Untitled Texas Attorney General Opinion ( 1951 )

409
AUSTIS 3x1. ?rexA&
June 13, 1951
Hon. H. A. Beckwith, Chairman
Board of Water Engineers
Austin, Texas Opinion No.V-1189
Re: Authority of Interstate
Compact Commissioner to
compact with respect to
Dear Sir: use of water.
Your request for an opinion reads as follows:
"We respectfully request an opinion
as to the meaning of the word 'use' as
same appears in the Canadian, Red and Sa-
blne Rivers Compact Authorization Act
(Acts of the 51st Legislature, 1949, Chap-
ter 380, Page 716). Section 1 of the Act
reads as follows:
"'Section 1. The Governor of
this State shall, with the advice
and consent of the Senate, appoint
some qualified person Interstate
Compact Commissioner to represent
the State of Texas in Conferences
with duly appointed Compact Com-
mIsslone& for other affected States,
and a representative of the govern-
ment of the United States appointed
by the President for such purpose,
"The same language 'use, control and
disposition1 1s contained In the authorlza-
tlon act creating a Compact Commlssloner for
Texas as to the Pecos River Compact. (See
Acts 49th Legjslature, 1945, Chapter 159,
Pages 206-207~)
41.0 ,
Hon. H. A. Be&with - Page 2 -v-1189
“We desire to know whether a Com-
pact Commissloner can lawfully compact
so as to place limitations upon the ln-
ternal beneficial use of waters appor-
tioned to Texas, or whether his au-
thority la limited to obtaining the
equitable share of phxslcal amount of
the waters due Texas.
Standing alone, the language of the Act
in question la broad enough to authorize negotiation
and agreement by the Interstate Compact Commissioner
respecting Internal use of water. It must be pre-
sumed, however, that the Legislature intended to grant
authority only to the extent which It could legally
do so, - in short, that the authority conferred ex-
tended only to constitutional means of accomplishment.
Compacts between States do not become blnd-
lng 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 seem that the lan-
guage 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 make agreement6 covering the
same subject matter. Unless a contrary intent clear-
ly 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 au-
thority to make agreements to the same extent as the
Legislature could respecting the use, control, and
disposition of the waters of the Pecos, Canadian, Red,
and Sabine Rivers. But in no event do the Acts grant
authority in excess of leglelatlve authority, and in
all events the.negotlatlons and agreements of the Com-
missioners are of no effect until and unless approved
by the Legislature.
Just as In the case of any legislative act,
the only reatrlctlon with respect to legislative au-
thority to enact compacts must be found In the State
and Federal Constitutions. State ex rel. Baird v.
Hon. H. A. Be&with - Page 3 - V-1189
Joslin, 227 Pac.543 (Kan. Sup.1924); La Plats River
& Cherry Ditch Co. v. Hlnderlider, 25 P.2d 187 (cola.
Sup. 19331 iState ex rel.Dyer v.Slms,71 s.ct.557 (1951).
Your question has been generally stated
without reference to any particular llmltatlon up-
on use. Therefore, our reply must likewise be gen-
eral. Insofar as a compact may place unconstltu-
Mona1 llmltatlona upon the Internal beneficial use
of water. It must fall. Each llmitatlon must be
separately construed~wlth this In mind. A llmlta-
tlon In Itself 1~ not Invalid. Hlnderllder v.
La Plata River & Cherry Creek Ditch Co., 304 U.S.
92 (1938), reversing 70 P.2d 849 (Colo. Sup.1937).
It may be stated as a general 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, 206 U.S.46 (1907);
Hlnderllder v. La Plata River (k Cherry Greek Ditch
In arriving at this apportionment, It
``tb~%?~id by Justice Holmes In New Jersey
New York, 283 U.S.336, 343 (1931), that "the dliferent
traditions and practices In different parts of the
country may leah to varying results but the effort al-
ways is to secure an equitable apportionment without
quibbling over formulas." To arrive at equitable ap-
portionment, If It Is necessary or desirable to com-
pact with reference to Internal beneficial use of
water, such an agreement would be permissible so long
as no constitutional provisions are violated. For ex-
ample, 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 a means of arriving at equitable apportlon-
ment under the formula and would be valid If within
constitutional limits.
SUMMARY
The Texas Compact Commissioner
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 wlth-
in constitutional limits. HIS agree-
ments are not binding In any event
unless and until approved by the
Legislature.
Yours very truly
PRICE DANIEL
Attorney General
APPROVED:
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant
HDP:bt