                                                                  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
