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In such a situation, the "trading of votes” by members anxious to get through their measures came as a matter of course. The "trading" during the last days of the session became notorious, particularly in the Assembly. It had important bearing upon many important measures.
Under such conditions, too, errors can scarcely be avoided. The only wonder is that more were not made. Examples of errors could be given in sad plenty.
Such was the confusion into which the Legislature was forced by the delay-promoting lobby, more or less assisted by a small Reactionary group in each House. In such a situation the passage of bad bills was made possible, the defeat of good bills by trickery rendered comparatively easy.118
But in spite of Reactionary group and kept lobby, Progressive party platform pledges were fulfiled; Progressive measures were enacted. To what extent the lobby succeeded in rendering Progressive measures which were passed, ineffective by amendment can be determined only after the new laws have been tested by their operation.
118 See "Story of the California Legislature of 1909," Chapter XVI, Page 168, of the methods pursued by the old "machine to pass undesirable measures, which had a majority against them.
The CONSERVATION BILL.119
Governor Johnson, in a single paragraph in his inaugural address to the 1911 Legislature, described the conservation situation in California.
"In the abstract,” said the Governor, “all agree on the policy of conservation. It is only when we deal with conservation in the concrete that we find opposition to the enforcement of the doctrine enunciated originally by Gifford Pinchot and Theodore Roosevelt. Conservation means development, but development and preservation; and it would seem that no argument should be required on the question of preserving, so far as we may, for all of The People, those things which naturally belong to all. The great natural wealth of water in this State has been permitted, under our existing laws and lack of system, to be misappropriated and to be held to the great disadvantage of its economical development. The present laws in this respect should be
119 The Democratic State platform (1912), with the exception of the conservation of flood waters, made no mention of conservation. The Progressive (Republican) platform made definite pledge. The plank reads:
"We favor such further conservation legislation as the additional information obtained since the last legislative session now makes desirable, including laws for the protection of our forests against fire."
Governor Johnson in a list of what he termed the ten most important measures before the 1913 Legislature—the "ten commandments," as they were called-placed the Conservation bill at the head of the list
amended. If it can be demonstrated that claims are wrongfully or illegally held, those claims should revert to the State. A rational and equitable code and method of procedure for water conservation and development should be adopted."
Such was the situation when the 1911 Legislature opened; such was the situation with which the 1913 Legislature was called upon to contend.
So long as the Legislature dealt with conservation in the abstract, there was no opposition. Gifford Pinchot himself could not have forced opposition on conservation in the abstract from the most hardened power company lobbyist at Sacramento.
But when it came to giving expression to the principles of conservation in legislative enactments, trouble began.
At issue in the controversy are the enormously valuable water resources of the State. The value of this water for irrigation is practically beyond estimate. In addition to its value for irrigation purposes, is the worth of 5,000,000 horse-power of electrical energy capable of being generated by the falling waters of the streams. And part of this water is—and all of it once was—the property of all The People.
The exploiter would have the control of this water fall into private hands—as much of it has—that toll may be exacted of him who uses it for irrigation, as well as from him who uses the electric power which may be generated from it.
The conservationist would have it controlled by the State for the use of all The People. 120
The fight between the exploiter and the conservationist is not local, but nation-wide. The exploiter is playing for a stake even greater than that for which the railroad promoters played half a century ago. Gifford Pinchot has pointed out that the seat of the exploiter's operations is Wall Street. The exploiter's activities extend into the South as well as into the West. Here in California he has resisted every move that tends to place this water resource beyond the toll-taker's reach.
120 James F. Farraher in an article dealing with the 1913 Water Conservation bill, which was published in the Sacramento Bee, points out that from the beginning of the State's history under American occupation, the principle that there shall be no private ownership or control in a water surplus has been recognized. Mr. Farraher describes this principle as “first expressed in the miners' rules and regulations of the early '50's, recognized by the Supreme Court of the State in 1853 (Ogden v. Mills, 3 California Reports, 253), written into the Statutes of the United States in 1866 and into the Civil Code of California in 1872, approved by the Supreme Court of the United States in 1879 (Atchison v. Peterson, 87 U. S., 507), and incorporated into the Constitution of the State in 1879. The Constitutional provision (Sec. 1, Art. 14) reads as follows:
“ 'The use of all water now appropriated, or that may hereafter be appropriated for sale, rental or distribution, is hereby declared to be a public use and subject to the regulation and control of the State in manner to be prescribed by law.'
“The Water Commission (Conservation) Act,” Mr. Farraher adds, “creates a 'manner prescribed by law' to effect that 'regulation and control.'
The common law rule of humid England, where irrigation is unknown, that “the riparian proprietor has the unchallengable right to have the waters of the stream flowing through his lands continue to flow undiminished in quantity and undeteriorated in quality," which the California Supreme Court in the case of Lux v. Haggin applied in arid California, where irrigation is a necessity, Farraher points out is largely responsible for the water monopolies of the State. Power companies, for example, have gone so far as to become riparian proprietors so as to be able to prevent diversion from the stream above.
Francis J. Heney contends that the doctrine of riparian rights never had any proper application in this State: that it has never been recognized in Colorado, Nevada, Arizona, New Mexico, Utah, Idaho or Wyoming; that it ought never to have been recognized in this State; that it never was recognized in California until our Supreme Court established the rule in the case of Lux V. Haggin.
The conservation bills of the 1911 session, in spite of determined resistance,121 became laws. They were considered under two heads.
The first provided the machinery by which the State's natural resources could be listed. The second were in the nature of emergency measures to hold to the State those resources which private interests had not grabbed, until such time as more comprehensive legislation could be enacted.
At the extra session of 1911, the Legislature with the data of a year's investigation before it, attempted to enact such comprehensive legislation. But conservation in the concrete met with immediate resistance. In the confusion Progressive and Reactionary were
found working side by side against the proposed law.122 result, the extra session adjourned without satisfactory action on conservation having been taken.
Such was the status of conservation legislation in California when the 1913 session convened. The 1913 Legislature, however, had advantage over that of 1911, in having before it the data on the State's natural resources accumulated by the Conservation Commission which was authorized at the 1911 session.123 The Com
121 See Story of the California Legislature of 1911, Chapter XII, page 156.
122 Assembly Bill 69 (Series Extra Session 1911). This bill was defeated in the Assembly Dec. 15, 1911. Senate Bill 48, practically re-enacting the measure passed at the regular session, was finally passed as the best possible compromise that could, under the circumstances, be reached.
128 This report, known officially as “The Report of the Conservation Commission of the State of California, 1912,"contains data of incalculable value to The People of California, It can be had by addressing the Conservation Commission at San Francisco, or the State Printer at Sacramento.