THE IKRIGATION AGE. 



75 



because only by such payments could they get water 

 from the project and they paid each year to get 

 sufficient water to enable them to raise crops. But 

 in the year 1913 many of them had become finan- 

 cially exhausted by repeatedly preparing their land 

 for crops which failed for lack of water and by their 

 payment to the United States of some of the 

 charges which have been described and yet many 

 of the charges remained unpaid. Thereupon after 

 they had prepared their lands for the crop of 1913 

 and after the water had been turned on to the lands 

 and the crops were growing the defendants threat- 

 ened and were about to turn the water from the 

 lands of these shareholders unless they paid the 

 operation and maintenance charges for 1913, and 

 the defendants further threatened and were about 

 to recommend for cancellation and to cause the 

 cancellation of the homestead entries and the water 

 rights of the 

 share holders 

 \vho had not 

 paid all the 

 charges against 

 them because 

 they had failed 

 to do so. The 

 turning of the 

 water from the 

 lands would 

 have ruined the 

 crops of 1913. 

 The cancellation 

 of the home- 

 stead entries and 

 the water rights 

 of the share- 

 holders would 

 have driven 

 them with their few domestic animals away from 

 their homes. The relief sought was an injunction 

 against the turning of the water from the lands, 

 against collection of the charges for construction 

 before the completion of the works, against the col- 

 lection as operation artd maintenance charges of 

 expenses for betterments, against the collection of 

 operation and maintenance charges for the year 

 1913, and against the cancellation of the homestead 

 entries and water rights of the shareholders because 

 these various charges have not been paid. 



Counsel for the appellants argue that this suit 

 should be dismissed and the injunction should be 

 dissolved because the facts which have been recited 

 present no cause of action for any relief in equity. 

 Let us see. The complaint is that the defendants 

 without authority of and in violation of law demand 

 of the holders of water rights charges for construc- 

 tion that are not due, charges for operation and 

 maintenance composed in part of items for better- 

 ments and in part of items for expenses not made 

 in connection with the Belle Fourche project for 

 which they are not legally liable and that the de- 

 fendants are about to deprive the shareholders of 

 the use of the water and of their water rights and 

 homestead rights because they do not pay these 

 charges. There can be no doubt that these acts and 

 threatened acts of the defendants are and will be 



Filling a metal silo with kafir. Courtesy of the Santa Fe Railway- 



not only unauthorized by but contrary to law. But 

 counsel contend, nevertheless, that these facts give 

 a court of equity no jurisdiction to grant relief to 

 the shareholders or the plaintiff because the Secre- 

 tary of the Interior had and exercised the discre- 

 tion to determine that all these charges and acts 

 were lawful. But the rights to the homesteads and 

 to the water rights of the shareholders were sub- 

 stantial, valuable and against all, but the Congress 

 of the United States, vested rights. Counsel cites 

 authorities to the effect that the United States may 

 withdraw lands subject to homestead and pre- 

 emption at any time before patent. But that power, 

 whatever its extent, is vested in the Congress of 

 the United States alone, not in the executive offi- 

 cers of the United States. The former may under 

 some circumstances make laws to withdraw such 

 lands from pre-emption or homestead although 



pre-emption or 

 homestead rights 

 have been initi- 

 ated. But the 

 officers of the 

 executive de- 

 partment of the 

 g o v e r n in ent 

 may not. They 

 are subject, not 

 superior, to ex- 

 isting laws and 

 they may not 

 lawfully destroy 

 or unjustly af- 

 fect the water 

 rights, or home- 

 stead rights, or 

 other valuable 

 rights of this 



nature in violation or disregard of the laws of the 

 land. Hemmer vs. United States, 204 Fed. 898, 904, 

 and cases cited. 



It is a question of law whether the proposed 

 destruction of the homestead rights and water 

 rights of the shareholders and the refusal to permit 

 them to use the waters of the project because they 

 do not pay the charges alleged to be illegal is or is 

 not authorized by law. And a decision of a ques- 

 tion of law by the officers of the executive depart- 

 ment is never conclusive upon the courts. Wiscon- 

 sin Central R. R. Co. vs. Forsythe, 159 U. S. 46, 61 ; 

 United States vs. Grand Rapids & I. R. Co., 154 

 Fed. 131, 136; Northern Pacific R. Co. v. Sanders, 

 47 Fed. 604, 609-612. 



It is the function and duty of the officers of the 

 judicial department of the United States, a function 

 and duty which they may not renounce, to exercise 

 their own independent judgments in the determina- 

 tion of the questions whether or not acts of execu- 

 tive officers are authorized by law even though 

 such officers have already decided the questions. 

 Deming v. McClaughry, 113 Fed. 639, 640, 641, 51 

 C. C. A. 349, 350, 351 ; Hartman v. Warren, 76 Fed. 

 157, 162. 22 C. C. A. 30, 36; Webster v. Luther, 163 

 U. S. 331. 342: United States v. Tanner, 147 U. S., 

 661, 663; Merritt v. Cameron. 137 U. S. 542; United 

 States v. Graham, 110 U. S. 219: Swift Company v. 

 United States, 105 U. S. 691. The facts stated in 



