Mr. BAKER. Exactly, or it would take a different character from what the Supreme Court may decide was underlying it.

Mr. KUNZ. My question then would be germane to the subject matter, whether Congress had the power to legislate permitting the State to deepen a channel. That is the question involved which will come up before the Supreme Court. That is the question I was asking you, whether Congress had a right to permit a State to deepen the channel.

Mr. HULL. I think you said if the court failed to decide in your favor in this case you would start another suit?

Mr. BAKER. I think you misunderstood me.

The CHAIRMAN. What he said was, if the legislation was passed there would either be an amendment to the pending bill or a supplemental bill, or a separate bill dealing with that legislation, as they might be advised, as a matter of practice?

Mr. BAKER. Yes.

Mr. HULL. The question I wanted to find out about was this: Is it your attitude that Congress should not pass any legislation until you have discovered what you are going to do in the Supreme Court? Mr. BAKER. I hope that has not appeared from anything I said. Mr. HULL. I thought

Mr. BAKER. (interposing). I have suggested that I thought it would be wise for Congress to refrain from passing legislation until the Supreme Court had acted.

Mr. HULL. You could keep putting cases into the Supreme Court that would keep Congress from ever passing any legislation. If that were the case we would never pass any legislation, as was intimated. Mr. BAKER. I hope I was not misunderstood.

Mr. HULL. I thought that was what you said.

Mr. BAKER. I have been misunderstood. My position is thisperhaps I ought to state it more clearly-that in view of the fact, which everybody I think admits exists, that the power of Congress to deal with this subject has been in doubt and dispute for 25 years

Mr. HULL (interposing). That is what I had in mind when I asked you the question. It might be in doubt for 25 years longer.

Mr. BAKER. I do not entertain the same feeling of doubt, because the cases pending in the Supreme Court do present the question squarely to the Supreme Court to be decided, so the highest legal tribunal in the land is going to resolve our doubts for us.

I shall turn now, Mr. Chairman-although I do not want to foreclose any further question in reference to the legal situation-I shall turn for a moment to the international situation. A few days before the case was argued in the Supreme Court of the United States the Secretary of State of the United States released for newspaper publication diplomatic correspondence between the British Embassy and the State Department in which the British Embassy was undertaking to urge a consideration of the Chicago diversion upon the Government of the United States as to the matter of the infringement of the rights of the Dominion of Canada. Newspaper reports have told us from time to time that there is very great pressure being brought upon the Canadian Government in this matter. Evidently the maritime interests of Canada feel concerned about it, and whatever is the

basis of their concern is of no special interest to us. But, just as a fact, in passing, it is clear that there is a very widespread and heated agitation in Canada about this subject just as there is in this country. Canada is not doing any more than the State of New York and the State of Ohio, and Pennsylvania, and Wisconsin are also doing. I think the United States is big enough to make a generous gesture toward Canada, at least the Congress of the United States, without being unduly impressed with the agitation that is going on in Canada, is big enough to say to Canada that we will let our Supreme Court advise us about what our rights are here, and we will pursue our rights as advised by our court. It would be a generous gesture, and, while I do not urge it, I think it should be impressed upon you. I come now to the practical aspect, and I want to say this as a general proposition. We very often find excuses which are presented to us as things already done, which if anybody gave us an opportunity to see in advance we would utterly reprobate and flee from. So, with regard to the Chicago diversion I think the fact that inches by inches, year by year a certain amount of it has gone on under some circumstances, rather blinded us to the thing that has actually been done. I venture to say if there had been no diversion at Chicago until this minute and representatives of Chicago were to come into this committee and urge the right in the interest of the sanitation of Chicago to skim off from the surface of all the Great Lakes except Superior and of the St. Lawrence River as far as Montreal, 6 inches, nobody in this committee and nobody in the Congress would for a moment entertain any such proposition. Yet that is actually what has been done. So we have that vast inland sea, the greatest series of bodies of fresh waters in the world-there is no lake in the world that compares with any one of these except Victoria Nyanza, which is about equal in size with Lake Huron and Lake Michigan--there is no body of fresh water that compares with even one of these lakes-so we have this series, upon which the greatest inland commerce of the world is borne, a commerce which compared in our own country with our coastal commerce is greater in annual tonnage than the entire aggregate of the Atlantic seaboard and the Pacific seaboard annual tonnage; which has given America the industrial supremacy of the world by uniting the ore of the Lake Superior region with the coal of Pennsylvania and Ohio and has made us the iron masters of the world in this age of steel and industry, and given us not only the greatest commercial supremacy of the world, but the industrial and military supremacy of the world. It is due directly to the navigability of these great inland waters and the ships with which this commerce upon them can be conducted. The idea of skimming off the top 6 inches of that great body of water, forcing the very heavily laden vessels to lower their tonnage in order to navigate those waters would be unthinkable, if it had not been done. But from Montreal on the St. Lawrence River up to the headwaters of Lake Huron, practically to the Soo and down in Lake Michigan we have lowered the depths of these lakes by 6 inches by this abstraction.

I am well aware of the fact that the seasonal changes, whether it be climate or whatever else it may be, on which the scientists are not agreed, through periods of 8 or 19 years, alter the level of the

Lakes, and I am told within the last eight years the lake levels have lowered 212 feet, the greatest lowering they have ever undergone in a similar period. Prior to this there has been no period of 10 years in which there was so great a fluctuation as in the past 8 years. I can well understand why there is a disposition to blame the Chicago diversion for the low levels of Lake Erie, when they are not responsible for all of it. That is quite true. That is quite true. But they are responsible for 6 inches, and that is a demonstrable fact, as Mr. Chalmers has stated, that every inch by which the levels of those Lakes are loweved means a lighter load on the great ore, coal, and grain carriers of the Great Lakes system.

Mr. MANSFIELD. Mr. Secretary, when we had hearings on this question some two years ago we went into it quite extensively, and my recollection is that the engineers before us at that time all agreed upon the fact that no greater lowering of lake levels would result from a continuation of this flow of water.

Mr. BAKER. I so understand.

Mr. MANSFIELD. That it has gone down approximately 6 inches now, as you said, but that it would not go any lower.

Mr. BAKER. That is quite true.

Mr. MANSFIELD. If that is true, and if we have the legal authority to perpetuate this 10,000 cubic feet flow there, which would not further reduce the levels, then what complaints would the people of the Great Lakes have to make? Does not this simply leave the matter where we find it?

Mr. BAKER. I want to be just as considerate as I can. If anybody has the slightest feeling about this, I have not any; but I can not understand what it means. The Supreme Court has decided that Chicago has illegally reduced the level of the Lakes 6 inches.

Mr. MANSFIELD. Conceding that to be true, it is not our province to punish Chicago at this time, and neither is it our province to restore the lake level.

Mr. BAKER. Why not?

Mr. MANSFIELD. Is it the duty of Congress to restore the levels that have been diminished by Chicago?

Mr. BAKER. As far as you can, it is. Congress spends hundreds of millions of dollars in improving navigation.

Mr. MANSFIELD. When you take into consideration the question of navigation, that is true. But how could we restore it?

Mr. BAKER. Why not stop Chicago diverting water and damaging the rest of the country? I can not understand why Congress should permit Chicago to illegally and wrongfully abstract the water and consequently damage the rest of the country.

Mr. HULL. Why do you call it illegal?

Mr. BAKER. The Supreme Court so held.

Mr. HULL. In what case?

Mr. BAKER. In the Chicago Sanitary District case, the case of the United States Government against the Chicago Sanitary District. Mr. HULL. Did they use the word "illegal"?

Mr. BAKER. Absolutely; they enjoined it as an illegal abstraction of water. They said the amount in excess of 4,167 cubic second-feet was illegal.

Mr. HULL. That much was legal.

Mr. BAKER. That part; they said so much as was allowed by the Secretary of War's permit was legal.

Mr. HULL. Anything above that was illegal?

Mr. BAKER. It is so held in that case.

Mr. HULL. To begin with, 4,167 feet is legal; is that right?

Mr. BAKER. I do not want to appear

Mr. HULL (interposing). Is it, or is it not?

Mr. BAKER. No; it is not.

Mr. HULL. Then it is all illegal?

Mr. BAKER. Well, it is that.

Mr. HULL. But the Supreme Court said that all above 4,167 feet is illegal?

Mr. BAKER. The Supreme Court said the Secretary of War had given a permit which authorized, so far as the Government of the United States was concerned, the abstraction of 4,167 cubic secondfeet, that Chicago, in defiance of the limitation thus imposed, had abstracted about 10,000 cubic second-feet and had greatly damaged the Lakes by doing so and that the excess was illegal, so far as that particular suit was concerned, which did not question the 4,167 cubic feet.

The CHAIRMAN. In other words, the 4,167 feet, as I understand it, was not an issue in that case?

Mr. BAKER. It was not an issue in that case.

Mr. HULL. Did not the Supreme Court give the War Department the privilege of issuing a permit for 4,167 feet and also give them the privilege of adding to it, and they did add to it up to 8,500 feet? Did not the Supreme Court do that?

Mr. BAKER. What they did say was that so far as the Secretary of War's permit was concerned, 4,167 cubic second-feet, since nobody had questioned the legality of that

Mr. HULL (interposing). That is legal now, according to your statement now?

Mr. BAKER. It is legal so far as any decision yet made by the Supreme Court is concerned.

Mr. HULL. Did not the Supreme Court also advise the War Department to give relief up to the amount necessary to give them relief-up to 8,500 feet?

Mr. BAKER. Not quite that. Let us be very definite.

Mr. HULL. I am just asking you the question.

Mr. BAKER. I am an attorney, and therefore I am very tender about being definite with the Supreme Court, because that is the final place.

In the last sentence of the opinion of Mr. Justice Holmes, deciding the Chicago Sanitary District case, he said that it is an implication against Chicago having more than 4,167 cubic second-feet under the temporary permit the Secretary of War had granted without prejudice to any order which the Secretary of War may hereafter make. Mr. HULL. In other words, it would give him the privilege of giving them more if he wanted to, which he did do, did he not? Mr. BAKER. The Secretary of War did do it?

Mr. HULL. Yes.

Mr. BAKER. Yes; speedily.

Mr. HULL. Why do you say it is illegal?

Mr. BAKER. Because the Supreme Court has said that any excess was illegal. What I was talking about to the gentleman over here was the conduct of Chicago in abstracting in excess of 4,167 feet, which was a fait complet.

Mr. HULL. That was not what you said in your original state

ment.

Mr. BAKER. That is exactly the connection in which I was making that statement.

The CHAIRMAN. I would suggest that you put in the decision of the Supreme Court if you have it in pamphlet form.

Mr. BAKER. I have not it, Mr. Chairman, but it can perhaps be procured. I will be very happy to get it for you.

(The decision above referred to will be printed as an appendix.) Mr. MORGAN. What does the Lake Carriers Association oppose in the matter; do they oppose any abstraction of water in Chicago?

Mr. BAKER. I think they are entirely indifferent, so far as I am advised about their opinion; I think they are entirely indifferent to any abstraction up to a thousand second feet, which by a concurrence of Army reports for the last 20 years has been held not to be prejudicial to lake levels.

The CHAIRMAN. I would say in this regard that my understanding of the report is that they made that report not with reference to 1,000 cubic feet on the basis of a 9-foot channel, but with reference to an 8-foot channel, and that they say that the amount necessary for a 9-foot channel would be 1,600 cubic feet. That is my understanding of the present report.

Mr. MORGAN. That is what the report says.

The CHAIRMAN. Yes.

Mr. BAKER. The Lake Carriers Association's position upon that would be that if 1,600 second-feet lowers the lake levels, then the Lake Carriers would be opposed to it. So far as the Ohio Lake harbors are concerned, it is opposed to any abstraction that would lower it.

Mr. HULL. Is that for power?

Mr. BAKER. I am not certain whether it is for power.

Mr. MORGAN. Do you know what Ohio's contention is?

Mr. BAKER. Yes; that the Government of the United States under the Constitution has no power to divert water from the Great Lakes system into another watershed.

Mr. HULL. Would they have power to abstract any other water out of the Great Lakes?

Mr. BAKER. Not from one watershed to another.

Mr. HULL. In other words, if you wanted to take a little water out of the Pacific Ocean, you could not do it.

Mr. BAKER. I think that the rule of law would prevail that the law does not take into account microscopic things.

Mr. HULI. In other words, they would not object to a bottlefull being abstracted, but they would object to a barrelfull being taken

out.

Mr. BAKER. Well, not a barrelfull, but a material amount. think the State of Ohio would object to anything

Mr. HULL (interposing). To a bottlefull?

Mr. BAKER. No; not a bottlefull, but to an amount that would prejudice its interests.