Senator OVERTON. They were under duress, to this extent. If the levees were not built, human life and property would have been endangered. Senator BAILEY. But he would have his remedy against the officer who did not execute the law. He would have his remedy. Senator OVERTON. While he was pursuing his remedy what would happen to the lives and property back of those levees? Senator BAILEY. I do not imagine that the matter was imminent. We have our floods, and then we do not have our floods, and you might ask what would happen while they were building these levees.. They did not build them in a minute. It possibly took them a year or more. Senator OVERTON. These witnesses will bring out the exigencies. under which they were acting at that time, especially with referenceto the city of Alexandria, which involves the major portion of this claim. Something over $500,000. Senator BAILEY. Is it my understanding that this case is based upon the theory that the parties beneficiary under this bill acted under a fear that the Government would build levees elsewhere? Mr. JACOBS. Yes, sir. Senator BAILEY. And if the Government had built elsewhere, would the flood control have been efficient? Mr. JACOBS. Our condition would have been Senator BAILEY (interposing). Your condition is one thing. But I am speaking now of the general objective, of the flood control. Would they have been efficient? Was there somewhere else where levees could be built, and carry out the objectives of the law under which they were acting? Mr. JACOBS. Yes, sir; there were other stretches. Senator BAILEY. Then he was put to an election either to take the sum offered, and get the levees built, where these parties wished it to be built, or to refuse the sum offered, and let the levees be built elsewhere to accomplish the same purposes that would be accomplished, building the levees on your land. Is that right? Mr. JACOBS. Yes; except it was a general set-up in all of the testimony of the Federal engineers, for the reason that the Federal Government in assuming flood control, that it was primarily in the interest of the thickly populated sections first. They first worked at Cairo, for the protection of Cairo. Then they spent a great deal of money for the protection of the city of New Orleans, and then other sections that were more thickly populated were given thought to, before the rural or farming sections. Senator BAILEY. But that was discretionary. Mr. JACOBS. Yes; to a certain extent. Senator BAILEY. He would have to determine his duties under language like that. I do not think your case is good on duress. It may be good on some other phases of it, but I am on the Claims Committee. We have all sorts of propositions brought to us on the theory of duress, that the Government said "If you do not sell us this land, we will buy some over yonder." Of course, the Government has a right to do that. That is not duress. You may get in on your value, or you may get in on your agency, but I do not think you sustain a position on duress. Senator OVERTON. The point that I would like to bring to your attention in that connection is this. This levee board was not negotiating with Congress. Senator BAILEY. It was acting as the agent for the War Department, as I understand. Senator OVERTON. Congress had authoritatively declared the policy of the Government. It had said that the Federal Government should pay these rights-of-way on these tributaries. Senator BAILEY. But did not say exactly where they should be located. Senator OVERTON. No; but the Jadwin plan contemplated the construction of levees on the south bank of the Red River, and they were in the Jadwin plan which was adopted by the act of Congress in providing for Government control. After Congress had declared what the National policy was, then we find that the district engineer who steps in and says in effect, "I am going to see to it that if you do not get the rights-of-way, we are going to use this money somewhere else, and you won't get your levees built." Senator BAILEY. The question is whether he could use the money somewhere else and accomplish the purposes of the law, or if he undertook to suggest that he could go somewhere else, when the law said he could not. If that be so, the parties were charged with the knowledge of the law, and all they had to do was to appeal to his superior officer, and require him to go where the law said, but in either case there is no duress. Senator OVERTON. The difficulty about that is this, that his superior officer, the Chief Army Engineer, took the position at that time that the State agencies should furnish the rights-of-way on these tributaries. He misinterpreted the act of Congress, and that is the position his subordinates took. At first they interpreted the act to mean, and correctly, that the Federal Government should pay for the rights-of-way on the tributaries, and they proceeded to acquire these rights-of-way. Then, when they got into difficulty in acquiring the rights of way, excessive prices being asked, and the slowness of the process, they reconsidered the whole matter, and then came to the erroneous conclusion that the local authorities should go ahead and furnish the rights-of-way, and then after I came here to Congress, I took the matter up with the Secretary of War, and he told me "I will just refer the whole matter to the Attorney General", and he referred it to the Attorney General, and the Attorney General answered that question in an opinion which I shall introduce in evidence, that it was the duty of the Federal Government to pay for all of these rights-of-way on these tributaries. Then we presented our claim. Then when we did, they said, "All right." Senator BAILEY. Your statement eliminates all theory of duress. Senator OVERTON. They said, "We are going to pay for the Arkansas rights-of-way, and for the Atchafalaya rights-of-way, but were are not going to pay for these rights-of-way, where resolution of this character were adopted." Senator BAILEY. There may have been misunderstanding and mistake, and misapprehension, under your statement, but there is no duress, Mr. JACOBS. Except maybe, Senator, if you will permit me, right at that point, to offer this set-up. Senator BAILEY. We understand duress so clearly as defined in the law to be when a man is compelled to do something against his will. That is duress. Senator OVERTON. What I wanted to do here was to get all of the facts, and then you can consider whether it was a case of duress, or whether they were acting as an agency of the Federal Government, or just on what basis the claim should be allowed, or disallowed. Mr. JACOBS. Senator, let me bring out right at this point the break-down of each year's appropriation for flood control. You get an appropriation of $35,000,000 per year if the flood control act is. to be carried out as it was intended to be. Out of the appropriation of each year, the Chief Engineer sets aside so much for navigation, so much for the construction of levees for flood control, in each organized United States district. He notifies Colonel Hodges at New Orleans, "You have so much for levees in your district; you have so much for navigation." He notifies the district engineer for Memphis likewise, and also the one at Vicksburg, likewise. The district engineer then makes a break-down of the allotment. He calls upon the various levee boards, realizing that this levee is very weak, is not as strong as other levees in other parts of the district, and the district engineer knows that a certain length of levee in the Red River and Atchafalaya District is more subject to crevasses, or blow-out during flood than levees in some other district, and knowing that, he calls upon these levee boards, and says, "I will allow so much to this district, and I will allow so much to another district." In other words, the district engineer then breaks down the sum for his district, of which there is a certain sum allotted to this levee district, because of the condition of the levee system. The district engineers and the Chief Engineer, realizing that the first work should be done where the levees are setting close to a caving bank that may not last for 1 year, but may cave in to the stream during the high water. He knows that some levees seep and are rotten. He gives this money then to this district for this levee construction, and realizing that he is supposed to acquire this rightof-way, he calls upon the levee board to get that right-of-way for him. The board says, "All right, we will help you. We will get it for you under our State laws" and proceeds to do so. Now he comes back and says, "If you don't get this right away here for me, and without cost, I will take the money that has been allotted to your district and give it to same other district." The levee board then realizes that their levees are weak, and subject to break if you get a real flood, and naturally they want protection, and naturally they think that they have been entitled to the sum allotted to their district, and we don't know for sure whether the flood control will end next year or the year after next. With all regard to the $325,000,000, it was appropriated for the entire work. Senator BAILEY. I would not advise you to go under that plan. You cannot take the supposition that the local levee board was su perior to the board of the United States. You could not say that you would spend it anyhow, even if you did think that your levee was going to break. Mr. JACOBS. No; but the levee board realizes this weakened condition Senator BAILEY (interposing). They have no right to spend the Government money without the consent of the engineers. Mr. JACOBS. We do not spend any of it. Senator BAILEY. You are arguing that they will do that because they are afraid the levee will break. Mr. JACOBS. We want the Government to spend the money. Senator BAILEY. That is all right. You can ask the Government for it, but your local board cannot spend it. Mr. JACOBS. No; we never spend it. I did not want to imply that. I say that the district engineer realizes the condition of that levee, and if the district engineer tells us "We are not going to build it"9 Senator BAILEY. That does not raise any right in you to build one with the Government's money. to. Mr. JACOBS. We never built one. If I said that, I did not mean I believe you misunderstood me, Senator. Senator BAILEY. I thought that was the whole tenor of your state ments. Mr. JACOBS. No; we do not spend any of the money. We cooperate with the Government. Senator BAILEY. Of what value, then, is the statement that you have made that your local board was afraid that the levee was weak at that point? Suppose it was afraid, and suppose it was weak, the local board would not have anything to do with that. That is a matter for the United States Government, because it is going to do the work, and it is spending the money. All that your board can do is to condemn for us as our agent, or appropriate for us, and make your petition to the Government for a proper share of the funds allocated; isn't that right? Mr. JACOBS. That is right; but the district engineer in making his allotment, certainly realizes the condition of that levee line, or he would not allot that money for that. He would put it in some other weakened stretch of land. Senator BAILEY. Your statement is that he allotted it to you here and then said that he would do otherwise? Mr. JACOBS. That is right. That is it exactly. He tells this levee board: "If you do not fix the resolution and write in 'without cost', we won't do it." Senator BAILEY. When he said that he would change it unless you agreed to his terms, you agreed? Mr. JACOBS. Yes; then we agreed. Senator BAILEY. And you claim that was duress? Mr. JACOBS. Yes, sir; it was duress, for this reason; that in this particular case, if they had not done it, that section would have overflowed, because we had one of the greatest floods the next spring following that that we ever had on the Red River. Senator BAILEY. I am willing to rest the matter of the law right there on his statement, whether it was duress or not. Mr. JACOBS. And if the levee board had not felt that the damage done by the flood would have been a lot greater than the cost of the right of way, we would not have acquired the right of way for the Government, and the reason we acquired the right of way for the Government was in order to hasten construction. Senator BAILEY. I think your position is very good in acquiring the right of way and contracting for it as the agent of the Government, but I do not think there is anything in this idea of duress. I want to avoid that if I can, because everybody in the country sets up duress as a basis of claim, and he rarely gets by under that, because duress is a very difficult thing to prove. Mr. JACOBS. I just want to state the facts to the committee of what happened. Senator OVERTON. I think the question that arises in this case is transcendental above any question of duress. It is this: Shall or shall not the original policy of Congress and the present and the only policy of Congress be carried out, and that is that the Federal Government should pay for the rights of way? Senator BAILEY. That is on the basis of agency. I am willing to entertain it on that. I want to avoid duress. I do not want to have the whole population of the United States in every settlement that we ever make, come up and say 3 years later, "We made this under duress." You see what sort of a door that would open. Mr. JACOBS. Yes, sir. Senator OVERTON. In connection with that thought, this letter of Mr. Holcombe's, the district engineer, to whom you are referring in your statement, writes on February 16, 1931: Your cooperation in securing the necessary rights of way is requested. That is correct, is it not? Mr. JACOBS. Yes, sir. Senator BAILEY. You are going to put that letter in? Senator BAILEY. Why not get a report from the War Department on this? Senator OVERTON. I expected to have one before the hearing, and I was promised that the report would be in, but unfortunately and through no fault of theirs it has been delayed. It has been sent to the Bureau of the Budget. Senator BAILEY. Now, let me ask you another question, without offense. This is a claim against the Government. Why wasn't it referred to the Claims Committee, as are all other claims? Senator OVERTON. I thought it would come under the jurisdiction of this committee, which has jurisdiction over flood-control work. A similar measure in the House was referred to the Flood Control Committee of the House. Senator BAILEY. It is a plain claim against the Government. Senator OVERTON. Yes; it is a claim against the Government. Now, the reason I am having the hearing today is that these witnesses came all the way from Louisiana, and to some extent we are working in the dark, because it may be that the report of the War Department will be of great aid to us in conducting this inquiry. |