And then, again, so much for preference within the same State; in other words, with intrastate preference.

Now, how about the question of interstate preference? This water is going to be used among three States, instead of in one State; and the bill creates a preference as between States. That may be all right.

But I call your attention to this fact, that the interstate preference which is prescribed in this bill is inconsistent with the intrastate preference prescribed by the Colorado River compact. The Colorado River compact creates this order of preference: First, domestic; second, irrigation, and third, power. But domestic use is so defined by the compact as to include almost every beneficial use possible to be conceived of, other than irrigation and power. For instance, it includes household uses, stock uses, municipal uses, mining uses, and industrial and other similar purposes.

Now, in this bill domestic use is not defined.

Therefore, the interpretation to be placed upon it will be the natural interpretation, which would be a household purpose. And so it would seem that the order of preferred uses here is not consistent with those expressed in the Colorado River compact.

And knowing as I do, that Mr. Swing, one of the authors of this bill, is a supporter of the Colorado River compact, I thought it worth while to call attention to that apparent discrepancy.

Now, then, I have finished the inquiries which I had in mind, and which I make more to be of help to the authors of the bill than to be an obstacle.

And I come now to section 8 of the bill, which is the one in which the States of the upper basin feel themselves most vitally interested. It is not a matter of concern to the upper States that the development in the lower basin shall be by public enterprise or by private enterprise. We do not care, so far as we are concerned, how the States there divide the water, or what they do with it. Those are all activities connected with which we should feel that we were interlopers if we should attempt to influence in any wise the development to be undertaken in that part of the basin.

But we are deeply interested in section 8 of the bill. That is the section in which the authors have attempted to protect the rights of the upper States; and I do not question for a moment the sincerity with which that attempt has been made.

Mr. SWING. May I interrupt you? The statement I have already made to the committee is that we put that in there merely to keep the subject of paragraph 8 open. It was with the intention of asking the cooperation of the representatives of the upper stream States to frame a proper provision in paragraph 8 which would substantially safeguard their rights. I just simply say that so that you may understand what the intention was.

Mr. BANNISTER. Thank you for that statement. There is a provision attempting to protect the upper States by five or six lines to this effect:

That nothing contained in this act shall be construed as limiting, diminishing, or in any manner interfering with any right of the States above said reservoir, or of the citizens of said States, to the use of the waters of said Colorado River or its tributaries.

Now, a casual reading of that might indicate that the upper States are fully protected, and that they can not have any valid objection to the construction of this project in advance of the ratification of the compact.

But I think when we come to analyze the section, and furthermore, when we inquire as to whether or not any article can be written by anybody which will protect the upper States, we shall come to the conclusion that it is impossible to protect them with the requisite degree of certainty, except by the prior ratification of the compact.

And in the first place, as the section is worded, let us consider just two or three points:

This section does not purport to protect the upper States in respect to water uses not yet made, but apparently only in respect to the water uses now existing. The language is:

This act shall not be construed as limited or diminishing any right of the States above such reservoir, or of the citizens of such States to the use of the waters.

Well, of course, there are a great many water rights in those four upper States already in existence. But there are a great many more, gentlemen, which will come into existence as the years go by.

Now, that dam which is to be constructed will call for the entire natural flow of that stream, the average flow, and more. I am quite sure the authors of the bill will agree with me upon that point.

At the present time there are something like 17,000,000 or 16,000,000 acre-feet of water going down not yet being used.

Now, if, because of the uncertainty of the law as to how to divide the water of an interstate stream it should turn out, as was suggested here a while ago, that a prior construction or development in the lower basin would acquire a priority over a later development in the upper basin, then you can see that, inasmuch as that project will call for the present unused waters of the river system, then the four upper States must be obliged to allow all of their present unused water to go down to satisfy the power and irrigation demands of that project, and in consequence, they could retain nothing for their own future development.

And then, again, under the decision of Kansas v. Colorado, the State as such, has more than a mere property right. If it is an appropriator, it would have a property right in respect to the water, of course; it would be the owner of the appropriation, the same as anyone else having an appropriation. But a State has more than a mere property right, if it happens to possess an appropriation; and if it does not possess an appropriation it still has another right, which is not protected by this bill.

I refer to the right of every State, whether owning water rights or not, to defend and protect its people and their rights.

For instance, in Wyoming v. Colorado, those States did not themselves own any water rights whatever; and Colorado owned none in the case of Kansas v. Colorado, and Kansas owned only a few, and did not base her right to maintain her suit on that ownership. The States based their rights to bring those suits upon being the guardians of their respective peoples. It is a legal right that they have. It is not a property right, and yet it is a right neces

sary to the protection of a State. And that kind of a right, as well as any question of possible property right inhering in a State, should likewise be protected by any bill that is passed.

And again, this section of the act does not seem to run against the water users themselves who may use the water from this project and these canals. Possibly-I imagine it is intended to run against them; but it could readily be construed as intended to apply only to the Federal Government, and that only the Government is precluded from maintaining any rights as against the water users in the upper States.

The section should be directed, not only against the Federal Government, but against all users of water for power, irrigation, and other uses.

So

And then again, the protection which is extended to the people of the upper States is extended to the citizens of those States. far so good. But there are many water users in all the States who are not citizens of that State; they may be, for instance, if private enterprises be operating water powers, citizens of another State. So that the wording should be, I think, "water users" instead of "citizens."

So much for a discussion of the section as it stands. And then I come to this proposition:

Regretfully, most regretfully, because I do believe in the development of the lower basin; and I have many friends there among those who have worked for the compact in the lower States; but it is this:

That there is no method, absolutely no method, by which the upper States can be protected with the requisite degree of certainty prior to the ratification of this compact by the State of Arizona. If there is a way by which this can be done, by any bill which may be framed, it will be because Congress possesses the power to effect a division of water between States. The only thing that can protect the upper group of States, or any State upon this stream, is by the process of division of water or of the use of water, between the States.

And that brings us to the question whether Congress has the authority to undertake to divide the water between the States and to say-if, for instance, the law is (which we do not know and we say it is not)-but if, for instance, it should be that the rule of interstate priority exists, and therefore prior development in the south will take precedence over later development in the north, it will be, I fear, not because Congress says so, but because the United States Supreme Court says so.

When we fall back upon the fundamental premise that Congress has simply the powers either expressly delegated or delegated by implication by the Constitution, we run up against the question of where is the power mentioned in the Constitution, which either by express language or by implication, gives to Congress the right to effect a division of water between States? If the Federal Government owns lands within a State, it is expressly given the power to dispose of that land, and no State can say nay. But there is nothing in the Constitution that says that the Federal Government has jurisdiction over an interstate stream.

Now, if that stream is navigable, then, for the purpose of effecting and regulating ravigation, Congress would have the authority over that stream to the extent of that purpose but not for a purpose lying beyond that purpose. It has the power to regulate navigable streams under the clause granting to Congress the power to regulate commerce between States.

There is only one other clause in the Constitution that I could think of that would give Congress power over this river, and that would be the clause that declares that treaties made between this and other nations are the fundamental law of the land-they and the Constitution. But there has been no treaty made between this country and Mexico in respect to the waters of this stream. And unless there be a treaty made, there are no treaty provisions under which the Federal Government would have power over this stream. So, gentlemen, there is nothing in the Federal Constitution upon which to base the power of the Federal Government to divide this water among the States. That does not mean, however, that the States may arrogate to themselves the division. Rather does it mean that the division is a function to be performed by the Supreme Court of the United States and the court does that under the constitutional clause to the effect that the supreme court may decide controversies between the States.

It was under that clause that Justice Brewer in the decision of Kansas v. Colorado said that the supreme court, under that authority, is gradually building up a body of interstate law. It is under that authority that the supreme court may formulate even create and after that apply the rule created for the division of water between the States.

If then, Congress has no authority to effect a division, it follows that nothing can be put in this bill that would confer that authority upon Congress and make the provision thus inserted valid and binding.

I have not read carefully enough; but I imagine that this bill provides does it not, Mr. Swing?-that the Secretary of the Interior may impose rules and terms in respect to the uses of water for irrigation and for power. I imagine that is done.

But even though this be true, and even though he were to impose as conditions that water should be retained for the upper States, the same thing that would invalidate a provision inserted by Congress direct would invalidate any rule promulgated by the Secretary of the Interior under Congressional permission, and the upper States would find themselves utterly helpless.

I can not honestly say that the law is that one State will not get a priority against later developments in another. I can not honestly say that one State will acquire a priority against a later development in another. And no one else can do so, because we do not know what rule of law will apply to the case of this river.

But I want to say this, gentlemen: If the upper basin States should be wrong; if, in other words, the law is and would be declared by the Supreme Court to be that a prior development in Arizona would take precedence over later developments in the four upper basin States; if that be the law, nevertheless, there is another legal right which we have, and which we invoke at your hands, and that is the right to appear here before this committee, and through

our Senators and Representatives in Congress, ask that this bill shall not be passed until the compact is ratified.

Mr. HUDSPETH. May I ask you a question right there?

Mr. BANNISTER. Surely.

Mr. HUDSPETH. Did I understand you to state a while ago that even though this compact was ratified, you did not consider that a legal distribution of the waters?

Mr. BANNISTER. Well, it would be legal then.

Mr. HUDSPETH. Then I misunderstood you.

Mr. BANNISTER. I may have misstated it.

Mr. HUDSPETH. I understood you to say that there was no power to do that outside of the Supreme Court?

Mr. BANNISTER. I meant there was no power in Congress, but under the compact

Mr. HUDSPETH (interposing.) Then I misunderstood you.

Mr. BANNISTER. It is my fault; but under the compact you would have the legislative consent of all the States, as well as the consent of Congress; in other words, everybody who was interested-the States as being the possessors of the water controlling the water rights, and the Federal Government, as the owner of lands, upon which the project was to be situated-you would have their joint consent and the compact would thereby become valid, whereas without that joint consent it would not be valid.

Mr. LEATHERWOOD. If it would not interrupt you, may I ask a question at this point? Would that consent ripen so that, under the doctrine of estoppel, it would prevent a later denial of the right, if the States all go in and operate with the Federal Government under the compact?

Mr. BANNISTER. Well, if they ratified the compact, you would then have a contract.

Mr. LEATHERWOOD. That is my theory. It has been intimated here that there might be some question even under that.

Mr. BANNISTER. Well, I should not think so. Pardon me, I do not mean to be so abrupt. I would say this: That the agreement made between the States and consented to by the Federal Government would accomplish the intended purpose, because while the Constitution forbids the States alone from entering into agreements, it permits them to do so with the consent of Congress.

Mr. ALLGOOD. We were going to let the witness go ahead and make his statement without interruption.

Mr. LEATHERWOOD. Sometimes we overlook questions if we do not ask them at once.

I understand, then, that it is your theory, Mr. Bannister, that the compact would be binding upon the States, as to all matters therein attempted to be acted upon?

Mr. BANNISTER. Yes, I think it would.

Mr. HUDSPETH. It has been suggested by my friend to the left that, even after the ratification of the compact, the allocation of the waters would have to be made prior to the enactment of this legislation in order to be binding. Is that a fact?

Mr. BANNISTER. I should not think so, because the compact itself upon going into effect, automatically brings about an allocation of the water. In fact, the very purpose of the compact is to cover the