Untitled Texas Attorney General Opinion

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