Mr. MORGAN. Mr. Chairman, do I correctly understand from the witness that the Supreme Court can make a declaration as to policy concerning the abstraction of water for sanitary purposes in the case pending?

The CHAIRMAN. What the Secretary states, as I understand it, is that that is the issue pending and, as I understand, the Supreme Court has heard arguments upon the question of jurisdiction and has determined it had jurisdiction.

Mr. MORGAN. Well, I am getting at a policy. There has been no declaration of Congress concerning a policy?

The CHAIRMAN. No.

Mr. MORGAN. Then, do I correctly understand the pending case before the Supreme Court, that its decision would embrace a matter of policy?

The CHAIRMAN. I suppose

Mr. MORGAN. Let the witness answer, if he will.

The CHAIRMAN. Of course, let him answer. I thought you were asking me.

Mr. BAKER. I do not understand this, sir; I can only answer for myself, because I do not understand that there is any question of policy involved in those law suits.

Mr. MORGAN. That is what I am getting at. There will be no policy established in any event in the absence of a declaration of Congress?

Mr. BAKER. No; there will be no policy established, but there may be many possible policies that will prevent it from being established. I was in the midst of trying to illustrate the large economic possibilities by referring to the fact that 10,000 cubic second feet abstracted at Chicago would develop 80,000 horsepower down the Illinois River, and to the Mississippi; and that the same 10,000 cubic feet of water left in the Great Lakes, going over Niagara Falls, and used on the way down with the rapids and falls on the St. Lawrence would develop 500,000 horsepower.

Mr. HULL. May I interrupt you a moment, just there?

Mr. BAKER. Yes.

Mr. HULL. They had no right to take any more water from Niagara Falls.

Mr. BAKER. Well, they might get it without prejudice to any use of that water on the Lakes, if Chicago did not get it first.

Mr. HULL. But they had no right to it; they would have to give it to Canada or leave it in the lake.

Mr. BAKER. No; they could give it to either one.

Mr. HULL. Why do you use that argument, then?

Mr. BAKER. Because I am trying to show what the large economic aspects of it are.

Mr. HULL. In other words, it is a power proposition.

Mr. BAKER. What I am talking about is a power proposition; yes. Mr. NEWTON. Do you not think, Mr. Secretary, in the absence of any declaration or act of Congress raising the question of navigation purposes for the diversion at Chicago, that as it stands now the real issue back of this whole controversy is power?

Mr. BAKER. I do not know whether it is or not; but I am perfectly prepared to plant myself on the power proposition.

Mr. NEWTON. Well, do you not think that navigation ought not to come before power?

Mr. BAKER. I think power ought to come before sewage; I think it is more important to develop the power of these great, flowing waters to their maximum efficiency than it is to make the father of waters the father of sewers, as they are doing with the Mississippi

now.

Mr. NEWTON. You understand that the treaty between the United States and Canada names sewage first, navigation second, and power third?

Mr. BAKER. I do not so understand that treaty.

Mr. HULL. That is what it says in the treaty.

Mr. NEWTON. In the treaty entered into in 1910, which I have before me, this provision says that the high contracting parties shall have each on its own side of the boundary equal and similar rights. in the use of the waters hereinbefore defined as boundary waters. The following order of precedence shall be observed among the various uses enumerated hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence.

First, uses for domestic and sanitary purposes;

Second, uses for navigation, including the service of canals for the purpose of navigation;

Third, uses for power and irrigation purposes.

Mr. BAKER. Yes; I would put them in exactly that order.
Mr. NEWTON. That puts sanitary purposes first.

Mr. BAKER. Yes; domestic and sanitary purposes.

Mr. NEWTON. Oh, I misunderstood you; I thought you put it the other way.

Mr. BAKER. I think that is the right order for them to be put, but, of course, nobody has in their minds even remotely the abstraction of water for sanitary purposes. It is a diversion only, there; but they plainly had in their mind what was done in Cleveland. We pump 100,000,000 gallons into the water service, and it goes into the ordinary domestic uses, until it finally goes into the sewers; then it is taken into filtration plants, and the water is immunized, trated, and goes back to the lake. Now, that is a normal and proper use of those waters.

Mr. NEWTON. In that connection, do you have any doubt but that the United States and Canada considered very much in detail this diversion of the water at Chicago at the time of entering into this treaty?

Mr. BAKER. I know the matter was under discussion for a long time by the conferees that drew up the treaty and they finally decided to leave it out; but I am familiar with that discussion.

Mr. NEWTON. In other words, Canada in its report said that the diversion at Chicago was serious because it took water out of the watershed.

Mr. BAKER. Yes, sir.

Mr. NEWTON. And Canada is getting very considerably more water on that side than we are.

Mr. BAKER. But not taking it out of the watershed.

Mr. MANSFIELD. You mean for power purposes?

Mr. NEWTON. Yes.

Mr. BAKER. Yes; they are.

Mr. NEWTON. Under the preliminary investigations, the commissioners, the joint commission, recommended 36,000 cubic second-feet on the Canadian side and 28-000 cubic second-feet on the American side.

Mr. BAKER. That is quite right.

Mr. NEWTON. Now, they certainly had it in their minds about the diversion at Chicago, there is not any doubt about that, when they signed that treaty; the Canadians must have had it in their minds. As a matter of fact, do you understand that the original treaty had the 10,000 cubic feet in it, and that our Secretary of State, Mr. Root, eliminated that?

Mr. BAKER. I understood Root has said that he took that out and would not allow it; but I am not arguing Canada's case. I have been misunderstood.

Mr. NEWTON. I understand. I was trying to find out the effect of it. Now, the next paragraph of the treaty shows they must have had in mind 10,000 cubic feet, but Mr. Root said he would not agree to it, because Lake Michigan was in our territory, and because a large percentage of the water going into the Great Lakes came from the American side. For instance, as I understand it, 107,700 cubic second-feet comes out of the American watershed and 97,000 cubic feet from the Canadian watershed. So America is contributing most of the water to that great watershed.

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Now, they must have had that in mind; and the treaty says that the foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the watershed," and Secretary Root, before the Senate, said we were taking 10,000 cubic second-feet then.

Mr. BAKER. I think that would be an excellent argument for the Secretary of State to make to the Canadian Prime Minister, but it does not affect Ohio or New York.

Mr. NEWTON. But they ought to observe the treaty obligations.

Mr. BAKER. We are not talking about the treaty obligations. I deny the right of the power of Congress to convert water which belongs to Ohio or Pennsylvania or Chicago in a trade it makes with Canada.

Mr. NEWTON. But does it no: seem severe to charge Chicago with illegally taking it, when you have a treaty that apparently covers it? Mr. BAKER. Well, of course, it is perfectly well known that at the time that treaty was made, the Government of the United States itself, through the Department of Justice, had a suit pending in the United States District Court of Illinois denying the right of Chicago to take more than 4,167 cubic feet. What the treaty finally said was that it was made without prejudice to existing diversion. It must have meant those legally authorized at the time, so that if there be anything in the treaty that affects this question, it is a recognition by the treaty-making power of the United States that the Secretary of War under a permit had authorized the abstraction of 4,167 cubic feet per second; but surely the Government of the United States is not assuming and conceding a right to take 10,000 cubic second

feet, when it was before the District Court of the United States at that very minute earnestly protesting and seeking an injunction against anything beyond 4,167 cubic feet as illegal and in defiance of the Secretary of War's order.

The CHAIRMAN. I suppose, if there were eight horses in dispute between Canada and the United States, and the claimants were seven States and Canada, and you determined that one belonged to Canada and seven to the United States, that would not determine anything as to the ownership of the horses. Of course, what Mr. Newton said does apply as to Canada, as to any argument in behalf of Canada under this treaty. That is clear.

Mr. MORGAN. As I understand it, your position is that Congress should not make a declaration as to a transportation policy in the abstraction at Chicago until the Supreme Court decides the issue as to the right of Congress to make such declaration.

Mr. BAKER. I urge that upon you, yes; I think that would be a wise thing to do.

Now, may I finish what I was saying?

Mr. HULL. Let we ask one question right here. This diversion we are talking about occurred in 1900 and was in existence in 1900 up to 1910, when we signed the treaty, so there was not any mistake about that diversion existing, was there?

Mr. BAKER. No; there could not have been.

Mr. HULL. That is what the treaty said.

Mr. BAKER. The diversion referred to there, I think, was a continuing diversion.

Mr. HULL. But that is not what it said, is it? That is no explanation. We have read the treaty pretty carefully.

Mr. BAKER. So have I.

Mr. HULL. Is there such an interpretation in the treaty?

Mr. BAKER. It is not in there; it is not determined in either way, either according to your interpretation or mine.

Mr. HULL. Well, you are making an interpretation.

Mr. BAKER. So are you.

Mr. HULL. I do not want you to understand that your interpretation is in the treaty.

Mr. BAKER. And I do not want you to understand that your interpretation is in the treaty.

Mr. HULL. I am not interpreting it.

Mr. BAKER. Oh, yes. And you say that the diversion is a diversion that will continue to maintain a fixed lower level than normal. Mr. HULL. There is a difference of opinion between you and me. Mr. BAKER. Yes; but I want it understood that if I undertake to interpret it, I follow your illustrious example.

Mr. MOONEY. I wanted to follow Mr. Hull's question. At the time of this treaty, Chicago was authorized to use 4,167 cubic feetcall it an abstraction or diversion or whatever you want to call it and the treaty said that those diversions which were then being made were all right, and might continue. I was going to ask Mr. Baker if in his judgment a diversion of 4,100 feet was permitted and somebody was illegally using 20,000 cubic feet, if we might assume that they figure that that 20,000 cubic feet diversion might continue indefinitely.

Mr. BAKER. Yes; I agree with you.

Mr. NEWTON. I do not want to harass or embarrass you

Mr. NEWTON (continuing). We are all Americans here and we are trying to work this thing out. We do not want to do anything that will injure anybody. If it is found that 10,000 cubic second feet. are important to the navigation of the Mississippi Valley, as part of great Mississippi River system, and if Congress finds that it can take care of the lake level problem without in any way interfering with navigation, do you not think you would be justified, assuming those things are true, in taking whatever we had a right to take under our treaty with Canada?

Mr. BAKER. I think you have practically asked me this question: If all objections are removed, would there still be any objection? Of course, I would say no to that.

Mr. NEWTON. Well, you say if it is important for navigation in the valley, and if we can regulate the levels, then we can take all we have a right to take under the treaty?

Mr. BAKER. Why do you ask me that question?
Mr. NEWTON. Because I think it important.

Mr. BAKER. That is not pertinent at all. Here is a report of the engineers, and you have had them for 20 years in which they havetold you repeatedly that the amount of abstraction of water at Chicago was immaterial from the point of view of the navigation of the Illinois River.

Mr. NEWTON. And some of us have studied that navigation question, and I think that we know that 10,000 cubic feet is very valuablefor navigation in the valley.

Mr. BAKER. Well, the engineers say no; they say it is simply a. question of a little more dredging, that if you took 10,000 cubicfeet you do not have to do quite so much dredging, and it is a question of saving a million or two or five or ten million dollars here to carry out this project by abstracting water from the lake rather than spending that money and deepening the channels.

Mr. NEWTON. And we feel that 10,000 cubic feet means a flow of water, making a channel 200 feet wide and 10 feet deep. Mr. BAKER. And what rate of speed?

Mr. NEWTON. At the rate they are taking it.

Mr. BAKER. At the rate necessary for the sewage?

Mr. NEWTON. The ordinary flow of the river, in the Mississippi system, I think that is what it means. Now, we having found that the great areas that held the water in northern Indiana and in that. region, the bogs and marshes there and up in Minnesota, that used to supply a great quantity of water in the dry seasons, that those reservoirs have been destroyed by the drainage, we find each year at the low-water season down there we are short of water.

Mr. BAKER. Down where?

Mr. NEWTON. From Chicago to down below St. Louis.

Mr. BAKER. However, your reports told you how much 10,000> cubic feet going through the Illinois River would raise the lowerMississippi.

Mr. NEWTON. I think it was 1 foot.

Mr. BAKER. A tenth of 1 inch.

Mr. MANSFIELD. One foot at St. Louis.