Page:United States Reports, Volume 545.djvu/567



, dissenting scheme of irrigation can be formed or carried into effect.” Bradley, supra, –. This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court’s view that another rule would be “impractical given the diverse and always evolving needs of society,” ante, at 479, the Constitution does not embody those policy preferences any more than it “enact[s] Mr. Herbert Spencer’s Social Statics,” Lochner v. New York,, (1905) (Holmes, J., dissenting); but see id., – (Peckham, J., for the Court).

This Court’s cases followed Bradley’s test with little analysis. In Clark v. Nash, (1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in upholding another condemnation for the purpose of laying an irrigation ditch. –. As in Bradley, use of the “public purpose” test was unnecessary to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which “[o]ther land owners adjoining the defendant in error. . . might share,”, and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., (1906), the Court upheld a condemnation establishing an aerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark, see Strickley, supra,. This case, too, could have been disposed of on the narrower ground that “the plaintiff [was] a carrier for itself and others,” –, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the “inadequacy of use by the general public as a universal test.” Id.,. This Court’s cases quickly incorporated the public purpose stand ardand [sic] set forth in Clark and Strickley by barren citation. See,