CONSTITUTIONALITY OF THE 

 APPALACHIAN BILL* 



BY 



Harvey N. Shepard, Attorney-at-Law, Boston, Mass. 



Mr. Chairman and Gentlemen: 



The Supreme Court of the United 

 States gave a decision May 13, 

 1907, in a cause brought by the State 

 of Kansas against the State of Colora- 

 do which some people fear may affect 

 the constitutional position of the pend- 

 ing bill for acquiring National Forests 

 in the Southern Appalachian Moun- 

 tains and White Mountains. The 

 charge made by Kansas is that Colo- 

 rado is depleting the fiow of water in 

 the Arkansas River, a river which 

 flows through both these States. The 

 United States of America filed its pe- 

 tition of intervention, and alleged 

 that within the watershed of the Ar- 

 kansas River are 1,000,000 acres of 

 public lands, uninhabitable and un- 

 salable unless rendered so by the im- 

 pounding of waters in this watershed 

 to reclaim this land, that legislation 

 of Congress has sanctioned the use of 

 these waters in this arid region, and 

 that under the Reclamation Act of 

 June 17, 1902, $1,000,000 have been 

 expended in procuring sites for res- 

 ervoirs and dams. 



This contention brought directly to 

 the court the question whether the 

 amount of the flow of the waters of the 

 Arkansas River is subject to the 

 authority and control of the United 

 States. The United States claimed 

 that" in and near the river, as it runs 

 through Kansas and Colorado, are 

 large tracts of arid lands ; that the Na- 

 tional Government itself is the owner 

 of many thousands of acres ; and that 

 it has the right to make such legisla- 

 tive provision as in its judgment is 

 needed for the reclamation of all these 

 arid lands and for that purpose to ap- 

 propriate the accessible waters. 



This claim, says the Supreme Court, 

 involves the question whether the re- 

 clamation of arid lands is one of the 

 powers granted to the General Govern- 

 ment. Certainly it is not, for, in the 

 enumeration of the powers granted to 

 Congress by the eighth section of the 

 first article of the Constitution, we can 

 not find one which by any implication 

 refers to the reclamation of arid lands. 



The pending bill authorizes the Sec- 

 retary of Agriculture to acquire for 

 National Forest purposes lands more 

 valuable for the regulation of stream 

 flow than for other purposes and sit- 

 uated on the watersheds of navigable 

 streams. Herein is the sharp distinc- 

 tion from the Kansas-Colorado cause. 

 In that cause the United States alleged 

 that the Arkansas River is not navig- 

 able in the States of Colorado and 

 Kansas. But here the only lands which 

 can be acquired are those on the wa- 

 tersheds of navigable rivers; and it is 

 for the protection of these navigable 

 rivers that these forest areas are to be 

 acquired. 



No one questions the authority of 

 the United States over navigable riv- 

 ers. Congress may prevent or remove 

 obstructions in these rivers, and it may 

 take all needed measures to secure 

 their uninterrupted navigability. What 

 these measures shall be depends en- 

 tirely upon the discretion of Congress, 

 and there is no other authority what- 

 ever which can question them. Since 

 the days of Chief Justice Marshall 

 this has been the settled rule of con- 

 struction. 



It is conceded by all that the Gov- 

 ernment of the United States is one of 

 limited powers and that it can wield 

 only such attributes as are conferred 



*Remarks Made at the Hearing before the House Committee on Agriculture, 

 Washington, D. C, January 30, igo8. 



