The Lewis Bluepoint Oyster Cultivation Co. case involved the power of the United States to dredge channels in navigable waters. The Greenleaf-Johnson Lumber Co. case involved the power of the government to remove obstructions to navigation. The Hawkins Point Lighthouse case involved the power to build a lighthouse upon submerged lands, which the Court characterized as a use as strictly necessary to safe navigation as the improved channel itself. The Bailey case involved the power of the government to build a bulkhead to improve channel conditions, but turned upon the fact that in constructing the bulkhead and interfering with the plaintiff's oyster beds, the United States officers were acting wholly without authority, statutory or otherwise. The Court held: No officer of the United States can create an obligation against the United States to pay for property taken unless he had authority to take it. Section 96 of Title 18 of the United States Code (Criminal Code, § 44, amended) establishes penalties for wilfully trespassing upon or injuring certain kinds of government property or violating orders or regulations of the President governing persons or vessels within the limits of defensive sea areas. There is nothing in this statute whereby the government lays claim to any property which it has not acquired by purchase, grant or condemnation, and it is difficult to see its pertinency. Nor are the cases cited by the Navy Department in point. They are but illustrations of the undeniable power of Congress to regulate commerce between the several states and with foreign nations. In the exercise of the same power, Congress may regulate the railroad use of railroad property, but this does not mean that it can take the property and use it for its own purposes. By analogy, when an easement for highway purposes exists, the municipality may grade, pave and otherwise improve the highway, but this does not mean that it can mine and appropriate the minerals beneath it. Congress may make improvements for navigation purposes, but this does not mean that it can expropriate submerged petroleum deposits without just compensation. It must not be forgotten that the Fifth Amendment to the Constitution provides that private property shall not be taken for public use, without just compensation, and that this amendment protects the property of the states as well as property of individuals. In the cases cited by the Navy Department, there was no "taking" within the meaning of the Bill of Rights. It must be emphasized that such a taking is contemplated by the proposed resolution. Avowedly, the purpose of the resolution is not to improve navigation either by dredging channels, removing obstructions, or otherwise. The admitted purpose is purely and simply to take property from its rightful owners and appropriate it to the exclusive use of the United States. No one can deny but that this is precisely the type of thing against which the constitutional provision was designed as protection. Nor does the fact that the petroleum deposits are desired for war purposes make any difference. In United States v. New River Collieries Co., 262 U. S. 341, at page 343, it was said: Section 10 of the Lever Act, in obedience to the 5th Amendment, provides for just compensation. The war or the conditions which followed it did not suspend or affect these provisions. United States v. L. Cohen Grocery Co., 255 U. S. 81, 88, 65 L. ed. 516, 520, 14 A. L. R. 1045, 41 Sup. Ct. Rep. 298. Similarly, in United States v. McIntosh, 2 Fed. Supp. 244, at page 251, it was said: The necessity and propriety of taking private property for public use, and the extent to which it shall be taken and the procedure to be followed therein, are legislative questions, subject only to the constitutional limitation that just compensation must be made. Shoemaker v. United States, 147 U. S. 282, 298, 13 S. Ct. 361, 37 L. Ed. 170; Secombe v. Milwaukee & St. P. R. Co., 23 Wall. 108, 23 L. Ed. 67; Lewis on Eminent Domain 3d Ed.) § 255. While the state of war in this case doubtless determined the legislative policy to take the land more summarily than could have been done by following the ordinary general condemnation procedure, it is clear that the war did not suspend the operative force of the Fifth Amendment as to the determination of just compensation [United States v. L. Cohen Grocery Co., 255 U. S. 81, 88, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; United States v. New River Collieries Co., 262 U. S. 341, 343, 43 S. Ct. 565, 67 L. Ed. 1014; United States v. McFarland, 15 F. (2d) 823, 826 (C. C. A. 4)], which necessarily remained a judicial question. See also Russian Volunteer Fleet v. United States, 282 U. S. 481. The proposition that the United States can take property without just compensation either under its powers over interstate and foreign commerce or under its war powers carries its own refutation. If that were true, then the Federal Government could confiscate any property within this country, on dry land as well as below low-water mark, upon the theory that it was convenient to do so either to facilitate interstate commerce or to aid the national defense. As pointed out in our original memorandum, the Supreme Court has held that these grants of power to the Federal Government were not grants of property or territory. PRACTICAL CONSIDERATIONS At the hearing before the committee, various members of the committee questioned a representative of the Navy Department as to the necessity of including these particular petroleum deposits in the naval oil reserve. It will be recalled that the Navy Department representative replied to the effect that there was nothing about these particular oil deposits that made them particularly desirable from the standpoint of the naval oil reserve, and that in urging the resolution, the Department was motivated by a feeling that they might be needed at some time in the future. If this correctly represents the attitude of the Department, then there is nothing to the idea (upon which our original memorandum was based) that there was some imperative need for obtaining these oil deposits at the present time for national defense purposes. Under these circumstances, there seems to be not the slightest excuse for the adoption of a resolution which would cast a serious cloud upon the titles to all reclaimed lands and all existing waterfront improvements, and which would seriously hamper the various ports of this country in effectuating further port improvements. In this connection, it will be recalled that the proponents of the resolution admitted at the hearing that their theory attacked the title to piers at Atlantic City, N. J., extending below low water mark, equally with title to petroleum deposits off the coast of California. The American Association of Port Authorities has no doubts as to the ultimate outcome of any litigation with respect to the title to lands below low water mark. As indicated, title thereto rests in the states or their grantees or the grantees of their predecessor sovereigns. The Association feels it unnecessary to repeat in this supplemental memorandum the practical considerations set forth in its original memorandum which have lead it to oppose the adoption of the resolution. The Association, however, does urge most strongly tht the proposed resolution be rejected. Dated: New York, N. Y., March 16, 1938. COMMITTEE ON LAW AND LEGISLATION, RENE CLERC, GEORGE D. LAROCHE, WILBUR LA ROE, Jr. The CHAIRMAN. I believe Mr. Sellers is the next witness. STATEMENT OF HON. GROVER SELLERS, ATTORNEY GENERAL FOR THE STATE OF TEXAS Mr. SELLERS. Mr. Chairman, at the outset I would like to present to the committee a letter from the Governor of Texas, which authorizes me to speak for him, and I wish to read it into the record. The CHAIRMAN. Yes. Mr. SELLERS. It reads: Hon. GROVER SELLERS, Attorney General of Texas, Austin, Tex. DEAR GENERAL SELLERS: I find that I will be unable, because of the urgency of official business, to attend the hearing in Washington, D. C., before the House Judiciary Committee, on Monday, June 18, 1945, on the several joint resolutions which propose to quiet the title of the several littoral States to the submerged lands off of their respective coasts and within their territorial boundaries. I therefore request that you represent me at this hearing and present to the committee the claims of Texas with reference to her submerged lands. I am particularly interested in stressing to the committee that the territorial boundaries of Texas as agreed upon by the United States at the time Texas was admitted to the Union, in 1845, have never been questioned, and that the minerals under the submerged lands of Texas have been dedicated to the permanent school fund of this State. Millions of dollars have been and will be made available in the future to the permanent school fund through oil and gas leases on these lands, and the loss of such source of revenue to the State would seriously impair our educational program. All the people of Texas will be tremendously interested in the action taken with reference to these resolutions. I most certainly hope that some resolution of this character will be passed by the present Congress. Very truly yours, COKE STEVENSON. I might say, Mr. Chairman and members of the committee, that Texas was a little slow to join in these proceedings for the main reason that we felt pretty secure under the title which we think we have, but when this suit was filed it immediately cast a cloud upon every bit of land in Texas that is being operated, and those we are seeking now to lease, and it will handicap us very seriously in future developments of submerged lands, and for that reason we joined with the other States in urging that these resolutions be adopted. Goy I make this statement of the claim of the State of Texas to its submerged lands, for myself, as Attorney General of Texas, and on behalf of the Honorable Coke R. Stevenson, as Governor of Texas. ernor Stevenson was unable to attend this hearing because of the urgency of official business at Austin, but believing, as I do, that House Joint Resolution 118, and the other simliar resolutions are of paramount importance to the State of Texas and to the present and future development of its minerals underlying submerged lands, he asked me to represent him at these hearings. The title of the State of Texas to the submerged lands off its 380-mile coast, fronting on the Gulf of Mexico, is clear and beyond dispute. The attempt, however, of certain departments of the Federal Government to appropriate the oil reserves in submerged lands off the California coast has disturbed those who have made and are making extensive investments in Texas submerged lands, and determination of that controversy is of utmost importance to the Nation as well as to the several States. The matter in essence is a political question involving the territorial integrity of the littoral States. Although, in my opinion, this is a question in which the Supreme Court of the United States would have jurisdiction in an original proceeding instituted in that court by the United States against a particular State, I question the jurisdiction of the lower Federal courts to determine that issue. The settled way of determining such questions of boundary between States or between the United States and a State is by an original proceeding in equity in the Supreme Court of the United States. The Constitution provides that In all cases * * * in which a State shall be a party, the Supreme Court shall have original jurisdiction. Article III, section 2, section 341, of the Judicial Code, United States Code Annotated, titlé 28, provides: "The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party * * * "? A suit by the United States against the State of California in the Supreme Court of the United States to determine the boundaries of California and the ownership of submerged lands off of its coast within the 3-mile limit, would have determined the question in a relatively short time. No reason has been suggested why a procedure was adopted which may not result in a judicial determination of the question at all, and undoubtedly will prolong the controversy over an indefinite period. I mention that only for the point that the present suit does not involve the State of California, and will not settle the question, in our opinion, in the event it should be fought to a final conclusion, because the State of California or no other State is a party to that suit. The manner in which the territorial integrity of California is being challenged, constitutes more than a cloud on titles, and the pendency of the suit will do irreparable injury to the State of Texas and to the Nation by retarding the development of minerals in the submerged lands off of our two-ocean coast line. This type of action by Government officials undermines the confidence which the several Štates and the people of free America have had in the private ownership in the land under this Government. The pendency of such a suit, particularly during the period of the present emergency, involves questions of internal policy and even the power of Congress to provide for the national defense. The slow processes of the judiciary in the present status of the litigation are inappropriate for a prompt determination of the controversy. It is the kind of controversy which should be terminated at this time by our legislative department, especially in view of the fact that the legislative department has since 1937 had the question under examination and has repeatedly refused to authorize the institution and prosecution of such claims on behalf of the United States. It is my opinion that it is a political question and should be decided by the legislative department promptly and in the manner suggested by the proposed joint resolutions. Without undertaking to file a detailed brief, I will set out the claim of the State of Texas to its submerged lands and the basis of the claim. 1. Texas claims title to the beds and all minerals therein of the submerged lands lying adjacent to her coast from the low-water mark to the 3-mile limit. This claim is on the same basis as the claim of the other littoral States. It was recognized by Congress in its joint resolution approved December 29, 1845, by which Texas was admitted as one of the States of the Union on an equal footing in all respects with the Original States. I have joined in the brief filed by the other attorneys general, which sets out the claim of the several littoral States to the submerged lands between the low-water mark and the 3-mile limit, and I now adopt that brief with its citation of authorities in support of the claim of Texas. (2) Texas claims the title to the bed and all the minerals therein of the submerged lands adjacent to her coast from the low water mark to the distance of 3 marine leagues (10.56 miles) out into the Gulf of Mexico. This area comprises 3,250,000 acres. This claim is based on the contract or agreement Texas had with the United States when it entered the Union in 1845. By the treaty of 1819 between the United States and Spain, the boundary of the United States was fixed along the Sabine River, beginning at its mouth in the sea. The treaty provided that * * * the United States hereby cede to His Catholic Majesty and renounce forever all their rights, claims, and pretensions to the territories lying west and south of the above-described line * * * Mexico gained her independence from Spain in 1821, and by the treaty of 1828, between the United States of America and the United Mexican States, concluded January 12, 1828, the dividing limits of the respective countries were declared to be the same as those fixed by the treaty of 1819.. It should be pointed out here that whatever rights the United States might have in the property here under consideration were acquired solely through the annexation of the Republic of Texas, and would be, of course, limited by the terms of the joint resolutions authorizing such annexation. I think the gentleman who just preceded me said all the States entered from territory owned by the United States. Texas is the one exception; she entered as an independent nation and the United States asserted no claim to the Texas territory at the time it entered the Union. On April 21, 1836, by the Battle of San Jacinto, Texas won its independence from Mexico. The Republic of Texas, by an act passed December 19, 1836, declared that the civil and political jurisdiction of the Republic extended to the following boundaries, to wit: Beginning at the mouth of the Sabine River and running west along the Gulf of Mexico 3 leagues from land, to the mouth of the Rio Grande, thence up the principal stream of said river to its source * * That is how Texas, when she was an independent nation, defined her boundary. Negotiations for the annexation of Texas began with the preparation of a treaty, by which the Republic of Texas offered to cede to the United States all of her public domain as defined by the act of the Republic of Texas, in return for the assumption of the Republic's public debt. This proposed treaty was rejected by the Senate of the United States on June 8, 1844. Thereafter, by a joint resolution passed March 1, 1845, Congress consented that "the territory properly included within and rightfully belonging to the Republic of Texas" might be erected into a new State to be admitted into the Union. It was further provided: Said State, when admitted into the Union * * * shall retain all of the public funds, debts, taxes, and dues of every kind, which may belong to, or be due and owing said Republic; and shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as said State may direct, but in no event are said debts and liabilities to become a charge upon the Government of the United States * * * 75296-45 |