Concurring.
While I am in accord with the conclusion reached by the majority of the court, I am not in accord with this doctrine announced in the opinion: “There can be no doubt that Congress has the power to restrict the right to the use of water furnished from government projects to 160 acres standing in the name of an individual, .... ” and which is thus stated at the commencement of sec. 9 of the syllabus: “Congress has the undoubted power to restrict the right to the use of water furnished from government projects to 160 acres standing in the name of any one land owner.....”
By an act of Congress known as the “Idaho Admission Bill,” approved July 3, 1890, this state was admitted to the Union. The preamble to that act is as follows:
*244“Whereas, The people of the Territory of Idaho did, on the 4th day of July, 1889, by a convention of delegates called and assembled for that purpose, form for themselves a Constitution, which Constitution was ratified and adopted by the people of said Territory at an election held therefor on the first Tuesday in November, 1889, which Constitution is republican in form, and is in conformity with the Constitution of the United States; and,
“Whereas, Said convention and the people of said Territory have asked the admission of said Territory into the Union of States on an equal footing with the original States in all respects whatever. Therefore,
“Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the State of Idaho is hereby declared to be a State of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be, and the same is hereby accepted, ratified and confirmed.” (Rev. Codes of Idaho, vol. 1, p. 53.)
It will be observed that the constitution of the state of Idaho, which had theretofore been adopted by the people of the territory was by Congress expressly accepted, ratified and confirmed. Sec. 1, art. 15, of that constitution is as follows: “The use of all waters now appropriated or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law.”
There is no room for question that it was the intention of the people of Idaho in framing and adopting the constitution, and of Congress in accepting, ratifying and confirming it, that the sale, rental and distribution of all the waters within the state theretofore appropriated, or thereafter to *245be appropriated, should be and remain subject to the regulation and control of the state and not subject to the regulation or control of the United States.
This question appears to have been prematurely raised in this proceeding and was not properly before the district court, nor is it properly before this court for decision. My concurrence in the conclusion reached by the majority of the court with respect to this point is, therefore, based upon the view expressed in the following portion of the opinion: “We are, however, aware of no valid reason why we should anticipate the final action of the district court in assessing the benefits to land owners within the irrigation district who own land in excess of 160 acres.”