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Mr. BARRETT. May I answer the question?
Mr. BARRETT. Our contention is that the treaty specifically provides that so long as what the United States Government does in its own channels does not affect lake levels above their actual levels that we have a right to put them in ourselves; but on the other hand if all we are complaining about is lake lovels. certainly Canada will not object to restoring what she is responsible for, if, on the other hand, we are willing to pay for what we are responsible for.
The CHAIRMAN. But you see the difficulty would be this, Judge. Canada might very well say—and I take it there is a genuine controversy between Canada and Chicago on this question-Canada might say by consenting to what we believe will not remedy the condition which you have created we are consenting to the continuance of the condition, and we refuse any such consent and
Mr. BARRETT. But we can do it then.
The CHAIRMAN (continuing): “We insist that you live up to the treaty, and you have no rights under the treaty," Canada might
Mr. BARRETT. No; she can not consistently or legally say that, because the treaty provides for our diversion absolutely, and there is no question about it; a construction and reading of the treaty will show that.
The CHAIRMAN. Let me suggest that you have been very helpful in pointing to these other documents, and I have been studying the treaty, and I am in a maze. So suppose you point out to us any provisions of the treaty which authorize the diversion at Chicago.
Mr. BARRETT. The general language, existing usage and ours was in existence at the time. Domestic and sanitary purposes—and onrs was in existence at the time.
Mr. RANDOLPH. Diversions heretofore permitted.
Mr. BARRETT. Diversions heretofore permitted--and ours was then going
The CHAIRMAN. You were diverting in 1907 5,100 cubic feet, and in 1910 only 3.200 cubic feet.
Mr. BARRETT. This treaty is predicated on the agreed diversion of 10,000 second-feet.
The CHAIRMAX. Well, let us find that in the treaty. You see, your ordinary rule of law prevails in construing a treaty, that all of the previous negotiations-just as to any other written doeument--are conclusively, as a matter of law, to be merged in the final document.
Mr. BARRETT. With one exception.
Mr. BARRETT. The exception being that if there be any ambiguity or any need of construction then the intention of the parties control.
The CHAIRMAN. The intention how manifested?
The CHAIRMAN. That is nothing more, as I take it these two documents—than the negotiations of the parties, and would have no, more bearing than if you and I sat down here and entered into a negotiation as to the sale of this building, we talked for three days, and at the end of the time we made a contract in writing, and then one of us tried to go back to what was said in that talk. We could not go back to that talk at all.
Mr. BARRETT. Yes; absolutely, you could if there were any dispute as to the intent of the agreement, then, the preliminaries demonstrate it. If the agreement itself was definite and positive and susceptible of no dispute, then all preliminary talks mean nothing. That is the law.
The CHAIRMAN. The contract does not amount to anything unless it is definite and certain, and it is not a contract at all unless it is definite and certain, and the instant it is a contract that instant you are bound by the terms of the contract and the previous negotiations are nil.
Mr. BARRETT. But many, many, cases in the courts go into the original intent.
Mr. BEHAN. We would be very glad to meet the chairman on that legal issue. Mr. FERRIS. What is indefinite about it!
Mr. BARRETT. If you are asking me what is indefinite, there might be a question as to what constituted existing uses, there might be a question as to what constituted diversion; then, we might be called on to make proof.
Mr. FERRIS. Can you not tell us what the existing uses were in 1910?
Mr. BARRETT. Yes.
Mr. BARRETT. I refuse to have you commit me, because I say I do not know.
Mr. FERRIS. The record shows.
Mr. FERRIS. Just a moment. How much were you permitted to use at that time?
Mr. BARRETT. We were permitted by the arrangements under which this treaty was made to divert 10,000 cubic second feet, and we were going far enough and as fast as we could to do it.
Mr. FERRIS. That is not fair at all. You got your permission from the Secretary of War. How much does your permit from the Secretary of War authorize you to take?
Mr. BARRETT. Our capacityMr. FERRIS (interposing). At that time you had a written permit. How much were you permitted to take at that time?
Mr. BARRETT. Í have answered your question. Mr. FERRIS. Oh, no. Mr. BARRETT. If you insist on talking all the time, I can not answer. Only one of us can talk at a time. May I answer this question ?
The CHAIRMAN. I would be glad to have you.
Mr. MORGAN. As a member of the committee I am interested in an intelligent development of these subjects, and, as I understand the matters under discussion here, they are the question of diversion and the legal rights to diversion under a treaty, and it does not occur to me that we are proceeding in a manner to enable us to intelligently grasp what is going on. It seems to me that the witnesses should present their subjects in logical order, as they should come. This controversional hashing back and forth, which is drifting into legal technicalities, is rather difficult to grasp.
Mr. BARRETT. I think the Congressman is right, and when the time comes we are going to try to follow your suggestions.
Mr. Morgan. I am interested in having the matter presented in an orderly manner. Of course you have a right to ask questions, but so many questions have been asked and so many have taken part in the controversy, that it is very difficult to follow.
Mr. BARRETT. I grant some things have been done not by the committee but by outsiders, and so far as I am concerned I will see that nothing further happens except by permission of the chairman.
Mr. FERRIS. It is a question that could be answered quickly. When the treaty was outstanding, which provided that they might divert a certain amount of water, I asked you to tell me how many cubic feet a second they were authorized to divert under the then outstanding permit of the Secretary of War.
The CHAIRMAN. In other words, what is the date of that permit! Mr. FERRIS. In 1910. How much were you permitted to divert?
Mr. O'CONNOR. How much did the Secretary of War permit them to divert?
Mr. FERRIS. The Secretary of War determined he would never authorize more than 4,167 cubic feet per second.
Mr. O'CONNOR. How much could he have permitted them had he desired
Mr. BARRETT. May I ask the gentleman a question?
The CHAIRMAN. I think the question is very simple. It gets down to this
Mr. BARRETT. I understand it perfectly, if you will let me ask it. The CHAIRMAN. All right, go ahead.
Mr. BARRETT. Our position is that the original permit of the Secretary of War has no limitation in it, in feet; but that the diversion to which he gave his consent, as we have said, was limited only by the capacity of our channels, and two other limitations; one that if the Congress acted his permit stopped; the other, if the flow was injurious to navigation he would have the right to step in. That was navigation in the Chicago River. That has been passed upon by the circuit court of appeals in our district and so construed.
The CHAIRMAN. It would be well if you have it to be good enough to file with the stenographer that permit.
Mr. BARRETT. We will have all of them when we come to our time.
Mr. Hull. But I have witnesses here that have come a thousand miles to be heard, and I insist, Mr. Chairman, on going on with the witnesses.
Mr. RANDOLPH. Well, Mr. Chairman, may I conclude!
Mr. RANDOLPH. I think I got as far as telling you that we approved these provisions of the bill: A diversion of 10,000 cubic feet I thank you.
per second, compensating works, the 9-foot waterway, and the adjudication of the Illinois Valley claims. I have said my say and
Mr. JARMAN. I would like to ask Mr. Randolph as to what his position or objection is to the Rainey bill?
Mr. RANDOLPH. I have no objection to the Rainey bill personally; I quite approve of several features of the Rainey bill. 'It is very like the Hull bill.
Mr. JARMAN. I would like to ask another question. Do you understand the provisions of the Rainey bill that under that bill you have the power at all times if you choose to divert 10,000 cubic feet of water?
Mr. RANDOLPH. Yes.
The CHAIRMAN. Mr. Randolph, while I have just seen Mr. Brown and he says he will not take three minutes; if these questions will only take a couple of minutes then let us permit it. Now, Mr. Massey?
Mr. Massey. I wanted to ask Mr. Randolph if he had a record of the daily diversion in the sanitary canal, either at Lockport or somewhere
The CHAIRMAN. You would rather have it at Lake Michigan, would you not?
Mr. MASSEY. Of course, at Lockport it would measure the river as well as the diversion.
Mr. RANDOLPH. I understand that such a record is kept by the sanitary district authorities, and while I have not a copy of such a record I think it is available.
Mr. MASSEY. I think that is a material element in this investigation.
The CHAIRMAN. That will be produced. What is the next question
Mr. MASSEY. The next question is, if the sanitary district had a contract with the city of Chicago for the sale of power at its power station
The CHAIRMAN (interposing). I don't think you know about that, do you Mr. Randolph?
Mr. RANDOLPH. Except in a general way, that it furnishes power to the city, to the park boards, for municipal purposes, at what is estimated to be the cost. Mr. Massey. And they make no profits from those sales ? Mr. RANDOLPH. No; that is the theory, at least.
The CHAIRMAN. How could they make a profit? They furnish it to themselves. The city makes a profit in the sense that the whole thing is a profit.
Mr. RANDOLPH. You must understand this, that we have some 20 different bodies in regard to taxing and taxation, in the city of Chicago, we have the park boards and the school boards and the sanitary district and all the rest of them. The CHAIRMAN. Now, Mr. Eugene Brown. Mr. HULL. Let him say what he wants to say without being
Mr. DEAL. I suggest that the committee be given an opportunity to ask a question now and then.
The CHAIRMAN. Yes, indeed; we would be glad to have the committee ask questions.
Mr. Deal. The witness, of whom I wanted to ask a question, got away.
STATEMENT OF MR. EUGENE BROWN, PEORIA, ILL.
The CHAIRMAN. This is Mr. Eugene Brown, of Peoria, Ill.
Mr. Brown. Mr. Chairman and gentlemen of the committee, perhaps for a little variety, you would like to hear from a section of the territory affected which is facing a condition that we have had for a number of years, and a condition that we come here with a hope of changing through legislation. However that may be, I hope you will consider what I have written here in that particular way, that we are here for the purpose of improving the present conditions as they exist.
Peoria is a city of approximately 100,000 population, located on the Illinois River midway between Chicago and St. Louis.
Being a native Peorian, I have known conditions on the river for over 40 years, during which time I have seen water traffic, both freight and passenger, come and go. For over 20 years I have been taking part in movements intended to encourage the establishment of a waterway from the Lakes to the Gulf.
I speak from the standpoint of a land owner, with holdings in and near the valley, also as an official of a drainage and levee districting, having land protected by levees.
As President of the Peoria Association of Commerce, I wish to say that among the commercial interests there is, and always has been, a general sentiment strongly in favor of the waterway. The western farmer needs help to-day. Here is an opportunity to help him.
A combination of circumstances seems to indicate that now is the time for all factions to agree upon some plan which will be fair to all, to view the matter from a broad, unselfish standpoint, and to complete this great national water highway.
The circumstances are these: Transportation is almost hopelessly congested. Chicago is ready to spend large sums of money to make possible the diversion of lake water; the State of Illinois is spending $20,000,000 on the most difficult part of the waterway; this link will be useless unless the improvement is extended throughout the valley; the people in the Illinois River Valley want legislation which will give them relief from 25 years of uncertainty as to the posible high water stages. The Congress can now pass this legislation if all will cooperate. The valley can not prosper under present conditions. That is why we are here to-day.
We believe the Hull bill (H. R. 5475), with certain modifications, offers the best plan yet proposed. We come here with high hopes that all interested parties will now reason this matter out, agree upon the various phases of the problem, and pass a bill.
There has always been an uncertainty as to the amount of unnatural flow that might be expected to come down the valley, by reason of the Chicago diversion operations. The people of the valley request that this uncertainty be removed.