Senator BAILEY. Well, we will have to have that.

Senator OVERTON. We are going to have that.

Senator BAILEY. We have to hear the other side of this.

Senator OVERTON. Before you came in, I put Colonel Graves upon the stand, and I think we might now put Mr. Dean on the stand. He is an engineer connected with the War Department.

STATEMENT OF CAPT. JOHN PAUL DEAN, OF THE CORPS OF ENGINEERS OF THE UNITED STATES ARMY

Senator OVERTON. Where are you stationed, Captain Dean? Captain DEAN. Chief of the engineering division of the Second New Orleans District, New Orleans.

Senator OVERTON. You are familiar with this bill and the facts leading up to the bill?

Captain DEAN. Yes, sir.

Senator OVERTON. Will you please make a statement in reference to it and your understanding of this problem?

Captain DEAN. I would like to preface it with two brief statements of the law, as I understand it. The Flood Control Act authorizes the acquisition of rights-of-way in the areas covered by this bill, by three methods; by agreement with the owner for purchase at a reasonable price; second, by condemnation; and, third, by donation. The War Department has tried all three of these methods in acquiring land under the Flood Control Act, or rights-of-way, or other easements, and, frankly, in my opinion as an engineer, all three methods have proved to be so inefficient or protracted as to be unworkable, primarily because of the requirements of clearing titles to the satisfaction of the Department of Justice.

The case has frequently arisen where, with a perfect agreement as to the fairness of price with the individual land owner

Senator BAILEY (interposing). You are discussing the matter of rights-of-way. I would like to get to the facts here. I am familiar with those three methods; they are three historic methods, and they have been used for some 2,000 years and they might be improved upon, but that is not the object of this meeting. Let us get down to this case and see what we have before us.

Captain DEAN. In carrying out the act, frequently in the location where, from an engineering standpoint, early priority should be given in construction, it has appeared to be impracticable to undertake the construction in a given year because of the slowness of direct acquisition of the rights-of-way.

In the case of Louisiana, the local levee board has the authority to appropriate the right-of-way by resolution, and reimburse the landowner at a later date. They have used that authority, and have appropriated rights-of-way, and have authorized the United States to build levees on those rights-of-way, and that method has been used not only in the case as covered here, but is the standard method of acquisition of rights-of-way at the present time.

Senator BAILEY. The United States Government uses the powers of the State?

Captain DEAN. Yes.

Senator BAILEY. It did in this case?

Captain DEAN. It did in this case. The levees have been constructed, and with minor exceptions, they are completed.

Senator BAILEY. You are with the War Department?

Captain DEAN. Yes, sir.

Senator BAILEY. All of this was regularly done, wasn't it?

Captain DEAN. Yes, sir.

Senator BAILEY. According to your statement.

Captain DEAN. Yes, sir.

Senator BAILEY. Why was not the money paid directly without bringing an act here to Congress?

Captain DEAN. Because the resolutions of the levee board for the levees covered by this case stated that the levee board gave the rightof-way without cost to the United States.

Senator BAILEY. Is that one of the contentions in the case? Senator OVERTON. That is the only contention in the case. Captain DEAN. That is the only contention that I know of. Senator BAILEY. That brings it down to one plain issue, did or did not the levee board agree to appropriate this land for the benefit of the United States without cost? If it agreed, there may be a question, but your case is greatly weakened. If it did not agree, then there is no question, and your case is absolute. Is that your whole case?

Captain DEAN. I have no case here.

Senator BAILEY. I am asking you. You have to reduce any case to an issue, for settlement. The usual issue is for a yes or no answer. That is the whole process when a case is submitted to a jury. They say yes or no, and they terminate the whole controversy. If my statement of the issue is correct, it is a very simple thing, isn't it? Did the United States Government contract not to pay this sum, or did the local levee board contract to do this work, and without charging the United States this sum? If that is the issue, it makes it very simple, and we can find the facts about that very easily, because that language was inserted in the contract, was it not?

Captain DEAN. That language was inserted in the resolution. Senator BAILEY. Was that resolution changed thereafter? Captain DEAN. All I know about it is the resolution as is stated. Senator OVERTON. That is a copy of the resolution, which I hand you.

Senator BAILEY. Is that the resolution under which the work was done?

Captain DEAN. That is the resolution under which the work was done; yes, sir.

Senator BAILEY. All right. Now, in order to attack that contract, you have to attack it as fraudulent or as under duress or under mutual mistake. What do you say about that?

Captain DEAN. That sounds plausible. I am not a lawyer.

Senator BAILEY. That is the only way you have to set aside contracts. I am ready to go ahead. I think I apprehend the legal aspects of this matter. I may not understand all this engineering business. They can proceed as they please, under mutual mistake, or duress, or fraud, and those are the only three sources from which they can derive a right.

Senator OVERTON. The position I take as the author of the bill, Senator, is simply this, if you will bear with me for a moment: It

is not a question of whether or not in the face of the resolution the Federal Government is presently under obligation to pay for these rights-of-way. I subscribe to the opinion of the Attorney General. I have to subscribe to it. And also of the Comptroller General, that the Federal Government, in the face of these resolutions, is under no obligation to pay, but we are legislating as we propose to do in this bill. We are presenting a bill that does carry out the policy of Congress in respect of these rights-of-way, that the burden of the cost of them shall fall upon the Federal Government, and that the benefit ought to be equal in respect to all of these tributaries. It is unjust and inequitable that one tributary shall be paid for its rights-of-way, and another for its rights-of-way, and a third should not.

Senator BAILEY. Not if one contracted under special considerations, and the other did not. The whole thing arises under contract. Senator OVERTON. Well, we will get to another point, then.

Senator BAILEY. It would never do to say that the Government owed me some money for my land, because it paid the other fellow some. That does not follow at all.

Senator OVERTON. If this levee board had represented to Congress, and Congress had passed an act which carried into execution such an agreement as that, the situation would be entirely different, but here we have a local district engineer and a local levee board that are undertaking by an agreement, whether under duress or not, to set aside the policy of the Federal Government in respect to this great national project, and to say that notwithstanding that Congress has declared that the Federal Government should pay for these rights-of-way, yet you and I are going to see to it that the local levee board, the citizens who have to pay the taxes in your district, will have to pay for these rights-of-way, and the Federal Government. will not pay for the rights-of-way.

Senator BAILEY. If they contracted to give them, the equity would be on the side of the Government, because they would not be allowed to say that they did not do it without cost, after the work was done.

Senator OVERTON. Suppose some tenant on your farm would undertake to contract in your name, and you would then look at that

contract

Senator BAILEY (interposing). There is a difference between a tenant on the farm and a duly constituted authority having supervision over a levee board. We can look into that, too, and see.

Senator OVERTON. I doubt very seriously that you would come to the conclusion that the district engineer had authority in this case case to enter into any such contract as that.

Senator BAILEY. You question the authority on both sides of the contract?

Senator OVERTON. I am not basing this bill on the question of legal technicalities or, legal points, but I am bottoming it upon the broad basis that in enacting this bill we are carrying out the policy of Congress.

Senator BAILEY. You know that Mr. Bumble said, "The law is an ass." Do you remember that?

Senator OVERTON. I cannot say that I do.

Senator BAILEY. But my theory of this whole business is that the law is something to guide us. He may be an ass, but he is the best one we have got, so I follow the law. I cannot make one myself.

Senator OVERTON. The law of Congress is as I have said over and over again, that the Federal Government should pay for these rightsof-way.

Senator BAILEY. I will agree on that. You can take that for your general policy.

Then the parties come in and contract not to ask for the money, and still say that we shall pay. That is what is troubling me. Senator ÖVERTON. But who contracts?

Senator BAILEY. According to this resolution, Sol B. Pressburg, as secretary. I will agree that it is not properly executed, but that would not trouble me. It was all in good faith. I am satisfied with that. It is under seal here. A resolution passed by the board of commissioners, for Red River, Atchafalaya, and Bayou Boeuf Levee Board.

Senator OVERTON. That is one of a type of resolutions that was adopted. There were how many?

Mr. JACOBS. Thirteen.

Senator OVERTON. All of similar import.

Senator BAILEY. This is a certified copy under the seal of the Secretary. This is a very good contract. You have destroyed all the theory of fraud and duress in the "Whereas" clauses. Thedocument states:

Whereas, the United States Government has advised this Levee Board that they are ready to proceed, and Whereas the United States Government has advised this Levee Board that unless said rights-of-way are furnished by this Levee Board the funds allotted for the work will be transferred to some other district.

If he had put in there "against which representation we protest it is a different matter, but it goes on:

Therefore, be it resolved by the board of commissioners for the Red River, Atchafalaya, and Bayou Boeuf Levee District that, considering the benefits to be derived from the building of the above-named levee, that this levee board agrees and obligates itself to furnish the United States Government without cost, the right-of-way for the Woodside, St. Joseph's Church, and Bayou. Current levees.

They specifically state the consideration there, which certainly is not fraudulent in any way, "considering the benefits to be derived from the building of the above-named levee" and they agree to do it without cost.

Senator OVERTON. Yes. Here is the position they take about dur- / ess. Whether you call it duress or not, or whether you interpret it to be duress, that resolution was shoved at them, and they were told, "if you do not adopt that resolution, your levees are not going to be constructed." I would like to establish that by Mr. Pressburg, who is the next witness.

Senator BAILEY. That has been testified here by Mr. Jacobs, that that was the statement. Isn't that right? That has been testified to by him since I have been in the room.

Senator OVERTON. Yes.

Senator BAILEY. The United States Government did the work under the resolution, and then the board comes back and asks for the money, notwithstanding the resolution. That is your case? Senator OVERTON. That is the case.

Senator BAILEY. Well, there may be some liberality that we will exercise in the Government, but if I were a party to that contract I would rest perfectly confident that it could never be upheld. There is not a court in the United States that would hold that there is any legal right there. You may have one of grace.

66

Of course, grace has no standing in law. It has a very great standing in the United States, and you can change the word grace and take the će and put in ft", and we never know when we go from "grace" to "graft." I am not making any insinuations. I am afraid of grace. That is why the United States Government was formed. It was to get rid of aristocratic preference that was given by the kings of Europe to their favorites. That is all we are over here for. We want to get rid of the idea of grace and favoritism.

Senator OVERTON. Disregarding all of the questions in reference to whether or not there is duress, and the resolution itself, and get down to this consideration, and I will ask your view of this. Where Congress adopted a flood-control act, distributing the burden of that work, with certain burdens to be borne by local government and certain burdens by the Federal Government, and after it had adopted that act the district engineer of the Federal Government should undertake to arrive at a different policy in connection with the distribution of burden, and that what Congress said should be borne by the Federal Government he should say, "I want those burdens borne by the local government ", and the local government should say, "Well, under the circumstances, all right, I will undertake to do it "-is that any reason why the Congress of the United States should not adopt a bill that undertakes to carry out the original policy of Congress, assuming that the claim is correct?

Senator BAILEY. I take it that the policy of the law was to pay the bill as far as required. If volunteers came in and offered to pay their part of the bill in consideration of the benefits received, that is in full accord with the policy of Congress.

Senator OVERTON. I hardly think they can be called volunteers. Senator BAILEY. I think you are forced back to your position of duress. I did not know when I was examining the colonel here on the question of duress that you are really undertaking to set aside a contract on duress.

Senator OVERTON. I am presenting the entire picture. I want to give the history of it, and what led up to the adoption of the resolution, and what has happened since.

Senator BAILEY. I understand this engineer told them: "If you do not come to my terms here, I am going to do my work elsewhere ". and they said that they were afraid of immediate floods, and wanted the thing built right away, and that while they did intend to do this, that their wills were governed by the will of another, and they had no will themselves. That is duress. If a will is executed under duress, or a contract, it always means that the will of the party to the contract was controlled absolutely by the will of the man for whose benefit it was changed or written. That is duress. He ceased to have a will, and the other one's will controlled.

Senator OVERTON. Suppose we put Mr. Pressburg on the stand

now.