in Pollard v. Hagan, 3 How. 212. In construing a similar statute pertaining to Alabama, the Court there said (pp. 223 and 228): “And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative; because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted. * * * To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding." These considerations should preclude further argument on this subject. But if further proof is necessary it is supplied by the Supreme Court of the United States in construing a similar limitation upon the State of Washington with relation to the public domain in that state. In the act admitting Washington it is provided (25 Statutes at Large, 677): "that the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof." In Mann v. Tacoma Land Company, 153 U. S. 273, in respect to this provision, the Supreme Court held the phrase "public lands" to denominate only those areas which are customarily considered as habitable and tillable by settlers. The Court said: "No one can for a moment suppose that it was the thought of Congress to change the whole policy of the government and reserve to the nation the title and control of the soil beneath the tide waters and those of navigable streams." In Mason Company v. Tax Commission of the State of Washington, 302 U. S. 186 (decided December 6, 1937), in reference to the title of the State of Washington to the bed of navigable river, Mr. Chief Justice Hughes stated (page 239) : "While the United States has paramount authority over the river for the purpose of the control and improvement of navigation, the title to the river bed, as well as to the shore lands and school lands, was in the State (Port of Seattle V. Oregon & Washington R. Co., 255 U. S. 56 at 63), and the State and legislative authority over all this area consistent with federal functions." (Citing authorities.) The legislative enactments of the Federal Government and of the State are so plain and unequivocal, and the judicial interpretation given to them by the highest court of the land is so clear and decisive, that there remains no room for difference of opinion on the subject. (b) The idea that no title whatsoever exists to submerged tide lands.-The theory seems to be that since the courts have often used the expression "tide lands" in such manner that it could or could not be taken to include submerged lands, that some confusion has existed in the minds of law writers and that the true principle is that while the state may own the tide lands properly speaking (that is to say the land between low and high water mark over which the tide ebbs and flows), the same is not true as to the area which is constantly under water and which extends to the national boundary line three miles out at sea. It was suggested that the national government has full sovereign rights over this area insofar as protecting its shores from enemy depredations is concerned, but that the soil and profits thereof which underlie the ocean waters are not the subject of property except and until actually reduced to possession by appropriate proceedings which constitute a legal taking. Can it be said at this late date that the United States Supreme Court, which has heard scores of cases involving tide lands, submerged and otherwise, over a period of 150 years, would fail, either inadvertently or deliberately, to make an express differentiation between the ownership of submerged and tidal flow lands, if at any stage of its history it had a serious doubt as to the states' ownership? Would the Supreme Court, whatever its personnel, continue to mislead not only the Federal and State governments in this regard, but also the grantees of each, as well as the general public, by habitually using language such as the following? "Upon the admission of California into the Union upon equal footing with the original states, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title of any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, * *"" * (Weber v. Commissioners, 18 Wall. 65.) Would the Supreme Court continue to pass upon issues involving conflicting rights of Federal and State grantees (Pollard v. Hagan, 3 How. 212), or between the United States and one of the states (U. S. v. Utah, 283 U. S. 64, as to under-water oil rights), or determine rights to oyster beds which are always in submerged tidelands (McCready v. Virginia, 94 U. S. 391), without drawing any distinction whatsoever between those lands which are continuously submerged and those which are alternately submerged and uncovered by tidal action? Is it conceivable that the Supreme Court would continually use the terms "tide lands," "soil beneath navigable waters" and "tide and submerged lands," without differentiation if a difference really existed? The potentialities of the amazing proposition here advanced by the supporters of the resolutions are boundless. It would permit any person or any public authority to gain squatters' rights by merely taking possession. Would the proposers of this theory extend it to the right of squatters to take possession as against either the state or the national government, or both? Would they include in such squatters' rights the right to aliens to appropriate the substance of our submerged tide lands? Would they give to foreign interests the right to drill oil wells within a stone's throw of the line of low tide, at the same time denying the right of the state itself to do the same thing? The proponents' argument in this regard would defeat their own purpose. Because California has by its deliberate action, and with the acquiescence of the Federal government, reduced much of her submerged oil fields to possession as effectively as it possibly could. This theory could, therefore, only confirm all such appropriations, leaving the Federal government only the speculative right of exploring and discovering new fields, and thus launch it into a mad race with the states and individuals for the possession of these oil deposits. At all events, the theory of no title is an anomalous one, it is vague and indefinite, and, so far as we have been able to ascertain, is unsupported by authority. (c) Argument that in the exercise of the Federal powers to maintain a navy, to provide for the national defense, and to regulate commerce and navigation, it is possible for the Congress to authorize the taking of oil from submerged lands without compensation to any one who may have appropriated the same.This argument is based upon certain cases which construe the constitutional grant of power to regulate commerce. These cases are: Greenleaf-Johnson Lumber Co. v. Garretson, 273 U. S. 751; Lewis Bluepoint Oyster Co. v. Briggs, 229 U. S. 82; Hawkins Point Lighthouse Case, 39 Fed. 77; and Bailey & Fulgham v. U. S., 62 Court of Claims, 77. It is claimed that because these cases are authority for the United States to make full use of the submerged lands for anchorage sites, buoys, piers, lighthouses and other aids to navigation, that they also would be authority for that government to take the oil pools under the same lands for the advancement of commerce, navigation, and the maintenance of a navy. That is to say, what they are proposing is this: Because the Navy needs oil to run its ships and would like to avoid purchasing it on the open market, let the Congress by legislative fiat appropriate the submerged oil, the justification for such taking being the pretense that it was necessary in the interest of commerce and navigation. No particular reason has been given why such action should be limited to oil in the submerged lands. If the argument of the proponents in this regard were carried to its logical conclusion it would apply equally to the taking of property on dry land—a proposition too untenable to warrant consideration. The trouble with the proponents' argument is that their conclusion does not logically follow from their premise. It is freely conceded that one who occupies submerged lands for the purpose of obtaining oysters or shellfish, or for the purpose of drilling for oil, or engages in any other proprietary function, must be considered as having taken with the knowledge of the power of the United States to interfere with and perhaps destroy his rights therein, if that is necessary and proper as an incident to its federal authority over navigation. The cases they cite are examples of the exercise of such power. These cases are not at all in conflict with those we have cited herein, but are entirely consistent therewith and with the rule of states' title. These cases illustrate the limitation upon the title that we have stated all along-a title that is subject to the authority of the national government to take such steps as are necessary to permit the unrestricted flow of commerce and to otherwise aid in the advancement of navigation and of the national defense. But to attempt to stretch the effect of these decisions, or their reasoning, to justify the taking of that which is in the soil itself, a substance that in no way retards navigation, by an act which could not be said to itself facilitate commerce or maintain the Navy, is to wholly misconstrue the purport of those cases. The police authority over commerce can not be distorted into an authorization to the Navy to oust the state or its grantee and to thereupon undertake for its own interests to do exactly that which it deprived the dispossessed person of doing. Certainly, such a course is the taking of property for which compensation must be made under the Fifth Amendment. The Federal Government has always recognized that necessity is not a sufficient reason for violating the Fifth Amendment. Even under war conditions, it has been held that this constitutional guaranty is not suspended. On the contrary, the taking of property for public use is subject to the constitutional limitation that just compensation must be made therefor. United States v. New River Collieries Co., 262 U. S. 341, 343; There is a suggestion in the letter of the Honorable Claude A. Swanson, Secretary of the Navy, to the Chairman of this committee [P. 54, Report of Hearing on S. J. Res. 208, Feb. 23, 1938] that regardless of the title of the states or their grantees to these submerged lands that "National dominion and sovereignty may be extended over the sea as well as over the land, and in our Government when Congress and the President assert dominion and sovereignty over any portion of the sea, or over any body of water the courts are bound by it"; and that therefore a declaration of Congress and subsequent action by the executive will wipe out any existing titles that have heretofore been granted by Congress (in the various acts of admission) and confirmed by the courts. What a startling doctrine this is as applied to the sovereign states of this Union! And if carried to its logical conclusion there would be no property rights either on land or sea. But the very suggestion is a confession that the United States now has no title. It is an admission that at the present time the Government is bound by the decisions of the Supreme Court (the decisions herein quoted), to the effect that absolute title to the tide lands rests in the Coastal States of this Union. It is valid tile and to the present moment has been a clear title. The people of California hope and believe that this Congress will not by any declaration of policy or by any unwarranted interference with state sovereignty, cast a cloud upon the land titles of the several states or attempt to prevent the Supreme Court of the United States from testing tiles by recognized principles of jurisprudence. Respectfully submitted. Attorney General, San Francisco, California. DEAR MR. WARREN: I am enclosing herewith copy of a letter received by me from the California delegation in Congress, regarding the resolution introduced by Senator Nye, which challenges this state's right to the oil and gas found in her tidelands and directs the Attorney General to take steps to establish federal ownership of the right to those deposits for holding them as a reserve for national defense. I am also enclosing copy of my answer to this letter. From my letter to the Members of Congress from California, you will notice that this is wholly a legal question. Either this right belongs to the state, or it belongs to the federal government as a matter of law, and no present legislation by Congress could alter the right of the state. I am sending this correspondence to you with the suggestion and request that your office prepare and file with the Senate Committee to which the Nyeresolution is referred, and with any House Committee that may consider it, a brief in support of California's right to the oil and gas deposits in her tidelands. Very truly yours, (Signed) CULBERT L. OLSON, Governor of California. EXHIBIT "B" The resolution shown hereinbelow was adopted by the Legislature of the State of California January 24, 1939. SENATE JOINT RESOLUTION NO. 4, INTRODUCED BY SENATOR BREED, JANUARY 13, 1939, REFERRED TO COMMITTEE ON RULES Senate Joint Resolution No. 4.-Relative to memorializing the Congress of the United States to refuse enactment of legislation which would becloud the sovereign rights of the State of California in its submerged lands. Whereas, Upon the formation of the United States of America, the States, as independent sovereignties, reserved to themselves all the right, title, and interest in and to the submerged lands and tidelands bordering upon their respective territories and, with the expenditure of public funds, have devoted such lands to harbor developments and other State purposes, or through grants or arrangements made with their municipalities and public agencies and with their citizens have devoted said lands to other public and private uses, and such sovereign rights of the States have never heretofore been questioned; and Whereas Legislation has been introduced in the Congress of the United States, particularly Senate Joint Resolution No. 24, introduced by the Honorable United States Senator, Gerald P. Nye, wherein it is aserted that the Federal Government possesses the title to or holds an interest in submerged lands and tidelands bordering upon the various States of the Union, and it is proposed to direct the Attorney General of the United States to institute legal actions in the courts to litigate such asserted titles or interest; and Whereas Any such litigation will becloud the rights and title of the respective States, prejudice their progress in developing such lands for State and local uses, both public and private, endanger existing investments and impair future financing of local projects on such lands, and the enactment of such legislation is, in the opinion of this Legislature, undesirable and contrary to the public interests: Now, therefore, be it Resolved by the Senate and Assembly of the State of California, jointly, That the Legislature of the State of California respectfully urges and petitions the Congress of the United States to refuse enactment of either Senate Joint Resolution No. 24 or any other bill or resolution which may similarly seek to establish the asserted claim of the Federal Government to any title or interest in such submerged lands or tidelands of the State of California, other than such lands which may have been heretofore expressly granted it by this State or under its authority; and be it further Resolved, That the Secretary of the Senate be, and he hereby is directed to transmit copies of this resolution to the President of the United States, the Vice-President, and to the Senators and Representatives of the State of California in the Congress. EXHIBIT "C" HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, Hon. EARL WARREN, ROOM 1334, HOUSE OFFICE BLDG., The Attorney General, San Francisco, California. DEAR MR. ATTORNEY GENERAL: This letter follows telegram sent by Congressman Lea to you under date of January 25th in reference to the pending Nye Resolution. This Resolution directs the Attorney General of the United States to institute action to recover all the oil in submerged lands bordering on the Pacific and Atlantic oceans as well as the Gulf States. The Nye Resolution passed the Senate last sesison of Congress and then came before the House Judiciary Committee where it was amended to make it applicable to California alone. It was reported favorably by a 10 to 8 vote, but did not receive House action. Senator Nye has reintroduced the same Resolution this year, and hearings will be held shortly. We have contacted Senators Johnson and Downey to the end that we may have a full hearing before the Lands Committee in the Senate, and feeling that the State of California is deeply interested, we are anxious for your assistance in the presentation of the matter before the Committee as well as assistance with the Attorney General of the United States as per our telegram. Hearings were held before the House Judiciary Committee at the last session at which the Governor and the Attorney General of Texas appeared, as well as the Attorney Generals of Louisiana and New York, but we had no representation from the State of California. The Navy Department was in favor of this legislation on the ground that the oil in the submerged lands is necessary for national defense. We feel the whole thing evolves around the title to the submerged lands. There is no question but what California owns her tide lands as this has been held many times by the Supreme Court of the United States. We feel that this proposal is of critical importance to the State of California for if this legislation becomes a law it would cast a cloud on the title of the improvements such as harbors on our entire coast line. There might be years of litigation before it reached the Supreme Court of the United States and, of course, in the meantime it would be impossible to obtain any new bond issues for harbor improvements or other improvements on submerged lands. Therefore, we would like to have the Governor of the State of California either in person, or his representative and the Attorney General of California at the hearing before the Senate Committee. Sometime ago Mr. Tolan mailed you copies of the Majority and Minority reports as well as copy of the hearings before the Judiciary Committee. The hearings contained many legal authorities presented by Texas, Louisiana, and New York and other states which support our position that California owns title to our submerged lands. It is as yet uncertain how soon the hearings will be held before the Senate Committee, but we understand Senator Nye is going to press for an early hearing. However, our Senators have assured us they will do everything in their power to secure a full opportunity for California to be heard. We feel that representation of California interests would not be complete without the appearance of the Governor and our Attorney General, or persons authorized by them. The President informed us that the Nye Resolution is not an Administration measure and that the Administration has taken no position as to the merits of the matter. The subject, however, is being given an earnest study. No doubt the Attorney General will finally give his opinion to the President as to the rights of the Federal Government in these submerged lands. We believe that it might be important for the best legal viewpoint to be presented by you as an official representative of the State to the Attorney General of the United States before he renders his opinion. Sincerely yours, CLARENCE F. LEA, JOHN H. TOLAN, A. J. ELLIOTT, HARRY R. SHEPPARD, Mr. MURDOCK. I might state to the witnesses that we would like to conclude not later than 5 o'clock, and we will ask you to be as brief in your presentation as you can; and we will now recognize Mr. King. STATEMENT OF SAMUEL A. KING, ATTORNEY AT LAW, WASHING TON, D. C. Mr. KING. Mr. Chairman and gentlemen of the committee, I appear on behalf of certain citizens of the United States who have pending valid applications for prospecting permits or leases under the Federal Leasing Act as of February 25, 1920, upon tide and submerged lands along the coast of California. On behalf of these |