Mr. RICE. No, sir. We had an understanding with the lessee, because we knew that the Federal Government had charge of it for navigation and purposes of that kind.

Mr. MICHENER. That is the point. Did you recognize that the Federal Government had a right in there which the lessee must obtain before he had sufficient title to proceed with the development?

Mr. RICE. Yes. We do not think anybody can interfere with that land if it interferes with navigation.

The CHAIRMAN. You did not answer his question, I think.

Mr. RICE. I said we had nothing to do with that. We left that to the lessee to get the permits.

Mr. HANCOCK. What about clam diggers? Do they have to get permits?

Mr. RICE. Yes, sir. We have a sea food commission that grants those permits.

Mr. HANCOCK. It is a State matter?

Mr. RICE. Yes, sir.

The CHAIRMAN. Thank you very much, sir.

(The statement referred to and submitted by the witness is as follows:)

STATEMENT OF GREEK L. RICE, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI

The State of Mississippi claims ownership of the water bottoms in the Mississipp Sound. This comprises an area of approximately 800,000 acres, including the bays, tributaries, estuaries thereto, the marshlands adjacent to the bays and sounds, islands, and submerged lands. The State has been continuously in the undisputed ownership of this property for more than a hundred years. Neither the Federal Government nor any other agency ever questioned or disputed that ownership in any way, or at any time, during that long period of years.

The property claimed by the State is within the boundary lines of the State as prescribed by Congress and fixed by the State constitution. Under chapter 23, United States Statutes at Large, volume 3, page 348, adopted March 1, 1817, is found the enabling act which empowered our people to form a constitution and State government, and authorized our admission into the Union as a State, on an equal footing with the original States. In section 2 of this act the southern boundary line of the new State is definitely fixed. This southern line is fixed in the enabling act as commencing on the east at a point on the Gulf of Mexico, "thence westwardly, including all the islands within 6 leagues of the shore, to the most eastern junction of Pearl River with Lake Borgne.

The only restraint placed upon the State, in regard to property of this nature within the confines of the State, is found in section 4 of this act, which says "and that the River Mississippi and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the State, as to other citizens of the United States, without any tax, duty, import, or toll therefor, imposed by the State." In accordance with this act, Mississippi was formally admitted into the Union by resolution of Congress on December 10, 1817, United States Statutes at Large, No. 3, page 472.

It will be observed that the constitution of Mississippi, adopted pursuant to this act, defines the southern boundary line of Mississippi the same as fixed by Congress in this act. I refer you to section 3, Constitution of Mississippi, 1890, and previous constitutions of this State.

During all the years since 1817, the title of Mississippi to this property was never disputed, except by implications contained in the Senate Joint Resolution 92, by Senator Nye, and Senate Resolution 83 by Senator Walsh. These resolutions were before Congress 6 years ago, and nothing was ever done under them, and the Federal Government asserted no title to these lands because of these resolutions. Naturally, the States were led to believe that Congress would never assert any claim to this property. I refer you to the report of the hearing before

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the lessees.

the Committee on Public Lands and Surveys, United States Senate, Seventysixth Congress, first session, March 27, 28, 29, and 30, 1939. The law is fully discussed in this report, and I shall not try to review it here. The State of Mississippi has leased this property for oil and gas development under two separate lease contracts. The State's title was never questioned by On March 23, 1939, the State leased this property to Phillips Petroleum Co. of Bartlesville, Okla., for $61,200, and other considerations. A part of the property was explored for oil and gas, but due to the conditions at the time the lease was returned to the State. Due to conditions brought about by the war the property was not offered for lease again until January 1945. On January 15, 1945, one-half of this area was leased to the Kerlyn Oil Co. of Oklahoma City, Okla., for $25,000 and other considerations. The property is now being explored by this company. The State has been unable to lease the other half of this property for development, largely because of a last-minute threat on its title by the Secretary of the Interior, and the Attorney General of the United States. These departments are now boldly doing what the Congress has declined to do. Just 1 day after the State of Mississippi made its lease to the Kerlyn Oil Co., covering one-half of this property, Gov. Thomas L. Bailey had the following letter from the Secretary of Interior, to wit:

DEPARTMENT OF THE INTERIOR,

Washington, D. C., January 16, 1945.

MY DEAR GOVERNOR BAILEY: My attention has been called to an advertisement of the State Mineral Lease Commission of Mississippi appearing on page 303 of The Oil and Gas Journal for December 30, 1944. This advertisement gives notice that the commission will meet on January 15, to receive proposals for the leasing for oil and gas purposes of the following lands:

"The water bottoms in the Mississippi Sound, all bays, tributaries, estuaries thereto, also the marshland owned by the State of Mississippi adjacent to the bays and sounds and the islands and submerged lands which are owned by the State of Mississippi in the Mississippi Sound and/or the Gulf of Mexico, estimated to contain more than 800,000 acres.

I would appreciate having a more detailed description of the lands involved, particularly information as to whether they are tidal lands, that is, those between high and low tide; how far from low tide the other lands extend; and which lands are in the Gulf of Mexico and in the other waters described in the notice.

I should also like to know the basis for the State's claim of ownership of these lands and the oil and gas contained therein.

Sincerely yours,

HAROLD ICKES, Secretary of the Interior.

Naturally, we were surprised and somewhat embarrassed by this letter. We thought we could clearly see through these agencies the strong arm of the Federal Government reaching out again for more power and more property at a time when we thought the issue had been finally and definitely settled.

Governor Bailey's reply to the Secretary of the Interior, among other things, contained the following statements:

"I refer you to article 2, section 3 of the Constitution of Mississippi, which outlines the boundaries of Mississippi, and it there states the Mississippi boundary line extends from a point 10 miles east of Pascagoula River on the Gulf of Mexico, westwardly, including all islands within 6 leagues of the shore to the Louisiana Sound or Bay and is definitely within the boundaries of the State of Mississippi. Some of it is inland tidal lands and other parts are river bottoms where the tide ebbs and flows.

"This same land was leased in 1939 to Phillips Petroleum Co. and the State's title was then approved by the lessee. The Federal Government, in recognition of that title, issued all requested permits for the necessary exploration of this property for oil and gas.

"I refer you to the case of State v. Stewart (184 Miss. 202), where the court said: ""The State of Mississippi is the absolute owner of the title of the soil and minerals therein contained in the beds of all of its shores, arms, and inlets of the sea, wherever the tide ebbs and flows, as trustees for the people of the State and subject only to the paramount right of the United States to control commerce and navigation with the consequent right to use or dispose of any portion thereof, when that can be done without impairment of the interest of the public in the waters, subject to the paramount right and when not inconsistent with the constitution (constitution, sec. 81).'

"Several years ago Senator Nye introduced a joint resolution in Congress authorizing and directing the Attorney General of the United States to file suit and endeavor to establish the claim of title of the United States to all such submerged lands. This matter was given a public hearing before the Committee on Public Lands and Surveys, and all the States having coastal lands were given permission to be heard. This hearing lasted some time and the proposition was finally abandoned by Congress. I regret that I do not have a copy of the proceedings had at that hearing. I assume this can be secured in Washington and I will be glad to get you a copy if you desire it."

After 128 years of acquiscence by the Federal Government, in the claim of Mississippi to this property, it certainly seems most inopportune to start this territorial war at this late date.

Mr. KENNY. The next gentleman I would like to call upon is the dean of the Attorneys General Association in point of service that is John M. Daniel, the attorney general of South Carolina.

But before he speaks I might volunteer a response to a question that has been asked. It is the theory of all the States and all of the decisions, so far, that the States have title to the submerged lands by virtue of State sovereignty. The Federal Government, however, has the power to regulate and protect interstate and foreign commerce. So this question of application for permits, when it arises, is a matter of having the Federal Government exercise its regulatory power and determine whether or not the interests of navigation and commerce are affected.

The CHAIRMAN. We understand that.

STATEMENT OF HON. JOHN M. DANIEL, ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA

Mr. DANIEL. Mr. Chairman and gentlemen of the committee, I have the honor of representing the good little State of South Carolina which still occupies the place on the map assigned to her, and we have never had a feeling that she did not have the right to waters 3 miles out into the ocean. We read the decisions of the court and we thought that that was what the court thought we had to do and we never would have been up here if some gentlemen connected with the Federal Government had not read those decisions differently. While we thought they were trying to affirm our title, they seemed to get the idea that the court was trying to destroy our title. And we object. You recall the old saying that that which is capable of being made certain should be made certain. When I read in the decisions of our highest court, either in the dissent or in the main opinion, that this is the law as of the date it bears, then I do feel that it behooves us to get busy and make that certain which can be made certain, and not let our future depend upon different interpretations that somebody may put upon decisions that look like they are perfectly clear. I am not criticizing. I just can't get used to it.

We have had it told us that if you are a preacher you can say anything; it doesn't make any difference whether you love the doctrine or not. If a fellow says he is a preacher and comes to your house and wants to shoot it into you with all his lung power, you have got to take it because he represents freedom of religion. If I were to stand alongside of him and say I was not a preacher, then they would put me in jail for saying those things, because I am not a preacher.

Mr. SPRINGER. Down in South Carolina, when the court of last resort follows a certain line of reasoning and by its decisions establishes

what might be called the rule of property, do you have what we call the doctrine of stare decisis?

Mr. DANIEL. Yes. And sometimes they say that while a changed decision might give certain people some relief, it might also cause many other people pain, and they have not changed what had always been a fixed doctrine.

Mr. SPRINGER. Have you noticed a deviation from that fixed course?

Mr. DANIEL. Why, the people have got the jitters. They don't know "where they are at, so to speak. We want to know. We want to be told, "Now, go on back home and be loyal to your Government and try to do your best." For a long time we have had no money to spend on developments. We are just sort of coming into our own, and we hope that we will have such title that we can do our level best in the future as those who came before us have tried to do their level best in the past.

I thank you.

Mr. KENNY. Attorney General A. E. Mitchell, of Kansas, is here and would like to testify.

STATEMENT OF HON. A. E. MITCHELL, ATTORNEY GENERAL OF THE STATE OF KANSAS

Mr. MITCHELL. Mr. Chairman and members of the committee, our situation in Kansas as an inland State brings more interest than one might normally expect from an inland State.

We have several navigable streams. We are bordered on the east from the mouth of the Kaw to Rulo, Nebr., by the Missouri River. The Kaw River for 125 air miles west is also navigable. The Arkansas River from its point of departure from the State at the western line, entering Colorado, is in part navigable. Of course as to the Kaw and the Arkansas, the use of the word "navigable" is questionable. At certain times they would float a Missouri-class battleship, and at other times you could walk across them without getting your feet wet.

We have principally three matters of interest as to navigable streams. Heretofore we have always considered that the beds of those streams belonged to the State, and the islands, including our half of the Missouri River with the islands on our side of the stream.

In the Arkansas River Valley we have proved oil and gas territory. In the Missouri River Valley and the Kansas River Valley we have some bordering upon it, but not proved to the extent that we find it in the midwestern part of the State. We have certain leases as to those productions. We also have a procedure in our State where the State licenses persons to take sand from the beds of those streams. They enter into a contract and put up a bond, and they pay to the State the sum of 2 cents per ton upon all sand taken from those streams.

Mr. SPRINGER. How long has that custom obtained?

Mr. MITCHELL. That law was first passed in 1911. They had not realized the value of the sand, I assume, prior to that time; but according to our industrial commission and our chambers of commerce it is a good sharp sand, very well used in concrete.

Our third interest is one more or less of conjecture, and that is upon State compacts. At the present time we have a compact with Colorado and Nebraska upon the Republican River. Of course, the United States Government is a party to that compact. Certain of the structures contemplated there have not as yet been completed, nor will they be until after the war; but the premise upon which the Federal Government enters into the hearings and the finality of such a compact may have been one thing in the past and an entirely different thing in the future, if the titles to those lands are not quieted in the States affected.

We have under consideration at the present time with the State of Colorado a compact which has been authorized by the Congress, upon the Arkansas River. That has to do not only with flood control and irrigation, but of course the wildlife interests are represented, and the Reclamation Bureau is interested.

We have heretofore considered that the interest of the United States Government was in flood control primarily; that interest has always existed on the part of the War Department, through the United States engineers, as to navigability.

If the picture is to be changed and the State itself does not own the beds of those streams nor of inland lakes, we have something different from what we have builded upon.

In the western part of our State we have what is known as saltmarsh lands. Our forestry, fish, and game commission has the authority, under statute, to condemn lands for game reserves. Some of those lands have been condemned by that department; but I think this committee would be interested to know that in our State the actual operation of that agency has been upon the premise that if we condemned land or acquired it by purchase, we protected the title owners against the discovery of minerals. I do not know whether those salt marsh lands might be considered as inland lakes. The title to those lands if acquired by the State might afterward be held to be property of the United States Government..

Mr. MICHENER. Did those marshes ever meander and become lakes? Mr. MITCHELL. They are known as salt marsh lands. They have never been given the dignity of the name of lake. I merely point that out to assist in showing our degree of uncertainty as to our position.

Mr. SPRINGER. What would be the source of the title of the owners of the land, the individual owners, with respect to whether they had acquired title from the Federal Government or the State of Kansas? Mr. MITCHELL. All school lands come through the State of Kansas. Mr. SPRINGER. What was your system? Did you give a man a grant?

Mr. MITCHELL. A patent or franchise on public domain.

Mr. SPRINGER. That operated to vest the fee in whoever got title? Mr. MITCHELL. Yes, sir.

Mr. SPRINGER. The biggest title that he could get in land?

Mr. MITCHELL. Yes, sir.

That was our modus operandi.

With our interest in these navigable streams and lakes, if they be such, we have always operated on the premise and under our decisions along the same line as the Federal decisions, that the State had the title to those properties.