[292 U.S. 341, 343] Mr. Arthur T. LaPrade, Attorney General of the State of Arizona ( Messrs. Charles A. Carson, Jr., of Phoenix Ariz., and A. M. Crawford, of Prescott, Ariz., of counsel), for complainant.Messrs. I. W. Stewart and Arvin B. Shaw, Jr., both of Los Angeles, Cal., for Palo Verde Irrigation District.
Mr. Chas. L. Childers, of El Center, Cal., for Imperial Irrigation District.
Messrs. I. W. Stewart and Arvin B. Shaw, Jr., both of Los Angeles, Cal., and E. C. Finney, of Washington, D.C., for Coachella Valley County Water District.
Mr. U.S. Webb, Atty. Gen., for State of California.
Messrs. James H. Howard, General Counsel, of Los Angeles, Cal., Northcutt Ely, of Washington, D.C., and Ray W. Bruce, of Los Angeles, Cal., for Metropolitan Water Dist. of Southern California.
Messrs. Ray L. Chesebro, City Attorney, and James M. Stevens and Fred M. Bottorf, Asst. City Attorneys, all of Los Angeles, Cal., for the City of Los Angeles.
Messrs. C. L. Byers, City Atty., and Phil D. Swing, both of San Diego, Cal., for the City of San Diego.
Messrs. Thomas Whelan and Phil D. Swing, both of San Diego, Cal., for the County of San Diego. [292 U.S. 341, 344] Mr. Paul P. Prosser, Atty. Gen., for State of Colorado.
Mr. Gray Mashburn, Atty. Gen., for State of Nevada.
Mr. E. K. Neumann, Atty. Gen., for State of New Mexico.
Mr. Joseph Chez, Atty. Gen., for State of Utah.
Mr. Ray E. Lee, Atty. Gen., for State of Wyoming.
Messrs. James D. Parriott, City and County Atty., and R. C. Hecox, Jr ., and Malcolm Lindsey, all of Denver, Colo., Asst. City and County Attys., and Stanley P. Smith, of Washington, D.C., for the City and County of Denver.Messrs. J. Crawford Biggs, Sol. Gen., of Washington, D.C., Harry W. Blair, Asst. Atty. Gen., Charles Bunn and Aubrey Lawrence, Sp. Assts. to the Atty. Gen. and Nathan R. Margold, of Washington, D.C., for the Department of the Interior.
Mr. Justice BRANDEIS delivered the opinion of the Court.
On October 13, 1930, Arizona sought, by an original bill, a declaration that the Colorado River Compact and the Boulder Canyon Project Act be decreed to be unconstitutional and void; that the Secretary of the Interior and California, Nevada, Utah, New Mexico, Colorado, and Wyoming be permanently enjoined from carrying out said compact or said act; and that they be enjoined from performing contracts which had been executed by the Secretary on behalf of the United States for the use of stored water and developed power after the project shall have been completed, and from doing any other thing under color of the act. The bill was 'dismissed without prejudice to an application for relief in case the stored water is used in such a way as to interfere with the enjoyment by Arizona, or those claiming under it, of any rights already perfected or with the right of Arizona to make additional legal appropriations and to enjoy the same.' Arizona v. California, 283 U.S. 423, 464 , 51 S.Ct. 522, 529. [292 U.S. 341, 345] On February 14, 1934, Arizona moved for leave to file in this Court its original bill of complaint to perpetuate testimony in an action or actions arising out of the Boulder Canyon Project Act which 'at some time in the future' it will commence in this Court against California, and others therein named as defendants. 1 The bill sets forth:
(a) The Act of Congress, August 19, 1921, c. 72, 42 Stat. 171, which authorized Arizona, California, Colorado, Navada, New Mexico, Utah, and Wyoming to enter into a compact regarding the waters of the Colorado river; and the appointment of a representative to act for the United States.
(b) The Colorado River Compact dated November 24, 1922, signed by representatives of the seven states-to 'become binding and obligatory when it shall have been approved by the legislature of each of the signatory States and by the Congress of the United States.'
(c) The Act of Congress, December 21, 1928, known as the Boulder Canyon Project Act, c. 42, 45 Stat. 1057 (43 USCA 617 et seq.), which approved the Colorado River Compact subject to certain limitations and conditions, the approval to become effective upon the ratification of the compact, as so modified, by the Legislature of California and at least five of the other six states.
(d) The Act of California, c. 16, March 4, 1929 (St. Cal. 1929, p. 38) limiting its use of the waters of the Colorado river in conformity with the Boulder Canyon Project Act.
(e) The Proclamation of the President declaring the Boulder Canyon Project Act to be in effect, June 25, 1929, 46 Stat. 3000
[292 U.S. 341, 346] (f) The General Regulation of the Secretary of the Interior, concerning the storage of water in Boulder Dam Reservoir and the delivery thereof, dated April 23, 1930, as amended September 28, 1931.
The bill alleges, among other things:
That no right of Arizona has yet been interfered with; that attempts will be made hereafter to interfere with its rights; that it is not possible to bring the issues which will arise to an immediate judicial investigation or determination, and it may be years before this can be done, because 'the cause or causes of action have not accrued and may not accrue for years to come'; that facts known only to certain named persons will be evidence material in the determination of such controversy or controversies; that these persons will be necessary witnesses in the prosecution of the action or actions which Arizona will be compelled to institute in order to protect its rights and those of persons claiming under it; and that all the persons with present knowledge of the present facts may not be available as witnesses when the cause or causes of action shall have accrued to the plaintiff. The prayer is for process to take the oral depositions and to perpetuate the testimony of these witnesses.
On February 20, 1934, a rule issued to those named as defendants to show cause why leave to file the bill should not be granted. All filed returns. Colorado, Nevada, New Mexico, Utah, and Wyoming stated that they have no objection to the filing of the bill or to the taking of any competent testimony; and prayed that to each state should be granted the right of cross-examination and the right to object to any such testimony on any ground either at the time of the taking or of its presentation to this Court. California and the public agencies of that state expressed a doubt as to the existence of jurisdiction in this Court. They opposed the granting of the motion on the ground that the testimony, if taken, [292 U.S. 341, 347] would not be admissible in evidence; opposed also on the ground that the United States is an indispensable party; and insisted that the bill should not be received in the absence of consent by the United States to be sued. The Secretary of the Interior conceded that this Court has jurisdiction, but objected on th same grounds as California to granting the motion. Thereupon a brief was filed by Arizona, reply briefs by respondents, and a brief amicus curiae by the city and county of Denver, Colo.
First. No bill to perpetuate testimony has heretofore been filed in this Court; but no reason appears why such a bill may not be entertained in aid of litigation pending in this Court, or to be begun here. Bills to perpetuate testimony had been known as an independent branch of equity jurisdiction before the adoption of the Constitution. 2 Congress provided for its exercise by the lower federal courts. 3 There the jurisdiction has been repatedly invoked;4 and it has been recognized by this Court. 5
The sole purpose of such a suit is to perpetuate the testimony. To sustain a bill of this character, it must appear that the facts which the plaintiff expects to prove [292 U.S. 341, 348] by the testimony of the witnesses sought to be examined will be material in the determination of the matter in controversy; that the testimony will be competent evidence; that depositions of the witnesses cannot be taken and perpetuated in the ordinary methods prescribed by law, because the then condition of the suit (if one is pending) renders it impossible, or ( if no suit is then pending) because the plaintiff is not in a position to start one in which the issue may be determined; and that taking of the testimony on bill in equity is made necessary by the danger that it may be lost by delay.
The allegations of the bill presented by Arizona are sufficient to show danger of losing the evidence by delay; and also to show Arizona's inability to perpetuate the testimony by the ordinary methods prescribed by law for the taking of depositions. The only question which requires consideration is whether the testimony which it is proposed to take would be material and competent evidence in the litigation contemplated.
Second. The action or actions which Arizona expects to bring may rest upon a claim that 'the stored water is used in such a way as to interfere with the enjoyment by Arizona, or those claiming under it, of any rights already perfected or with the right of Arizona to make additional legal appropriations and to enjoy the same.' Specifically, Arizona claims rights under section 4(a) of the Boulder Canyon Project Act (43 USCA 617c(a); these rights, it is said, are governed in turn by the terms of the Colorado River Compact. Briefly, the compact apportions the waters of the Colorado river between a group of states, termed the upper basin, north of Lee Ferry, and a group south thereof, the lower basin, among which are Arizona and California. The interference apprehended will, it is alleged, arise out of a refusal of the respondents to accept as correct that construction of article III(b) of the [292 U.S. 341, 349] compact which Arizona contends is the proper one. It claims that this paragraph, which declares:
The bill charges that the Secretary of the Interior and the other defendants refuse to accept such construction; and that, by certain contracts made between the Secretary and the California defendants, they are asserting a right to appropriate the said 1,000,000 acre-feet of water to California uses. The bill states that the decision in some future action construing paragraph (b) will materially affect rights of Arizona arising under the Boulder Canyon Project Act, in particular section 4(a) thereof. 6
Arizona seeks, as stated in the bill, to perpetuate, and proposes to introduce in support of its construction of paragraph (b) of article III of the compact, in the actions to be brought in the future, testimony to the following effect by those who in 1922 were connected with the negotiation of the compact:
Third. In this suit Arizona asserts rights under the Boulder Canyon Project Act of 1928, not under the Colorado River Compact, which she has refused to ratify. [292 U.S. 341, 352] That act approved the Colorado River Compact subject to certain limitations and conditions, the approval to become effective upon the ratification of the compact, as so modified, by the Legislatures of California and at least five of the six other states. It was so ratified. Arizona claims that section 4(a) of that act imposing limitations on the use of water by California was intended for her benefit; that section 4(a) embodies by reference article III(b), among others, of the compact for the purpose of defining the limitation, and that the proper interpretation of article III(b) will be, therefore, essential to a determination of Arizona's rights under the statute; that, read in the light of other sections of the compact, article III(b) is ambiguous; and that the testimony sought to be perpetuated will be material and admissible in removing the ambiguity. The elaborate argument in support of these contentions appears to be, in substance, as follows:
1. Colorado River Compact apportions the water of the Colorado River System between the upper and the lower basin. By article II it defines the terms used:
Article III does not in terms apportion as between the upper and the lower basin the surplus waters in excess of the amounts specifically allocated. But it recognizes in paragraph (c) that there may be 'surplus' waters in the river, applicable to the lower basin. 7
2. The Colorado River Compact does not purport to apportion between the states of the lower basin the share of each in the waters of the Colorado River Sys- [292 U.S. 341, 354] tem; but Boulder Canyon Project Act makes some provision for such apportionment. By section 4(a) it provides that:
And that section authorizes Arizona, California, and Nevada to enter into an agreement which, among other things, shall provide:
3. Arizona refused to ratify the Colorado River Compact, and the authority conferred upon Arizona, Nevada, and California by the Boulder Canyon Project Act to enter into an agreement for apportioning the waters has not been acted on. But California bound itself, by the act of its Legislature, March 16, 1929, to the limitation of 4,400,000 acre-feet, plus one-half of the surplus; Arizona claims that the limitation on California's use must have been enacted for the benefit solely of Arizona, since georgraphically she alone could use waters in the lower basin which California may not use; and that, because it is embodied in a statute, the limitation imposed by Congress on California's use confers rights upon Arizona, although she failed to sign either the principal or the subsidiary compact.
4. In support of the contention that article III(b) of the compact has a bearing on the interpretation of the limitation of section 4(a) of the act, Arizona points to the fact that, while the Boulder Canyon Project Act makes no mention of the 1,000,000 acre-feet assigned to the lower basin by article III(b) of the compact, section 4(a) of the act limits California, in terms, to 4,400,000 acre-feet of the waters apportioned to the lower basin under article III(a) of the compact plus one-half of the 'surplus waters unapportioned by said compact'; that section 4(a) declares that such uses by California are 'always to be subject to the terms of said compact'; that California claims that, in addition to the waters already mentioned, she is entitled, as one of the parties to the compact, to draw upon the article III(b) waters; and that, acting upon this assumption, the Secretary of the interior has already contracted with California users for delivery of 5,362,000 acre-feet of water per annum from the main [292 U.S. 341, 356] stream of the Colorado river, though this water is not yet being delivered; whereas Arizona contends that by a proper interpretation of article III(b) California is excluded from all the waters thereunder in favor of Arizona.
5. In support of the contention that article III(b) is ambiguous, Arizona points out that, whereas the compact awards to the lower basin, in the aggregate, 8,500,000 acre-feet of water,8 article III(d) of the compact shows that only 7,500,000 of this is to come from the main stream of the Colorado river, since that section provides:
It argues that the 75,000,000 was doubtless arrived at through multiplying by ten the 7,500,000 acre-feet per annum apportioned to the lower basin under article III(a); that, though the lower basin is entitled to 8,500,000 acre-feet, it can only call on the upper basin to release 7, 500,000 acre-feet from the main stream; that the only other waters below Lee Ferry which are available to the lower basin come from tributaries entirely in Arizona; that these waters enter the Colorado river at a point so far south that they could not be used in the United States after they enter the Colorado; and they have in fact been appropriated for use in Arizona; that therefore what has in terms been awarded to the lower basin is in practical effect available only to that part of the lower basin constituted by Arizona.
Fourth. It is clear that the meaning of the compact, considered merely as a contract, can never be material in the contemplated litigation, since Arizona refused to ratify [292 U.S. 341, 357] the compact. Arizona rests her rights wholly upon the acts of Congress and of California. Arizona claims that California's construction of section 4( a) of the statute would allow her water which under the compact has been assigned to Arizona, and that a conflict is thus raised between the statute and the compact which the suggested testimony is competent to resolve. But the resolution of this alleged conflict can never be material to any case based on the compact considered as contract, since Arizona neither has nor claims any contractual right.
Fifth. Nor does Arizona show that article III(b) of the compact is relevant to an interpretation of section 4(a) of the Boulder Canyon Project Act upon which she bases her claim of right. It may be true that the Boulder Canyon Project Act leaves in doubt the apporti nment among the states of the lower basin of the waters to which the lower basin is entitled under article III(b). But the act does not purport to apportion among the states of the lower basin the waters to which the lower basin is entitled under the compact. The act merely places limits on California's use of waters under article III(a) and of surplus waters; and it is 'such' uses which are 'subject to the terms of said compact.'
There can be no claim that article III(b) is relevant in defining surplus waters under section 4(a) of the act; for both Arizona and California apparently consider the waters under article III(b) as apportioned. 9 It is true that Arizona alleges (not in the bill however but in her brief) that she 'hopes to be able to show in the case hereafter to be brought' by evidence of Congressional Committee hearings and other legislative history that the failure in the statute to apportion the 1,000, 000 acre-feet of waters was due to an understanding by Congress that article [292 U.S. 341, 358] III(b) of the compact had already assigned these waters to Arizona, and that the limitation on California was passed in the light of this understanding. This hope, if fulfilled, would not make article III(b) relevant. The allegation is, not that Congress incorporated article III(b) into the act; it is that Congress understood that article III(b) had allotted all the waters therein to Arizona.
Sixth. The considerations to which Arizona calls attention do not show that there is any ambiguity in article III(b) of the compact. Doubtless the anticipated Physical sources of the waters which combine to make the total of 8,500,000 acre-feet are as Arizona contends, but neither article III(a) nor (b) deal with the waters on the basis of their source. Paragraph (a) apportions waters 'from the Colorado River system,' i.e., the Colorado and its tributaries, and (b) permits an additional use 'of such waters.' The compact makes an apportionment only between the upper and lower basin; the apportionment among the states in each basin being left to later agreement. Arizona is one of the states of the lower basin, and any waters useful to her are by that fact useful to the lower basin. But the fact that they are solely useful to Arizona, or the fact that they have been appropriated by her, does not contradict the intent clearly expressed in paragraph (b) (nor the rational character thereof) to apportion the 1,000,000 acre-feet to the states of the lower basin and not specifically to Arizona aone. It may be that, in apportioning among the states the 8,500,000 acre-feet allotted to the lower basin, Arizona's share of waters from the main stream will be affected by the fact that certain of the waters assigned to the lower basin can be used only by her; but that is a matter entirely outside the scope of the compact.
The provision of article III(b), like that of article III(a), is entirely referable to the main intent of the [292 U.S. 341, 359] compact, which was to apportion the waters as between the upper and lower basins. The effect of article III(b) (at least in the event that the lower basin puts the 8,500,000 acre-feet of water to beneficial uses) is to preclude any claim by the upper basin that any part of the 7,500,000 acre- feet released at Lee Ferry to the lower basin may be considered as 'surplus' because of Arizona waters which are available to the lower basin alone. Congress apparently expected that a complete apportionment of the waters among the states of the lower basin would be made by the subcompact which it authorized Arizona, California, and Nevada to make. If Arizona's rights are in doubt, it is, in large part, because she has not entered into the Colorado River Compact or into the suggested subcompact.
Seventh. Even if the construction to be given paragraph (b) of the compact were relevant to the interpretation f any provision in the Boulder Canyon Project Act, and such provision were ambiguous, the evidence sought to be perpetuated is not of a character which would be competent to prove that Congress intended by section 4(a) of the 1928 act to exclude California entirely from the waters allotted by article III(b) to the states of the lower basin and to reserve all of those waters to Arizona. The evidence sought to be perpetuated is not documentary. It is testimony as to what divers persons said six years earlier while negotiating a compact with a view to preparing the proposal for submission to the Legislatures of the seven states and to Congress for approval-a proposal which Arizona has not ratified and which the six other states and Congress did ratify, as later modified, by statutes enacted in 1928 and 1929. The Boulder Canyon Project Act rests, not upon what was thought or said in 1922 by negotiators of the compact, but upon its ratification by the six states.
It has often been said that, when the meaning of a treaty is not clear, recourse may be had to the negotia- [292 U.S. 341, 360] tions, preparatory works, and diplomatic correspondence of the contracting parties to establish its meaning. Nielsen v. Johnson, 279 U.S. 47, 52 , 49 S.Ct. 223. Compare United States v. Texas, 162 U.S. 1 , 16 S. Ct. 725; Terrace v. Thompson, 263 U.S. 197, 223 , 44 S.Ct. 15; Cook v. United States, 288 U.S. 102 , 53 S.Ct. 305. See Yu , The Interpretation of Treaties, pp. 138, 192; Chang, The Interpretation of treaties, p. 59 et seq. But that rule has no application to oral statements made by those engaged in negotiating the treaty which were not embodied in any writing and were not communicated to the government of the negotiator or to its ratifying body. There is no allegation that the alleged agreement between the negotiators made in 1922 was called to the attention of Congress in 1928 when enacting the act; nor that it was called to the attention of the Legislatures of the several states.
As Arizona has failed to show that the testimony which she seeks to have perpetuated could conceivably be material or competent evidence bearing upon the construction to be given article III, paragraph (b), in any action which may hereafter be brought, the motion for leave to file the bill should be denied. We have no occasion to determine whether leave to file the bill should be denied also because the United States was not made a party and has not consented to be sued.
Leave to file bill denied.
[ Footnote 1 ] Namely, Colorado, Nevada, New Mexico, Utah, Wyoming, Harold L. Ickes, Secretary of the Interior, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley Water District, Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, and County of San Diego.
[ Footnote 2 ] 1 Pomeroy's Equity Jurisprudence (4th Ed.) 211; West v. Lord Sackville, L.R. (1903) 2 Ch.Div. 378.
[ Footnote 3 ] Revised Statutes, 866 (28 USCA 644): '... any circuit ( district) court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. ...'
[ Footnote 4 ] New York, etc., Coffee Polishing Co. v. New York Polishing Co. (C.C .) 9 F. 578; Id. (C.C.) 11 F. 813; Richter v. Jerome (C.C.) 25 F. 679; Westinghouse Machinery Co. v. Electric Storage Battery Co. (C.C.A.) 170 F. 430, 25 L.R.A. (N.S.) 673, reversing (C.C.) 165 F. 992; The West Ira (D.C.) 24 F.(2d) 858; Todd Engineering, etc., Co. v. United States (C.C.A.) 32 F.( 2d) 734; Union Solvents Corp. v. Butacet Corp. (D.C.) 2 F.Supp. 375.
[ Footnote 6 ] It is claimed that a future decision as to the meaning of article III(b) will affect rights also under (a) the Colorado River Compact, (b) the conditions required by the Boulder Canyon Project Act to be attached to patents, grants, contracts, concessions, leases, permits, rights of way, and other provileges from the United States, (c) the relative and respective rights of each of the parties (to the suit to perpetuate testimony) in the waters of the Colorado and its tributaries, and the use thereof and the burdens and restrictions upon such use.
[ Footnote 7 ] Paragraph (c) provides: 'If, as a matter of international comity, the United States of America, shall hereafter recognize in the United States of Mexico any right to the use of any waters of the Colorado River system, such waters shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in paragraphs (a) and (b); and if such surplus shall prove insufficient for this purpose, then, the burden of such deficiency shall be equally borne by the upper basin and the lower basin, and whenever necessary the States of the upper division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in paragraph ( d).'
[ Footnote 8 ] That is, the 7,500,000 of the article III(a) waters and the 1,000, 000 of the article III(b) waters.
[ Footnote 9 ] The Secretary of the Interior in his brief seems to be of the opinion that waters under Article III(b) might be surplus waters under section 4(a) of the act.