dissenting:
State compacts are in authority based on Clause 3 of Section 10 of Article I of the Federal Constitution, which reads: “No State shall, without the Consent of Congress, * * * enter into any Agreement or Compact with another State, * * Such compacts are now so embedded in our form of government as to constitute an essential part thereof. The compact under consideration affords a clear example of the necessity for such compacts. It proposes, to operate in a field necessary for the health and general welfare of the people, wherein the Federal government has not acted, and possibly cannot act at this time,, and wherein it is impossible for the individual states to operate efficiently or successfully because of territorial limitations. Such compacts are not unusual. They have served well in fields of irrigation, conservation, boundary line disputes and many others. See Compact Clause of' the Constitution, 34 Yale Law Journal 685; Interstate Compacts, 70 U. S. Law Review 557. For these reasons, and because of well established applicable principles of law,, which need no citation of authority, the legislation under consideration, which includes the compact, should be liberally construed to save its constitutionality.
The majority opinion, as I understand it, concedes the-necessity for such a compact, and that the accomplishment *299of the purposes of such a compact may be best obtained by joint action of the several states concerned. It also concedes the constitutionality of the compact under consideration except in the two respects hereinafter considered. As early as 1929, those believing such a compact necessary for proper action, looking toward the purification of the waters of the Ohio River and its tributaries, for protection of the health and for the general welfare of the people of the states concerned, were engaged in an effort to obtain the adoption of a workable compact. After years of study and effort by representatives of the several states concerned and of the Federal government, a compact was designed which was believed would be practicable and workable under the Constitutions of the several states. After further consideration and study, with possibly some minor changes, the compact in its present form was approved by the Congress of the United States in accordance with the provisions of Section 10, Article I of the Federal Constitution. Representatives of the several states concerned, by authority of their respective legislatures, have executed the compact, so that it is now in force and effect in so far as the powers of the states and the Federal government can make it so.
The Court now holds this compact unconstitutional for the reasons that the Legislature has exceeded its power in the delegation of police powers, and that the act of the Legislature adopting the compact, Chapter 38, Acts of the Legislature, Regular Session, 1939, attempts to bind future Legislatures of this State, in perpetuity, in the exercise of its police powers, and as to making appropriations in aid of carrying out the purposes of the compact. Thus, this State is placed in the unenviable position of being unable to become a member of such a compact.
Does the compact in effect bind in any manner future Legislatures of this State, or does the compact grant any power or right in perpetuity? Article VII of the compact provides: “Nothing in this compact shall be construed to limit the powers of any signatory State, * * In the face of this clear reservation to “any signatory State” of *300the “powers” of such state, I cannot believe that the intention to grant, in perpetuity, any power whether the police power or the power to make appropriations, can be read into the compact. The plain meaning of the language seems to be that the compact shall be so construed that no limit shall be placed upon any power of any signatory state as to any future action thereof. If this be correct, then there is no granting of any police power or any other power, in perpetuity, and no future Legislature is bound or attempted to be bound as to any such police power or as to the making of any future appropriation.
A further argument of the majority in support of the unconstitutionality of the compact is that the delegation of police power of the State cannot be made to some agency or commission set up in conjunction with other states. This doctrine would practically close the doors of this State to participation in. any compact with any other state where the compact could not be made operative without aid of the police power. The compact here, however, restricts the use of the police power of the State to the authorized representatives of this State, the members of the commission appointed by this State, residents of this State, responsible only to the authority of this State and subject to removal as such commissioners by the Governor of this State. The only possible use of the police power granted to the commission would be in connection with the enforcement of orders of the commission as provided for in Article IX of the Compact. After proper investigation and hearing, the commission could issue orders requiring municipalities or persons to conform as to the disposition of sewage. In that article is found this limitation on the use or exercise of the power delegated: “No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory States; and no such order upon a municipality, corporation, person or entity in any State shall go into effect unless and until it receives the assent of not less than a majority of the Commissioners from such State.” Thus, it will be seen *301that the compact itself vests in the commissioners representing this State, as such commissioners and not as individuals, the sole and absolute power to exercisé and control the police power delegated. That power is not to be, and in the nature of things cannot be, exercised beyond the territorial limits of this State, and only courts within the jurisdiction of this State would have original jurisdiction in proceedings to enforce such orders. This being true, there could be no unlawful use or any unconstitutional delegation of any police power of this State. No language in the compact or the act can be construed to “grant” or perpetually “alienate” any police power. That intent is read into the legislation by the majority of the Court from the results which they believe will be brought about by the operation of the compact.
Does the act of which the compact is a part “create a debt” or bind future Legislatures to make appropriations? The majority opinion says yes; the compact says: “The Commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory States, except by and with the authority of the legislature thereof.” (Last clause, Article V.) In the face of this very emphatic command that the commissioners shall “not incur any obligation of any kind”, the majority of this Court holds the act void “as creating a debt”. But the authors of the compact, being zealous of making the compact conform to the provisions of the Constitution, made further provision in the compact to the effect that “the credit” of any state should not be pledged “except with the authority of the legislature thereof.” It is believed that any reading of this provision should force one to the conclusion that no debt can be incurred by the commission until the Legislature has made appropriation therefor, and that the commission cannot extend the credit of the State until authorized to do so by the Legislature existing at the time. There seems no doubt that these matters are fully reserved to future Legislatures, and that future Legislatures are left free to legislate or not to legis*302late as to such police powers, and to appropriate or not to appropriate, as to them may seem proper.
The appropriation declared invalid was intended for use of the commission in the study and survey necessary for determination of the proper and most efficient methods of purifying the waters of the Ohio River and its tributaries. This was undoubtedly in the interest of this State since proper methods should be determined before the work of purification commenced and since the work could be done at less cost for each state by joint investigation and experimentation. Therefore, there can be no question that the appropriation was for a public purpose. The majority opinion concedes this much. In. the expenditure of this appropriation, there would not be involved any of the police powers of this State, and such expenditure does not call for any further appropriation by the present or any future Legislature, Such further appropriations may become advisable, but that is a question that the future alone must determine. There is here involved no actual exercise of any police power or any effort to force any future appropriation. This being true, the questions of delegation of police power, the pledge of the credit of the State, and the binding of future Legislatures, are not involved in this mandamus proceeding, and should not be decided until squarely before this Court. “A court will not pass upon the constitutionality of a statute, unless a decision upon that very point is necessary to the determination of the case.” Edgell v. Conaway, 24 W. Va. 747, Point 1, Syllabus; Shepherd v. Wheeling, 30 W. Va. 479, 4 S. E. 635; Dillon v. County Court, 60 W. Va. 339, 55 S. E. 382; Fry v. Ronceverte, 93 W. Va. 388, 117 S. E. 140; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 54 L. Ed. 826, 30 S. Ct. 534. “Indeed, it is well-settled that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question. The court will not permit these principles to be circumvented by the parties *303and hence will not recognize a waiver by them of consideration of all issues other that the constitutional' one.
“In accordance with these rules, constitutional questions will not be determined abstractly or in a hypothetical case, or anticipated in advance of the necessity for determination thereof, so that generally, no such consideration will be undertaken if no injury has as yet resulted from the application of the statute and no rights have been brought within its actual or threatened operation, * * 16 C. J. S., Constitutional Law, Section 94. To the same effect is 11 Am. Jur., Constitutional Law, Section 93.
Being of the views herein indicated, I respectfully dissent.
I am authorized to say that Judge Riley concurs in this dissent.