tion ever could. But that is an opposition to the ownership of such large landholdings, rather than to the system as one of water law, and but a repetition of the denunciation of those land grants themselves.13 In great part, however, the denunciation is also due to the sharing feature which forces the admission of new users into an already fully used supply, as a matter of common right, resulting in a permission of non-use at any time. Engineers say that they can plan no works when they cannot know how much water the law will allow them, because they will have to share it with other landowners along the stream who are not using it now but may start to do so in the future at any time. This side of the opposition, at least, seems to me to show that if the riparian system is bad, it is in some degree because socialism is bad.

As between these two systems, prior appropriation and riparian rights, the chief differences have now been brought out. Prior appropriation is every man for himself, with exclusive rights for the earliest and his descendants and successors, refusing to admit the public by any common right into an already fully used supply, and refusing even to apportion any deficiency among existing users to the derogation of the first in priority. The riparian system, on the other hand, carries "common right" in water so far as it can without introducing common rights in land also, and to all bordering or riparian landowners (excluding all non-riparian owners) gives a common right in the supply for use upon those lands, admitting any of them into the use although he had permitted his right to remain long in non-use, and even though thereby cutting down prior users in order to admit him; and, as between existing users, makes them bear ratably the loss when a deficiency comes.14

13 "Since this country became a part of the United States, these extensive rancho grants, which then had little value, have now become very large and very valuable estates. They have been denounced as ‘enormous monopolies, princedoms,' etc.; and this court has been urged to deny to the grantees what, it is assumed, the former governments have too liberally and lavishly granted. This rhetoric might have a just influence, when urged to those who have a right to give or refuse. But the United States have bound themselves by a treaty to acknowledge and protect all bona fide titles granted by the previous government; and this court has no discretion," etc. Mr. Justice Grier in United States v. Sutherland, 19 How. (U. S.), 364 (1856).

14 In California both systems exist in this way: The riparian system is enforced for all bordering private landowners who choose to avail themselves of it. But, by federal statute, it is not in force for land of the United States, which comprises half of the area of that state, nor is it enforced for any riparian owners who do not seek it;

These two systems, one of which divides the supplies in severalty according to priority, and the other of which retains the supplies in common undivided, are comprehensive, and any new system can be but some variation of those ideas. The new system now being proposed is the licensing system. It involves mainly the system of prior appropriation, with conditions placed upon the acquisition of new priorities. This is already in force in numerous states. Some of the conditions are the payment of license fees, the making of reports to public officials, and the termination of the priority thereafter, as the public officials from time to time deem advisable. Such licensing system was enacted by the last California legislature,15 and is now awaiting referendum vote. At bottom, the statute is based upon the idea of priority, and requires the officials to recognize priority to a very large extent; on the other hand, it recognizes that the doctrine of priority has, in some respects, worked unsatisfactorily and so as to require restriction of its operation.

SAN FRANCISCO, CAL.

Samuel C. Wiel.

and from lack of acquaintance with it and other reasons not necessary to go into here, riparian owners very frequently ignore it. Under such circumstances the first to take the water away is prior in right against everyone except the riparian owners, and priority governs among such appropriators, and prior appropriation thereby goes on among appropriators quite actively, and after five years often bars the riparian owners themselves by prescription. But that, if called upon within the prescriptive period, California courts will enjoin the appropriator at suit of a riparian owner, and that the California courts will force the admission of a riparian owner into the use with other riparian owners even though he has not used the water for many years, see, merely as the most recent decision, Miller & Lux v. Enterprise C. & L. Co., S. F., No. 6061, decided December 20, 1913. Since this was written a rehearing has been granted, but not affecting the general principle. These principles have also been incorporated into recent rulings upon underground water. Burr v. Maclay Rancho & W. Co., 154 Cal. 428, 98 Pac. 260 (1908).

15 Stat. 1913, p. 1012.

JURISDICTIONAL LIMITATIONS UPON COMMISSION ACTION.

I.

SPEAKING generally the problem which arises in all cases

where the question of the limits upon the jurisdiction of a commission is raised, is whether there is warrant of law for what is being done. To determine this is seldom as simple a matter as the reading of the statute under which the commission is purporting to act to see whether by proper interpretation sufficient authorization appears. If there is any doubt as to whether the power in question may constitutionally be conferred upon the commission, that question must carefully be considered. The action of a commission is fundamentally limited by these two possibilitieseither that the legislature has not gone as far as it might in empowering the commission, or that the legislature has gone further than it constitutionally may in attempting to give the commission authority. This distinction is sometimes obscured by the canon of construction to the effect that, where a statute is apparently of such extent as to be unconstitutional, it will, if it is a possible interpretation, be confined to that scope which could constitutionally be covered. But when the legislature has gone so far as to make such an assumption impracticable, our courts will promptly exercise their traditional power of regarding as naught governmental action without constitutional power. It so happens that there have been in the Supreme Court of the United States of late years a remarkable sequence of cases concerning the jurisdictional limitations upon commission activity, most of them relating to the extent of the powers conferred upon the Interstate Commerce Commission by the Act to Regulate Commerce as amended. These cases have such importance in actual practice, in addition to the progress they indicate in administrative law, that the present paper will be primarily devoted to the discussion of their bearing upon the fundamental principles of governmental regulation.

II.

The right of the State to regulate those businesses in which the public has an interest has come down to us from time immemorial. The way in which this principle finds scope most obviously is by the action of the courts in declaring the conduct of the proprietor of the service unreasonable at the suit of the party who has been aggrieved thereby. But legislation laying down rules in first instance for the course which those who assume these callings must follow has always been regarded as due process of law, if it kept within the bounds of what is rational. All this was fully recognized in the leading case of Munn v. Illinois,1 in disposing of the contention strongly urged that the power over rates was essentially judicial, and could not be exercised by the legislature. But the court in its line of argument fully justified regulation in every way that the State may employ to impose obligations. Litigation determines rights and wrongs in the past upon the basis of an existing law; legislation prescribes rules for the future as to what shall henceforth be the right and wrong in a given situation. Declaring past charges unreasonable is an act judicial in its character; fixing rates for the future on the other hand partakes of legislation. All the time it should be remembered that this is public policing of private ownership, even if it be a public calling peculiarly subject to state control. The function of the government is therefore that of regulation of the conduct of the business; the commission should not go into the management of the business by unnecessarily dictating as to the exact course which should be pursued.2

Once the principles upon which the obligations of those who are held to the service of the public are established, the enforcement of the law may be devolved upon a body duly established for that purpose. The laying down of the law is something that the legislature cannot delegate; but the execution of the law it almost

Note the limitations upon this doctrine in Lake Shore & M. S. Ry. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565 (1899).

2 In Bacon v. Boston & M. R. R., 83 Vt. 421, 77 Atl. 858 (1910), it was laid down that, although the legislature has power to provide by establishing a commission that a railroad shall discharge all its public duties, powers conferred are only those of supervision and regulation, and not of management and administration.

3

necessarily gives over to the officials which it authorizes to act in the matter in question. Notwithstanding any theoretical division of the powers of government, our books have at all times been full of statutes, unquestionably valid, in which the legislature, after laying down rules and principles, has been content to leave the execution and detail to other officers. All this came to the test of the Supreme Court in the Railroad Commission Cases, where the establishing by the legislature of a commission with power to fix rates was held constitutional. The requirement that the rate shall be reasonable is to be found in the law of the land which can only be modified by the process we call legislative. But the function of regulating commissions in determining and fixing reasonable rates and practices, within the principles and limitations of the substantive law governing the situation, is what we call administrative. As a matter of government it has been found, particularly of late years, that the only practicable way of enforcing the elaborated law of public service is by the creation of administrative bodies specially empowered for this particular work. Indeed with the increasing complexity of our relations the power of the legislature to act through bodies skilled to meet the exigencies of the situation as they arise has been universally recognized.*

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The fundamental rule against delegation of legislative power remains; only it is realized that the application of the principle laid down by the legislature is simply administration. Very recently this distinction was clearly made in the Supreme Court in the case of Interstate Commerce Commission v. Goodrich Transit Company, where the objection was raised in vain that certain orders of the commission relating to accounting created in effect new obligations not imposed by the statute. The Congress may not delegate its purely legislative power to a commission, said the Supreme Court, but having laid down the general rules of action under which a commission shall proceed it may require of that commission the application of such rules to particular situations, 3116 U. S. 307, 6 Sup. Ct. 334 (1886).

See further the limitations in Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047 (1893).

4 In the recent case of Louisiana & P. R. R. v. United States, 209 Fed. 244 (1913), it was pointed out that for a commission to draw up what would amount to a code applicable to a situation would be to transcend its powers, its true function being administrative, not legislative. 224 U. S. 194, 32 Sup. Ct. 436 (1912).

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