The further taking of testimony on the part of Colorado will commence on the 7th day of December, at Denver. The probable outcome of this suit has become much more favorable to Colorado as the conditions of irrigation have been developed. I do not consider it proper to go into a discussion of the case while it is pending, and such a procedure would probably not be tolerated by the Supreme Court of the United States. It is not, however, out of place to say that the State Engineer has been giving this suit close attention and has made a thorough investigation of the waters of the Arkansas river, the underflow in the State of Kansas and the loss of the flood waters arising in Colorado. The results of this investigation show that only a very small percentage of the waters flowing into the river from the water-shed of the Arkansas pass beyond the State line. The cause of this is shown to be the formation of the river bed which allows the waters to sink. The investigation, which has been carried on under the most favorable circumstances during the past year, also discloses the fact that, irrespective of ditches, the large amount of flood waters which fall on this water-shed are lost by sinking before they reach Dodge City. The history of the Arkansas river has also been thoroughly studied, and it is shown that the river is subject to great floods and also to remarkable scarcity of water. The literature covering the history of this stream for a number of years past shows that it was not a rare thing to find the bed of the river dry and that this condition often occurred previous to the commencement of irrigation. The taking of testimony in this suit has been conducted personally by the Hon. C. C. Dawson, Charles D. Hayt and Platt Rogers and myself. It is not likely that the introduction of testimony will be completed before the first of April, after which probably sixty days' time will be required to close the testimony on the part of Kansas and the United States. The several appearances which have taken place before the Supreme Court during the present term of office show that that tribunal manifests the utmost interest in the progress of this suit. Indeed, it is only natural that such concern should be exhibited, for the reason that the principles which will be laid down in the final adjudication will be the fundamental principles governing irrigation in the arid region of the United States, which comprises four-elevenths of its entire area. It should not escape notice that the real ground of complaint on the part of the State of Kansas is the alleged damage to the underflow in the valley of the Arkansas by the diversion of the natural flow of the waters of the river in the State of Colorado, for the purposes of irrigation. We believe that the evidence introduced does not in the least sustain this complaint. It is nowhere claimed by the State of Kansas that it has a right to the natural flow of the river for the purposes of irriga tion; and the people of western Kansas could no more expect to use this water for irrigation, if the contention of Kansas is sustained, than could the farmers of Colorado. The chief effort of Kansas has been to protect the natural flow of the stream from diversion, and an order made by the Supreme Court affirming the right of settlers along the stream to the natural flow would work to the disadvantage of the farmers of Kansas as well as against the farmers of Colorado. If the natural flow must pass through Colorado undiminished, then the same principle would demand that the natural flow should be unmolested in Kansas. If it is wrong to diminish the natural flow in Colorado, it is wrong to diminish the natural flow in Kansas. If it is to be decided that the natural flow can not lawfully be used for irrigation, then western Kansas has nothing to gain by this suit. Such a principle once laid down by the Supreme Court would be as injurious to the Kansas farmer as to the Colorado farmer. So that the real controversy in this suit must relate to the alleged injury to the underflow. It is possible, in its final consideration, that the Supreme Court of the United States will hold that the Federal Courts have jurisdiction of controversies arising from the use of waters. of inter-state streams for irrigation. It is not likely, however, that the court will go further, in any event, than to declare the jurisdiction of the Federal Courts to pass upon controversies of the nature set up in the bill of complaint and as to the control which the sovereign State has over the waters originating within its territory. It is possible the court may also decide as to whether the common law doctrine of riparian rights applies to the conditions prevailing in arid regions. The application of such general principles as between individuals will probably be left to the United States Circuit Courts. From among the large number of opinions rendered by this department during the present administration, I have selected for printing those which are the most important. It is necessary that these opinions be printed during each biennial period in order to relieve the work of succeeding attorneys general, and also promote uniformity in the several departments of State. I have not selected for printing opinions pertaining to matters which have been covered by opinions of my predecessors in office. As to financial matters, I have been largely aided by the very able opinions rendered during the administration of the Hon. D. M. Campbell—a mere reference of the department seeking advice to those opinions being all that is necessary in most cases, although in some instances it has been necessary to write an opinion upon some special feature not covered. The opinion of this office is frequently sought to relieve the Auditor and Treasurer from difficulty occasioned by want of money to meet appropriations of the third class. The desire to continue the operation of the State institutions of the third class always induces the stretching of the law to make as much money available for the appropriations passed for these institutions as is possible. By far the greatest part of all the revenue coming into the State is disbursed for the maintenance of the State institutions. The appropriations are passed by the Legislature upon an estimate furnished by the Auditor and Treasurer, and when these bills are signed by the Governor it is necessary to endeavor to raise the money to meet the appropriations. As to the size and purpose of appropriations, this office has nothing to do. It is, however, of the greatest importance that the available money be applied to continue the institutions. The appropriations of the last Legislature greatly embarrassed the Auditor and Treasurer, because those made for the maintenance of the second class institutions carried with them large sums of money for improvements and extensions. The Legislature has, at all times, control over the classification of claims, except those of the first class. It should, therefore, separate from all appropriations for maintenance sums of money intended for improvement and extension, and the latter should be made available after all appropriations for the maintenance of the State institutions. If this rule were followed the Auditor and Treasurer would be greatly relieved and the several State institutions would be better protected. In conclusion, I may say that more suits have been commenced during my term of office than during the terms of any of my predecessors. The character of these suits, during the past two years, has been civil rather than criminal. Grave constitutional questions have arisen. We have tried all of these cases unaided, except so far as the military suits and the KansasColorado suit are concerned. With the exception of a few friendly suits commenced for the purpose of protecting the Treasurer and Auditor, all these important suits have been decided in favor of the State of Colorado. The number of criminal cases tried and disposed of during the present administration of this office has exceeded the number of such cases tried during the terms of my predecessors. I think I am warranted in calling attention to the number of murder cases reversed. Every one of the cases reversed during the present term has turned upon a faulty instruction. If error exists in the instructions, it is impossible to cure it in the appellate court. Observation and experience both teach that the underlying cause of mistake in instructions is the haste with which they are prepared in the trial court. This office has no part in the work. It can not even correct the error. It is not economy to hurry through a murder trial with the possibility of a reversal. The cost of re-trying the case is greater than that for the extra day consumed in a deliberate consideration of the instructions. After the witnesses are all examined and dismissed, the only expense attending the extra day necessary for a careful consideration of the instructions is the expense of the twentyfour jurors who are in attendance upon the Court and such extra veniremen as may be called on the jury in this special case. This expense will not exceed a hundred dollars a day. At this stage of the trial, there can be no justifiable excuse for undue haste. During the past administration, four very important murder cases have been reversed for the errors spoken of, and I deem it only just and proper to call attention to the cause. There have been written by this office, during the present administration, two hundred and fifty-six (256) opinions for the different officers, departments and institutions of the State, besides many oral opinions rendered upon request. The correspondence of the Attorney General's office has increased to over fifteen hundred (1,500) official letters during this term. Commodious and respectable quarters have been provided for the Attorney General's office, so each member of the force has been allowed his private room for work. I believe the organization and division of the work has largely contributed to the dispatch of business. I know of no time during the past busy term when this office has been behind in the writing of briefs and the preparation of cases for trial. In the accomplishment of this work, I am indebted to the able assistance which has been furnished me, and the fact that each one has done his part. A tabular statement, showing the condition of the docket, and the number of civil and criminal cases disposed of, together with the opinions rendered by this office, are contained in the appendix, and made part of this report. Respectfully submitted, N. C. MILLER, |