In your letter you refer to the fact that “since the passage of the act controversies over land matters in the basin have arisen-suits brought-which indicate that claims may be filed for land to an extent that may commit the United States to expenditures vastly beyond the amount authorized by Congress."

I wish to say that the case of Hurley, Secretary of War, v. Kincaid (285 U.S. 95) was decided by the Supreme Court in February of last year. In that suit Kincaid, the owner of land lying within the proposed channel of the Boeuf flood way, brought suit to enjoin the carrying out of the work in the flood way and to enjoin the receiving of bids for the construction of guide levees therefor, claiming that if the work should be commenced without proceedings first having been instituted to condemn his land or the flowage rights thereof the United States would in effect be taking his property without due process of law and without just compensation. Kincaid owns a 160-acre farm in the Boeuf Basin at a point 125 miles below the point of diversion. No part of the guide levees were to be built in his land, but his land lies in the proposed channel of the floodway. The district court enjoined the Government from proceeding with the construction authorized by the act until the property of Kincaid had been acquired by the Government, or the flowage rights over the same acquired either by purchase or condemnation. The circuit court of appeals affirmed the judgment of the district court. The case was heard in the Supreme Court, and wę quote the following from the opinion of the Supreme Court:

"We have no occasion to determine any of the controverted issues of fact or any of the propositions of substantive law which have been argued. We may assume that, as charged, the mere adoption by Congress of a plan of flood .control, which involves an intentional, additional, occasional flooding of complainant's land constitutes a taking of it-as soon as the Government begins to carry out the project authorized.

"If that which has been done, or is contemplated, does constitute such a taking, the complainant can recover just compensation under the Tucker Act in an action at law as upon an implied contract."

The court further said:

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'The compensation which he may obtain in such a proceeding will be the same as that which he might have been awarded had the defendants instituted the condemnation proceedings which it is contended the statute requires. Nor is it material to inquire now whether the statute does so require. For even if the defendants are acting illegally, under the act, in threatening to proceed without first acquiring flowage rights over the complainant's lands, the illegality, on complainant's own contention, is confined to the failure to compensate him for the taking, and affords no basis for an injunction if such compensation may be procured in an action at law. The fifth amendment does not entitle him to be paid in advance of the taking."

The Supreme Court dissolved the injunction and dismissed the suit on the ground that Kincaid had a plain, adequate, and complete remedy at law.

It will be seen that the Supreme Court did not pass upon the question of the liability of the Government. Since the Kincaid suit was decided an action has been brought and is now pending in the Court of Claims based upon the contention made by Kincaid. If it should be held by the courts that the property owner is entitled to damage as claimed in the Kincaid case, the commencement of proceedings to install the protective levees presents a question of serious import, inasmuch as apparently Congress did not contemplate a liability for the acquiring of flowage rights lying between the proposed protective levees and the river, and apparently no appropriation has been made sufficient to pay such damages.

In view of the amount involved by way of possible liability on the part of the United States, a question of policy arises, which I have no doubt you will take under serious consideration. Respectfully submitted.

HOMER S. CUMMINGS,
Attorney General.

Senator OVERTON. I offer in evidence the letter written to John H. Overton, United States Senator, by the Secretary of War, of date June 14, 1933, stating that the president of the Mississippi River

Commission has been instructed to pay for the rights-of-way on these tributaries.

Hon. JOHN H. OVERTON,

WAR DEPARTMENT, Washington, June 14, 1933.

United States Senate, Washington, D.C. DEAR SENATOR OVERTON: The Department has given careful consideration to letter of May 15, signed jointly by yourself and by Hon. Riley J. Wilson, requesting that the United States Government pay for the rights-of-way necessary for the construction of levees on the south bank of the Red River, and the construction of main levees and protection levees on the Atchafalaya River in the State of Louisiana.

This Department has been advised by the Attorney General that the United States is obligated under the law to pay for such rights-of-way, and the president of the Mississippi River Commission has been instructed accordingly.

The Department will expect the cooperation of the levee boards in securing these rights-of-way at reasonable prices.

Sincerely yours,

GEO. H. DERN, Secretary of War. Senator OVERTON. I offer in evidence the certified copy of the resolution of the Red River, Atchafalaya, and Bayou Boeuf Levee Board in respect to furnishing a portion of these rights-of-way to the United States Government, which, according to the testimony, is similar to a series of resolutions adopted with reference to adoption of rights-of-way on other portions of the project on the south side of the Red River:

RESOLUTION PASSED BY BOARD OF COMMISSIONERS FOR RED RIVER, ATCHAFALAYA, AND BAYOU BOEUF LEVEE BOARD RE REIMBURSEMENT FOR RIGHTS-OF-WAY

FLOOD CONTROL

ALEXANDRIA, LA., June 22, 1931.

The following resolution was introduced, seconded and carried, to wit: Whereas the United States Government is engaged in building levees on the Atchafalaya River; and

Whereas the United States Government has been acquiring the rights-of-way for all levees on the Atchafalaya River; and

Whereas the United States Government has advised this Levee Board that they are ready to proceed with the building of the "Woodside ", " St. Joseph's Church", and "Bayou Current" Levees, provided this levee board furnish the rights-of-way; 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: 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: Be it further

Resolved, That in furnishing said rights-of-way that this board does not recognize any obligation on its part to furnish the United States Government with rights-of-way for levee building, and the action of this board is to be taken as an isolated case and not establishing a precedent by which this board will be required to furnish future rights-of-way without cost to the United States Government.

I, Sol B. Pressburg, secretary of the Board of Commissioners for the Red River, Atchafalaya, and Bayou Boeuf Levee District, do hereby certify that the above and foregoing is a true and correct copy of the original resolution adopted at a meeting of said board held on June 22, 1931, at which meeting the full membership of the said board was present.

In testimony whereof, witness my official signature and seal of said board at Alexandria, La., this 22d day of July, A.D. 1933.

[SEAL]

SOL B. PRESSBURG, Secretary.

Senator OVERTON. I offer in evidence the opinion of the Attorney General of the United States as to the obligation of the Federal Government to pay for the rights-of-way, in view of the resolution adopted by the local levee board, which letter is dated September 5, 1933, and is addressed by the Attorney General to the Secretary of War.

Hon. GEORGE H. DERN,

OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., September 5, 1933.

Secretary of War, Washington, D.C.

DEAR MR. SECRETARY: I have your letter of July 20, 1933, requesting my opinion as to whether the resolutions passed by the board of commissioners of the Red River, Atchafalaya, and Bayou Boeuf Levee district in the State of Louisiana constitute a donation to the United States of rights-of-way to be used by the United States in the construction of levees under the Mississippi River Flood Control Act of May 15, 1928 (45 Stat. 534), or whether the War Department is authorized to proceed to purchase from the levee board these rightsof-way upon agreement as to reasonable price and make payment at such time as deeds for the rights-of-way, approved by you, have been furnished to the United States.

The controlling facts upon which an expression of my opinion must rest are these:

The governmental project involved is the construction of levees by the United States under the terms of the Mississippi River Flood Control Act. The beginning of negotiations between the district engineer, representing the War Department, and the board of commissioners of the district referred to was notice to the board of commissioners that the particular levees here involved were not to be constructed at least at that time in view of the fact that there were insufficient funds to proceed with the construction and such funds were necessary to be used at other points. The board of commissioners therefore, for their own benefit, proposed to the War Department that if the War Department would construct the works necessary the board of commissioners would furnish the rights-of-way, free of cost to the United States. A typical resolution is that of March 19, 1933, referring to certain levees, wherein the board regularly and with authority included in the resolution these statements:

Whereas the United States Government has advised this levee board that they are ready to proceed with the building of the Egg Bend, Cologne Bend, and Poland levees, provided this levee board would furnish the rights-of-way, 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; therefore, be it

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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 levees, that this levee board agrees and obligates itself to furnish the United States Government without cost the rightsof-way for the Egg Bend, Cologne Bend, and Poland levees. (Italics ours.)

* *

The offer made by the board in this case is substantially the same as in the other cases and is the basis for this determination.

The State board of engineers approved the location of the levees. The board of commissioners immediately proceeded to purchase the rights-of-way advising the War Department of such purchases and permitting the United States to proceed with the construction of 13 levees. Nine of the 13 levees upon the rights-of-way furnished by the board of commissioners under said resolution were completed at a cost of $373,512.12. Four were incomplete, and there has been expended thereon the sum of $80,765.75.

No claim was presented or request made for reimbursement until the board of commissioners passed the resolution of February 16, 1933, by which the President of the Board of Commissioners was directed to make application to the Chief of Engineers of the United States Army for payment of the amount expended by this board in acquiring the rights-of-way for the following levee projects located on Red River and the Atchafalaya River."

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The constitution of the State of Louisiana (sec. 5, art. 16) permits such levee districts to cooperate with the Federal Government in the construction and maintenance of levees.

Mr. JACOBS. This bill refers to actual rights-of-way that the levee board acquired at the request of the Federal engineer.

Senator BAILEY. And no question of title is involved?

Mr. JACOBS. No, sir.

Senator BAILEY. Let me go back to my question. Why, passing that state of facts, did not the War Department pay this sum, just as it pays other sums, upon purchase or condemnation or appropriation?

Mr. JACOBS. For this reason: That after the levee board passed the resolution appropriating this right-of-way and sent that resolution to the district engineer, the district engineer sent it back and said, "That is not the kind of a resolution I want. I want you to include in that resolution without cost to the Federal Government." "

We then applied for a hearing

Senator BAILEY. You mean the appropriation was to be without cost to the Federal Government?

Mr. JACOBS. Yes. That was the district engineer's opinion. We then asked for a meeting with the district engineers in New Orleans. The president of the levee board and the secretary, both of them are here, and myself, went to see the district engineer. We told him that we had passed a resolution up there acquiring these rights-ofway for a far cheaper amount than they could get them, and there would be a saving of at least 2 years of protection to that country by getting it done that way, and we could not understand what else he wanted.

He said, “Well, I want you to write in this resolution without cost to the Federal Government.'

Senator BAILEY. If that had been written in the resolution and you had a contract whereby it was done in that way, this proposed bill would have been precluded, would it not?

Mr. JACOBS. If the first resolution would have been accepted, it would have been all right, and they would have paid it, but he would not accept it.

Senator BAILEY. You would not accept?

Mr. JACOBS. The district engineer would not.

Senator BAILEY. And you would not accept his proposition "without cost to the Federal Government "?

Mr. JACOBS. The United States district engineer would not accept the resolution. You see, the resolution of the levee boardSenator BAILEY (interposing). Who suggested that clause? Mr. JACOBS. The United States district engineer.

Senator BAILEY. We must have misunderstood each other.

Senator OVERTON. You misunderstood the Senator's question. The district engineer would not accept the first resolution, which would in effect make it obligatory upon the Federal Government to pay for the rights-of-way.

Mr. JACOBS. Yes.

Senator OVERTON. He suggested that in the resolution the expression include "without cost to the United States." What happened to that?

Mr. JACOBS. That was the second resolution.

Senator OVERTON. What did he say would happen if you did not adopt the second resolution?

Mr. JACOBS. He turned the first resolution out.

Senator OVERTON. What did he say, if you did not adopt the second resolution?

Mr. JACOBS. If you do not adopt the resolution and write in there, "Without cost to the Federal Government we will take this money and spend it over in the State of Mississippi, which is across the river from Louisiana, which means that by putting that money over there, and strengthening over there, if we should have a high water, and it is a safe bet that Louisiana would, we would overflow. That was his threat.

Senator OVERTON. I shall introduce in evidence a little later a letter written by W. H. Holcombe, district engineer. He is the gentleman you are referring to?

Mr. JACOBS. And in that letter he makes the statement: "If rightsof-way can be secured promptly none of this money will have to be transferred to other work. The United States has great difficulty in securing land at reasonable prices. Negotiations are extremely slow, and have now reached the point where the United States is unable to secure the necessary lands."

Senator BAILEY. If I should tell you that if you did not sell me your land, I was going to build my house on another piece of land, would you consider that that was a threat or duress?

Mr. JACOBS. That is not a good comparison.

Senator BAILEY. I will agree with you as to the comparison, but will you answer the question?

Mr. JACOBS. Let me get the question straight, Senator.

Senator BAILEY. If I should say to you, in a bargain, that if you do not sell me your land, I am going to take this money and buy some land next door to you, would you consider that a threat or duress?

Mr. JACOBS. In that particular case, I do not think it has any bearing on this case, but-no. It might not be a threat, and then again it might be a threat. It might be a question of intimidation, or it might be a question of trying to force me to do what your intention

was.

Senator BAILEY. Aren't you still at liberty either to sell or not to sell?

Mr. JACOBS. Yes.

Senator BAILEY. Then there is no duress.

Mr. JACOBS. You are correct, but, Senator, this case is like thisSenator OVERTON. Let me ask you this question. If, as the case here is, that the Congress had imposed the obligation upon the Federal Government to acquire these rights-of-way, and then a district. engineer in this work said, "If you do not go contrary to what Congress has stated, and do not acquire the rights-of-way locally, the levees will not be built as required by the act of Congress" and where the district needed the levees very badly, would you consider that you operated under duress?

Mr. JACOBS. Without a doubt; yes, sir.

Senator BAILEY. Well, let us see about that, Senator. Every man is presumed to know the law, and if the bargainers in this case acted under a theory that the agent of the Government would disobey the law, then they were not under duress.