WSPC07667

• File Number: 8044
• Description: Section D General Studies-Compacts-general writings
• Date: 6/4/1921
• Title: Brief of Law of Interstate Compacts-Submitted by Delph E Carpenter to Judiciary Committee of House of Rep 67th Cong 1st Session June 4 1921-Powers of States to Enger into Compacts
• Water Supply Pro - Doc Type: Report/Study

OG2413

While by all rules of international law the upper nation is entitled to make
full use of the waters of an internati~al.stream rising wholly within the borders
of the upper nation, nevertheless suoh matters are usually settled by treaty in
thE! same manner as the settlement between the United States and Mexioo respeoting
the use and benefit of the waters of the Rio Grande (above oited), wherein it is
provided for an "equitable apportionment" of the waters of the stream between the
two Govermnents.

The rule of equitable apportionment applies to the settlement by the Supreme
Court of oontroversies between States over rivers oommon to two or more States of
the Union. (Kansa8 v. Colorado, 206 U. s., 46, 117.)

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This equitable apportionment of the waters of an interstate river may be made
by one of two methods,

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(1) By interstate "oOlllpaot or agreement" between the States, by oonsent of
C ongres s; and

(2) By suit between the State8 before the United States Supreme Court.

The latter method is the substitute, under our form of government, for war
between the States. In other words, were it not for the provisions of our Con-
stitution the States might settle their differenoes over interstate rivers by
resort to arms. But by the terms of the Constitution the right to resort to
settlement by foroe was surrendered, and in lieu thereof was substituted the
right to submit interstate oontroversies to the Supreme Court in original pro-
oeedings between the State8. (Kansas v. Colorado, 206 U. s., 46; Rhode Island
v. Massaohusetts, 12 Pet., 657.)

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A suit between the States is but a substitute for war. It is the last
resort, and should not be resorted to until all avenues of settlement by oampaot
have been exhau8ted. It has been suggested that the Supreme Court should aIUlounoe
the prinoiple that no suit between States would be entertained without a pre-
liminary 8howing that reasonable efforts had been made by the oamplaining State
to oOlllpose the differenoes between it and the defendant State by mutual agreement
or interstate oompaot. It would appear that the rule of settlement by treaty of
international disputes over rivers oommon to two nations should likewise apply to
settlements of oontroversies present or pOSSible, between States of the Union.

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The objeot of the present legislation is to follow the international prin-
oiple of 8ettlement.

INTERSTATE COMPACTS RESPECTING USE OF VIIlTERS OF INTERSTATE RIVERS

While, as we have already observed, various of the States have settled their
oontroversies respeoting boundaries, fisheries, eto., by inter8tate oompaot or
by oonourrent State legislation, hav~ng the same effeot, this method of settle-
ment of pending or threatened oontroversies respeotinG the use and distribution
of the waters of interstate streams for irrigation and other benefioial purposes,
has not been availed of. The right of adjoining States to the use and benefit
of the waters of the streams oammon to both States has been oonsidered by the
oourt in the oase of Kansas v. Colorado (185 U. S., 125; 206 U. s., 46), in whioh

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