I return now to the language of the Court that I was about to quote: That this question remained undecided is evidenced by Skiriotes v. Florida (313 U. S. 69 and 75), where we had occasion to speak of Florida's power over sponge fishing in its territorial waters.

Through Mr. Chief Justice Hughes, we said: "It is also clear that Florida has an interest in the proper maintenance of the sponge fishery and that the statute, so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting Federal legislation, is within the police power of the State."

That was the observation, was it not, Governor, of the Supreme Court with reference to that case?

Governor CALDWELL. Yes, Senator; let me say that I feel so keenly and so deeply about this question that I think perhaps I have leaned backward somewhat in trying to be moderate.

Actually, in this Skiriotes case, the Supreme Court referred to the territorial waters of Florida. The territorial waters of Florida include a large part of Mexico where the sponges are found. In that case, as in the Manchester case and the Pollard case, in the mind of the Supreme Court as those questions were decided was always the assumption that the tidelands were a part of the sovereign States.

While I say the Skiriotes case has no immediate or turning bearing, I say that because it has not said specifically and in so many words the answer to this question in the California case.

In all of those cases, the Court assumed that those tidelands were part of the territorial boundary of the State.

Senator DONNELL. Governor, may I direct your attention to one further sentence immediately following the quotation from the Skiriotes case? This sentence at page 16 of the Court decision:

None of the foregoing cases nor others which we have decided are sufficient to require us to extend the Pollard inland water rule so as to decline that California owns or has paramount rights in or power over the 3-mile belt under the ocean. Regardless of whether you agree with that view of the Court, that is what the Court said, is it not?

Governor CALDWELL. It is.

Senator DONNELL. Governor, you say near the end of your most interesting discussion here this mornings, and I quote from it:

Viewed from another angle, this decision sets another milestone along the road of assumption of the legislative function by the judiciary.

To what do you refer there? What legislative function has the judiciary assumed in the California decision?

Governor CALDWELL. They wrote a law which never existed prior to its writing. The law has been well established in my opinion for a century and a half. The Federal Government and the State governments has assumed that the States still owned the same territories they owned when they came into the Union.

The Supreme Court wrote a new act defining new boundaries.
Senator DONNELL. Governor, may I ask you this:

You refer here to what you consider is-I quote again :

Assumption of the legislative function by the judiciary.

Did not the judiciary have and is it not proper that it should have the power of determining the ownership and the paramount rights as between several jurisdictions in and to property such as that involved in the California case?

Governor CALDWELL. No. I do not agree the judiciary had the right to determine what the law was. The law had been established for 150 years. It had been recognized by the Federal and by the State courts. It had been recognized by the Federal and the State governments. A new law was written in the California case.

Senator DONNELL. Governor, the Court, of course, does not agree with you as to what the law had been for the 150 years.

That is correct; is it not?

Governor CALDWELL. That is quite correct.

Senator DONNELL. Matters of difference of interpretation of law. matters of constitutionality of law under our three-branch system of government theory, are ordinarily presented to the juriciary; are they not?

Governor CALDWELL. They are.

Senator DONNELL. That is what was done in the California case; was it not?

Governor CALDWELL. Yes; that is true, mechanically.

Senator DONNELL. The Court itself took up the very question as to whether or not there was any case or controversy before it, and determined that question; did it not?

Governor CALDWELL. Yes; but I think it overlooked the fact that the Constitution vested in the Congress the right and the power to dispose of these values and properties, and they found that the Congress had never disposed of them, so the Court decided to move into that field.

Senator DONNELL. Governor, I take it that there is nothing in the decision by which the Court undertakes to dispose of what it says is property of the Federal Government. There is, of course, the provision of article IV of the Constitution that the Congress shall have power to dispose of and make all needed rules and regulations respecting the territory or other property belonging to the United States. But I fail to find in the California decision any infraction upon or trespass upon that power of Congress by the Court. That is to say, the Court is not saying that certain property which belong to the United States, they are hereby disposing of.

Indeed, to the contrary, the Court is declaring that the State failed to have title to property, not that the Court was disposing of any property of the National Government. So I fail to see where your reference to that particular portion of the Constitution has validity.

You may be quite right, and I defer to you, of course, in your high standing among the governors of our States. I see other governors here this morning who undoubtedly have the greatest of confidence, as do I, in your great ability.

Ordinarily, when it comes to a question of whether or not this decision amounted to a usurpation by the judiciary of legislative power, I just cannot follow your argument.

Governor CALDWELL. It may be that I am somewhat biased in the

matter.

Senator DONNELL. I thank you, Governor, for your patience in responding to these questions.

Governor CALDWELL. Thank, you, sir.

Mr. JOHNSON. At this time, members of the committee, I would like to present Gov. J. Strom Thurmond of South Carolina. Senator MOORE. All right, Governor Thurmond.

STATEMENT OF HON. J. STROM THURMOND, GOVERNOR OF THE STATE OF SOUTH CAROLINA

Governor THURMOND. Mr. Chairman, on behalf of the State of South Carolina, the attorney general and I are presenting a very short brief, only about three and a half pages.

This matter has been gone into detail and will be gone into much more detail by others, and we are presenting the question mainly as it affects our State of South Carolina.

Prior to the dicision of the Supreme Court of the United States in United States v. California (67 S. C. 1658) the ownership of the marginal sea was in the several States. For more than 100 years prior to this decision all State and Federal courts had held this to be the law. The principle was enunciated in 52 decisions of the United States Supreme Court and 244 State and Federal Court decisions.

It was also accepted by the legislative and executive departments of the United States Government. The executive department of the United States Government in 1933, through the Honorable Harold L.. Ickes, the Secretary of the Interior, used the following language im a ruling issued by that Department:

Title to the soil under the ocean within the 3-mile limit is in the State of California, and the land may not be appropriated except by authority of the State.

The legislative department recognized these principles in 1938 when it refused to grant the Attorney General specific authorty to file a suit against the State of California for the purpose of questioning title of the State of California in the lands of the marginal sea (see S. J. Res. 208, 75th Cong., 1st sess. 1938).

In 1939 Congress passed a joint resolution recognizing State ownership of these lands, which resolution was vetoed by the President (see S. J. Res. 83 and 92, 76th Cong., 1st sess. 1939).

Again in 1946 Congress recognized State ownership of these lands by passing House Joint Resolution 225, which was also vetoed by the President. The decision of the Supreme Court itself in the California case recognized that Congress has the right to pass such legislation in the folowing language:

Thus neither the courts nor the executive agencies could proceed contrary to an act of Congress in this congressional area of national power.

The settled principles of property law in the United States have been disturbed by the California case.

South Carolina's interest in this legislation: Section 2038 of the 1942 Code of Laws of South Carolina defines the eastern boundary of the State as follows:

On the east the State is bounded by the Atlantic Ocean from the mouth of the Savannah River to the northern boundary, near the mouth of Little River, including all islands.

Section 3300 of the same code reads as follows:

The waters and bottoms of the bays, rivers, creeks, and marshes within the State or within 3 miles of any point along low-water mark on the coast thereof

***

The State Court in construing these section in Coastal Corp. and Sam P. Gardner v. W. G. Query, et al., consituting the South Carolina Tax Commision, held that

The jurisdiction of the State [of South Carolina] extends into the ocean for as much as 3 miles.

Thus, by legislative enactment and judicial interpretation that part of the marginal sea within 3 miles of the low-water mark along the coast is included within the boundaries of the State of South Carolina. From this area the State of South Carolina receives annually many thousands of dollars in revenue from amusement piers which extend out into the ocean beyond the low-water mark, and from its fishing interest within this area.

According to the records of the State treasurer, South Carolina received for the fiscal year ending June 30, 1947, $29,456 from its board of fisheries. These funds were collected for fishing rights and licenses from those engaged in commercial fishing within the marginal

sea.

This area of the marginal sea within the boundaries of the State of South Carolina includes approximately 570 square miles or 265,000 acres, the coast line of the State being approximately 190 miles in length. The area beneath inland waters, bays, and so forth includes approximately 450,000 acres. South Carolina, therefore, has a keen interest in this legislation and is particularly interested in having the proposed bill enacted into law.

The effect of the California decision upon South Carolina: Following the decision of the United States v. California, South Carolina's rights to regulate fishing and conserve its natural resources within the boundaries of the State has been questioned.

An injunction was sought in the Federal courts of South Carolina to restrain the board of fisheries from enforcing the laws of the State in the case of Toomer et al v. South Carolina State Board of Fisheries et al. This case was taken to the United States Supreme Court, but the Court has not as of this date rendered its decision in the matter. Senator DONNELL. Has a brief been filed on behalf of the State of South Carolina in that matter, Governor?

Governor THURMOND. Yes.

Many additional suits may be reasonably anticipated unless Congress passes this bill-S. 1988-and thus settles for all time the question of ownership of those lands within the marginal sea.

Mr. Chairman and gentlemen, this is a statement of the State of South Carolina, and we are not going to take more of your time. We know you have many witnesses here to hear and there are other Governors to be heard. We appreciate your kindness in permitting us to present this brief statement.

Senator DONNELL. Will there be someone from your State to present strictly the legal phases of the matter, Governor, independently of what you have already said?

Governor THURMOND. I am not quite certain whether our attorney general is coming or not. Therefore, I am filing this brief on behalf of the State for him and me.

Senator DONNELL. All right, sir.

Governor THURMOND. Thank you very much.

Senator MOORE. We will stand in recess now until 2 o'clock. (Whereupon, at 12: 25 p. m., the committee recessed until 2 o'clock of the same day.)

AFTERNOON SESSION

(Pursuant to the taking of the recess, the hearing was resumed at 2 p. m.)

Senator MOORE. The committee will come to order, please.
All right, Mr. Johnson, who is your next witness.

Mr. JOHNSON. Mr. Chairman and members of the committee, it is now my privilege to present to you a former Member of Congress, who is now the chief executive of the State of Kansas, Gov. Frank Carlson.

STATEMENT OF HON. FRANK CARLSON, GOVERNOR OF THE STATE OF KANSAS

Governor CARLSON. My name is Frank Carlson. As a Member of the House of Representatives of the Congress for 6 consecutive terms, I represented the Sixth Congressional District of the State of Kansas until the beginning of last year, when I became Governor of the State. I feel that I am among friends in appearing here before your committee, some of whom I am happy to call personal friends, even though I feel more at home in the other branch of Congress among the associates with whom I served for 12 years.

One of the privileges of our democratic form of government is that any individual, or a representative of any part of our people, is permitted to come before you and present his views. In my case, I feel that it is both a duty and a privilege to represent my State in the question which is before you today. To my mind the Supreme Court's decision of last June in the California Tidelands case, wherein paramount rights over properties of both States and individuals, without regard to ownership, was given to our National Government, creates a governmental crisis. If Congress does not strike down this new doctrine it may prove to be the turning point in our national history, marking the beginning of the end of our national Bill of Rights, which has made our Nation paramount among world powers.

When our ancestors came to the shores of this country some 300 years ago, they were fleeing a despotic form of government. They did not come from the inbred blue-blood stock of the Old World, but from the middle class of people of the many European nations. Artisans and toilers, seeking liberty to pursue happiness.

When the arbitrary rule of the mother country became unbearable, they declared their independence and gave their life's blood to establish it.

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