moral responsibility, and it did not desire avowedly to pass any legislation in aid of any special industry, but it could, on the theory of aiding navigation, carry out a certain patrol of the navigable streams. The Act was approved March 1, 1893, and provides for the creation of a commission of three members, to be known as the California Debris Commission, and to be selected by the President, by and with the advice and consent of the senate, from officers of the Corps of United States Army engineers, which commission has its authority and exercises its powers under the supervision of the chief of engineers and direction of the Secretary of War. The jurisdiction of the commission with reference to hydraulic mining extended to all such mining in the territory drained by the Sacramento and San Joaquin Rivers. Hydraulic mining, as defined in section eight thereof, directly or indirectly injuring the navigability of said river systems carried on in said territory other than as permitted under the provisions of this act, was prohibited and declared unlawful.

It was made the duty of the commission to mature and adopt such plans as would improve the navigability of all the rivers comprising the system, deepen their channels, and protect their banks, with a view of making the same effective as against the encroachment of, and damage from, debris resulting from mining operations, natural erosion, or other causes, and permitting mining by the hydraulic process to be carried on, provided the same might be accomplished without injury to the navigability of the rivers, or to the lands adjacent thereto. The commission was also empowered to examine, survey and determine the utility and practicability of storage sites for the storage of debris, with a view to the ultimate construction of impounding dams and reservoirs, and permitting hydraulic mining to be carried on behind them. It prescribed a complete system for application of those desiring to submit themselves to the jursdiction of the commission, of the necessary notices, publication, examinations, hearings, etc. The works are to be constructed under the direct supervison of the commission, but at the ex

pense of the parties, and the permit to commence mining is not issued until after inspection and approval of the completed work. This permission may, for cause, be revoked, or its terms modified from time to time. It will be noticed how absolutely hydraulic mining is placed under the thumb of the commission. The terms of the act contain, moreover, the drastic provision that the petition to the commission to be permitted to mine

"shall be accompanied by an instrument duly executed and acknowledged, as required by the law of the said State, whereby the owner or owners of such mine or mines surrender to the United States the right and privilege to regulate by law, as provided in this act, or any law that may hereafter be enacted, or by such rules and regulations as may be prescribed by virtue thereof, the manner and method in which the debris resulting from the working of said mine or mines shall be restrained, and what amount shall be produced therefrom."

Under the provisions of this act a number of permits have been granted and a number of mines have started again. The courts are being again appealed to, however, for injunctions; the Red Dog hydraulic mine has already been closed down by injunction from the Superior Court of Sutter County; the Polar Star mine is closed down under a temporary restraining order from the same court, and suits have been begun and are threatened against many other mines operating under the jurisdiction of the commission.

While this act was pending in congress there was being crowded through the legislature of California an act introduced by Attorney General Tirey L. Ford, then State senator from Sierra, Plumas and Nevada counties, which, as Sections 1424 and 1425 of the Civil Code was approved March 24, 1893, the terms of which are as follows:

"1424. The business of hydraulic mining may be carried on within the State of California wherever and whenever the same can be carried on without material injury to the navigable streams, or the lands adjacent thereto.

"1425. Hydraulic mining, within the meaning of this title, is mining by means of the application of water, under pressure, through a nozzle, against a natural bank."

Section 1424, it will be seen, is in direct conflict with the provisions of the Debris Commission Act. It is also in

conflict with the judicial interpretation given to the provisions of that act, and is, therefore, probably nugatory in the Sacramento and San Joaquin watershed, though in full force and effect in the remainder of the State. Section 1425 will be of value as defining the sense in which the words "hydraulic mining" were used in California prior to its enactment only in case it is really the codification of a definition actually accepted at the time and before the federal act was passed.

The North Bloomfield Company, as has been seen, had constructed its restraining works before the creation of the commission and those restraining works had been decided in a case by the United States against the Company in the United States Circuit Court to be sufficient, and application of the government for an injunction denied. It, therefore, did not submit itself to the jurisdiction of the commission. Several years after the act was passed the government again brought an action against the North Bloomfield Company, adding to the old allegations supplemental averments of the passage of the Debris Commission Act, and the failure of the company to submit itself to the jurisdiction of the commission and secure from it a permit to conduct its mining operations behind its dam. While conceding that the mine was being operated without injury to the navigable streams, as found at the former trial, Judge Ross nevertheless granted the injunction, holding that until the debris commission appointed under the act should find that such mining can be carried on without causing the prohibited injury, all hydraulic mining within the territory drained by the Sacramento and San Joaquin River systems, is unlawful. This decision was afterwards affirmed on appeal to the Circuit Court of Appeals. Here was the constitutionality of the Act as a quasi-police regulation upheld in favor of the government and against a hydraulic mine. There is no doubt, moreover, of the constitutional right of the government to appropriate money or build dams to keep debris out of its navigable streams.

Such a test of the constitutionality of the measure on the point indicated is, however, of no benefit to the miners. The

single comforting obiter dictum in the whole decision of Judge Ross is the following: "The power to absolutely prevent the use of such waters for the objectionable purposes necessarily includes the power to prescribe the terms and conditions upon which they may be so used." (81 Fed. Rep. 254.) Taken in connection with the facts of the case, however, this language would simply mean: "The power to absolutely prevent the use of such waters for the objectionable purposes necessarily includes the power to prescribe the terms and conditions without which they may not be so used." The decision simply decides the constitutional right of the government to protect the navigability of the streams by closing down, through legislation, any hydraulic mine in these watersheds which has not submitted itself to the jurisdiction of the commission. The miner will not be heard to say in resistance that he is being deprived of his property without due process of law. That is settled, but that is all that is settled, by the judicial construction thus far given to the Act. Is the working of the Act reciprocal? The miner is bound with hooks of steel; but how about the farmer-is he likewise bound? Is the State of California bound? For the purposes of any miner who desires to take his chances under the act, the test of its constitutionality should be made in some case brought against a company or person operating under a duly obtained permit from the commission, and not in a case against a company or person not operating under such permit. Moreover, the test should be made in defending a case where a farmer attacks the Act on the ground that some constitutional right of his is being abridged, or where the people of the State of California (on relation of the Attorney-General) attack it on the ground that some of their constitutional rights are being abridged, by the action of a miner operating under a duly obtained permit from the commission. No other test will settle the point. The permit of the commission is already a finality as far as the miner is concerned. Is it a finality as far as the farmer and the State are concerned? To settle this point, the ques

tions to be presented by a farmer or by the State, under the two sets of cases above set forth, are the following: Is, or is not, the act contrary to the provisions of the fifth amendment to the Constitution of the United States? Does, or does not, the act, directly or indirectly, deprive any person of property without due process of law? Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United States, or therein implied? It is contended in behalf of the miner that neither the farmer nor the State is deprived by the Act of any property or right without due process of law; that, inasmuch as the commission has complete jurisdiction to modify or revoke its permit at any time, the farmer and the State are not necessarily deprived by the Act of any "day in court" either may desire. Obviously, unless the permit of the commission contemplated by the Act is a finality as far as the courts are concerned, the statute is an injury instead of a boon to the miner. If, however, the permit is such a finality, and the Act is declared constitutional in such a case as the above, then the farmer and the State will, instead of going into the courts, have to submit to the jurisdiction of the commission equally with the miner, and the present threatened interminable litigation would be at an end. The sooner the question is conclusively settled the better, if there is to be any practical resumption. of hydraulic mining in the basins. of the Sacramento and San Joaquin Rivers.

In the basins of the Klamath and the Trinity, on the other hand, hydraulic mining is happily free. Nature, that has handicapped the industry in one section of the State, has favored it in another. These rivers are non-navigable, and their banks for the most part precipitous. In these river basins the only foe the industry has to contend with is the occasional blackmailer. The courts have, however, mitigated the power of these people for evil in two well-considered decided cases. The rule of the decisions with reference to hydraulic mining or navigable streams is separated by a district cleavage from the rule with reference to non