Section 4 of the act of 1928 provides in substance that the United States shall provide flowage rights for additional destructive waters which will be diverted; for acquisition by condemnation or purchase of any lands, easements, or rights-of-way needed in carrying out the project; for purchase of such rights, and that

66 ** * The Secretary of War is also authorized to accept donations of lands, easements, and rights-of-way required for this project.”

This section contains, also, a proviso that any land acquired under the provisions of the section shall be turned over without cost to the ownership of the States or local interests.

It is to be noted that under this section lands, easements, rights-of-way, etc., may be acquired by purchase, condemnation, or donations. However, it is contended that there was no authority in the levee district to make donation of the rights-of-way involved to the United States, and in this connection it is stated in your letter that in none of the cases involved in the claim has there been an actual conveyance of the rights to the United States, the levee district merely advising that they were available to the Government without cost. Under such circumstances there is not involved in the case the question as to the district exceeding its authority in that respect.

With reference to the third contention on behalf of the district that the resolution of the district board in each instance was obtained by duress and coercion, it is not borne out by the facts as shown by the record. Apparently when funds were made available under the Flood Control Act of 1928, allocations were made for the levee work under consideration, but it is stated in your letter that when the Department first undertook the construction of levees on the south bank of the Red River and in the Boeuf and Atchafalaya flood ways, and attempted to acquire rights-of-way for levees by purchase and condemnation, it was met with demands for exorbitant prices, coupled with threats of injunction suits for flowage rights over lands within the floodways; and that when these difficulties became apparent the Chief of Engineers decided that efforts by the United States to purchase or condemn such levee rights-ofway should be stopped, and that available funds be applied first to construction on levees at places where rights-of-way were provided by local interests under the more expeditious procedure provided by the State laws. The levee district in this matter was advised of the situation with the further statement that if local interests definitely indicated that they would furnish rights-of-way for the levees the work would be undertaken and prosecuted immediately with the funds then available. It is to be noted in this connection that the correspondence from the office of the United States district engineer did not request that the levee district furnish the rights-of-way "without cost" to the Government, but "that all rights-of-way should be provided by local interest", and in letter of February 16, 1931, from the United States engineer to the president Red River, Atchafalaya, and Bayou Boeuf Levee District, it was stated that Donation by your board of the rights-of-way required for these projects would assure prompt advertisement of the work." The levee district, acting on the Alexandria Levee, as to which there is submitted a claim for $546,106.66, provided by its resolution of June 29, 1931, as follows:

66

“Be it resolved, By the board of commissioners of the Red River, Atchafalaya. and Bayou Boeuf levee district, that the said board of commissioners for the Red River, Atchafalaya, and Bayou Boeuf levee district agrees and obligates itself to furnish the United Sates Government, without cost. the rights-of-way for the lower Alexandria levee subject to the approval of the Beard of State Engineers of Louisiana, as provided for under existing State law.

"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 in this district, and that the action of this board is to be taken as an isolated case in order to secure immediate protection due to the existing emergency, and not establishing a precedent by which this board will be required to furnish future rights-of-way to the United States Government."

The other projects making up the claim which in the aggregate totals $652,736.79, also, are based upon resolutions of the board of commissioners of the Red River, Atchafalaya, and Bayou Boeuf levee district containing identical provisions as above quoted. It must be readily apparent from the foregoing that there is no basis for the allegation that the resolutions of the board were otbained by coercion.

From the facts as disclosed by the record it would appear that the levee district was advised that the levee work in that district could not be under

taken at once because of the difficulty in obtaining the rights-of-way unless such rights-of-way were furnished by local interests. The board of commissioners of the district passed resolutions offering to the Government that the rights-of-way would be furnished by the district without cost to the Government in consideration that the levee work would be undertaken immediately. As stated in the opinion of the Attorney General, under date of September 5, 1933, the transactions in this case do not amount to donations of the rights-of-way by the levee district of the Government, in that no title has been conveyed to the United States, but rather the matter must be viewed on a contractual basis between the levee district and the Government. If there be taken into consideration the last proviso of section 4 of the act of January 19, 1928, that the lands acquired would be turned over to the ownership of local interests, the acceptance of the offer which the levee district made in connection with the projects involved is not inconsistent with the general purposes of the act. On the other hand, since the district has obligated itself to furnish the rights-of-way to the Government without cost, even though it be admitted that under the law it was not required to do so, there has been no obligation incurred by the Government in connection with these projects for the payment of rights-of-way and there is no appropriation under which the present claim could be paid under the law.

Accordingly, I have to advise that payment of the claim by the disbursing officer or otherwise is not authorized.

The administrative file marked “ Claim of Red River, Atchafalaya, and Bayou Boeuf levee district" is returned herewith as per your request.

Respectfully,

J. R. MCCARL, Comptroller General of the United States. Senator OVERTON. I offer in evidence letter of Senator John H. Overton to Secretary of War, of date July 29, 1933, together with copies of affidavits attached thereto of Mr. Harry Jacobs, chief State engineer of Louisiana, and of Mr. Hudson and Mr. Pressburg, presidient and secretary respectively of the Red River, Atchafalaya, and Bayou Boeuf Levee District, all on the question of the effect of the resolution adopted by the local levee board, in undertaking to furnish rights-of-way without cost to the Federal Government.

EXHIBIT 9

SECRETARY OF WAR,
ATTORNEY GENERAL,

UNITED STATES SENATE, COMMITTEE ON APPROPRIATIONS, Alexandria, La., July 29, 1933.

COMPTROLLER GENERAL OF THE UNITED STATES,

CHIEF OF ARMY ENGINEERS,

Washington, D.C.

DEAR SIRS: Information has reached me that the question has arisen, in considering the obligation of the United States Government to pay for rights-ofway for levee purposes on the south bank of Red River, whether or not that obligation is to be recognized in view of several resolutions adopted from time to time by the Red River, Atchafalaya, and Bayou Boeuf levee board whereby that board undertook to enter into an agreement with the Mississippi River Commission, and resolved that it "agrees and obligates itself to furnish the United States Government, without cost" various rights-of-way along the south bank of Red River. My further information is that the decision of this question may be left to the Secretary of War, to the Attorney General, the Comptroller General, or to the Chief of Army Engineers, and hence I am taking the liberty of addressing this letter to the head of each of these departments. Omitting from consideration the motive and pressure underlying the adoption of the resolutions by the local levee board, as shown by exhibits hereto an nexed (the original being attached to the letter to the Secretary of War), the controlling and paramount consideration remains that the Congress of the United States under the Flood Control Act of May 15, 1928 (Public, 391, 70th Cong.; 45 Stat. 332), imposed the obligation upon the Federal Govern ment to furnish all rights-of-way for levee purposes within the adopted plan on the south bank of Red River. The Attorney General so ruled in his opinion of June 8, 1933, contained in a letter addressed to the Secretary of War, and

declared specifically that the United States is obligated under this law to pay for levee rights-of-way in the Atchafalaya Basin, in the Boeuf Basin, and on the south banks of the Arkansas and Red Rivers in the Mississippi flood-control project. The Attorney General further stated in this letter that

It is apparent from an examination of the act and its congressional history that the project therein adopted was intended to be effectuated without the requirement of local contributions, except in particular instances pointed out in the act, which instances do not, apparently, include the levee right-of-way referred to."

Therefore, the Congress of the United States determined upon whom the obligation to pay for these particular rights-of-way should rest. It decided in its wisdom and under its Constitutional authority that the Federal Government, and no other political subdivision, should bear the burden and make the payments.

I respectfully submit that the public policy and the act of Congress embodying that policy cannot be set aside or modified by the action of a local State levee board undertaking to enter into an agreement with a subordinate agency of the Federal Government, to wit: The Mississippi River Commission, whereby the Federal Government should be relieved of this obligation and that it should be imposed upon the State levee board. It is the act of Congress to which we should look to determine who is the obligor and not to an attempted contract between the Mississippi River Commission and the Red River, Atchafalaya, and Bayou Boeuf Levee Board.

Neither of these governmental agencies had the authority to enter into such an agreement. The local levee board represents the taxpayers of its district upon whom the burden of payment falls under such a stipulation. The local levee board had no authority to assume a burden from which the act of Congress absolved it and undertake to impose it without authority upon the taxpayers of its district. It goes without saying that the Mississippi River Commission was without authority to enter into such an agreement. Its manifest duty was to execute the act according to its provisions and not to undertake to modify or annul its provisions.

If an agreement of this character could be legally entered into by these two political agencies, they could, under the same process of reasoning, enter into an agreement whereby the local board would obligate itself to pay for all costs of levee construction, with the Federal Government furnishing only the engineering service. It is unthinkable that such an agreement should or would be recognized.

Over and beyond any legal aspect of the matter, it is submitted that, where the act of Congress provides for a uniform method of defraying the cost of flood-control work in certain territory, as it has done in respect to the south bank of the Arkansas River, the south bank of Red River, and both sides of the Atchafalaya River, it is inequitable on the part of the Federal Government to undertake to pay for all rights-of-way on two of these tributaries and a portion of the other and then to require the local levee board to meet the cost on other portions of the third tributary. Yet this would be the effect, and the unjust discrimination that would result from a recognition of the attempted compact between the Mississippi River Commission and the local levee board. Such injustice and discrimination are graphically illustrated when we compare the letter written by a representative of the Mississippi River Commission to the Tensas Levee Board (see exhibit hereto attached) voluntarily promising reimbursement for levee acquisitions on the south bank of the Arkansas and the attitude of the Mississippi River Commission toward the Red River, Atchafalaya, and Bayou Boeuf Levee Board is undertaking to compel that board to furnish all rights-of-way without cost to the Federal Government. It is an attempt to administer the same law one way in respect to one locality and another way in respect to another locality.

The circumstances under which the resolution of the Red River, Atchafalaya, and Bayou Boeuf Levee Board was adopted are shown in detail by the attached affidavits of Mr. Harry Jacobs, Chief of Engineers, Mr. W. C. Hudson, president, and Mr. Sol Pressburg, secretary of the Red River, Atchafalaya, and Bayou Boeuf Levee Board.

Prior to the adoption of the first resolution the Federal Government had been discharging its obligation to furnish and pay for these rights-of-way. According to these exhibits an unwarranted representation was made by the United States district engineer that unless the local levee board would agree to furnish the certain rights-of-way in question without cost the Government, the flood-control funds appropriated by Congress for the construction of these particular stretches:

- of levee, among other levees, would be diverted to other parts of the project, and Federal aid entirely withheld from various portions of the south bank of the Red River. Such representation was wholly without support in law, but its effect from a practical standpoint was to compel the local levee board to make such salvage as it could out of the congressional appropriation to protect the alluvial lands within its district. The resolution of the levee board specifically declares that "this board does not recognize any obligation on its part to furnish the Government of the United States rights-of-way for levee building." The first resolution adopted (Oct. 7, 1930) which was rejected by the Mississippi River Commission, contains a correct appreciaton of the flood control act as interpreted by the Attorney General. These resolutions of the levee board manifest the intention of the board, as far as it was permitted to do so by the district engineer, to protect the rights of its district and to conserve its claim against the Federal Government for ultimate reimbursement whenever an opportunity presented itself under a correct interpretation of the law by one in authority.

That interpretation has been made by the Attorney General, concurred in by the Secretary of War, and undertaken to be put into execution by the Chief of Army Engineers. As a Senator from Louisiana, I ask that this interpretation of the law be uniformly applied to the areas covered by it, to wit: The south bank of the Arkansas River, the south bank of Red River, and both banks of the Atchafalaya River, and that there be no unjust discrimination arising from a misapprehension of the law by the United States district engineer or the Mississippi River Commission, or from an improper and unauthorized attempt to supersede an act of Congress by a private convention.

Sincerely yours,

To whom it may concern:

JOHN H. OVERTON.

NEW ORLEANS, LA., July 25, 1933.

On July 26, 1933, Harry Jacobs appeared before me, Joseph F. Monie, a notary public, in the city of New Orleans, and made the following affidavit, to wit:

1. That he is a resident of the city of New Orleans and occupies the position of chief State engineer and president of the Board of State Engineers of Louisiana, which latter board is constituted under the laws of the State of Louisiana, the official State department entrusted with the flood-control affairs of the State, and that it is a specific duty of the said board of State engineers to, among other things, render engineering services, advice, and counsel to the several regularly organized levee districts of the State, particularly in regard to all matters pertaining to construction and maintenance of a comprehensive public levee system for the protection of the valley lands in the State against overflow.

2. That it has consistently been his opinion and belief, and also the unanimous opinion and belief of the board of State engineers, that the Flood Control Act of the Congress approved May 15, 1928, required the furnishing by local interests of rights-of-way for levee construction, under the adopted plan, on the main stem (namely, the Mississippi River) only.

3. That on all occasions he and the other members of his board have without exception clearly and repeatedly advised each of the boards of commissioners of the several levee districts in the State concerned to the effect that the only rights-of-way required to be furnished by their respective districts under the Flood Control Act of 1928, were those necessary on the "main stem ", and that the rights-of-way for levees to be constructed on the tributaries and outlets coming under the adopted plan were unmistakably to be paid for by the Federal Government.

4. That the opinion of the board of State engineers as to who, under the provisions of the act, was required to bear the cost of the rights-of-way not on the main stem was confirmed in writing when the United States district engineer in charge of the Vicksburg office, Maj. John C. H. Lee, addressed a letter on March 4, 1929, on the subject, appealing to the local levee board to cooperate by furnishing the necessary rights-of-way on the Arkansas River and being reimbursed in full as soon as approved (see hereto attached a duly certified copy of the letter referred to), and, furthermore, confirmed by the impressions gained from conversations between himself and other members of his board on the other hand and with various Federal officers on the other hand.

5. That in explanation of the fact that certain of the resolutions adopted by the board of commissioners of the Red River. Atchafalaya, and Bayou Boeuf Levee District contained the expression "that this levee board agrees and obligates itself to furnish the United States Government, without cost, said rightsof-way * * * " (referring to rights-of-way on the south bank of Red River, within the limits of their district) the levee board, much against its will, was, through duress by the district engineer, compelled to do so or else suffer the penalty of having such allotments as had been made for levee construction in the district shifted to some other State where rights-of-way would be secured. In substantiation of this assertion a properly certified copy of a letter from the then district engineer, Maj. W. H. Holcombe, under date of February 16, 1931, is also hereto attached, as well as certified copies of resolutions which the levee board adopted on October 7, 1930, and December 22, 1930, respectively, which resolutions speak for themselves. In other words, during the interim the district engineer had refused to accept the resolution as at first adopted and forced the levee board to hold additional meetings (on Dec. 19 and 22, 1930, respectively) to revise the wording of the resolution. Then came the disturb'ng letter from the district engineer of February 16, 1931, insinuating that if rightsof-way were not secured promptly the allotments for the Red River levees would be transferred, but that the situation might be saved should the levee board donate all necessary rights-of-way for the levees. To make certain of its intent, President W. C. Hudson and Secretary Sol B. Pressburg, Assistant State Engineer O. O. Melancon, and I conferred with the district engineer in New Orleans and were plainly told that unless these rights-of-way were furnished without cost to the Government he would send the money elsewhere. They knew that the flood control act did not require them to furnish these rights-ofway without cost to the Federal Government, for both my predecessor and I had so informed them in writing. However, the exposed position in which the district found itself about to be relegated compelled the district commissioners to choose the lesser of two evils. They were not given any alternative but were forced, in spite of the plain letter of the law, to include thereafter in all resolutions concerned the expression above quoted or else to suffer the penalties contingent upon their refusal to do so. It was for no other reason, since I know that this levee board did not believe itself to be required under the Flood Control Act of 1928 to furnish these rights-of-way "at no cost to the Government", and was absolutely disinclined to do so, but was, as a matter of fact, coerced and driven, against its will, to conform to what it considered to be the unwarranted and unreasonable terms of the district engineer or else suffer the penalty of getting left on protection, while our neighbors on the east side of the Mississippi were to be immediately given more than their just share of protection at the expense of the local interests in Louisiana.

6. That in the light of the opinion recently rendered by the Attorney General of the United States to the effect that funds advanced by the levee boards for the securing of rights-of-way for levees on the tributaries and outlets coming under the adopted plan should be reimbursed, the board of State engineers believes that, all things considered, no stress should now be laid upon the expressions hereinbefore quoted as appearing in the resolutions passed by the Red River, Atchafalaya. and Bayou Boeuf Levee Board, and that they should now be disregarded and ignored on account of having been introduced under duress, especially since the Federal Government had in the beginning actually acquired its own rights-of-way, but in doing so had experienced so much difficulty and delay that it had to call upon this levee board for cooperative service, and, under the ensuing arrangement, was not only saved a world of trouble, worry, and effort in the matter but secured these rights-of-way at a very material saving in cost to the Federal Government.

HARRY JACOBS, Chief State Engineer.

Harry Jacobs, chief State engineer, being duly sworn according to law, declares and says that the foregoing statement is true and correct. Sworn to and subscribed before me at New Orleans, La., this 26th day of July 1933.

STATE OF LOUISIANA,

Parish of Rapides.

JOSEPH F. MONIE,
Notary Public.

Before me, the undersigned, a notary public in and for the parish of Rapides, State of Louisiana, personally came and appeared W. O. Hudson and Sol. B. Pressburg who, being by me first duly sworn, did depose and say: