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Show -106- adjustment can arise from such source. That lack of unanimous consent can prevent the States which are. in harmony from dividing between them that portion of the waters to which they are justly entitled, and co-operating to adapt them to their "beneficial use, is inconceivable. So to hold would make one or more of the dissenting States master of the others. All that any State may legally require is that it be left free to take its share of the waters of the river, which, as indicated by the trend of both international and interstate law, is sufficient water to supply existing uses on June 2$, 1929* plus such further Quantity, if any, as will amount in the aggregate to an equitable portion of the whole« No formula for equitable division of the flow of interstate streams has been prescribed judicially, but it is indicated as resting upon a due consider- ation of all relevant factors in each particular case, including geographical position, topography and capacity for beneficial use. It is not probable that the United States Supreme Court ever will declare any hard and fast rule for making wequitable division" of interstate waters between States of the arid west. But this will not prevent decision as occasion requires it in each con- troversy. The apportionment by the Court of Arizona1s share of the Colorado River waters presents no insuperable difficulty; nor is there any reason to apprehend that the six-state compact must be judicially destroyed to accomplish that purpose. On the contrary, the task of the Court will be lightened by the absence of disagreement among the other States; and the same may be said of any future controversy which the Court is asked to decide between the States en- titled -to the undivided waters of the upper or the lower basin. No such suit between the States, however, will ever induce the Court to render a decision in the nature of declaratory relief unless the federal constitution be first so amended as to require it. The Court will decide only whether the rights of the complaining State under or dehors the compact, at the time of suit, are being invaded or imminently threatened with injury; and if so, the Court will do no more than restrain that particular wrong then being done or threatened, leaving the six States otherwise to act as provided by their compact. Only very clear and convincing proof will move the Court to issue its injunction against one or more States at the suit of another. Preliminary to such proof, it is not probable that the Court will ever enjoin any States from proceeding, with the consent and co-operation of the United States, to utilize the waters of the river in any manner not then presently destructive of property or pre- existing vested rights in the complaining State or States.200 showing that Congress has ever refused to ratify a compact made between States. The very extensive research of Professors Felix Frankfurter and James H« Landis indicates, however, that Congress failed to act upon one interstate compact about the year 1820. Frankfurter & Landis, The Compact Clause of the Con- stitution-A Study in Interstate Adjustments, (1925) 3U Yale L.J. 685, 752. If this view be correct, it does not necessarily follow that the whole of the Boulder Canyon Project Act is valid or that Black Canyon Dam can be con- structed and operated under it. This is at least a debatable question. If any complainant attacking the Act in the United States Supreme Court can show an interest calling for a. decision on the merits, this legislation will stand or fall under the constitutional power of the federal government to hold, preserve, |
