.

    And I do want to call to your attention the fact that this whole trust theory and the very unkind language contained in the briefs of the appellants in this case which are charged to the California Supreme Court stem from their own pleadings and their own opinions.

    And I think it comes with an ill grace under that circumstance for them to take that position as to the California Supreme Court.

    Harry W. Horton:

    Now on —

    Earl Warren:

    Do you take — does counsel take in an adverse stand here in this Court?

    Does he argue that what he — what he — put in his answer was wrong?

    Harry W. Horton:

    Well, we tried to get him to say something about it in our reply brief so that in his reply brief, he could make some mention.

    We call his attention to the fact that he was the author of the theory, pointed out the particular paragraphs, pointed out the opinion in which the Attorney General had designated the holding by the State as being — of water as being in trust and we have no comment, whatsoever, in the reply brief of the appellants.

    Now, if they have some time left, possibly they’ll clarify.

    Felix Frankfurter:

    Did they — they drew the opposite conclusions from what you say they profess to be their theory — of their theory?

    Harry W. Horton:

    They have — I have not yet been able to get any denial out of them.

    Felix Frankfurter:

    No, no, but — but what — what did the Attorney General — what was the position he took on the — on the issue, the ultimate issue in this case, namely, that this contract was valid, wasn’t it?

    Harry W. Horton:

    The first Attorney General on the —

    Felix Frankfurter:

    No, I mean the amended answer, if I’m looking at the right one, filed March 30, 1951, is that the one you’re talking about?

    Harry W. Horton:

    I think — if it’s the amended answer, it’s the one in which the —

    Felix Frankfurter:

    Filed March 30th, 1951 —

    Harry W. Horton:

    I’m not sure.

    Felix Frankfurter:

    — by Attorney General Edmund G.Brown, is that it?

    Harry W. Horton:

    It — that is the one in which the Attorney General —

    Felix Frankfurter:

    When Mr. Goldberg was then Deputy Attorney General.

    Harry W. Horton:

    That’s right.

    That —

    Felix Frankfurter:

    Now, in that — in that amended answer, they asked — as relief, they asked for the same relief that they asked for this Court, is that not true?

    I — I’m not talking about the theory which they — by which they reached their desire.

    Harry W. Horton:

    Well, I can’t — I can’t answer it categorically for this reason that in the — as the briefs in the California Supreme Court, they took one position on the legal matters.

    In the opening briefs before this Court, they took opposite positions on it.

    And in the reply brief, they have straddled the fence and taken both positions.

    Felix Frankfurter:

    What I’m suggesting is you — some — some opinion of Mr. Justice Holmes but we’re not concerned with legal theory but with rights.

    Now, have they — have they urged different rights in California Supreme Court from what they’re urging here?

    Harry W. Horton:

    Yes, they did in —

    Felix Frankfurter:

    Yes.

    All right.

    Harry W. Horton:

    — this respect.

    Harry W. Horton:

    Now, let me make myself clear because I don’t want to be —

    Felix Frankfurter:

    (Voice Overlap) —

    Harry W. Horton:

    — misunderstood on that.

    In the California Supreme Court, they were avowed advocates of 160-acre rule.

    In the California Supreme Court, they were avowed advocates of the fact that the water laws of California gave to these landowners a permanent and a pertinent water right.

    Now, they — you don’t find that and you find the contrary in their brief before this Court.

    And they do it upon a different theory or maybe it’s a change of legal theory but it — it is an entirely different result to us because water rights in our country rely from them.

    Felix Frankfurter:

    Before you sit down —

    Harry W. Horton:

    Well, are they talking about the same water?

    Yes, they’re talking about the same water.

    I see my time has —

    Felix Frankfurter:

    Before you sit down, I hope that you can draw in your associate’s time to say something about the jurisdictional question —

    Harry W. Horton:

    All right.

    Felix Frankfurter:

    — in which all of these was to be a prelude.

    Harry W. Horton:

    That’s right.

    Now, may I — may I try as shortly as I can towards my position on respect to jurisdiction.

    The California Supreme Court said with respect to the acreage limitation is this.

    That legislation in California must be uniform, a general legislation and it must be of uniform application.

    Counsel has said that the California Supreme Court nowhere has cited, Section 11 of Article 1 of the State of California.

    But if he will take a look at the case of the city of Pasadena versus Stimson that was cited for the California Court in page — turn to — I’ve forgotten the page now, in it you’ll see that they did refer to that plus one other section of the California Constitution, Section 25 of Article 4, Subdivision 33 which is to the same general tenor.

    So apparently, counsel hasn’t even read the case of Pasadena against Stimson because that is the case that’s specifically tied after the California Constitution and no other.

    Now, what the California Court said was that an irrigation district in the State of California could not — or rather let me put it this way.

    That the legislature of the State of California could not pass legislation which would authorize an irrigation district to discriminate in the delivery of water regardless of its source — didn’t make any difference where this word came from, on the basis to how many acres of the land the man owns.

    And they said they not only did not do it and if they had tried to do it, and that was the language in the fact, it was invalid, and the further and more pointed proposition was that the legislature of California had passed the validation Act which purported to validate all previous contracts and the California Supreme Court said at page 59 of its decision as contained in the jurisdictional statement that they couldn’t have passed an Act in specific language authorizing an irrigation district to discriminate between its landowners and deliver water on the basis of the amount of acres that a man owns.

    So, insofar as the acreage limitation, it’s a pure and simple proposition that the California Court has said what California law is.

    They weren’t even discussing federal law at that stage of the case.

    Now —

    Felix Frankfurter:

    Are you saying — do I understand you to say this or that — without any regard to what the statutory authorizations of the Secretary of the Interior may be, without any regard in assuming the statutory authorization is clear, what the power of Congress may be, that California has disabled irrigation districts from accepting whatever may be constitutionally offered by the United States and there’s no power on the part of the United States to impose that against California law.

    Is that what you’re saying?

    And therefore, it rests on the state ground?

    Harry W. Horton:

    Mr. Justice Frankfurter, your question encompasses implications that I don’t — and I know what you’re trying to get at and let me answer it in this way if I can —

    Felix Frankfurter:

    You can assure I’m interested in jurisdictional question.

    Harry W. Horton:

    Well, I — if I may answer it — this question.

    What the California Court in my opinion held was this.That if the California legislature said that irrigation districts may deliver water only to persons who do not own 160-acre land that was of general application over the entire State, we’d have one question.

    Now here, what they held was that the legislature couldn’t say that an irrigation district could do that as simply as the people who might have had a contract that was carried.

    Now, they didn’t put that on the basis of federal law.

    They put that on the basis solely of the power of the legislature in the State of California.

    Now, I want to comment on another situation on jurisdiction.

    In the Government code and we’ve cited this in our brief, the legislature of the State of California in connection with the acquisition of property by the Federal Government in the United States has reserved to itself by specific legislation, the right, power and jurisdiction to administer the waters within the State of California and that happened in 1955, I believe.

    That is cited in our brief.

    Now, may I take a moment to go to this question of water?

    We have a — an extended hearing on the question of what California water law was and as to whether or not the filings by the director of finance of these applications to appropriate coupled with the succeeding events of the construction of the works and everything else vested in these landowners, ex-district and the landowners therein a water right that was existent and was in the nature of a real property right that it was entitled to protection by injunction and other proceedings.

    So there, the Court passed on that, said that there was a right under the California water line and all they did was accept what have been said by this Court in the Gerlach case to the effect that the Section 8 of the Reclamation Act of 1922 was applicable and as my co-counsel will point out to you, Congress has reiterated that in 1952 and reiterated it in 1956.

    I’m sorry that I don’t have more time to — to hit this jurisdictional question.

    I see my time is up.

    Thank you.

    Earl Warren:

    Mr. Rockwell.

    Alvin J. Rockwell:

    If the Court please.

    I will say a little something about jurisdiction in passing.

    I would like tostart off as I had intended to anyway, by picking up Justice Frankfurter’s question as to what is involved here by way of contract.

    Now, I share with Mr. Davis’ desire to simplify the issues here.And it seems to me the simplest starting point in the world is the provision of the 1926 Federal Statute which provides that the Bureau of Reclamation shall proceed solely by way of contract, no regulatory power, solely by way of contract, contract with whom?

    This is the 1926 Federal Act with irrigation districts organized under state law, and that the contract shall be subjected to validation in judicial proceedings.

    Now, answering a question which Justice Douglas put earlier, the Bureau of Reclamation itself has always construed the 1926 Act to require validation proceedings in state courts.

    And the Ivanhoe contract, the provision in point appearing in the record at 4142, provides that the district shall go ahead, start validation proceedings and appeal the case, if necessary to what Court?

    To the highest Court of the State of California.

    So I say it comes down to this that the Federal Government, by its own election, has elected to proceed by way of contract.

    Its — it takes two to make a bargain.

    The federal law says nothing about the — the authority of a state irrigation district.

    It leaves that entirely up to the state law.

    So that on jurisdiction, whether this Court has jurisdiction to review or not, whether a federal question is presented or not in the last analysis or maybe in the first analysis, it all goes back to what are the powers of an irrigation district under California law.

    Felix Frankfurter:

    Mr. Rockwell, let me take some of your time.

    What connection is there between with what you just said that the scope of authority of the irrigation district is to be measured by what California law defined?

    What do you do with the sections of the California Water Code which Chief Justice Gibson to which he — Chief Justice Gibson refers on page 67 of the defendant’s brief, the jurisdictional statement and more particularly, 231 — I haven’t — 23197, is that?

    Alvin J. Rockwell:

    Well —

    Felix Frankfurter:

    Everything in California seems to be vague and (Inaudible) —

    [Laughter]

    — even the sections of the code.

    Alvin J. Rockwell:

    But if you don’t mind, I won’t look up the sections again.

    Felix Frankfurter:

    But you don’t (Voice Overlap) —

    Alvin J. Rockwell:

    I’m sure I’ve read them but —

    Felix Frankfurter:

    Yes, I know.

    Alvin J. Rockwell:

    — I do —

    Felix Frankfurter:

    But what —

    Alvin J. Rockwell:

    — I do — I do as Justice Gibson exactly what the majority of the Supreme Court of California did with him in this particular instance.

    The majority of the Supreme Court of California, that is the Court, construed the word “applicable” as it appears in a California statute.

    And construing it, they said this particular federal law is not applicable.

    The matter was argued in brief and — and went — gone into to the fullest extent, and that is the decision of the Highest Court of the State.

    Felix Frankfurter:

    Now, you think the question whether they’re applicable is itself a question of state law?

    Alvin J. Rockwell:

    I do, sir.

    Now, I — again I’m not going to dwell upon jurisdiction but let me point out to the Court a sentence which appears in the Government’s brief in this case.

    Let me read you the one sentence and then I’ll go on with my argument tying it in.

    At page 35 of the brief of the United States, in this case, the sentence appears, and I — I hope the Court will listen to it carefully, “The California Court has now determined that the 160-acre limitation and the repayment provisions of the contracts are inconsistent with state law, requiring the proportion of distribution of water for irrigation, California Water Code Section 22250, and the right of landowners to receive irrigation water.”

    That closes the quotation.

    Now, that’s exactly, of course, our position and has been since last June.

    The Government brief then on the same page goes on to argue that the Supreme Court of California was not free under federal law to apply state law because they say federal law somehow has occupied the field, although that’s not their exact expression.

    And they say that the Federal Government, I’m referring to the United States’ brief, has the power to impose, and I quote the words “to impose” the disputed contractual provisions now, where it issued.

    What they’re saying is, that we don’t care what the Supreme Court of California thought were said.

    “The United States has the power to impose”, those are the Government’s words, the disputed contractual provisions.

    Now, it’s a queer business, I submit, that when you talk about the Federal Government having power to impose a contract, and yet, that is what their argument comes down to, and I want to address the rest of the time that I have to — to the question, has Congress elected to impose contractual provisions on California Irrigation District?

    Felix Frankfurter:

    Isn’t that — is that on page 35?

    Alvin J. Rockwell:

    Page — I read from the page 35 and the title that has “to impose”, sir, is on page 49 —

    Felix Frankfurter:

    Oh.

    Alvin J. Rockwell:

    — of the Government’s brief.

    Felix Frankfurter:

    Oh, I didn’t see (Voice Overlap) —

    Alvin J. Rockwell:

    It’s the black-lettered title.

    Felix Frankfurter:

    I didn’t see it on that page.

    Alvin J. Rockwell:

    No — what I read from.

    Felix Frankfurter:

    All right.

    I beg your pardon.

    Alvin J. Rockwell:

    The sentence that I quoted was on —

    Felix Frankfurter:

    (Voice Overlap) —

    Alvin J. Rockwell:

    — page 35.

    Now, has Congress imposed, first, and then would Congress have the power under the Constitution to impose factual provisions under the powers available to it?

    I answer both of those questions in the negative.

    Felix Frankfurter:

    Well, this — this is — I’m asking, I haven’t read this page.

    Do they say to impose as against hostile or — or opposing law of California or power to impose from the point of view of federal authorities?

    Alvin J. Rockwell:

    I think that it’s — it’s the latter, and I think the argument made within — that is by the letter, to impose against California law.

    Felix Frankfurter:

    Against California.

    Alvin J. Rockwell:

    That’s what I think it may be.

    Felix Frankfurter:

    That’s a very different thing (Voice Overlap) —

    Alvin J. Rockwell:

    Indeed, it is, sir.

    Indeed —

    Felix Frankfurter:

    All right.

    Alvin J. Rockwell:

    — it is.

    In other words, it’s not really attaching condition to a gratuity.

    It’s imposing something by force of — of avow.

    Now, what did Congress intend here?

    As has been brought out, there is a question of — of reconciliation if — if possible, this Section 5 of the original act, Section 7 which deals with condemnation, and Section 8 which talks about the inviolability of state law.

    And I think those all can be reconciled and a key point to the reconciliation is the fact that I mentioned at the outset, that the Federal Government, the Congress has elected to proceed by way of contract.

    I think contract perhaps is the most important word in this whole litigation.

    Alvin J. Rockwell:

    Now, Section 8, which has been on the books since 1902, says that nothing in the act, and I now quote, “Shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or territory relating to the control, appropriation, use, or distribution of water used in irrigation.”

    That is still on the books and it has been reaffirmed verbatim by the Congress as late as 1956 in the Act of July 2nd, Section 4.

    Likewise, it’s consistent with this federal concern about leaving to state jurisdiction, the matter of water for irrigation is the Act of July 10, 1952, never much mentioned by the Government which provides that in any case where the United States is joined as a party involving state water rights, the United States, and I now quote, “Shall be deemed to have waived any right to plead that the state laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty.”

    Now, there are many other statutes which we discussed in our brief all and the same thing, all showing that so far as irrigation is concerned, Congress wants to leave that up to the States.

    So far as appropriation, control, use, or distribution of the waters are concerned, the navigational servitude, I might add right here, is not involved in these cases.

    Nobody contends that it is.

    Now, the decisions of this Court are summarized in our brief, our main brief, page 55 to 60, and every decision which has dealt with Section 8 of the Reclamation Act has given that section full force and the effect without qualification.

    We discussed in our brief, Mr. Chief Justice, used his opinion in the Mason Tax — Company against Tax Commission which involved the building of the Grand Coulee Dam on the Columbia River.

    We discussed in our brief the California Oregon Power Company against the Beaver Cement Company case which dealt with Oregon, their water law reserving with the State the right to cut down riparian rights of a grantee of the United States.We discussed Ickes against Fox, Nebraska against Wyoming in which the opinion was written by Justice Douglas and finally, the Gerlach case.

    Now, Ickes against Fox which dealt with a reclamation problem uses language which I think is so important that I should call the Court’s attention to it as expressing — pressed as I am for time.

    In that case, which came up on the pleadings to this Court crucial to the decision was the following language of this Court and I’m going to quote from page 57 of our brief, that’s 300 U.S.at pages 94, 95.

    Here’s what this Court said, “Although the Government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded.”

    Appropriation was made not for the use of the Government but under the reclamation law for the use of the landowners and by the terms of the law and of the contract already referred to, the water rights became the property of the landowners wholly distinct and also if the Court would note this language, wholly distinct from the property right of the Government in the irrigation works.

    William O. Douglas:

    (Inaudible)

    Alvin J. Rockwell:

    Yes, the effect of Section 8.

    And now, in Nebraska against Wyoming, this very language, this whole passage was quoted in the Court’s opinion.

    In Ickes against Fox, this Court on the pleadings held that — held that there was a justiciable issue and sent the matter back for trial when it was claimed that the Secretary of the Interior unlawfully was attempting to take water from one, Washington Irrigation District and give it to another.

    Now again, the Gerlach case referred to this very important water amendment in the California Constitution which the court below referred to, adopted in 1928.

    And the Gerlach opinion of this Court referred to this 1928 amendment as and I now quote, “That California’s basic water law to which the Federal Reclamation Act defers.”

    Now, if the Court please.

    The Bureau of Reclamation has largely proceeded in a constricted form — largely proceeded in constricted form in view of this Section 8.

    They have told Congress, yes, about what they were doing under acreage limitations.

    In the same breadth, they have assured Congress that they were respecting state law when it came to the appropriation, control, use, and distribution of water.

    There’s something here that they never reconciled in their own reports to Congress.

    We quote it in our brief, the Gerlach opinion of this Court, quotes verbatim, “two sets of assurances given to Congress by the Secretary of — of Agriculture.”

    In the record in this case, at page 101, there’s a copy of a letter written by the Secretary of the Interior, then Mr. Chapman, to Attorney General Brown, in which he assures Attorney General Brown that the United States will only obtain its water pursuant to California law by appropriation and the like.

    Now, our brief mentioned something rather interesting.

    A hearing at Fresno, California before the California State Water Rights Board that hearing in Fresno is going on right this minute, allowing for the — the difference of time.

    It’s going on today.

    And in that hearing, the United States of America acting by the Bureau of Reclamation, under California law, is processing its applications to appropriate California waters for the Central Valley Project.

    Alvin J. Rockwell:

    That’s right.

    That’s all that they’ve done.

    And what kind of an order will that State Board issue?

    We have copies of the orders in our briefs.It will say, “Yes, you may have the water.”

    But the owners of the water will be the — the landowners, the users, and the state district and you must proceed in conformity with state law.

    And the Bureau of Reclamation accepts, permits on that basis.

    Now, in this — in the opinion on the Gerlach case, this Court said something which I think that has application here.

    The Gerlach opinion observed that the Bureau of Reclamation, and I quote, “Has at all times pursued a course impossible to reconcile with the present contentions of the Government,” meaning, the Department of Justices’ position in that case.

    Now, I’m not trying to score any debating point whoever said what, when or what not is essentially unimportant, but I do submit to the Court that the statement of this Court in the Gerlach case applies here because I think some of the arguments made in the Government’s brief in this case would give one no inkling.

    That’s the very time that this was written.

    The Bureau is going ahead under state law in California to appropriate state waters.

    Now, let me go ahead and turn to appellants here.

    In our main brief here, we chided, gently I think, the appellants for not discussing these various decisions of this Court which ruled upon the force of Section 8; the Tax Commission Case, the Beaver Cement case, Ickes against Fox, and so on.

    And the — the issue was squarely joined between all of United States.

    I think, at almost every point in their reply, appellants with — certainly with candor said, “No, we didn’t discuss the case just because in our view, they are irrelevant.”

    That was the word they used.

    Now, to me, it’s breathtaking that those cases winding up for the Gerlach case that it could be considered by anybody as irrelevant.

    This is a water case.

    The decision of this Court has said that state law controls among other things, distribution of the water.

    Our friends say the cases are irrelevant.

    Well, what’s their — what’s their reasoning?

    What’s their argument here?

    They don’t seem to deny that the United States, if it wants to get the water for a project, must appropriate under state law.

    But they say having appropriated under state law and having, going — gone through all these forms such as the going out at Fresno today.

    And even though the title to the water it receives from the State is in trust or subject to limitations, once the United States gets its hands on the water, then it’s free of all State restrictions and could obtain a title greater than any other person can obtain in the State.

    But, of course, I suppose the immediate response is if that is true, why go through all of the monkey business of appropriating under state law in the first place?

    Earl Warren:

    Well, do they claim —

    Alvin J. Rockwell:

    The second reason is they can’t be true.

    Earl Warren:

    — do they claim title — do they claim in this case?

    Alvin J. Rockwell:

    No, they say it’s unimportant, too, as the title.

    Earl Warren:

    Well, you have just said they did, I understood.

    I understood you —

    Alvin J. Rockwell:

    Well —

    Earl Warren:

    — to say that they jumped from —

    Alvin J. Rockwell:

    They — I said that —

    Earl Warren:

    — from that position to —

    Alvin J. Rockwell:

    — that they can cast a —

    Earl Warren:

    — the claim of title.

    Alvin J. Rockwell:

    Well, as to the unappropriated waters in the State, I don’t understand that they claimed title.

    As to appropriations that they protect, yes.

    They claimed title there, and they claimed a greater title than they can get that under state law.

    I think the confusion arises from the question of unappropriated water, which is discussed at the very end of the Government’s brief and appropriated waters.

    Now —

    Earl Warren:

    What is the question of title to this water of their irrigation district involved in this particular litigation?

    Alvin J. Rockwell:

    I’ll be glad to give you my views on that very quickly.

    I don’t think title is the important thing.

    Control is the important thing.

    And what the Supreme Court of California was doing in its discussion of federal law was sweeping it away to show that state law determined the control, impressed the trust theory by virtue of the State’s control.

    Earl Warren:

    Is control —

    Alvin J. Rockwell:

    — title as such doesn’t interest me.

    Earl Warren:

    — is control entirely inconsistent with the trust theory?

    Alvin J. Rockwell:

    Is what, sir?

    Earl Warren:

    Is the control by the Federal Government inconsistent with the trust theory (Voice Overlap) —

    Alvin J. Rockwell:

    Well, the control that it’s asserted by virtue of an unlimited use in title once it obtains the water under state law is inconsistent with the trust theory.

    Yes, sir.

    Felix Frankfurter:

    Is the — it’s included in control but you and Mr. Horton have urged California law’s equality of distribution without regard to acreage, that —

    Alvin J. Rockwell:

    Yes.

    Felix Frankfurter:

    — that you think is part of the control system (Voice Overlap) —

    Alvin J. Rockwell:

    Exercised by the State, yes, sir, plus the fact that it’s never created an irrigation district with any power to enter into a contract that would permit it to discriminate against its own members, but the one buttresses the other.

    Now — now what is — I was trying to tell you, give you my view of how the — how the argument progresses here.

    Alvin J. Rockwell:

    How can they — how can our friends argue that, yes, you have to appropriate one way but you can always — then you claim a higher title than you get.

    Well, it — it seems to depend largely upon the theory that under the Reclamation Act, the United States has the power of condemnation.

    So they say, “Well, let’s not fuss around about what kind of title we get.

    After all, we in the United States is that we can always condemn.”

    Power of eminent domain solves all the problems.

    You heard Mr. Davis concerning that argument.

    It’s developed very fully in the brief for the appellants.

    Well now, this is ingenious, but can it commend itself to this Court?

    Now, if it does, it — it has unlimited possibilities.

    Every challenge is to government regulation where property is involved whether it is the challenge be the Federal Government, state, local.

    It can always be turned into a condemnation case.

    And the Government says, “Well, we haven’t yet proceeded to condemn.”

    They haven’t here.

    But after all, we have the power of condemnation and therefore, don’t worry.

    Just to let us regulate you.

    And if you think that you have any recourse, go to the Court of Claims or go to somewhere else in some other proceeding.

    But, of course, that that can’t be reconciled with Section 8.

    There’s plenty of place consistent with Section 8, consistent with state jurisdiction over waters for eminent domain, plenty of places for it.

    The Government had that power when it built the Friant-Kern Canal and probably exercised it when you get some of the land for the canal purposes.

    It’s a useful power and it’s perfectly reconcilable with Section 8 without using the power of eminent domain to completely obliterate the powers reserved to the States under Section 8.

    And likewise, Section 5, the 160-acre limitation is consistent with Section 8 so long as it’s understood that the acreage limitation may be applied when it’s consistent and permitted by state law.

    And, of course, that ties it as — buttressed by the fact that the Government here has elected to proceed by way of contract with state-created irrigation districts, without making any effort to endow those districts with authority leaving that to the State.

    Now, I should proceed, I think, with the question which to me is as serious.

    Suppose as it has not done, Congress had never enacted Section 8, had never decided to proceed by way of contract.

    Suppose that Congress as it has not, had simply said, “All right, so we have lots of money and we’ll get more.

    We’re going to come in to California and we’re going to run these works and distribute water on our terms and you’re going to take it on our terms.”

    Would that be constitutional under our Federal Constitution, and we say no.

    Now, as we understand the argument for the appellants and for the Government, they’re not saying, impose in any sense of, here’s a perpetuity, take it or not.

    If they were, I don’t see how they could have appealed from the decision of the Supreme Court of California.

    They’re saying that the Supreme Court of California is wrong because under federal law, we are directing you to validate these contracts imposed in the sense that you regulated interstate commerce or draft men into the army or taxes.

    Alvin J. Rockwell:

    Now, we submit that what’s here involved, you understand, is simply an exercise of the power to spend for the general welfare, a very important power.

    But that power must be distinguished from the power to regulate and coerce as we say in our briefs, under the specifically designated powers of the Constitution, which are not here involved.

    Under those powers, sure the Government can go a very long way.

    Here it’s the well forced problem.

    In our brief we point out that this Court, wherever it has been appropriate to do so, has carefully distinguished between what the Federal Government can do under the spending and welfare and property disposing power if there is such and under the much broader powers to regulate and coerce and so forth which are not involved.

    Now, we quote from the Butler case, both from the Court’s opinion and from the dissenting opinion, which are to light the in — to light the effects here.

    Both say that you cannot use the spending power to coerce actions left to state control.

    Ashwander against Tennessee, the Hopkin Saving Association against Cleary which is a — a case remarkably similar to the present case where Justice Cardozo, for a unanimous Court, held that under the spending power which the Government there relied upon, federal law could not permit to Wisconsin State Savings and Loan Associations to transmute themselves into Federal Savings and Loan Associations without the consent of the State.

    And the Cardozo opinion states that this might be permitted under a regulatory power of the Government such as the power to regulate interstate commerce, he gives that example but it may not be permitted under the power exerted namely, the spending power.

    Now, we think it’s probably so that this Court will not get to this constitutional question of what can be done under the Welfare Clause because Congress seems to have been so clear, in electing to proceed by way of contract.

    If — if the Court should get there, it’s sufficient to say I think that the decision that the United States under the welfare authority can impose a contract against its will on a state irrigation district would go very far towards obliterating any difference between the power to regulate interstate commerce and the power to spend —

    Felix Frankfurter:

    I don’ think —

    Alvin J. Rockwell:

    — for the general welfare.

    Felix Frankfurter:

    — that we can either hold on your — in the mean time you’ve let us — so go back to the old track.

    It was five years in what you said the last two minutes.

    Why isn’t what you said the last two minutes have indication that there is a federal question in this case?

    Alvin J. Rockwell:

    Well, because you see everything I’ve said —

    Felix Frankfurter:

    You said we may not have to get —

    Alvin J. Rockwell:

    Very good.

    I want to answer that.

    Everything —

    Felix Frankfurter:

    What?

    Alvin J. Rockwell:

    — that I’ve been arguing about when I came to the question of whether the Federal Government could impose the contract has been on the assumption that this Court finds a federal question.

    We argue the merits as well as the jurisdiction.

    Felix Frankfurter:

    Yes.

    Alvin J. Rockwell:

    And I certainly agree with you that if this — if you ever get to the General Welfare Clause, there is certainly a federal question —

    Felix Frankfurter:

    But —

    Alvin J. Rockwell:

    — which justifies your jurisdiction.

    Felix Frankfurter:

    (Inaudible)

    Alvin J. Rockwell:

    We’d be —

    Felix Frankfurter:

    — and because even before you get to it, you get to a construction —

    Alvin J. Rockwell:

    Yes.

    Felix Frankfurter:

    — of what the contract of the (Voice Overlap) —

    Alvin J. Rockwell:

    Yes, because there, you have the question of what Congress has wanted to do under Section 8 and so on.

    But Mr. Justice Frankfurter, on jurisdiction the answer is this that this point that I made at the outset that Congress has elected to proceed by way of contract between the Bureau of Reclamation and state irrigation district organized under state law the contracts to be validated by state courts.

    That is a federal starting point but it raises no question substantial or anything else —

    Felix Frankfurter:

    Yes, —

    Alvin J. Rockwell:

    — that’s the language of the law literally.

    Felix Frankfurter:

    But in order to determine whether (Inaudible) is bring this upon what the state law as you see it required, is itself a federal problem —

    Alvin J. Rockwell:

    Well —

    Felix Frankfurter:

    It is — it’s a problem of construing a federal statute, isn’t it?

    Alvin J. Rockwell:

    Well, I – I think we do have to say this.

    We’ve never — we’ve never said that there weren’t federal problems working around here.

    We say that what it boils down to is a federal question so simple as not to amount to a substantial federal question.

    Felix Frankfurter:

    Okay.

    Alvin J. Rockwell:

    Because the Court of California proceeded by the analyzing of the federal law to the extent of sweeping it away to show that the state law are controlled.

    Now, in conclusion, let me just say that as has been pointed out, there are other state questions involved in these cases and involved in all four cases, every single one of them, including the Albonico and Santa Barbara, state questions which the court below left unanswered in view of the conclusion, at least, that the contracts were invalid.

    The Albonico case not being a validation case, but turning upon the Madera validation proceeding.

    However, we trust that will not become important.

    We believe that — that the appeal should be dismissed and the certiorari denied but we don’t stop there.

    If — if there are federal questions of substance presented, fine, well and good.

    In that case the judgments below, we submit, should be affirmed.

    Earl Warren:

    On the question of jurisdiction, is there any difference between the Ivanhoe case and the Santa Barbara case?

    Alvin J. Rockwell:

    In my — in my mind, there is no difference whatsoever —

    Earl Warren:

    There is no 160–

    Alvin J. Rockwell:

    — whether counsel have other views —

    Earl Warren:

    — acres.

    Alvin J. Rockwell:

    — how’s that sir?

    Earl Warren:

    We have no 160-acre problem in the — in the Santa Barbara?

    Alvin J. Rockwell:

    Oh, yes sir it is.

    Alvin J. Rockwell:

    Yes, sir.

    It is.

    Earl Warren:

    Oh, it is?

    Alvin J. Rockwell:

    Yes, while one of the contracts provides for a municipal water supply, even that contract also has the acreage limitation in it.

    Yes, that — that’s it in the Santa Barbara case also.

    Earl Warren:

    Mr. Green.

    Denslow B. Green:

    Mr. Chief Justice, members of the Court.

    Before proceeding to the point that I would like to discuss with you this afternoon, I’d like to briefly summarize what our position is on jurisdiction.

    In the first instance, it is our reading of the decision of the Supreme Court of the State of California that what it was talking about was a contract that had been executed by an irrigation district and that a careful reading of that decision will show that what the Court held was that an irrigation district did not have the power under California law to execute such a contract.

    One, because it discriminated between landowners which was invalid under California law and secondly —

    Earl Warren:

    What — what section in the Constitution was that involved there?

    Denslow B. Green:

    That was the reference, Mr. Chief Justice, to Pasadena versus Stimson and the California Constitution that was cited in that case was Article 1, Section 11.

    As you recall, the California Constitution does not have an expressed Due Process Clause in it.

    But in the Pasadena versus Stimson case, the Court well —

    Earl Warren:

    I thought it had a — I thought it had a Due Process Clause but none of equal protection (Voice Overlap) —

    Denslow B. Green:

    Excuse me, I — I misstated it.

    That you’re absolutely correct.

    It does not have equal protection in those words but in the Pasadena versus Stimson case, the Court found equal protection under the California Constitution in Article 1, Section 11 which provides generally that the laws must have general application.

    It is further our position that in view of the fact that one of these contracting agencies, the state irrigation district under state law does not have the power to execute this contract, that there is no federal question in that issue that is presented to this Court because we do not see and we do not agree with appellants that by the force of any federal law that a state agency can be invested with the power that is denied to it under state law.

    We do not see how this Court could read validity into a contract between a state agency and the United States or the state agency and any other person if under state law that agency is without power to execute the contract.

    Now, in discussing the acreage limitation provisions of the contract, I think that we should review briefly the nature and extent of those provisions itself.

    And before doing that I want to state to you that it is not our contention and never has been that the acreage limitations as set forth in the statutes of the United States are invalid.

    It is our contention that the provisions of this contract containing the acreage limitation provisions with an irrigation district of the State of California which imposes those conditions upon a landowner against his will are invalid and unconstitutional provisions of the contract.

    Hugo L. Black:

    Then that means that the federal contractors are illegal, doesn’t it?

    Denslow B. Green:

    As to the — as to the provisions, yes Mr. Justice —

    Hugo L. Black:

    You mean —

    Denslow B. Green:

    — Black of the acreage limitation but it doesn’t go back to say that the statute is unconstitutional because there are many instances in which the statute could be applied in our view where it would be a constitutional application of it.

    Hugo L. Black:

    (Inaudible) you were saying at the expense that the contract made is — are not justified by the statute, federal statute?

    Denslow B. Green:

    I say that the contract may be drawn under the federal statute but it’s on —

    Hugo L. Black:

    Why — why is it illegal if the — if the Congress has said, has permitted it to be made, how can you say that it’s illegal because the States —

    Alvin J. Rockwell:

    Well —

    Hugo L. Black:

    — (Inaudible)

    Denslow B. Green:

    I think this that our point is that if you arrived here at a federal question so that you were discussing the legality of the acreage limitations as applied to the Federal Constitution, it is our conclusion that the application of those limitations in a contract with an irrigation district which has the power of assessment over its landowners constitutes a deprivation of property even under the federal Fourteenth Amendment, and we say the Fourteenth rather than the Fifth because it is the state agency, the irrigation district, that is in fact imposing the limitation and carrying the limitation out in the contract rather than the Federal Government.

    Hugo L. Black:

    Are you saying then that the contract is not authorized by the federal law and if it is, it’s unconstitutional because it takes process (Inaudible)

    Denslow B. Green:

    I say that the contract is not authorized under state law but if you get over that hurdle and then look at the federal side of the picture from the Federal Constitution that the due process and the Equal Protection Clause as of the Fourteenth Amendment would strike these provisions of the contract out.

    Felix Frankfurter:

    Because I — excuse me — I thought I understood you to say a little while ago that you do not attack the validity of the statute of Congress would authorize the making of a — of a — acreage limitation contract, is that right?

    Denslow B. Green:

    Well, we would attack the validity of the statute which applies the acreage limitation to an irrigation district in a contract.

    Felix Frankfurter:

    Yes.

    Denslow B. Green:

    Yes that — that statute —

    Felix Frankfurter:

    But I do — I haven’t —

    Denslow B. Green:

    — Mr. Justice Frankfurter.

    Felix Frankfurter:

    — included that provision.

    I just want to know whether you think the provision — the provision of the congressional act authorizing the Secretary of the Interior to make an acreage limitation of — of contract is as an exercise of federal power forget the statement of the — is as an exercise of federal power valid, is that right?

    Denslow B. Green:

    I say that in certain instances that it would be valid and as your question is so framed, I would not claim that the power is valid if —

    Felix Frankfurter:

    (Voice Overlap) —

    Denslow B. Green:

    — the secretary were operating for example on federal lands with —

    Felix Frankfurter:

    Or in a State which authorizes its agency to add in to such a contract.

    Denslow B. Green:

    Yes.

    Felix Frankfurter:

    And therefore, your objection if I follow you, is not that such a contract is illegal in any sense of federal law but that it isn’t — that the State has power to limit the contracting agencies within its control and you say it has denied that power to the irrigation district, is that right?

    Denslow B. Green:

    Well, that is getting back to our jurisdictional point —

    Felix Frankfurter:

    No, I’m not talking about —

    Denslow B. Green:

    — rather than our constitutional point.

    Felix Frankfurter:

    I’m not talking about jurisdiction —

    Denslow B. Green:

    As —

    Felix Frankfurter:

    — and you say that on the California law, the irrigation district cannot enter into such a limiting contract, is that right?

    Denslow B. Green:

    That’s jurisdictional and it’s —

    Felix Frankfurter:

    Well —

    Denslow B. Green:

    — State Constitution also.

    Felix Frankfurter:

    All right.

    And therefore, no matter what the power of the Reclamations Bureau maybe, they can’t have a (Inaudible) who entered into that agreement, is that right?

    Denslow B. Green:

    That is correct.

    Felix Frankfurter:

    That’s your position.

    Denslow B. Green:

    Yes, that is one of them.

    Then if we hurdle that —

    Felix Frankfurter:

    Can’t be able to be in one of them.

    Denslow B. Green:

    — Mr. Justice, if we hurdle that and get over to the federal constitutional question then I still think that the application of the conditions in a contract with a district is unconstitutional and let me point out why.

    The appellants in their argument here contend that these acreage limitations do not affect the property rights of landowners.

    That is found in their reply brief at page 52.

    Earl Warren:

    Unless — before you get to that point, I just like to know if your — your argument you’ve just made takes you to the point where you say that if the Act of Congress does require the Secretary of the Interior to make contracts limiting the distribution of this water to acreages of 160 acres and if a given State, any State, refuses to permit the contract of that kind that the reclamation service cannot function in that State.

    Denslow B. Green:

    Unless there is some remedy by Congress.

    Earl Warren:

    Unless Congress changes this all policy and —

    Denslow B. Green:

    Or —

    Earl Warren:

    (Inaudible)

    Denslow B. Green:

    Or there is an administrative reconciliation such was done in the case of the —

    Earl Warren:

    But I’m — I’m taking —

    Denslow B. Green:

    — Imperial Irrigation District.

    Earl Warren:

    — the assumption that he’s bound by the — by the federal law to administer the Act so that the water shall be distributed to acreages less than 160 acres.

    Now, if that — if he’s required to do that and if the State says our irrigation district cannot do that then it’s your conclusion or is it your conclusion that the Federal Government cannot operate through its reclamation service in that State?

    Denslow B. Green:

    With irrigation districts, yes that is my —

    Earl Warren:

    Yes.

    Denslow B. Green:

    — position.

    Earl Warren:

    Yes.

    Denslow B. Green:

    Unless — unless —

    Hugo L. Black:

    But suppose California said to its citizens you could buy it on these terms.

    Denslow B. Green:

    Well, I think that there is an entirely different proposition Mr. Justice Black because there you are dealing with a right of the United States as dealing with a citizen rather than a right of the United States in dealing with an agency of the State itself which is created by statute and which only has certain statutory powers that are endowed to it by the State which created it.

    A citizen has rights to deal with the United States that I would admit might not to be able to be affected by what some States says if that citizen can deal with the United States.

    But I don’t think that that is true with a state created agency such an irrigation district.

    Hugo L. Black:

    What you’re saying in effect is that California wanted to do so and the Government could sell them power or it could be — forbid its municipality to buy power from the Government if it desires because they are controlled by this.

    Denslow B. Green:

    Well, I think that — that if some provision of state law did prohibit that that California would have the power to do that, yes.

    Hugo L. Black:

    But I understood that it was —

    Denslow B. Green:

    I don’t want to get over into the case as following this one but —

    Hugo L. Black:

    Well I — I —

    Denslow B. Green:

    — where I think that point is involved —

    Hugo L. Black:

    (Inaudible)

    Denslow B. Green:

    Well, perhaps I’m mistaken.

    Earl Warren:

    But I — I have the — the reason I’m still interested in what Justice Black has exists.

    As I understand it, the – the argument heretofore has not been made on the — the basis of any distinction between an individual and the — and the corporation or — or an irrigation district but it’s made on — was made on the basis that California had the absolute right to make what disposition it desired of its water.

    And if that was true, why wouldn’t it apply both to an individual and to an irrigation district?

    Denslow B. Green:

    As to if water over of which if we were get into an argument as to who has the control of the use and disposition of the water, the Federal Government or the State, if we were to approach it from that issue, I would say yes, that California could do that, regardless of what the United States wants to do, except as to the navigational servitude where, of course, the United States’ power is supreme.

    But as to the intrastate water which I think all of the cases that this Court had recognized is, if not the property of the State itself, at least, they’re subject to the control and disposition by the State subject to the navigational servitude.

    And so, in answering your question, yes, they could so limit the use of the water as they saw fit subject, of course, to the Constitution of the United States on its due process powers.

    But what are these limitations that we’re talking about?

    One of the points that has been stated by appellants here is that the limitation is merely a restriction as to the use of water.

    Such is not the case.

    The contract provides that every excess landowner shall not sell any of his excess land except at a price that is approved by the Secretary of Interior and failing to do that, failing to get that approval that the land is then forever barred from receiving project water.

    Now, this provision of the contract, which is contained, expressly entered, and in the letter that we set out in our appendix to our brief has not been discussed either in oral argument or in the briefs by appellants here.

    Now what — what gentlemen, does this mean?

    Take for example Phil Albonico, a man who through his efforts and his work starting out as a sheepherder, a Basque sheepherder as a boy and coming over to this country when he was 12 years old, getting the band of sheep eventually selling them and starting to farm and building his farm up to 1280 acres.

    During the period that he was doing this, within the boundaries of the Madera Irrigation District, his entire lands, all of them were assessed.

    And with the assessments that were gained from his and other lands, the Madera Irrigation District developed the earliest priority of waters on the San Joaquin River upon which the Government is relying and distributing these waters in the Central Valley Project and litigated those rights with Miller & Lux for years and years.

    This man finally is faced with a contract that is entered into by the United States in the District.

    In 1951, after some, what — 31 years of assessment that says, now your excess land not only cannot receive water but you can’t sell any of your excess land except at a price that is fixed by the Secretary of Interior of the United States.

    And if you do so sell it, the land will be forever barred from receiving project water.

    Well, to say that this is not a limitation upon sale of land in an irrigation district, is not a recognition of the economic facts of life.

    No purchaser will purchase land in an irrigation district that is subject to assessment but is forever barred from receiving water, the sole supply of which comes from the Federal Government through the irrigation district in the Central Valley Project.

    And so we say that here is a property right of Mr. Albonico, is the right to sell his land at such price as he could receive, that is taken away from him, by this contract because now he has imposed upon that price the will and the — and the determination of the Secretary of Interior.

    Now, what form can he turn to?

    What administrative remedy does he have or what judicial remedy does he have if the Secretary of Interior fixes that price at a price that doesn’t suit Mr. Albonico?

    He has none.

    The question of his supply of water under state law, he is entitled to distribution, readably by the district in accordance with the amount of his assessment to his proportionate share of the water of that irrigation district.

    On — on an acreage basis?

    Denslow B. Green:

    No on — on the basis of his assessment.

    As his assessment bears to the total assessment of the district, he is entitled to that portion of the district water.

    If his assessment were a dollar and the district were $100, he would be entitled one one-hundredths of the water.

    Now under state law, if he does not use that water within his district, he is entitled to assign it to someone else in the district so that they can use it.

    But now under this contract, his excess lands — his lands over 160 acres are suddenly deprived of this right to receive their proportionate share of the waters of the State.

    Now, it has been said by appellants, well he might receive some indirect benefit for his excess land such as the underground water supply.

    That very issue was raised in the Albonico case and the trial court in that case found that there was absolutely no benefit that the land would receive as a factual matter unless it received its water supply for all of its lands.

    And said to the district, either enter into some kind of a contract where you can give this man his proportionate share of the water or exclude him from the boundaries of the district.

    Now again, I ask what form do we go to, to recompense Mr. Albonico or any landowner in a district, whether he now be excess or non-excess, he may be excess tomorrow if he’s a husband and wife and his wife dies and he inherits the other half of the property, he immediately then becomes one of the suspect class.

    Where do we turn to recompense him?

    What form do we go to, to reimburse him for these property rights that have been taken?

    The appellants say, he can sue the United States and he can recover damage if he has sustained any and therefore, there is no constitutional deprivation of property.

    As was pointed out by Mr. Rockwell, in the first instance, this validation proceeding could well act as any bar to a further proceeding for compensation because the contract which imposed and which took his rights away, if validated, would settle for once and for all, whether he had any litigable rights.

    His day in court is on the validation of this contract.

    His day in court is to say this contract deprives me of rights and it is illegal for you to execute such a contract.

    We don’t contend or we don’t admit that he is required to stand back and say, ”This contract takes these rights away from me but my only remedy is one, to sue the United States or the district or whoever for damages for my deprivation.”

    As Mr. Rockwell pointed out, that would turn inverse condemnation into a universal duel that would completely wipe out the Due Process Clause of the State or any Federal Constitution because it would be a complete answer to say we held the — in the case of the Federal Government, we have the constitutional power to take this right.

    Therefore, all you have to do is sue us for the damage without the United States going through the procedure of getting the congressional authority and to act — to take this right by a condemnation procedure.

    And so we feel, gentlemen, that this is the form that these people who are excess landowners or who may become excess landowners must turn to in order to have their rights protected.

    It is this very case, a determination as to whether or not this contract as to these landowners is valid or invalid.

    It is this form that he must come to and at this time in order to receive his protection.

    Hugo L. Black:

    Do I understand you to say — to understand the Government to say that they have legal right to have this contract, make it unlawful to serve more than 160 acres if you have the right to sue in the Court of claims?

    Denslow B. Green:

    Well I — I think —

    Hugo L. Black:

    Do you think you understand that to be the Government’s contention?

    Denslow B. Green:

    I think that their contention, both the Government and the appellants is that the United States has the power to acquire the unlimited title as they are talking about to the waters of the State of California so that they can impose any condition that they see fit.

    I do think that that is their position.

    Now, it is our position that regardless of whether the United States has that power which we do not concede, that they must exercise that power in a constitutional manner.

    If they are going to do that, they must then file their condemnation action, not just go in and take, that we have the right if they go in and take by terms of this contract to say the contract is illegal.

    You cannot execute it.

    Felix Frankfurter:

    I can understand your position that you have the right.

    I don’t follow you when you say that it’s now or never because the number of condemnation cases in which Uncle Sam doesn’t go through the formality of condemnation.

    But there is a taking, an implied agreement to repay and (Inaudible).

    Denslow B. Green:

    Well —

    Felix Frankfurter:

    — namely that it is — it’s a — it’s a contingent position.

    So I understand from — as I understood (Inaudible) they say if indeed there is a deprivation here then you’ve got a remedy by (Inaudible)

    Denslow B. Green:

    Yes.

    That — that is what they say.

    We say that we have two remedies —

    Felix Frankfurter:

    I —

    Denslow B. Green:

    — if — if there is a taking.

    Felix Frankfurter:

    What if you don’t — It’s now or never, right?

    Denslow B. Green:

    Yes.

    Now, I — I would like to point out in answer to Mr. Davis’ contention and getting back to the question of jurisdiction.

    As you recall in referring to the Albonico case, Mr. Davis said that what the Court there held was — that Mr. Albonico was entitled to water.

    No such holding was made.

    There was no holding in that case that Mr. Albonico could enforce the Bureau of Reclamation to deliver water to him.

    If you will turn to page 183 of the appendices to the jurisdictional question, this is what the Court said there and I think it’s important because it indicates how strongly the talk is that the Court is talking about the power of a district to act rather than the power of the United States to act.

    It says that in view on our decisions in Ivanhoe and Madera wherein it was held that the excess land provisions in similar contracts were improperly included therein.

    It must be concluded in this proceeding that the district, not the United States, the district may not impose on landowners within the district, the limitations contained in Sections 28, 29 and 30 of the contracting question and that all of the petitioners’ lands within the district, they’re entitled to their fair rateable portion of water distributed and to be distributed by the district for irrigation purposes.

    The Court then goes on to say that if the district can enter into a proper contract that he will be entitled to his rateable portion of water, and consequently, in view of the fact that the district does not impose these limitations on him, that he is not entitled to be excluded from the district because there is hope that in the future that the question will be solved.

    Now, in conclusion then, in restating our position, we feel that what the court below was dealing with was the rights of an irrigation district to contract.

    That it held that those rights were not such that the district by a contract with the United States or any other person could discriminate among the landowners of the district on the amount of land that they held.

    We hold that the court below determined that a contract which prohibited the vesting of a valid, permanent or pertinent right to water in the district for the benefit of the landowner, was contrary to state law and that the district could not so execute a contract.

    Now, we are then presented with this question.

    You say to us there is a hiatus here.

    The Federal Government cannot act.

    May we point out to you that in 1956 by amending the acts of Congress that the United States has already provided that the contracts could be amended to include a permanent water right and could — already has provided that the contracts could be amended to provide for credit for repayment.

    So, two of the three questions are now out of the way and the only thing that remains is the question of action by Congress or the State so that an irrigation district can execute such a contract as is now before this Court.

    Earl Warren:

    Mr. Goldberg.

    B. Abbott Goldberg:

    May — may it please the Court.

    I’ve heard so many statements to which I take violent exception that I hardly know where to begin.

    But the — the first is this.

    With regard to Mr. Green’s statement of the Albonico case, Mr. Green says that the trial court found, I’m referring to the — to the record now at page 412, he says that the trial court found that the Albonicos were not receiving any direct benefit from the operations of the Madera Irrigation District, direct benefit by way of ground water replenishment.

    If the trial court findings are examined, you will see that the trial court was reviewing the action of the District Board of Directors.

    In California, land is excluded from an irrigation district by asking for a hearing before the Board of Directors of the district.

    The determinations of the Board of Directors are subject to — to judicial review.

    The Board of Directors found that the lands would be benefited.

    The trial court held that that planning of the Board was incorrect and there was a very serious question before the California court as to the correctness of the trial court’s findings, the authority of the trial court to review this finding of the Board and the proper remedy that should be — should be granted if the Board of Directors of the district was in fact incorrect.

    So we still have open.

    It was never necessary to determine under the California court’s opinion but we still have open to question of, are the Albonicos getting the benefit?

    Felix Frankfurter:

    Before you — may I interrupt you?

    I’m sorry.

    I didn’t mean to interrupt but may I break into your contention that (Inaudible) to answer all the things that you disagree with.

    As I understand, you haven’t got much time.

    B. Abbott Goldberg:

    No, I have not, Your Honor.

    Felix Frankfurter:

    I’d like to put to you two questions and I would like to get a categorical answer to these questions.

    One, that do you contend that under federal law in its entirety and the powers given therein to the Secretary of the Interior, the Federal Government comes stupendously speaking may impose conditions such as are contained in this contract against the opposition and resistance of California, opposition and resistance derived from what it concedes to be the limitations of the contracting power of its irrigation districts?

    B. Abbott Goldberg:

    You asked for a categorical answer, Your Honor.

    Now, I — I will give it to you.

    One, we have not considered that question because in our opinion, if — if plain language has any meaning, California law has given these districts all the power they need.

    Felix Frankfurter:

    And that brings me to the second question.

    Since — since you — you don’t have to say yes or no if it isn’t involved (Inaudible) answer.

    Is it your contention that the chief claims so far as I’m concerned that the irrigation districts are not empowered, indeed are disabled by California law from entering into such a contract is not so, that California law does not disable the irrigation districts and California law authorizes the irrigation districts to enter into the contract in controversy?

    B. Abbott Goldberg:

    Yes, our contention is that California law authorizes the districts to enter into these contracts and that the contracts are — were held invalid by the California court, not for any lack of capacity on the part of the districts but because the United States could not get the sort of title that the California court thought it needed.

    Felix Frankfurter:

    But your –your position —

    B. Abbott Goldberg:

    I — I don’t like to quibble with Mr. Rockwell.

    He — he says, well, it’s a — when you have the State —

    Felix Frankfurter:

    You don’t have to — have to convince him.

    You have to convince this Court.

    Felix Frankfurter:

    [Laughter]

    B. Abbott Goldberg:

    Well, Your — Your Honor, he — he makes a point about this business of the applicable federal law.

    You have a state statute where it says, “You can contract with the United States under the applicable federal law” and he says that is a state question which federal law is applicable.

    Well, I — I can’t bring myself to pass the hurdle.

    How you can say the decision of which is an applicable federal law is a state question, but suppose you do.

    Let’s look at why the federal law, the acreage limitation, is not applicable.

    You — you can’t just decide this question in a vacuum.

    You have to look why?

    It’s not applicable, says the California court because under Section 8, the United States has disabled itself from acquiring this sort of title that it needs.

    Now, one — one other thing, and I’ll confine myself to this.

    Mr. Rockwell says, “Well, if Section 8 means what we claim it to be,” that is, that the United States can give the sort of rights that it needs for the acreage limitation, “why all this monkey business,” and I’m quoting,” and why all this monkey business about appropriations?” Now, I hate to take this Court down the rat hole of water — of water along the west because it is extremely confusing, but you have to look at Section 8 in its historical context.

    And unfortunately, the legislative history on Section 8 is not particularly revealing.

    But you look at Section 8 and certain things do become clear.

    One, the section was drafted at a time when it was feared that the United States through the ownership of public lands could impose on the States, a system of water law which the States deemed hostile to their interests.

    As a matter of fact, I use by way of illustration the Winters case, we haven’t cited in here.

    It’s not — it’s not really germane to this argument.

    But in the Winters case, the United States succeeded in obtaining a sort of riparian right for an Indian reservation in the State of Montana where only appropriative rights were recognized.

    And if that situation could exist, then every appropriative right on a stream where the United States owned land might be in jeopardy.

    So that’s one reason for Section 8.

    Another reason for Section 8 is this.

    You will notice the statement in the Section 8, “beneficial use shall be the measure of the right.”

    At one time in western water law, strangely enough, beneficial use was not the measure of the right.

    There are old cases indicating that the size of your ditch, your — your transportation was the measure of the right.

    The amount you could divert, not the amount you could use and the legislative history does say putting this language in the measure of the right does accord with what seems to be the common sense that you should — that’s an improvement they say on the state law.

    Finally, there is a third reason, and this perhaps is most the compelling but the most difficult to explain, Section 8 exists as a device to protect the United States.

    You — you read cases like Lux against Haggin.

    And Lux against Haggin states —

    Earl Warren:

    You have —

    B. Abbott Goldberg:

    (Voice Overlap) —

    Earl Warren:

    — five minutes (Inaudible)

    B. Abbott Goldberg:

    Yes, there’s a slight confusion.

    Earl Warren:

    (Voice Overlap)

    yes.

    B. Abbott Goldberg:

    Lux against Haggin states of the Acts of 1866, 1870, 1877, the Desert Land Acts whereby the United States recognized the appropriation rights says these Acts constituted grants to unnamed grantees.

    That’s their language.

    Actually what those Acts did is give to everybody in the world or everybody capable of getting access to a stream, gave them the power to appropriate under state law so that if the United States itself in an appropriation state does not also make an appropriation, it leaves itself open.

    It leaves itself vulnerable to somebody else coming in and making an appropriation on top of it.

    Now, this situation can occur, it has occurred.

    And if the United States were to appropriate, it would protect itself against that.

    But once the United States has secured the property right, has declared its use of the water to the exclusion of other uses, we do not think that state law can control the particular sort of use that the United States makes.

    Mr. Rockwell says, “Well, how — how can the United States acquire a greater right than the state has to give?”

    And there, the answer, it seems to us, abundantly simple where it’s no different in the water right than it is the case of buying the post office site or anything else.

    The United States buys a piece of land for a federal purpose subject to a zoning restriction, the United States is not subject to the zoning restriction or other police regulations itself.

    In that sense, the United States does simply by virtue of its capacity as the sovereign government have greater rights than any other person can have.

    It can get a greater right than the State has to give.

    Thank you.