## 409

AUSTIS 3x1.?rexA& June 

### 13,1951

Hon. H. A. Beckwith, Chairman Board of WaterEngineers Austin, Texas Opinion No.V-1189 Re: Authority of Interstate CompactCommissioner to compact with respect to Dear Sir: use of water.

Your request for anopinion reads as follows: "Werespectfully request an opinion as to the meaning of the word 'use' as sameappears in the Canadian, RedandSablne Rivers CompactAuthorization Act (Acts of the 51st Legislature, 1949, Chapter 380, Page 

### 716). Section 1 of the Act reads as follows:

"'Section 1. TheGovernor of this State shall, with the advice andconsent of the Senate, appoint somequalified person Interstate CompactCommissioner to represent the State of Texas in Conferences with duly appointed Compact CommIsslone& for other affected States, andarepresentative of the governmentof the United States appointed by the President for such purpose,

"Thesamelanguage 'use, control and disposition1 1s contained In the authorlzatlon act creating a CompactCommlssloner for Texas as to the Pecos River Compact. (See Acts 

### 49thLegjslature, 1945, Chapter 159, Pages 206-207~)

## 41.0

,

Hon. H. A. Be&with - Page 2 -v-1189

“Wedesire to knowwhether a Compact Commissloner can lawfully compact so as to place limitations upon the lnternal beneficial use of waters apportioned to Texas, or whether his authority la limited to obtaining the equitable share of phxslcal amountof the waters dueTexas. Standing alone, the language of the Act in question la broad enough to authorize negotiation andagreement by the Interstate CompactCommissioner respecting Internal use of water. It mustbe presumed, however, that the Legislature intended to grant authority only to the extent which It could legally do so, - in short, that the authority conferred extended only to constitutional meansof accomplishment.

Compacts between States donot become blndlng until adopted by the Legislatures of the States with the consent of Congress. U.S. Const., Art. I, Sec. 10, par.3. Since a compact to become effective must be enacted into law, It would seemthat the language of the act appointing a compact commissioner Is relatively unimportant since hls acts have no force until ratified by the Legislature, in which event any excess of authority is cured by ratification. This practical aapect,of the problem is persuasive of the fact that the Legislature will qrdlnarily Intend to confer upon compact commissioners the same authority whfch it would have to makeagreement6 covering the samesubject matter. Unless a contrary intent clearly appears, the act should be so construed. In our opinion, the language of the Acts in question must be construed as granting to the Commlaeionera authority to makeagreements to the sameextent as the Legislature could respecting the use, control, and disposition of the waters of the Pecos, Canadian, Red, andSabine Rivers. But in noevent dothe Acts grant authority in excess of leglelatlve authority, and in all events the.negotlatlons andagreements of the Commissioners are of noeffect until andunless approved by the Legislature.

Just as In the case of anylegislative act, the only reatrlctlon with respect to legislative authority to enact compacts must be found In the State andFederal Constitutions. State ex rel. Baird v.Hon. H. A. Be&with - Page 3- V-1189

Joslin, 227 Pac.543 (Kan. Sup.1924); LaPlats River &Cherry Ditch Co. v. Hlnderlider, 25 P.2d 

### 187 (cola. Sup. 19331iState ex rel.Dyer v.Slms,71 

### s.ct.557(1951).

Your question has been generally stated without reference to anyparticular llmltatlon uponuse. Therefore, our reply must likewise be general. Insofar as a compact mayplace unconstltuMona1 llmltatlona upon the Internal beneficial use of water. It must fall. Eachllmitatlon must be separately construed~wlth this Inmind. Allmltatlon In Itself 1~not Invalid. Hlnderllder v. LaPlata River &Cherry Creek Ditch Co., 304U.S. 92 (1938), reversing 70P.2d 849 (Colo. Sup.1937).

It maybe stated as ageneral proposition In settling controversies between States, whether through compact or by decision of the United States Suoreme Court. that the orfmarv ob.lect is to secure an equitable apportlonmeht of kater between the States. Kansas v. Colorado, 206U.S.46 (1907); Hlnderllder v. LaPlata River (kCherry Greek Ditch

In arriving at this apportionment, It ~~tb~%?~id by Justice Holmes In NewJersey NewYork, 283U.S.336, 343 (1931), that "the dliferent traditions andpractices In different parts of the country mayleah to varying results but the effort always is to secure an equitable apportionment without quibbling over formulas." Toarrive at equitable apportionment, If It Is necessary or desirable to compact with reference to Internal beneficial use of water, such anagreement would be permissible so long as no constitutional provisions are violated. For example, If equitable apportionment la arrived at under a formula placing restrictions upon storage capacity, a provision which fixes the amount of allowable storage within a state by restricting storage to certain uses would be ameansof arriving at equitable apportlonment under the formula andwould be valid If within constitutional limits.

SUMMARY

TheTexas CompactCommissioner has authority to compact with respect to Internal beneficial use of water

## 412

Hon. H. A. Be&with - Page 4 - 

### V-1189

so long as his agreements are wlthin constitutional limits. HISagreements are not binding In anyevent unless anduntil approved by the Legislature. Yours very truly

PRICEDANIEL Attorney General

APPROVED: Jesse P. Luton, Jr. Reviewing Assistant Charles D. Mathews First Assistant HDP:bt