My latter relation grows out of the fact that I have participated in the litigation which is at present pending in the Supreme Court of the United States, and to which I want to call the committee's attention in some detail.

I realize how busy this committee and every member of it is, and I am going to be as compressed and condensed as I can in order to save your time in every possible minute. I want the committee to feel free to interrupt me at any minute.

The CHAIRMAN. This is an important matter, Mr. Secretary, and we are here to have a full hearing. We want you to proceed in your own way and your own time. We will be glad to hear the matter fully.

Mr. BAKER. I say that because I do not want the committee to get the idea from the fact that I talk fast that I am trying to escape the switches. If anybody wants to ask a question, I will always be glad to be interrupted.

Mr. MORGAN. I suggest that we let Mr. Baker make his general statement first.

Mr. BAKER. That is what I am going to do.

I am here to urge the committee to do nothing about this matter at this time. My reasons for that are threefold: First, the legal situation; second, the international situation; and third, the practical situation.

The legal situation is this. We have been discussing, Congress has been discussing, the courts have been discussing, and the executive departments have been discussing the subject of lake levels and Chicago diversion for more than 25 years. In all that discussion, leaving out what the courts have said on the subject, because they have not had that phase of the matter presented to them at all, it has become perfectly clear that nobody knows what the department's legal rights are.

Every Secretary of War from the beginning down, from Secretary Alger, through all who have occupied that office until Mr. Weeks' last statement, have very frankly stated that they did not know what the power of the Secretary of War was and they did not know what the power of Congress was. Secretary Root, who passed on this question, and who is, of course, the dean of the American bar, very frankly said that the rights of Congress in the matter had not been determined and the rights of the Secretary of War had not been. Secretary Stimson, who wrote the most elaborate and able report on the whole subject that has been written by anybody, frankly expressed his disbelief in the power of the Secretary of War to proceed. Chief Justice Taft, when he was Secretary of War, made the same very frank statement. So we have had three great lawyers as Secretaries of War, and all three have complained rather bitterly, as it has seemed to me, that they were embarrassed in their executive action by the fact that none of them knew what their legal power was or the legal power of Congress.

It seems strange that anybody should question the power of Congress in a matter affecting navigable waters, since under the commerce clause of the Constitution the power of Congress has been regarded as plenary in dealing with matters of navigation. And

yet, if it does seem strange, it is nevertheless true. There are now two cases pending in the Supreme Court of the United States which do question the power of Congress. One of those cases was brought originally by the State of Wisconsin against the State of Illinois and the Sanitary District. I suppose no case has ever pended in the Supreme Court of the United States which involved-no case has ever pended in the Supreme Court which presented as extraordinary parties as that case does. The legislatures of the States on the two sides of the controversy have enacted resolutions directing their attorneys general to express the views of those States, and the net result of it is that the present case of Wisconsin against the Sanitary District and Illinois has on one side 37,000,000 people as plaintiffs and on the other side 15,000,000 people as defendants. It is doubtful whether any case in the history of litigation ever had as magnificent an array of peoples on one side as has this case. Undoubtedly, some of the great international arbitrations have represented as many people, but there are more people as plaintiffs in this suit than there are people living in the greatest military power of the world to-day, the Republic of France. So we have an interstate and an international controversy of most tremendous proportions.

In the suit there is some uncertainty as to just what is claimed. There are two contentions being stated in the alternative.

This much is certain, that the States' plaintiffs in the case, beginning with Wisconsin, and involving, as you all know, Minnesota, Indiana, Ohio, Pennsylvania, and New York all those States have argued and insist in the Supreme Court of the United States that Congress has no power to divert water from the Great Lakes system to the extent that it prejudices navigation on the Great Lakes. While there is an apparent admission in the bill of complaint in the Wisconsin case that Congress may have the power to authorize diversion from the Great Lakes so long as it is not prejudicial to navigation, there is, nevertheless, an alternative suggested in that case that if Congress has that power it is a permissive power; that is, Congress merely has the right to say that so far as the general Government is concerned, it has no objection to the abstraction of water to the extent that it does not affect navigation, so long as that authorizaion by the general Government does not prejudice or impair the rights of the riparian States on these navigable waters, or bar them from asserting any right they may have in the navigable waters themselves.

So, in the Wisconsin case there are two questions raised, first, a most dogmatic affirmative of the proposition that even Congress has not the right to authorize the diversion of water which prejudices navigability, and, secondly, and collaterally, the alternative suggested that even though Congress may have the right to give its consent to the withdrawal of water from the Great Lakes system to the extent that it does not impair their navigability, nevertheless, the consent given by Congress is without prejudice and does not destroy the rights of the riparian States-perhaps the word riparian is hardly the word to use upon these waters to assert any other right they may have against its abstraction--and there are obviously other rights.

In the Michigan case, which is set for hearing on the 4th day of October next, the State of Michigan in its bill asserts that Congress has no power to authorize any abstraction of water from the Great Lakes system.

Thus there is presented to the Supreme Court of the United States, first, point-blank, this question, Has Congress any power to authorize any diversion of water from the Great Lakes system? The Supreme Court will be called upon to decide that question. If they should decide that question in the affirmative, that Congress has the power to authorize the diversion of water at Chicago, then Wisconsin takes up the case at that point and calls upon the Supreme Court to define the extent of the power of Congress-how far can Congress authorize diversion?

The CHAIRMAN. Do you not think the proper term in this case is abstraction and not diversion?

Mr. BAKER. I wholly agree with you, Mr. Chairman. I fall unwittingly into the use of that phrase.

The CHAIRMAN. The word "abstraction means taking water which is not returned, and diversion clearly means simply taking water out at one point and returning it at another point.

Mr. BAKER. Yes; I shall use the word "abstraction."

Mr. CHALMERS. May I make an observation right here?
Mr. BAKER. Certainly.

Mr. CHALMERS. It seems to me that it would be well for the record to place the monetary value on the difference between the lake level of this season and last season. I figure that the drop of an inch in lake levels means half a million dollars to the shipping interests of the Great Lakes, and your association of lake carriers have issued a circular advising loading to 17 feet 9 inches this year, as against 18 feet 6 inches last year. The lowering of the levels this year over last year of 9 inches would represent to the lake carriers approximately half a million dollars.

Mr. BAKER. I am very glad to have that figure here. I had intended to quote some older figures than yours, which are not quite so impressive as yours, though I will put them in later, as showing the result of this condition.

This committee has taken so much evidence on this subject that anybody who talks to it is likely to tell the committee something it already knows.

Now, we have the legal situation, that the Supreme Court has those questions before it for decision under circumstances which obviously necessitate their decision; first, has Congress any power, and, second, if it has power, if they determine that question affirmatively, then what is the power? Is it a power to balance the convenience of navigation in the Great Lakes as against the convenience of navigation in the Illinois and also in the Mississippi River; or is it a power to foster navigation in the Illinois River and the tributaries of the Mississippi or their watersheds generally, so long as it does not impair the navigability of the waters of the Great Lakes? It may be either one or the other of those two.

The third and the ultimate question is this: Suppose Congress has the power to authorize the abstraction of water at Chicago to improve the navigation of the Illinois River; then, is that right

on the part of Congress to grant that diversion a power of Congress under the commerce clause of the Constitution; and does it embrace all other rights in it, so Congress, when it makes a determination, may grant this right of abstraction, within limits fixed by the Supreme Court as the measure of this power, and take away the right of the State to complain, from other points of view? Until the Supreme Court of the United States has decided those questions, I respectfully submit it is not advisable for the Congress of the United States to proceed with any other legislation in connection with this question.

No matter what you do, it is subject to be overthrown by the determinations which the Supreme Court may make on one or the other of the angles of this litigation, and whatever you do, does not give rise to matters of agreement, but it gives rise merely to another lawsuit, because the contentions of the parties herein at this moment are such that these States of New York, Pennsylvania, Ohio, Wisconsin, Indiana, Illinois, and Michigan, must file, if you pass any measure that involves this, either another lawsuit or enlarge the scope of their present suits to bring into them this legislation which you enact at this session.

The CHAIRMAN. It might be well, in this connection, to call attention to the fact that, as I understand it, the Supreme Court is the court of original jurisdiction in controversies between States, so the evidence in these suits will be taken in the Supreme Court, which is not an appellate court but a court of original jurisdiction. Mr. BAKER. That is quite right.

The CHAIRMAN. The second thing is this. You have simply had, as I understand it, an argument upon the question of jurisdiction? Mr. BAKER. Yes, sir.

The CHAIRMAN. No evidence has been taken and no further proceedings have been had. When will the taking of evidence begin? Can there be any reasonable or probable estimate made as to when such litigation will be determined?

Mr. BAKER. I can give you a probable estimate, based upon facts as I will disclose them to you.

The leading counsel in the case of Wisconsin v. Illinois is the Attorney General of Wisconsin, General Eckorn. He has in mind now to apply to the Supreme Court as soon as he can agree with the Chicago and Illinois representatives upon names, and that agreement is possible-to apply to the Supreme Court for the appointment of a commission to take testimony. That is the practice in these original cases before the Supreme Court. The testimony, I think, will all be taken this summer, and the very earnest hope of everybody on both sides is that the case, with the record of evidence, will be ready for submission to the Supreme Court on the 4th of October, which is the date set by the court for the hearing of the Michigan case. So our hope is that our case will be ready on the evidence at the same time the Michigan case is ready on the law.

The Michigan case raises no issue of facts, but raises merely a question of law, upon which the taking of evidence will not be necessary. So, on our side, unless we are delayed by accident, the hope is to have the evidence all ready by the 4th of October, so the two cases

can be submitted at the same time and the Supreme Court will have all these questions before it at the time it decides any of them. That is my present expectation and my hope and plan, if I can further it in any fashion.

So much for the legal situation. I come now to the international situation, and upon that I have only a word to add.

Mr. KUNZ. Mr. Baker, do you contend that Congress has not the power to pass a law giving a State the right to deepen a river channel?

Mr. BAKER. No, sir; if it lies within its borders.

Mr. KUNZ. I understand; but suppose it is proposed to connect it with any other State?

Mr. BAKER. No, sir; I do not contend that.

Mr. KUNZ. Then Congress has the power to pass a law giving the State of Illinois the right to deepen this channel into the Mississippi River?

Mr. BAKER. It has. By saying yes to that it does not mean to admit that Congress has the right to authorize it to deepen its channel up to the place where it empties Lake Michigan into the Mississippi River.

Mr. KUNZ. In this case we do not ask to take water from Lake Michigan. The natural flow of the water into the river deepens the channel connecting with the Mississippi River, and naturally they will deepen that canal and make it so it will give them an opportunity to provide for barges to go through. I can not see where Congress has not that power.

Mr. BAKER. The gentleman is asking me this question, which, I admit, if the Congress has the right to give Illinois the power to deepen the Illinois River; and I say they have. But I utterly deny that Congress has the power to authorize the State of Illinois to deepen that river and control it by an artificial channel like the Chicago Drainage Canal until it taps Lake Michigan and empties Lake Michigan into the Mississippi River.

Mr. KUNZ. That runs into the Illinois River?

The CHAIRMAN. It seems to me if we want to get any further on this legal question we are not going to determine it, but the Supreme Court is going to determine the legal question. I do think this discussion is very helpful to this extent. As I understand it, Secretary Baker is simply making this point, that this question which he is discussing now is pending before the Supreme Court; that it is a question which has been at issue for many years, and, as he believes, a very serious question; that, therefore, Congress should wait until that question shall be determined. I do not think it is the intention of the Secretary, and I do not think it would aid us to discuss the question whether or not he is right in connection with that matter, whether he is on the right side or on the wrong side. We are not going to determine that here.

The question before us, as I understand it, is the question, Shall this legislation be deferred until the decision of the Supreme Court is rendered, because if the Supreme Court should determine the question in a certain way the legislation would be a nullity. That is the question, is it not?