In re Senate Resolution Relating to Appropriation of Moneys Belonging to Internal Improvement Fund

In re Senate Resolution Relating to Appropriation of Moneys Belonging to Internal Improvement Fund. 1. Appropriation or Fund Arising prom Sale op Land Under Act op Congress op March 3, 3875 —Internal Improvements—Reservoirs—Diversion op Streams.—Public reservoirs for the storage of water for irrigation and domestic uses are “internal improvements” within the meaning of the act of congress of March 3,1875, providing that five per cent, of the proceeds of the sale of agricultural public lands lying within the state of Colorado shall be paid to the state for the purpose of making such internal improvements within the state as the legislature may direct. 3. There is no objection to appropriating the fund in question for the purpose of diverting water from natural streams for irrigation and domestic uses, due regard being had for all prior water-rights. The resolution submitted by the senate is as follows: “Resolved,, that the supreme court be requested to render an opinion to the senate of the seventh general assembly as to whether or not the moneys belonging to the internal improvement fund of the state may be lawfully appropriated for the construction of reservoirs therein for the storage of water for the purposes of irrigation and domestic uses or for the purpose of changing the channels of streams so as to better control the waters flowing therein for beneficial uses.” [MAJORITY — Per Ouriam.] Per Ouriam. We assume that the resolution relates to the fund arising from the sales of agricultural public lands in pursuance of the act of congress of March 3, 1875, providing for the admission of Colorado as a state into the Union. Section 12 of said act reads as follows: “Sec. 12. That five per centum of the proceeds of the sale of agricultural public lands lying within said state which shall be sold by the United States subsequent to the admission of said state into the Union, after deducting all the expenses incident to the same, shall be paid to the said state for the purpose of making such internal improvements within said state as the legislature thereof may direct. * * * ” In the determination of the question presented by the resolution, article 16 of our constitution, relating to irrigation, must be considered in connection with the act of congress above quoted. The act of congress places no limit upon the power of the general assembly over the fund, except that it shall be used for the purpose of internal improvement within the state. We have no hesitation in saying that public reservoirs for the storage of water for irrigation and domestic uses are internal improvements, and that the general assembly may lawfully make appropriations from such fund for such purposes. It is more difficult to give a direct answer to the second branch of the question embraced in the resolution. The constitution guaranties the right to divert the unappropriated waters of natural streams to beneficial uses; but it says nothing- about changing the channels of natural streams. We discover no objection to appropriating the fund in question for the purpose of diverting water from natural streams, and storing the same in reservoirs for the uses mentioned, due regard being had for all prior water-rights.