AZ vs. CA:24 California Exhibits, Vol. XXIV; Miscellaneous

page A90

A90 APPENDIX 210 mittee on Irrigation of Arid Lands, House of Representatives, Sixty-sixth Congress, first session. While by all rules of international law the upper nation is entitled to make full use of the waters of an international stream rising wholly within the borders of the upper nation, nevertheless such matters are usually settled by treaty in the same manner as the settlement between the United States and Mexico respecting the use and benefit of the waters of the Rio Grande (above cited), wherein it is provided for an "equitable apportionment" of the waters of the stream between the two Governments. The rule of equitable apportionment applies to the settlement by the Supreme Court of controversies between States over rivers common to two or more States of the Union (Kansas v. Colorado, 206 U. S. 46, 117). This equitable apportionment of the waters of an interstate river may be made by one of two methods: (1) By interstate "compact or agreement" between the States, by consent of Congress; and (2) By suit between the States 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 Constitution, the States might settle their differences over interstate rivers by resort to arms. But by the terms of the Constitution the right to resort to settlement by force was surrendered, and in lieu thereof was substituted the right to submit interstate controversies to the Supreme Court in original proceedings between the States (Kansas v. Colorado, 206 U. S. 46; Rhode Island v. Massachusetts, 12 Pet. 657). 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 compact have been exhausted. It has been suggested that the Supreme Court should announce the principle that no suit between States would be entertained without a preliminary showing that reasonable efforts had been made by the complaining State to compose the differences between it and the defendant State by mutual agreement or interstate compact. It would appear that the rule of settlement by treaty of international disputes over rivers common to two nations should likewise apply to settlements of controversies, present or possible, between States of the Union. The object of the present legislation is to follow the international principle of settlement.