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Show -20- Fursuant to the Aot of Congress, August 2l+, 1937, c* 15h, 50 Stat. 751, the attention of the Attorney General of the United States was directed to the contention that the validity of a federal statute is involved, 302 U. S. 6I4.6. He filed memoranda in which he contended that: "(l) this Court is included in the courts to whioh Section 1 of the Act of August 2k, 1937, is applicable; (2) the constitutionality of the compact is drawn in question whether or not a decision on this point is necessary; (3) a compact is an Act of Congress,* and (1+) it is an Act 'affecting the public interest.'" Opposing some of the views expressed by the Attorney General, a brief was filed on behalf of Delaware, Maryland, New Jersey, New York, Virginia, the Port of New York Authority and the Delaware River Joint Commission. The Ditch Company moved to dismiss the appeal, contending, among other things, that the mere fact that the Compact was approved by Congress dees not make it a federal statute within the meaning of the jurisdictions! act authorizing appeals. Decision on the motion to dismiss was postponed to the hearing on the merits. For reasons to be stated, we are of opinion that the case is not reviewable on appeal; that it presents a federal question reviewable on certiorari; that because of its importance certiorari should be grantedj and that the judgment must be reversed. First, As the La Plata River flows from Colorado into New Mexico and in each State the water is used beneficially, it must be equitably ap- portioned between the two. The decision below in effect ignores that rule. It holds immaterial the fact that the acts complained of were being done in compliance with the Compact, and does so on the ground that the Compact in authorizing diversion and rotation violated rights awarded by the January 12, I898 decree in the Colorado water proceeding; holds that the decree awarded to the Ditch Compact the right to divert from the river 39-l/lj. cubic feet per second (subject only to the senior Colorado priorities of 19 second , feet), even if by so doing it exhausts the whole flow of the stream and leaves nothing for the New Mexico claimants; and holds that the right so awarded is a vested property right which the two States, although acting with the consent of the United States, lacked power to diminish or modify except by a.' condemnation proceeding and payment of compensation. No such proceeding -was provided for in the Compact and none was had otherwise. It may- be assumed that the right adjudicated by the decree of January 12, 1898to> the Ditch Company is a property right, indefeasible so far as concerns th.e State of Colorado, its citizens, and any other person claiming water right s there. But the Colorado decree could not confer upon the Ditch Company rights in excess of < Colorado's share of the water of the stream; and its share was only an equitable portion thereof; first judgment of the Supreme Court of Colorado on July 3, 1933; the dis- missal by tliis Court of the first appeal on March 12, 193i+; the second judgment in the trial court on May 12, I936; the second judgment of the Supreme Couzrt of Colorado on July 6, 1937. |
