11 Colo. 147 | Colo. | 1887
This is a proceeding to review, upon a writ of certiorari, an order of the court below vacating and setting aside a rule, previously entered by it, granting to the relator possession of a strip of land pending proceedings instituted for its condemnation, under the eminent domain statute, for the purpose of a tramway. The statute referred to permits the court or judge, at any stage of the proceedings, to enter a rule authorizing the petitioner to take possession and use the premises sought to be condemned on depositing in court a sum of money, to be fixed by the judge, sufficient to pay compensation for the land taken, when the amount thereof shall be ascertained. The proceeding was instituted by a private corporation, and the'use for which the land was sought to be appropriated was a private use. The supposed errors complained of are: First, that the court, in vacating the rule for possession pending the proceeding for condemnation, exceeded its jurisdiction; second, that, in vacating the rule, it greatly abused its discretion.
There is nothing in the first alleged error. The rule granting possession pending the proceedings was discretionary, and might have been denied by the judge. In many cases instituted under this statute it is the duty of
In respect to the alleged abuse of discretion, it is a safe propositioxi that, if the right to condemn the strip of land for the purposes specified in the petition did not exist, the court did not abuse its discretioxx in rescinding the order gx’anting'possession. The right claimed is based upon the fifth sectioxi of the act of congi-ess of July 26, 1866, entitled “ Axi act granting the light of way to ditch axxd canal owners over the public lands, and for other purposes 55 (U. S. St. at Lax’ge, 1866, p. 252), and upon the eleventh section of an act of the legislature of the late territory of Colorado, approved February 13, 1814, exxtitled “An act concerning mines ” (Laws 1814, p. 188). Neither of the sections mentioned has been repealed, but each has been embodied in subsequent revisions. The former now appears as section 2338, Eevised Statutes of United States, axid is as follows: “Asa condition of sale, in the absence of necessary legislation by congress, the local legislatux’e of any state or territory may provide rules for working mines, involving easements, drainage and other necessary means to their complete development: and those conditions shall be fully expressed in the patent. ” The other provisioxx constitutes section 2401, Gexxex-al Statutes of Colorado, and is in the following words: “All mixxing claims xxow located, or which may be hereafter located, shall be subject to the right of way of any ditch or flume for mining purposes, or of any tramway or pack-trail, whether now ixx use, or which may be hereafter laid out across axxy such location: provided, always, that such right of way shall not be exer
It is not contended on part of the relator that the provision of the latter section relating to tramways is not in conflict with the state constitution; but it is argued that the foregoing provisions of the act of congress imposed upon the land in question, as a condition of sale, the easements mentioned in the territorial (now state) statute. Says counsel: “He who acquires mineral land from the general government cannot divest the grant of the conditions with which it passes. State constitutions can neither abridge the authority of an act of congress nor strip it of the limitations and conditions it imposes. Congress is powerful, and may ignore, as it does, state constitutions, and, in broad terms, authorize local legislatures, regardless of the constitution of the state, ‘to provide rules for working mines;’ rules ‘involving easements’ securing the necessary ingress and egress to one mine over another, or other mineral lands, in working such mine.” The provision of the act of congress relates both to state and territorial legislatures. The power of congress to govern a territory of the United States is conceded to be supreme. It may authorize the organization of a local government with authority to enact laws, and it may legislate directly for the government of the territory. Bank v. County of Yankton, 101 U. S. 129. But, upon the admission of a territory into the Union as a sovereign state, the right of local self-government passes to the state. The power of legisla
The foregoing principles, declaratory of the sovereign powers pertaining to the federal and state governments respectively, do not sustain the broad proposition of counsel that congress may ignore state constitutions, and authorize local legislatures, regardless of state constitutions, to pass laws providing rules for the working of mines, and involving easements upon mineral lands. It is the solemn duty of the courts of a state to enforce the state constitution as the paramount law, whenever an act of the state legislature is found to be clearly in conflict therewith. Assuming that the state constitution is itself a valid instrument, the authority of congress to authorize the state legislature to pass laws upon any subject in conflict therewith cannot be admitted. But congress has not assumed to exercise such a power. The rules and easements intended to be authorized by the fifth section of the congressional act of July 26, 1866,
From these principles and considerations we arrive at
Another statutory provision is cited in the briefs of relator’s counsel, in connection with the one just considered, viz.: “Every miner shall have the right of way
The writ must be dismissed, and it is so ordered.
Writ dismissed.