CONTROLLER BAY LANDS HEARINGS 1-6 INCLUSIVE BEFORE COMiVllTTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT HON. HENRY GEORGE, JR. (f^arnell Hnivetsitg Ilibtatg 3ltl;ara, ^tta fork ..Mr».a...R»...G.eorga.»...Jr-... Cornell University Library HD171.A32 C76 1911 Controller Bay lands : hearings before t olln 3 1924 030 040 467 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030040467 CONTROLLER BAY LANDS No. 1 HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT OF THE HOUSE OF KEPRESENTATIVES ON HOUSE RESOLUTION NO. 103 TO INVESTIGATE THE EXPENDITURES IN THE INTERIOR DEPARTMENT JULY 10, 1911 WASHINGTON GOVERNMENT PBINTTNG OFFIOB 1911 EXPENDITURES IN JiBB-lNTERIOR DEPARTMENT. (Committee room No. 296, House Office Building. Telephone 591. Meets on call.) JAMES M. GRAHAM, Illinois, Chairman. SCOTT FERRIS, Oklahoma. FRANK W. MONDELL, Wyoming. HENRY GEORGE, Jr., New York. LOUIS B. HANNA, North Dakota. WALTER L. HENSLEY, Missouri. THERON E. CATLIN, Missouri. John F. McCakeon, Clerk. 2 Controller Bay Lands Hearings 1-6 inclusive Before Committee on Expenditures in the Interior Department Hon. Henry George Jr. f X III t S " S S r a 9 * ■^ a !i " is 5 H 10 •D « "*< V .- £ " ■ n IB M :. o S o z a S a u m o M > 3 * " « z *1 M - O > j I- U * 3 -< PI a r- , -<.•>_ « 5 i ■" " o :< J o o z a o O z o m < f ■- J c o a > 1 C > 3] '- a fz ill * O CONTEOLLEE BAY LANDS. Committee on Expenditures IN THE Interior Department, House of Eepresentativbs, Monday, July 10, 1911. The committee this day met, Hon. James M. Graham (chairman) presiding. There were present Eepresentatives George, Hensley, and Hanna. There was also present Mr. W. P. Fennell, attorney at law, Wash- ington, D. C, on behalf of the committee. TESTIMONY OF MR. FRED DENNETT. (The witness was duly' sworn by the chairman.) The Chairman. Are you ready to take the matter up with us now, Mr. Dennett? Mr. Dennett. Yes, sir. The Chairman. Mr. Fennell will act for the committee this morn- ing. You may proceed, Mr. Fennell. Mr. Fennell. You are the Commissioner of the General Land Office? Mr. Dennett. Yes, sir. Mr. Fennell. How long have you held that position ? Mr. Dennett. Since March 5, 1908. Mr. Fennell. You are quite familiar with the investigation that has been had of what are called the Cunningham coal claims, are you not? Mr. Dennett. Yes, sir. Mr. Fennell. As a collateral feature of that investigation, was it not developed that ControU-er Bay was the natural outlet for the coal from that region? Mr. Dennett. That is a question I can hardly answer. I am not familiar with the local conditions on the ground — the topographical conditions. I do not remember that the tStimony in that investiga- tion conclusively proved that. Mr. Fennell. Do you remember the substance of what was brought out by that investigation in regard to Controller Bay? Mr. Dennett. My attention was not particularly called to the Controller Bay feature of it at the time, and I am afraid I do not remember that portion of it. Mr. Fennell. Are you sufficiently familiar with the topography of that country to say whether there is another harbor available in that locality ? 4 CONTKOLLEK BAY LANDS. Mr. Dennett. I am not familiar with the topography, except such as is presented on this map [indicating]. The only general knowledge which I have is that at present a railroad is built from — that is not shown on this map at all — from a point called Cordova, which goes across the Copper Kiver, and which, I understand, is projected up into the coal fields. I am also aware that there are several right-of-way applications from what is known as Controller Bay up into these coal fields. They are set forth on this map 601-A. Mr. Fbnnell. A railroad right of way would be only an ease- ment, would it not ? Mr. Dennett. Just an easement; yes, sir. Mr. Fennell. It would give that railroad no control whatever over the land around Controller Bay or any riparian rights, such as the right to build wharves, docks, and things of that character, would it? Mr. Dennett. A right of way would not. I think they can get terminal points under the right-of-way act. Mr. FennelI/. For the purpose of illustration I want to ask you whether that question was not thoroughly thrashed out in the famous case between the Illinois Central and the city of Chicago, in regard to the control of the harbor in front of that city ? Are you familiar with that case? Mr. Dennett. Not with the details of the case ; no, sir. Mr. Fennell. For the purpose of illustration and to show you what we are driving at, I will remind you of a few of its features, perhaps not accurately, because it has been several years since I read the decision. It appears that the Legislature of Illinois granted to the Illinois Central Railroad Co. a right of way along the lake front in the heart of the city of Chicago. This railf oad was built upon piles driven into the shallow water along the coast. By dumping ashes from its engines it filled up this water, and by a gradual process, perhaps, some 40 or 50 acres of land were formed in front of that track. That railroad company undertook to control absolutely the harbor of Chicago. The city commenced a suit against them in the United States circuit court. Melville W. Fuller represented the city, and he made the point that riparian rights did not attach to an ease- ment, and while there were other points in the case, he prevented the Illinois Central Railroad Co. from controlling that harbor on that question of law. That is what We are getting at now. If any rail- road company or coal company had any designs upon that part of Controller Bay, it would be necessary for them to acquire the fee title to the land abutting on the harbor ? Mr. Dennett. Under that decision; yes, sir. Mr. Fennell. Those lands abutting on the harbor had been re- seirved by Executive proclamation, had they not ? Mr. Dennett. A forest reserve was created, called the Chugach National Forest, which covers this part [indicating] of Controller Bay. Mr. Fennell. Under the authority vested in the President? Mr. Dennett. Yes, sir. Mr. Fennell. So that it would be utterly impossible for anyone having any designs upon the situationto obtain any title there what- ever without Executive action, would it not? Mr. Dennett. Yes, sir ; other than a right of way. CONTEOLLEE BAY LANDS. 5 Mr. FEifNEiiL. Other than a right of way? Mr. JDennett. Yes, sir. Mr. Fennell. The Cunningham coal claims had been located for some time, and those questions were thoroughly discussed before that land was restored to entry ? Mr. Dennett. What claims do you refer to ? Mr. Fenneud. I mean in regard to the attempt of the Cunningham syndicate to control the Bering River coal fields. Mr. Dennett. It had been discussed before. Mr. Fennell. Before the Controller Bay land was open to entry by Executive order? Mr. Denneti. There is no question but what the cases were under investigation. Mr. Fennell. They were under investigation ? Mr. Dennett. Yes, sin Mr. FenneiJj. And they were thoroughly discussed by the people and the newspapers? Mr. Dennett. There is no question about that. Mr. Fennell. Is it not a fact that all the testimony had been taken and at least two minority reports had been made before the land was opened to entry? Mr. Dennett. That is a record fact. Mr. Fennell. Is not a point of vital difference between the loca- tion of the Cunningham coal claims and the location of the soldiers' additional scrip claims on Controller Bay, that the coal lands were 9pen to entry by anybody and that the Controller Bay lands were not? I mean to say, that anyone, fraudulently, or otherwise, could file a claim for coal lands without Executive action, but that he could not file a scrip location on the Controller Bay lands without first having the lands open to entry. Is not that a vital difference between the two cases? Mr. Dennett. You ^re referring to what dates? The coal lands are all withdrawn from entry now and have been for some time. Mr. Fennell. I am referring to the time that the Cunninghiam lands were open to entry. At that time were not the Controller Bay lands also open? Mr. Dennett. I would have to refresh my memory. The national forest, it seems, was created in 1907. . At that time the coal lands were qpen and Ipcations were made — both of them would have been open to entry, they having been first started in 1902 and locations made under the act of 190C At that time you will find by the record that this national forest was not created. Mr. Fennell. When was the nq,tional forest created? Mr. Dennett. It would be merely recollection on my part. My recollection is 1907. The Chairman. Was it not earlier than that — 1906 ? Mr. Dennett. I am subject to correction. The Chairman. I am only stating my recollection — 1906 — ^but later a portion which reached out to tidewater on Controller Bay was added to it, very near the end of President Roosevelt's administra- tion? Mr. Dennett. Well, that would be 1907 that this portion of the land was withdrawn. The Chairman. The portion reaching Controller Bay ? 6 CONTEOLLBR BAY LANDS. Mr. Dennett. Yes, sir. That is what I say. At the time the entries were made of the coal lands which were originally started in 1902. This land was then opened to entry. The Chairman. You mean the land on Controller Bay? Mr. Dennett. Yes, sir. The Chairman. I think you are right. Mr. Fennell. They were subsequently withdrawn? Mr. Dennett. Yes, sir. Mr. Fennell. Subsequently, the lands had been withdrawn and were not subject to entry? Mr. Dennett. I can not say. Mr. Fennell. Therefore the matter was entirely withm the con- trol of the President? Mr. Dennett. In the control of the Executive. Mr. Fennell. Mr. Dennett, is it not a matter of practice that all proclamations and Executive orders touching the public domain are promulgated through your office? Mr. Dennett. All of them through the land office, and they are made of record in my office. Mr. Fennell. Through the General Land Office ? Mr. Dennett. All of record in my office. Mr. Fennell. They are under your supervision? Mr. Dennett. Yes, sir. Mr. Fennell. They are promulgated by you ? Mr. Dennett. Officially; yes, sir. Mr. Fennell. And you have a knowledge of these matters? Mr. Dennett. Yes, sir. Mr. Fennell. I asked that question to show why we ask you in- stead of somebody else. Mr. Dennett. That is correct. Mr. Fennell. Mr. Dennett, do you remember receiving instruc- tions from the department to prepare the order to open the Controller Bay lands to entry? Mr. Dennett. May I consult the notes here giving the dates, be- cause, as you know, it would be absolutely imposible for me to re- member ea'eh instance? The Chairman. Certainly. Mr. Dennett. A draft of Executive order was received in the Land Office October 10, by reference from the department, October 10, 1910^ — that would be last year — acompanied by a recommenda- tion from the Secretary of Agriculture, dated October 8, 1910. Mr. Fennell. Did you prepare such an order ? Mr. Dennett. Under the practice the order is prepared in the Agricultural Department and transmitted to us. Mr. Fennell. I mean in obedience to that order ; did you prepare an Executive order throwing the land open to entry ? Jlr. Dennett. The draft of the Executive order was received from the Agricultural Department and we noted it on our books and sent it back to the Interior Department. Every forest reserve Executive order is prepared in the Agricultural Department and sent to us and we then check it up generally when it is within the United States for the purpose of seeing whether the land is in a forest reserve and also for the purpose of seeing what land office it is, so that we may give notice. We then forward it to the Secretary with the letter for CONTROLLER BAY LANDS. 7 the President to sign — no, not for the President to sign, the Execu- tive order is prepared in the Agricultural Department. Mr. Fennell. Will you please explain the technical difference be- tween what is called an Executive order and a proclamation by the President? One is issued by the President and the other by the Secretary, is not that the difference? Mr. Dennett. Well, I think I am correct in stating that all res- torations from forest reserves are signed by the President. Mr, Fennell. An order, for instance, emanating from the Sec- retary to prepare such a proclamation or reservation would be called an Executive order, and the final order would be signed by the Presi- dent? Mr. Dennett. When I speak here of Executive orders I am of the impression I mean proclamations. Mr. Fennell. The technical difference between an Executive order and a proclamation by the President, is that the Executive order emanates from the Secretary, as a matter of fact, does it not? Mr. Dennett. That is a very fine point. I never thought of it, but there may be that difference. When I said "Executive order" I should have — I would state that is not so and I have evidence to prove it. I did not think of it. Here [exhibiting] is the Executive order in question, and it is called " Executive order" at the top. I should state that there would not be any difference. Mr. Fennell. My question was merely as to the practice. As a matter of common practice, what is meant usually by an Executive order ? Mr. Dennett. I should say that the two were interchangeable. An executive order is an order prepared for the signature of the President. Mr. Fennell. And sometimes for the signature of the Secretary? Mr. Dennett. Well, he might make an executive order, but an executive order in the sense of the restoration of lands to entry would be a presidential order. Mr. Fennell. I did not mean to confine it to the restoration of lands. For instance, any order withdrawing temporarily lands from entry, would not that be signed by the Secretary ? Mr. Dennetf. A temporary withdrawal? Mr. Fennell. A temporary withdrawal. Mr. Dennett. A temporary withdrawal which was intended to be a permanent withdrawal would be signed by the President. A tem- porary forest withdrawal would be signed by the President. Mr. Fennell. As a matter of fact, has not the Secretary the power to withdraw any land within his discretion temporarily without con- sulting the President? Mr. Dennett. In the case of small withdrawals, he does. Mr. Fennell. He has withdrawn power sites, etc.? Mr. Dennett. Yes, sir; I have never looked into the question of whether the act of June 25, 1910, changed that. That is the law on that point now, and each is to be made oy the President. Mr. Fennell. When that Executive order opening those lands to entry first came to your office did it not contain the usual clause in regard to 60 days' notice to be given by anyone having designs upon that land? . ■ 8 CONTEOLUSR BAY LANDS. Mr. Dennett. That is the form, I was informed ; I did not see it myself. I am informed that was the form of the order. Mr. Fennell. As that order was finally promulgated, between the time that order was sent to your office and the time it was finally promulgated, somewhere on the route, was not that clause eliminated" Mr. Dennett. The final order of restoration did not contain any provision for publication. Mr. Fennell. Do you know by whose direction that clause was stricken out of the order ? Mr. Dennett. No ; I do not. Mr. Fennell. That made a very material difference, did it not, Mr. Commissioner, in the matter of practice, so far as the opportunity tiiat parties might have to locate lands in that neighborhood ? Mr. Dennett. , The practice that you refer to is a practice that was put in vogue for the purpose of enabling settlers in the western country to have an opportunity of going upon the land and making settlement. As to whether it would make very much difference in a country such as this is described to be, where there could not be any settlement, that is a different proposition. The Chairman. You say tlie practice referred to — ^which practice do you mean ? Mr. Dennett. Advertising. The Chairman. The practice of having 60 days' notice? Mr. Dennett. Yes, sir ; of having 60 days' notice. Mr. Fennell. Then the elimination of that clause from this order was exceptional and contrary to the practice ? Mr. Dennett. Contrary to the general practice ; yes, sir. Mr. Fennell. And its manifest effect would be to give ?inyone with notice of that matter a preferential right, would it not ? Mr. Dennett. If other parties did not have notice ; yes, sir. Mr. Fennell. I .asked j'ou if it would not give those wlio had notice an advantage over others who had not, and you answered, " Yes ; unless others had notice." I mean to include the others. Mr. Dennett. I see. Those who had notice would have an ad- vantage, I should say, whether it was a direct notice or whether a notice gained from circulation through the press. Mr. Fennell. Now, Mr. Dennett, as a matter of fact, was not the promulgation of that order held for some time by Executive instruc- tion to you? Mr. Dennett. I will ask what you mean by that ; do you mean the order as it was finally signed? Mr. Fennell. Yes, sir. Mr. Dennett. I have no knowledge of its being held up at all after it was finally signed. Mr. Fennell. When did it first reach your office? Mr. Dennett. October 10. ' Mr. Fennell. And when was it promulgated ? Mr. Dennett. It was signed on October 28. Mr. Fennell. And sent out when? Mr. Dennett. It was approved and sent out right away It was signed October 28. Printed copies of order received in our office November 2, and copies sent to the United States surveyor general for Alaska and to the register and receiver of the Juneau land office OONTBOIiLEE BAY lANDS. 9 by office letters of November 3. So I would say that it was not held up. Mr. Fenneuj. After the mailing of those letters, if a person de- siring to loqate on that land happened to be in Juneau, would he have been allowed to enter the land upon telegraphic information to the register and receiver that such an order had been promulgated ? Mr. Dennett. He could not. Mr. FenneIaL. Until the promulgation got to Juneau ? Mr. Dennett. He could not enter when the promulgation got there. It is unsurveyed land. Mr. Fennell. But assuming that it had been already surveyed ? Mr. Dennett. But it had not been surveyed. There is no public land surveyed on that tract. Mr. Fennell. I know that. Could not they have had a private survey ? Mr. Dennett. They could not have entered it if they had a private survey. Mr. Fennell. Are there not three maps in your office now made from private surveys of the lands located with scrip in that location ? Mr. Dennett. There are four locations of scrip for which prelimi- nary surveys have been made on that tract of land. Mr. Fennell. When were those preliminary surveys made? Mr. DiENNETT. The process of making surveys I would like to ex- plain to the committee. In the case of a soldier's additional appli- cation, which is the only kind of scrip which can be located upon lands in Alaska, which are almost entirely unsurveyed, under the rules and regulations any party desiring to locate soldier's addi- tional scrip has to make a private survey. Then after he executes the private survey he sends the field notes to the surveyor general. The field notes are then transmitted to our office and examined there. After an examination of the field notes we send instructions to the examiner of surveys, who then has to go over the survey which was made by the private parties. He does that for the purpose of seeing whether the liB^es are correctly run. If he finds that the survey is correctly madje, he so reports. If he finds it is incorrectly made, the private surveyor is summoned back to made the corrections. After this work has been done the report of the examiner is sent to the sur- veyor geneiral and sent to us. We then examine the locations as to the question whether the scrip is correctly filed or not, and entry is then allowed if everything is in order. Mr. Fennell. If the land is open to entry and the script is valid, the entry would be valid? Mr. Dennett. If the scrip is valid scrip and the entry is a valid entry, under the law which you now know, leaving the 80-rod Sipace between every 160, the entry would be allowed. Mr. Fennell. And it would not be in the power of Congress even to divest those men of their rights controlling that harbor, would it ?, Mr. Dennett. Apart from fraud, I do not think so. No ; Congress could not, apart from fraud. Mr.' Fennell. And there would be no power on earth ? Mr. Dennett. Not if it was a valid entry. Mr. Fennell. And they would then get it for all time? 10 CONTROLiLBE BAY LANDS. Mr. Dennett. If it is a valid entry. <: j. a The Chairman. What might constitute such fraud as you refer to « Mr. Dennett. There are a great many cases where fraud can arise in soldiers' additional entries. For instance, a man in whose name the location is made — ^that is to say, the party claiming to be a soldier — who prior to 1874 had made a less than 160 entry, might not really be the person in question. We find that very easily. There might be a man named John Smith who made an entry of 80 less than 160 prior to 1874, and it might be found that there was another John Smith who really was not a soldier, and we have found in instances that the one John Smith had been used for a soldier's entry. That would be one kind of fraud on soldiers' scrip. Mr. Fennelu Do you think of any other way in which the location might be a fraudulent one? Mr. Dennett. I will not say it is fraudulent, but in this particular location, if our maps are correct, and I will state that we have some difficulty in this unsurveyed country to positively state the map is correct—if the maps are correct in this case, while this point is prob- ably not exactly what you might call fraudulent, yet it would cause the reduction of some of the applications in question. Mr. George. Is that a question of accuracy? Mr. Dennett. No, sir. Under the law, between each application there must be 80 rods left vacant. In the instance in question there is an application for a station right of way and for terminal points on 80 rods of land, and our maps indicate that two soldiers' addi- tional applications, with 160 rods of frontage on the bay, have been filed contiguous to the 80 rods. The Chairman. Please refer to the map and give us the names of the locators of that scrip ? Mr. Dennett. One locator is James J. Eyan and the other is Arnold L. Scheuer. The Chairman. And the 80 rods between those two locations would be involved? Mr. Dennett. The 80 rods, I am inclined, to think, were taken first. If that be so, it would involve the 160 on each side. Mr. Fennell. Only so far as the 80 rods are concerned ? Mr. Dennett. No ; if a right is attached to the 80-rods tract here [indicating], I could not, under the law, allow two entries close to that tract, because, it being an existing entry or right, we would have to keep 80 rods on each side vacant. Mr. Fennell. I do not quite get the point. Mr. Dennett. Let me try to explain more clearly. May I read the section of the law ? The Chairman. Take whatever course will enable you to state the matter clearly. Mr. Dennett (reading) : Ana provided further, Tbat no location of scrip, selection or right along anv navigable or other waters shall be made within the distance of eighty rodrof or^otherwlse!'"'^ "'^'"""' *^«'^'°*°'« '""^^^ed by means of any such scr?p • ^ ^ te^^inal "ght were attached to 80 rods of land here [indicat- ing] It would come withm the location " otherwise," and if nfter a right had attached to that tract of land having 80 rods of water front any parties attempting to locate soldiers' additional scrip should come CONTKOLLEE BAY LANDS, 11 there filing within the distance of 80 rods of the land upon which the rights had attached, in my opinion, the location would be invalid. Mr. Fennell. In other words, you claim that the 80 rods must be left on either side of the terminal point? Mr. Dennett. On either side of the location. The Chairman. Have any rights attached to the land to which you refer? Mr. Dennett. I am inclined to think they have. The Chairman. What do you base that on ? Mr. Dennett. On the application of the terminal rights in the department. The Chairman. By whom ? Mr. Dennett. By the Controller Bay road. The Chairman. That is the road supposed to be under the control of Eichard Ryan? Mr. Dennett. That is the road ; yes, sir. The Chairman. If the terminal rights on that 80 rods were con- trolled by Mr. Ryan and it turned out that the other locations were in any way under his control, how would that affect the situation ? Mr. Dennett. It is my impression, whether the location were con- trolled by Mr. Eyan or not, that the situation would be affected. I think that the will of Congress was to keep 80 rods absolutely free from any disposition between any locations that might h& made. It gave the right to parties to get terminal rights for 80 rods, and it gave the right to locate by scrip on 160 rods ; and I think the Gov- ernment meant that in between every such location there should be 80 rods preserved from disposition. Mr. George. Then, as I understand your contention, it is that the original entry by this corporation recognized that the law would call for 80 rods on either side and that if subsequently others came, under the law they could not locate within 80 rods on either side of this? Mr. Dennett. There must be 80 rods reserved there. Mr. George. On either side? Mr. Dennett. Yes, sir. Mr. George. And inasmuch as these latter applications had come within less than 80 rods this would invalidate the latter? Mr. Dennett. That is my theory. The Chairman. How much of the first 80 rods did the terminal rights of the Eyan railroad cover? Mr. Dennett. My understanding is that it is fully 80 rods on the point here [indicating]. The Chairman. And you think no valid location could be made on 80 rods on either side of that ? Mr. Dennett. If this first application is a valid application — it has not been passed on — if this is a valid application I am firmly of the opinion that under the law no right can be granted within 80 rods of that point. The Chairman. And if you are right, then the two 160 locations or either side of these terminal rights would be void ? Mr. Dennett. Would be void. Mr. Fennell. If the terminal right was valid, he would have that under the law? 12 CONTBOLLBR BAY LANDS. Mr. Dennett. Yes, sir, Mr. Fennell. And if it should prove invalid he would have tJiat under the scrip location ? . . Mr. Dennett. If the 80 rods between here [indicating] should be invalid it would be restored to the public domain. Mr. Fennell. An invalid location would not withdraw the scrip location ? Mr. Dennett. No, sir. . - . Mr. Fennell. If the 80 rods be invalid then the scrip would.De valid, and so he would catch it coming and going? . Mr. Dennett. I do not know. The 80 rods would be vacant land between the two applications. The Chairman. If his terminal location on the 80 rods is vahd, he has it? Mr. Dennett. Yes, sir. The Chaieman. But he has not the two locations of 160 rods each on each side? Mr. Dennett. That is right. The Chairman. On the other hand, if the terminal location of 80 rods is invalid, then he has two valid locations of 160 each on each side? Mr. Dennett. That is correct, speaking not definitely, but to a hypothetical question. The Chairman. In one case he would have 80 rods frontage and in the other case he would have two tracts of 160 rods each ? Mr. Dennett. Separated by 80 rods. Mr. Fennell. If that situation should appear, would it not be his privilege to relinquish the terminal rights f Mr. Dennett. You are asking me to pass on a legal question. i/Lr. Fennell. Do you not know that a man can withdraw an ap- plication whenever he wants to? Mr. Dennett. Yes, sir. I really must object to being put in the position of finally passing on a question put in that way. Here is a point which I would like to suggest. Here is a vfilid right existing at the time he makes the two locations. Now, his rights to those two locations attach at the time they were made. They date back. Now, would not the question arise naturally whether, if those were invalid at the time he made them, he might not be en- abled to make them valid afterwards? I am not saying that we could, but if we could prove by facts that at the time the location was made it was invalid. You can not get me to pass on a compli- cated question like that. Mr. Fennell. I am asking you to pass on the facts. Suppose I should go up to Alaska now and locqi,tp on that same land with soldiers' additional scrip Mr. Dennett (interposing). Those two? Mr. Fennell. Yes, sir. That would create a contest in your office? Mr. Dennett. Yes, sir. Mr. Fennell. And if you decided that his location was invalid, and there was no other objection, that would make mine valid? Mr. Dennett. On these two 160 rods, having removed the 80 rods between. Mr. Fennell. If there was no other objection ? CONTROLLEK BAT LANDS. 13 Mr. Dennett. Yes, sir; if the 80 rods was declared to be public land and you withdrew the 160, then I presume that is so. Mr. Fennell. If he chose to withdraw his terminal interests, he could do so ? Mr. Dennett. I will not say so. Mr. Fennell. Did you ever know of a case where a man was al- lowed to withdraw an entry if he wanted to ? Mr. Dennett. Certainly. ■ Mr. Fennell. If there was no objection to the entry which had been withdrawn ? Mr. Dennett. Your suggestion complicates the situation. Mr. Fennell. I think the question has been sufficiently answered. The General Land Office is in an entirely different building from the Secretary's office ? Mr. Dennett. Yes, sii*. Mr. Fennell. And you have no jurisdiction or control over papers that would be in the Secretary's office? Mr. Dennett. Absolutely none. Mr. Fennell. Therefore, you are not supposed to have any offi- cial knowledge of a certain Dick to Dick letter that was published in the newspapers? Mr. Dennett. I would not have aiiy knowledge of anything in the Secretary's office at all. Mr. Fennell. As a matter of fact, have you ever talked with any- body about it who pretended to know? Mr. Dennett. No, sir; the first thing I heard of it was when I read it in the paper. Mr. Fennell. Can you tell us whether Mr. Brown is still in the employ of the department? Mr. Dennett. He is not. Mr. Fennell. Do you know where he is? Mr. Dennett. I think he is in town. Mr. Fennell. In town? Mr. Dennett. I think so. Mr. Fennell. Was he discharged in consequence of any develop- ments in this matter ? Mr. Dennett. He was in the Secretary's employment. I will state that he was not discharged, from my own kndwledge. I could not say officially. The Chairman. Who is that ? Mr. Dennett. Mr. Brown. He was not discharged; he resigned. You would have to ask for official information on that from other quarters. Mr. Fennell. Mr. Chairman, I think we have led the way now up to the questions of fact of which the commissioner practically has no official khowledge, and I would suggest that the comniissit)ii'^r be excused, unless you have The ChaieSian (interposing). With reference to the papers and information that we asked Mr. Dennett to bring with him, I would like to hear from him on that question. Mr. Dennett. Map No. 601-A, Mr. Chairman, is the same a^ this [indicating]. I brought with me the printed copy. It is also in the statement made by the Interior Department to the Senate in 14 CONTROLL^B BAY lANDS. answer to a resolution introduced some time ago. That is an official document. , The request asked me to bring up also all locations, when made, and by whom made. I do not know whether you want the origmai papers or not. I did not bring the original papers. The locations are correctly set forth on this map so far as we have any knowledge at the present time. It also asked for an itemized statement of all costs and expenses of making the survey of said locations. We can not now tell what the expenses of the examination will be^ that will be done in the fall. , . i i • i Mr. Fennell. Suppose that I should locate 160 acres of land with soldiers' additional scrip, and it should turn out that 40 acres had been previously located or withdrawn, my location would be invalid only as to the one 40 acres and it would be good as to the other three ? Mr. Dennett. You having filed separately? Mr. Fennell. I filed one location for 160 acres; can not I with- draw and amend my application? Mr. Dennett. Of course; you could not file one location of 160 acres on one piece of scrip. Mr. Fennell. Suppose I had filed for 120 acres on one piece of scrip, and it had turned out that 40 acres was covered by a prior location or had been withdrawn, or that for some other reason the entry was invalid, could I not get the 80 acres remaining under that location ? Mr. Dennett. Yes, sir. Mr. Fennell. So that these locations on either side of the right of way covering more than 80 rods would be valid; that is, under your theory? Mr. Dennett. I see your point. That would depend largely on the tract and shape in which filed. It might or might not; you can not t«U. Mr. Fennell. There is no legal reason ? Mr. Dennett. Unless you construed that this man filed these with the full knowledge of the 80 rods between you might put a semi- attitude of fraud that he was trying to obtain more than 160 rods. That is the question we would take up. If there was no fraud, you are right. The Chaieman. Are there any other maps or plats in your office which would shed any light on this matter other than what you have brought ? Mr. Dennett. This is the only one, Mr. Chairman, unless you would want the isolated maps, which would not give you any infor- mation touching the rest of the area here [indicating]. The Chairman. In reference to the nature of the harbor, the depth of water, and so forth, you, of course, have no knowledge in your department ? Mr. Dennett. No, sir. The Chairman. Where can that information be obtained? Mr. Dennett. From the Geodetic Survey. The Chairman. Who is the chief officer of that service? Mr. Dennett. I do not know. The Chairman. I understood you to say to Mr. Fennell, and, I want to know if I am right in my understanding, that when the President makes an Executive order eliminating land from a forest CONTROLLBE BAY LANDS. 15 reserve that order does not go into effect until the papers signed by the President reach the land office in the vicinity of the land in question. Am I right in my understanding? Mr. Dennett. I do not think that was the question asked. The Chairman. That was the substance of it. Mr. Dennett. In this case it is unsurveyed land, and the question was, if the land was surveyed, whether you could make the location as soon as the President's proclamation was finally approved. Mr. George. What do you mean by " finally approved ? " Mr. Dennett. When signed, unless it had those words " all loca- tions to be made 30 days after date." The Chairman. Thirty days. Which is the usual amount of time given, 30 days or 60 days ? Mr. Dennett. Sixty days for entry and 30 days for settlement. The Chairman. Have any telegraphic communications passed through your office in connection with this matter ? Mr. Dennett. I do not know. The Chairman. We will ask you to find out and, if any have, we will ask you to produce them. Mr. Dennett. Do you refer to communications prior to the open- ing or the signing of the Executive document ? The Chairman. At any time. Mr. Dennett. We have telegraphed several times out to the sur- veyor general in regard to this matter, and we are preparing full data in answer to a resolution passed by the Senate. The Chairman. The committee would like to have anything at all which you have bearing on this matter. Mr. Dennett. We will be glad to furnish you with copies. Mr. George. From the first to the last? The Chairman. Yes, sir. Mr. Dennett. Up to date. The Chairman. What is the usual method of starting the sur- veyor general's office into activity in cases of this sort ? Mr. Dennett. The sending to him by the party making the loca- tion of the field notes of the private deputy surveyor whom the party had employed. The surveyor general designates the deputy sur- veyors, but any party desiring a man is authorized to engage the ser- vices of a deputy surveyor. This is a,ll without the knowledge of the surveyor general. The Chairman. Who was it, if you know, that employed Mr. Gabriel, who made this survey? Mr. Dennett. I do not know. The Chairman. Do your files show any information on that point ? Mr. Dennett. They may ; I have not noticed it myself. The Chairman. From the information in the papers I think the name of the surveyor was Mr. Gabriel, and that he was deputized by the Surveyor General. Mr. Dennett. They are all deputized by the Surveyor General in this way, that certain surveyors are designated by the Surveyor Gen- eral as deputy surveyors who can be enga,ged by these parties to make surveys, not that a man is deputized for any particular work, but he is deputized as a deputy surveyor by the Surveyor General for this general work. 16 CONTROLLEB. BAY LANDS. The Chairman. Have you any information in the way of a report from Mr. Gabriel or the' surveyor general with reference to wnom it was ? ,x -r ^1 • 1 1, Mr. Dennett. We would not have a report. Yes; I thinlc we nave the field notes and we could find out exactly who made them. The CHAiRTNtAN. We would like to have that information and the notes. Mr. Dennett. Copies of the notes will suffice? The Chairman. Yes ; I think so. Mr. George. Certified to by you as the commissioner ? Mr. Dennetf. Yes, sir. The Chairman. HoT(r is i. survey dated? Is it dated from the traie of the beginning of the survey, or from the time of the compMidll, or from the tune of the filing of it, usually ? I do not mean in this case. Mr. Dennett. The survey takes effect from the date of the appli- cation in our office. The field notes would be, of course, dated; the time of the survey would be designated in the field notes. The Chairman. As to the field notes, would they be dated from the beginning of the survey or the completion or from day to day? Mr. Dennett. They might be made after the work done in the field, but it would be a narrative of the days upon which the work was done, as I understand; for instance, October 15, did this, etc. It would show the date that the survey was made on the ground. Mr. Gt!Oege. When you say the date of the application in your office, do you mean in the office here in Washington ? Mr. Dennett. The office in Washington ; the date of approval. Mr. George. Here in Washington? Mr. Dennett. Yes, sir. Mr. Fennell. Do you know of any law authorizing an entryman on either side of the 80 rods to enter the 80 rods also by first obtain- ing the permission of the Secretary of War ? Is there any such regu- lation ? Mr. Dennett. I do not know. Mr. Fenneu.. My attention has been called to the act of March 1, 1911. It is stated that it provides that the 80 rods between each claim reserved by the Government can be entered and filed upon by the entrants of adjoining claims, who have only to gain the permission of the Secretary of War. Do you know of any stich law or limitation? Mr. Dennett. It is new to me. I have not noticed it. If Congrtes has passed such a law, it was certainly in derogation of its prior policy. The Chairman. Do you know that an appropriation act passed by the last session of the Sixty-second Congress carried a rider affecting the laws concerning Alaska, and possibly in the way you referred to a moment ago, by repealing a former existing law ? Mr. Dennett. My attention has not been called to it personally, Mr. Chairman. There may have been a rider on the appropriation bill. The Chairman. You can aid us a good deal if you will look into these matters. Your great familiarity with them would enable you to find them much more quickly than we could. Mr. Dennett. I will look into it. The Chairman. With reference to soldiers' additional scrip, will you please, for the benefit of those of us who are not familiar with CONTKOLLBB BAY LANDS. 17 this subject, explain what is meant by " spldiers' additional scrip," eniphasizing the word "additional"? Mr. Dennett. Authority was given by Congress to all soldiers who, prior to a certain date— I think it was 1874 (Mr. Fennell will remember tiiat better than I do) — ^had made homestead entry of less than 160 acres, could take an amount of public land, which, when added to their additional entry, would make 160 acres. This -right was first held to be nonassignable, but by a Supreme Court decision it was held to be assignable, and it was a right which did not carry any residence, or rather the necessity of residence, with it. To illusr trate : If Smith were a soldier, honorably discharged, and if he had prior to this date made an entry for 80 acres, he could now, if he had not exhausted the additional 80 acres himself, assign that right to any person, who, in Smith's name, could file it in the land office for a certain given tract of land. Mr. Fennell. Would he not enter it in his own name ? Mr. Dennett. As assignee. Mr. Fennell. So that it is not necessary that this man should have been a soldier? Mr. Dennett. No, sir ; the assignee could enter it in his own name. The Chairman. This negotiable scrip then is virtually negotiable paper ? Mr. Dennett. Yes, sir. The Chairman. Does it pass to another person by subsequent in- dorsement ? For instance, the soldier could pass it to me by indorse- ment ; now, could I by my indorsement pass it to Mr. George or some one else? Mr. Dennett. I will state that it is freely assignable; that is, it can be passed from one to another. The Chairman. It is assigned in blank? Mr. Dennett. Yes, sir ; by the soldier. The Chairman. Then it is optional with the last holder to write whatever name he pleases in it, and the person whose name is written in it becomes the owner of that additional scrip, and he can file on it? Mr. Dennett. Yes, sir. The Chairman. Now, in case a filing is made on this scrip, does your department make the same investigations, or similar investiga- tions to those made in other filings? Mr. Dennett. We make very careful investigations. The Chairman. As to the good faith of the filing ? Mr. Dennett. Yes, sir; and as to whether the man who was the assignor was actually a soldier who served, and, also, whether or not he has exhausted his right, and we also make an investigation of the ■question of the mineral character of the land. This scrip is only locatable on agricultural land. The Chairman. And in this case, has any investigation been made, or has any investigation b'een started as yet? Mr. Dennett. I will state, as I have already stated, that we have not as yet investigated the soldiers' additional rights at all, and the survey has not yet been approved. Mr. Fennell. Is it not the rule of practice in your office that if for any reason a scrip should prove invalid the locator would have the right of substitution? 4274— No. 1—11 2 18 CONTBOLLiER BAY LANDS. Mr. Dennett. If the invalidity is not due to anything within knowledge of his own; but if he knew that it was fraudulent we would not allow him to substitute. If he has purchased scrip as an innocent purchaser, which for some reason or other is not good The Chairman (interposing). He would have the right of substi- tution? . Mr. Dennett. Suppose a man should buy 40 acres of soldier's additional scrip, and when examined it was found that the assignor was not really a soldier who served in the war; that would be an invalid location. If there was no guilty knowledge on the part of the locator, we would aUow him to substitute some other scrip; for in- stance, in the name of Brown, who might be another soldier. The Chaikman. And he would retain such right as he had by his former void location, so that he would be the next in order? Mr. Dennett. There might be an intervening right. The Chairman. Then, that word "substitution" is not properly used in that connection, is it ? Mr. Dennett. It is only substituted in case there is no valid right intervening. The Chairman. Well, he would have that right anyhow ? Mr. Dennett. You are correct. The word "substitution" is too liberal in that case. What I mean is that simply because he has filed on this 40 acres we do not consider that he is ineligible to file an- other application, and if there is no other right intervening, he can use that right. The Chairman. He has a right, which he would have had in the first place? Mr. Dennett. Yes, sir. Mr. Fennell,. My question was intended to cover this point: I meant to ask, if I should locate this land with a piece of soldiers' additional scrip, and subsequent to my location, some one else should locate the same land with other scrip, and that my scrip should prove invalid, I would still have the right to go out and buy other scrip to make my location good, so that the intervening locator would se- cure no rights on account of the invalidity of my first location. Mr. Dennett. Mr. Fennell, I am going to plead ignorance on that point. I would say, Mr. Chairman, that that scrip division islargely under the supervision of the assistant commissioner. The Chairman. Under whose jurisdiction is that now? Mr. Dennett. It is under my jurisdiction. It was removed from one division to another division, and the other division is under my jurisdiction. The Chairman. Who in your office is supposed to be expert on that matter ? Mr. Dennett. Mr. Mess and Mr. Marshall, and several of the clerks who have charge of that. If Mr. Fennell says that as a mat- ter of practice that is true, I would be inclined to accept it. He has filed a good deal of this scrip. Mr. Fennell. You mean that I have represented a good many of Mr. Dennett. Yes, sir. beTott^eroSirAllt?" *'^ °"'^ '^"' «' ^^"P ^^ ^^^^^ '^^^ -» CONTROLLER BAY LANDS. 19 Mr. Dennett. That is correct. Wait a moment — on the unsur- veyed portion of Alaska. The Chairman. I thought you stated that none of Alaska was surveyed ? Mr. Dennett. I think only two or three townships, probably, have been surveyed. The Chairman. Where are they located ? Mr. Dennett. They are located up in the Fairbanks country. The Chairman. Have you the date of the filings on this Con- troller Bay? Mr. Dennett. I have not that information. Apparently it should be in these papers. I will send you certified copies of the scrip in question. The Chairman. Showing the date of the filings and the date of the receipts? Mr. Dennett. No, sir ; but it will show the date of the survey and when the preliminary work was done. Mr. Hanna. You spoke of the scrip being located only on agri- cultural land? Mr. Dennett. Yes, sir. Mr. Hanna. Is this considered agricultural land? Mr. Dennett. There is no question about that, but, of course, we would consult the Geological Survey about that before finally pass- ing on the question. The Chairman. Could a surveying party enter a national forest to do the work of surveying locations before the Executive order was signed ? Mr. Dennett. Do you mean physically or legally? The Chairman. I do not mean physically, I mean legally or ac- cording to the practices of the General Land Office. Mr. Dennett. I have never known it to be done ; it is a T\ew point. Mr. Hensley. Could your department accept such surveys as that, made by persons who might be considered as trespassers upon the public domain and O. K. it after the Executive order had gone into effect? Mr. Dennett. There you raise a legal question, and there are two sides to it. The question there would be as to whether or not before the land had been thrown open as public land the mere fact that persons had gone upon it and reserved land would invalidate that survey. It is a question whether it would. I have never had that question before me, and I do not like to pass upon that proposition offhand. The Chairman, Have you been informed from public statements in the newspapers upon this matter? You no doubt saw statements in the papers to the effect that surveyors under the direction of Mr. Eichard, or "Dick," Eyan had entered upon the forest reserve be- fore the date of mifiking the Executive order. Did you notice that ? Mr. Dennett. Ko, sir; I did not. The Chairman. The basis for the question is whether that could be legally done and, if it were done, whether a survey made under these conditions would have any validity whatever? , Mr. Dennett. In answer to that I can state that it is a new ques- tion, and it would be taken up, not only by me but by the proper officers below me, to consider. 20 CONTROLLER BAY LANDS. The Chairman. We will go back to that question later on. ^^^ there any copies of the plat or map of these terminals of the Kyan railroad, to which you referred, on file in your office? Mr. Dennett. I presume there must be, of these 80 rods. The Chairman. That is what I refer to. Mr. Dennett. Yes, sir. The Chairman. We would like to have copies of that. Mr. Dennett. Yes, sir. The Chairman. Would your office files show the date of the filing of this scrip and the claims based on it at the land office at Juneau? Mr. Dennett. Yes, sir ; it would. The Chairman. Have you that information now ? Mr. Dennett. No, sir ; not now. The Chairman. We will also want that information. Mr. Dennett. The record would show. The Chairman. And by whom the filing was made? Mr. Dennett. Yes, sir. The Chairman. I wish you would state for our benefit in logical or chronological order the various steps necessary to be taken in the process of locating this soldiers' additional scrip, so that the record may give us that information in a specific way. Mr. Dennett. I will do it to the best of my ability, and will ask Mr. Fennell to assist me. Of course, the first step is to purchase the scrip. Then, particularly referring to Alaska, is the selection by the party desiring the tract of land on which he is locating. He then applies for a deputy surveyor from the list of surveyors who have been designated 'by the surveyor general as suitable persons to do this work. The survey is then performed; the notes are written up; they are sent to the surveyor general, and he transmits them to our office. We examine the notes, and send the survey to an examiner of surveys to look at, to see if it was properly performed. If the survey was properly performed the report of the examiner will be sent to our office and the survey approved. In the meantime, the soldiers additional scrip would be filed in the office at Juneau. This scrip would have been transmitted to the Land Office at Washington, where it would be examined by our clerks for the purpose of ascer- taining whether it was good scrip or not, and if there was no fault with the scrip the scrip application would be allowed. I think the next step would be to advise the register and receiver at Juneau of the allowance and that the patent would issue in due time. Mr. Fennell. And his title under the law would date from the filing of the scrip at Juneau. Mr. Dennett. The surveyor's map would accompany it. The Chairman. That would be necessary? Mr. Dennett. Yes, sir. _ Mr, Fennell. Suppose for any reason that scrip should be con- sidered invalid or fraudulent, the survey upon which it was based having already been approved, would that survey be such as to au- thorize immediate location by other parties? They would not have to employ a deputy surveyor to go over that same process again but would immediately locate it, would they not? »' Mr. Dennett. Of my own knowledge, I do not know anything of that kind, but it seems reasonable that it should be. I would not like to commit myself absolutely on that. OONTKOLX,BE BAY LANDS. 21 Mr. Fenneix. There would be no reason for going over the work again if there was no objection to the map? Mr. Dennett. It does not seem there would be. There may be a contrary holding, but I can not answer definitely. Mr. Fennell. Fifteen minutes after the disapproval of the entry he_ could immediately locate other scrip, if such a condition should arise. I am not now asking your attention to the question of sub- stitution, but I am specifying that the scrip was fraudulent. If this party knew anybody at Juneau he could telegraph him from Wash- ington in 15 minutes and have a new location made in the name of a third. party or in his own name, could he not? Mr. Dennett. This is a new proposition. Mr. Fennell. Suppose the man is a crook, just out of the peni- tentiary, is that any reason why he could not locate under these conditions ? Mr. Dennett. He would not be a citizen. Mr. Fennell. But suppose his political rights had been restored? Mr. Dennett. I do not believe that even if his political rights have been restored — ^I do not believe that the restoration of his political rights would make him a citizen. Mr. Fennell. But suppose he is a citizen and an undesirable citi- zen, still he would have the right to do that? Mr. Dennett. Yes, sir; certainly. The Chairman. The committee would like to have you, Mr. Den- nett, look over the records of your office, for a reasonable time back, say, four or five years, and find out for us in how many instances the 30 or 60 da5's' publicity has been waived, if any, and to give us the particulars of such instances. I am assuming, of course, that in order to secure any papers or documents you have it would not be necessary to issue a subpoena, but that they would be produced upon written request? Mr. Dennett. Yes, sir ; that is true. Mr. Hensley. Say, for instance, in the matter of the survey that has been made, which was before the Executive order was made, is there anything to prevent your department from taking that survey and standing upon it as though it had been authorized ? Mr. Dennett. You mean a survey made before the withdrawal was made? Mr. Hensley. Yes, sir. Mr. Dennett. That is somewhat similar to the question asked just now. Mr. Hensley. Yes, sir. Mr. Dennett. That is a legal proposition that I feel loath to pass upon. Mr. Hensley. But, as a matter of fact, is it not a discretionary matter that rests with your department to pass upon this question, and then, when passed upon, does not that close the incident? Mr. Dennett. No, sir. Of course, in anything involving a matter of fact, when found by the department, the incident is closed, but if the matter were one of law, it would go to the courts. A matter of law would be involved there, and that is whether a survey, which was ab- solutely commenced before the restoration of that land, was legally so commenced, so that in passing upon that point, I would be pass- ing upon a question of law. 22 CONTEOL,LER BAY IANI>S. Mr. Hanna. Between each one of these claims must there be 80 rods left? ,. - , , i +1, Mr. Dennett. That is my understanding of the law, unless me act the chairman refers to has changed it. Mr. Hanna. And that remains in the Government? Mr. Dennett. Yes, sir. Mr. Hanna. And can not be alienated ? Mr. Dennett. No, sir. . . . t The Chairman. If you have any knowledge on the subject, 1 would be glad to have your opinion as to whether the 80 rods retained hf the Government would, under the circumstances, be of any practical value ? . , . Mr. Dennett. That I can not definitely answer you, except m this way : As I understand it, the 80 rods there extends along the water front for terminals, so that it would seem that the 80 rods frontage on the water must have great value. It would not be necessary, of course, for a man, if he wanted to have freight yards and station yards, to have them right on the water front. It seems to me that the 80 rods would give all the necessary water front for shipping and other terminal purposes. The Chairman. Do you know the nature and character of the channel and water front there? Mr. Dennett. No, sir. The Chairman. You do know, I think, from the testimony which you heard and saw in the Ballinger investigation that the water front there is a mud flat. Mr. Dennett. That is what I have heard. The Chairman. And that you have to go out a considerable dis- tance from the tide line in order to reach a navigable channel ? Mr. Dennett. I have heard that. The Chairman. Would that situation, assuming this to be true, in any way aflfect the practical value of the 80 rods strip of water front ? Mr. Dennett, i should think it would emphasize its value, be- cause if this 80 rods here was really not the water-front line, this would be valuable for the purpose of enabling a man to go out to the water front so he could build his bridge or trestle, or whatever you might call it, out to deeper water. I should think it would be very valuable. The Chairman. Do you not understand that the 160 acres includes the mud flat? Mr. Dennett. I do not know. The Chairman. I would like to get information from you on that, as to where the water-front line is, and what determines it — whether it is the high-water mark or the low-water mark? ' ' Mr. Dennett. I should say the tide lands there are in the posses- sion of the United States, and can not be alienated, except by act of Congress. The Chairman. And that would be where? Mr. Dennett. Do you mean between the high and low water marks ? The Chairman. I am asking you. Mr. Dennett. I think it is uie mean. Mr. Fennell. That was my purpose in calling your attention to the case of the city of Chicago against the Illinois Central Railroad; PPNTEOLiiBK BAY LANDS, ?S which involved tl^e right of contact with navigable water. Is not that apDlicable to Controller Bay ? Mr. Dennett. That would be different in this case, because yoy njust remeniber in this case, it is fixed by an act of Congress— there has been a specific reservation to Alaska of its tide lands. I think that is different from the Chicago case, Mr. Fennei^l. But when the land ig opened to entry Mr. Dennett (interposing). I do not think that is the case. I think the situatio;^ in Chicago is entirely different from that in Alaska. Mr. Fennell. But the location of this scrip makes the water coast the boundary, does i<; not? Mr, Dennett. It would make it the boundary ; but no riparian rights, as I understand the law, are conferred. I think you will find that specifically all tide lands are reserved to Alaska. They have been in every other State. In all the Pacific Coast States there has been a reservation of tide lands to the State. Mr. Fenneul. I will have to go into that case again. Mr. Dennett. You do not have to do that, Mr. Fennell, because that is a specific case in Illinois that may be entirely different so far as legislation is concerned from Alaska, where there has been a specific reservation of tide lands. Mr. Fennell. The reservation of tidelands, as I understand it, applies to border lands, or lands bordering the sea. You do not call submerged lands tidelands. You would call shore lands tidelands. Mr. Desnnett. I should call tidelands the lands which run from a middle point between high and low tide. Mr. Fennell. That would be more or less submerged. You do not mean lands more or less submerged by the sea ? Mr. Dennett. I mean the point midway between the point where the water is highest and the point where the water is lowest, as it fluctuates with the tide. ]\Ir. Fennell. Now, then, if this is the boundary of these locations, then the riparian rights that these people would have would be a question of law ? ' Mr. Dennett. Yes, sir. You asked my opinion, and I gave it as my opinion that it is not bound by the Chicago case, because I think you will find that the legislation for Illinois was very different from the legislation for the Territory of Alaska. Mr. Fennell. Do you know of any legislation which makes the meander line the boundary ? Mr. Dennett. In the State of Washington, you will find that all shore lines are the meander lines. Mr. Fennell. I understand; I know that the undertaking was made in the State of Washington to locate what is called tide lands with scrip, and that these locations were held to be invalid ; that is, the title to tide lands was held to be invalid, but that did not touch the question of riparian rights. Suppose they had been held to be valid? Mr. Dennett. I know further than that, that in Washington it has been held that the riparian owner has not any right except such as is given him by legislation. He can not get any riparian right by filling in. 24 CONTROLLEK BAY lANDS. The Chairman. Inasmuch as this is purely a question of law, a^ as we can not reach any conclusion on it, I do not think it is worm while to encumber the record with it. ... Mr. Fenneix. I did not refer in my question to obtaining title to submerged land by filling it in. I know that can not be done. I do not consider that a riparian right. By a riparian right, I mean the right to build wharves, docks, or piers. I mean riparian rights, not fifflng in. Mr Dennett. I am inclined to think that can be obtained froni the Secretary of War. The Chairman. Upon whom could we call for specific information as to the shore lines of these locations — that is, whether it is the high- water mark or the low-water mark or the point between these or where it is in these particular locations made by Mr. Ryan and Sharpe ? Mr. Dennett. That is, as I stated just now, absolutely a legal question. The Chairman. But it has been surveyed. Mr. Dennett. We can tell you the facts, so far as they are shown by the field notes. These would show whether the plat runs out into the mud flats. Mr. Hanna. Did the Coast and Geodetic Survey ever make a sur- vey of that? Mr. Dennett. I think so. Mr. Hanna. Showing the depth of the water, etc. ? Mr. Dennett. I thinS they have made such a survey and that you could get that information from them. The Chairman. Do you think they could furnish any particular information as to these locations ? Mr. Dennett. No, sir. The Chairman. But taking your field notes in connection with their maps would show us the shore-line limit of them and as to whether or not the water is navigable, would it not? Mr. Dennett. No, sir ; they would not be able to tell you how near the property is to the meander line. The Chairman. But with your field notes before them they would be able to furnish that information, would they not? Mr. Dennett. Yes, sir. (Thereupon, at 12.45 o'clock p. m., the committee adjourned.) CONTROLLER BAY LANDS No. 2 HEARINGS » BEFOEB THE COMMITTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT "■ :; ■'•. ::.<' of the t ::i ^■!;rrrm*CT'ix:-v .i ' HOUSE OF KEPEESENTATIVES « kj i t ,;iv ON <1 ■ HOUSE RESOLUTION NO. 103 TO INVESTIGATE THE EXPENDITUKES IN THE INTERIOK DEPARTMENT JULY 12, 1911 WASHINSTON GOVERNMENT FEINTING OFFICE 1911 EXPENDITURES IN THE INTERIOR DEPARTMENT. (Committee room No. 296, House Office Building. Telephone 691. Meets on call.) JAMBS M. GRAHAM, Illinois, Chairman. SCOTT B'ERRIS, Oklahoma. FRANK W. MONDELL, Wyoming. HENRY GEORGE, 3k., New York. LOUIS B. HANNA, North Dakota. WALTER L. HENSLEY, Missouri. THERON E. CATLIN, Missouri. JOEN F. McCabboh, Clerk. n CONTROLLEE BAY LANDS. Committee on Expendituees IN THE InTEEIOE DEPARTMENT, House of Representatives, Wedrmday, July 12, 1911. The committee this day met, Hon. James M. Graham (chairman) presiding. There were present Representatives George, Hensley, and Hanna. There was also present Mr. W. P. Fennell, attorney at law, Wash- ington, D. C, on behalf of the committee. STATEMENT OF HON. WAITER L. FISHER, SECRETARY OF THE INTERIOR. Secretary Fisher. Before you start the examination, Mr. Chair- man, if I may be permitted, I would like to make a very brief state- ment. I have not been asked to come before the committee this morning, but I very naturally have a deep interest in- the subject matter of your investigation from two points of view. First, as to whether or not there has been anything done in connection with the Controller Bay situation which has jeopardized the public interest, and particularly whether, if that is true, there is anything that can be done to protect that interest. I mean, if there is any reason to believe that any conditions have been created there which are still subject to correction, and which can be corrected, I would Hke to have knowledge of them, and I would like to have my attention directed to such conditions, so that if there is any danger, by reason of the time passing, I can do something at once. And, second, and more particularly, I am interested in the question that has been raissd by the publication which has appeared under the signature of Miss or Mrs. Abbott with regard to a certain document in the files of the Interior Department which we have been unable to locate. I am very much concerned about that — because if there is anybody in my department who has been involved in any way in the disappearance of any such document, if it did exist, as to which I express no opinion, I, of course, am very much concerned about it- — and would like to have that matter taken up as promptly as the committee may, because some of the men who have had to do with the files in the Interior Department have left the service and others are about to leave the service, and they would be among the people who might have had some access to them. For that reason I had hoped the committee would have called Miss or Mrs. Abbott — I do not know which she is; I had understood she was Miss Abbott, but I have since been told I was incorrect about 25 26 CONTBOLLEK BAY LANDS. that — so that we might promptly take steps to locate the responsi- bility for any such disappearance, if there was such a paper and if it has disappeared. And I wanted to call the committee's attention to the fact that that phase of this inquiry seems to be of urgent importance. As you doubtless know, the Senate, on the motion of Senator Poindexter, has recently passed a resolution calling on the President for all of the documents relating to this matter, whether they appear in the Interior Department, the War Department, or the Department of Agriculture, and those papers are in course of prepara- tion. I understand that everything that relates to the matter will be transmitted to the department at once. Mr. George. You meant transmitted to the Senate ? Secretary Fisheb. Yes; to the Senate, and it wiU be, of course, pub- lished as a public document when it can be made available for the eommittee. The reason I am interested in that phase of the matter is that Mi. Dennett, who was before you day before yesterday, called my attention to the request of the committee for copies of all of these same documents, so far as they exist in the Interior Department. Now, we have prepared and have now nearly completed a transcript of all the records m the Interior Department for transmission to the President, to be by him sent to the Senate, and Mr. Dennett wanted to know whether or not he should be instructed to duplicate that work or whether the committee would prefer to wait until the entire matter went into the Senate ? The Chaieman. How soon will that probably go there ? Secretary Fisheb. I understand it will go there within a very few days. The Chaibman. I had blocked out a request to be sent to you for such papers and documents as we thought would help to enlighten the conxmittee on these subjects, but if the matter you speak oi will be completed within a few days it is quite likely that a duplicate of that information will meet the wants of the committee. Secretary Fisheb. Would you wish us to prepare a dupUcate ? The Chairman. Yes. Secretary Fisher. Well, of course, that will take a little time. Mr. Dennett's suggestion to me was that if the material went in promptly to the Senate it would probably be available in that form as promptly as we could duplicate it, but if the committee desires it we will put extra clerks at work on it and get you the information. I am here to offer my cooperation to this committee absolutely with- out limit and without the slightest desire to protect anybody or anything, and in the hope that the matter will be given instant attention for the purpose of getting at the entire facts. The Chairman. The committee anticipated that would be your attitude, Mr. Fisher, but we are glad, indeed, to hear you corrobo- rate our views in the matter. And now as to your statement, and to the first point of it — that is, whether anything can now be done to conserve the pubHc rights, if they are endangered at Controller Bay — we at this time, of course, have little or no information, and I am sure I speak the sentiments of the committee when I say that we will be delighted to hear from you as to any information which you wish to impart to the committee on that point at this time or make any suggestions that would enable us to get at the facts quicker and better. ^ 00NTR01i.ER BAY LANDS. 27 Secretary Fisher. I will be very glad to do that. I will say this in answer to that suggestion, that when the matter first came to my attention it was in relation to the resolution offered by Senator La Follette, I think on the 20th of April, shortly after I came into the Interior Department, that resolution asking for information in respect to certain quite specific questions. For instance, questions like, How many claims were located on Controller Bay? What were the names of the claimants ? And things like that. I instructed the people in my department to prepare a complete reply to that matter, and when they brought it in for my examination they brought with it the records, and in looking over those records I discovered that there were a good many matters that had not been included in the report to the Senate. I inquired why they had not been included, and was told that in accordance with custom the report had been confined to answers to the specific questions that had been asked. You under- stand, there was no general question at the end of the resolution, as there frequently is, asking for all other papers and documents. The Chairman. I might say here that m the memorandum I pre- t)ared or, at least, blocked out, I have quoted that paragraph of your etter, and asked you to furnish to us aU the matters referred to in that general reference. Secretary Fisher. Well, I have not received any communication from you and do not know what was called for. The Chairman. It has not been sent as yet. Secretary Fisher. After finding this I examined the matter and from the records that I had available, and particularly from an examination of the statutes that had been passed, and the special act under whicj^ the construction out to deep water was to be made, I was unable to see that the pubUc interests had in fact been put in jeopardy. I am not now discussing the manner in which the trans- action proceeded at all, but I mean the result. I thought that if there was anything wrong about this I ought to know it, and also that there should be no suspicion that anyfliing had been withheld, and therefore I put at the end of my report to the Senate the para- graph to which your chairman has just referred, namely, that the foregoing report was in answer to specific questions, but that there was a considerable amount of material in the department which had not been called for and which seemed to make clearer the action taken by the department, and the reasons therefor, and that such material was available if desired. Now, I went through the matter at that time and checked up par- ticularly with regard to the question as to whether or not anything had really been done jeopardizing the public interests. I confess, if you will pardon me for saying so, that I was not particularly con- cerned with the question as to whether the method had been one way or another. I thought we had had in the Interior Department quits enough emphasis on the question of the method of procedure. The real thing that I was interested in in that department, and am still, is an attempt to get some constructive results, and I thought then, as'I do still, that a discussion of methods or details of procediire would simply embarrass the obtaining of those results, unless it were true that the method employed had in itself really jeopardized the public interests in some way. Now, the important thii^, as I saw it, was this, Mr. Chairman 28 OONTBOUIJEK BAY LANDS. The Chairman (interposing). I might say at this time that in all probabihty we will ask you later on to appear before the committee as a witness. Secretary Fisher. I am perfectly willing to appear at any time. This is a rather informal statement, but I am wiUing to help the com- mittee informally or formally in any way. My interest is m. getting results. Now, I found that after the property on the shore line had been released for entry, Mr. Ryan had made three entries, and from the explanation furnished from Juneau, they had all been made by m agent of his; that those entries were each for 160 rods of frontage, and that in compliance with the law 80 rods were left between the different entries, that he had made an entry on one of these 80 rods for a railroad terminal, but the question of the validity of that entry had not been determined in the department. I inquired of Mr. Dennett about that matter and was informed that when the question came up it would be decided in accordance with the law, and if he was not entitled to the entries they would be denied, subject to my review. I found that 80 rods between two of these 160-rod entries were still vacant, nobody, apparently, ever desiring to enter upon them, and that there was a considerable mileage of water front there that had not been desired and was still unoccupied. In looking into the matter my principal object was to ascertain what rights^ 3 any, had been obtained fi-om the shore line out to deep water, which was the crux of the whole matter. I examined the special act of Congress, under which Mr. Ryan was to get certain rights. I found that that special act not only made the entries all subject to the act of 1898, with its reservations and conditions, but that it expressly provided that the special act was subject to amendment and repeal by Congress at any time, so that whatever rights he obtained under that act are absoT lutely in the hands of Congress to repeal to-morrow if it so desires. I have examined the different statutes— I have copies of them here — and so far as I have been able to discover under the law Mr. Ryan has obtained no rights whatever that jeopardize anybody else's subsequent entry there. There was this further point to consider, however, that possibly the conformation of the ground back of the shore line would be in the nature of a pass or canyon, or something of that sort, where his possession of rights would interfere with others, but the law, so far as I have been able to examiae it, expressly provides that any other road can come in and have the joint use. So that, as I analyze the situation, Mr. Chairman, it gets down to this: That either there is room for more than one railroad at Controller Bay or there- is not. If there is room for more than one railroad there is only one there now and there is room for others that may want to locate there. If there is, as a matter of fact, room for only one railroad at Con- troller Bay it is purely a question whether Mr. Ryan's road should be that road or whether some other road should be the road. That seemed to me to rather dispose of the general question as to whether the pubhc interests, speaking now of the substance, were in any way in jeopardy. . But entirely in an informal manner the suggestion has been mad© to me that a rider or provision had been put on some appropriation bill which in some way affected the questions here, and I have asked the people in my department whether they know of anything of that CONTEOLiiEB BAY LANDS. 29 kind and they tell me they do not; and it occurred to me that if there is anything of that kind it should be brought to my attention, because if there is anything that has jeopardized the public interests, and there is under the law any way that we can now take action, it ought to be taken. I absolutely believe in at once taking whatever action ought to be taken. Now, I have stated the general conclusion that I have reached. I make no claim to infallibility; but I tell you, with entire candor, that this is exactly the situation as I have been able to see it. If I am wrong, I would like to be set right. The conclusions that I have reached have been reached on my own responsibility and withr out any suggestions from any other source. The Chairman. We thank you for that statement, Mr. Secretary; and, as to the second part of your suggestion, I will answer you in a moment. The chairman desires to say, as to the suggestion cout cerning the order of producing the testimony and the reference to Miss Abbott, that the Chair does not consider the statements which have appeared in the press as so very material concerning this investigation. He looks on it rather as the motive power- which set the machinery in motion, and that either logically or chronologically considered her testimony would not fit in the case at this time. There is a logical and orderly way to produce testimony. Either in a trial or in an investigation there is a beginning:, a development, and a conclusion, and an orderly and logical way in which the evidence fits, and makes it easy for those who have to consider it and draw conclusions from it to do so. It seems to the chairman that the proper place to begin is to get a clear and succinct view before the committee of the actual conditions, topographically, geographically, and hydrographically, at and around Controller Bay, and to put Miss Abbott on the witness stand now would seem to the Chair like building the chimney of the house first and then putting the house under it. Unless the Chair is convinced that he is wrong Tie would be disposed to follow that view of the matr ter. As to the question whether the lady is Miss or Mrs. Abbott, it is due to her to say a word. My attention was called this morning to an editorial in a Philadelphia paper, the Inquirer, which I would be inclined to think, in a casual way, would entitle that young lady to damages, suggesting that she is the wife of Willis J. Abbott, the press agent of the Democratic congressional committee. In my opinion it is a serious thing to report her to the world as a married woman. Miss Abbott is in no way whatever related to Willis J. Abbott. He already has a very excellent wife. Miss Abbott is related to Lyman J. Abbott, as I understand it, in a degree of cousinship — I do not know just what particular degree — and it is entirely a matter for her to say what she shall do with refer- ence to the pubhshed editorial that I speak of; that is no concern of mine. But I de^m it no more than fair that in the presence of so many newspaper men the simple truth should go to the, country as soon as possible after the misinformation which has already been sent out. I think it is due to the committee and to others present that the Chair should say that much. Mr. Fennell desires to make a statement on behalf of the committee with reference to the state- ment just made by Mr. Secretary Fisher. Mr. Fennell. Mr. Chairman and gentlemen of the committee, this being purely an investigation, it is exceedingly fortunate that 30 WONIEOLLiER BAY LANDS. we are all of the same mind, and that the result sought to be obtained is to conserve the public interest. The purpose of the inquiry is to inquire whether the public interest has been conserved or whether the public iaterest has been diverted to an individual or to a syndicate of individuals. It is not whether that syndicate or that individual has obtained rights under the general laws by a greater ability, a greater knowledge, a greater attention to the law, and more dili- gence in exercising their rights under the law, but whether any execu- tive of this administration has opened the door for any individual or any syndicate to acquire a controlling interest and deny that right to the general public. Now, the Dick to Dick letter is a mere incident in that investigation. The substantial facts are already before this committee. In the first place it is a matter of general notoriety that the mineral deposits of Alaska are almost illimitable, the value of the coal fields, the value of the copper deposits, and the value of the coal deposits have aU been brought out and the public is fully aware of the conditions there. It has been testified by the agent of that syndicate that those deposits would be worth no more than the glaciers of Alaska unless the coal could be gotten to market. He said that if you can bring that glacier here to Washington and sell the ice it would be of some commercial value, but not otherwise. It is already before the public and before the committee that certain syndicates have obtained rail- road rights there, leading to the only gihipping point on the coast. Now everybody knows the difference between a mere railroad ease- ment, a right of way, which carries with it no riparian rights, and the ownership of the fee of the land bordering on this Controller Bay. It was disclosed by the Commissioner of the General Land Office at the last session of this committee that that land had been withdrawn from entry. The matter was entirely within the control of the President. No syndicate or no individual could obtain any rights there by the location of scrip. He might have obtained a railroad right of way; one or more rail- roads, it matters not, might have passed over the 80 rods referred to; which have been reserved laterally by the Government, but prior to that they had control of the entire body of land bordering on this bay. Now, it was within the power of the President, by proclama- tion, to throw that land open to the world, to give the public an equal right to go there, under the law, and obtain an interest there, and the race would be to the swift and the battle to the strong. But Mr. Dennett admitted at our last session that that was not the way; that this Executive order, throwing this land open to entry, was known only to a few individuals. Those individuals had ah-eady obtained a monopoly of all the mineral rights available in that terri- tory, and that the representative of that syndicate, as it has been charged, located the land within a few days after the lands were thrown open to entry. Now, the specific matter of investigation, as disclosed by the Dick to Dick letter is this: Was it fair to the pubhc, not whether it was Tudicious to throw it open or not, not whether it had been bettei-;to keep It within the Hmits of the Chugach Forest Reserve, but if in his discretion the President desired to throw that land open to entry should It not have been free and fair to all; why was it done secretly, why was an individual given a chance to get there first ? No matter 0ONTROLi,EE BAY LANDS. 31 whether the man's name was Dick or the letter was written to Dick, the public is more interested in the fact. Now^^ Mr. Chairman, we all know that the Secretary of the Interior is given almost unlimited powers in dealing with public lands; Congress makes the laws, but the Secretary applies them ; he makes the rules of practice, he makes rules and regulations which bind me and which bind you, and he can suspend them. The question is : Did he suspend them in this instance in favor of an individual or did he not? The rules of practice pre- scribed by the Secretary himself require that 30 days' notice shall be given of an intention to enter the land and 60 days' notice to give any one a chance to contest that entry if he has a prior interest there. As I understand it, if the land had been thrown open to entry in accordance with the proclamation as it was first prepared and sent to Mr. Dennett, the Commissioner of the General Land Office, then it would be a matter of discretion, merely a matter of judgment. But Mr. Dennett admitted, under oath, that somewhere between the send- ing of that Executive order to his office and its final promulgation that that clause was eliminated, was stricken out, and he did not know by whom. Now, we are trying to find out; that is what we want to know. If that clause was stricken out to enable a syndicate, or its representative, to get there first, then the interests of the public were not conserved, and we want to know who did it. Secretary Fishek. From the statement just made by counsel it seems that as he understands the question it is whether what was done there resulted in giving a preference to somebody, and not as to whether that preference, when you come to analyze it afterwardsj really worked any harm to the public. I am not criticizing his posi- tion at all, but his position is, as I understand it, that if there is any 8 reference, that in itself is a matter that should not be permitted, 'f course, that phase of the matter, as I tried to make clear, is not a matter which primarily concerned me. What I was desirous of knowiQg was whether or not the situation as it stands now, no matter how brought about, is injurious to the pubHc interests, and whether there is anything I can do, as Secretary of the Interior, that wUl pro- tect the public interests in view of the situation as described by counsel. The Chairman. The chair would say that the committee does not at all feel limited by the statements made by counsel; counsel does not control the committee; the committee controls counsel; and the committee will investigate such matters touched upon by counsel as it deems proper for investigation and such other matters not touched on by him as it deems proper for investigation. Secretary Fisher. I think I understand that; and do not under- stand me as being in the slightest degree critical of such a position taken by the committee or its counsel. What I wanted to Vnow especially, in view of the suggestion that there was a law that I have been unable to locate, or a rider on some appropriation bill, or from any other view of this case, was whether there was now a situation where it would be proper for me, as Secretary of the Interior, having had no precious connection with the transaction at all, to take any action. If so, I wish to take it. It was because of the suggestion as to this rider, which I have not been able to locate, that I was particularly interested in that. 32 CONTEOIiliEE BAY LANDS. As to the further suggestion with regard to Miss Abbott, I think it is right that I should say that I have never seen or heard ot the publication to which the chairman referred. I had always supposed it was Miss Abbott, but yesterday in mentioning it I was told that I was mistaken, that in the article m the Philadelphia North American it was written Mrs. Abbott, and I merely mentioned it because I simply did not wish to be incorrect; I did not know there was any such editorial or suggestion as that to which the chairman has justi made reference. Now, as to the question of procedure, quite apart from the ques- tions suggested by counsel for the committee or the questions sug- gested by the chair, as I have said, it seems to me there is a very ^ave question, in which I, as Secretary of the Interior, am officially interested. Miss Abbott is quoted as having said that she found a certain paper in the files of the Interior Department which bears upon your investigation, the matter th&t is now under investigation. I never heard of the article, the memorandum, or the paper to which she refers until I saw a reference to it in the newspapers. Immedi-. atelj I had the entire matter, so far as it had not been gone intol during my absence, investigated, for the purpose of seeing whether such a paper could be found, and it was reported to me by everybody) that it is not in the files. ■ That seems to me a very serious matter, and it seems to me it has a direct relation to the prime functions of this committee in relation to the investigation of the expenditures in the Interior Department. If we have men connected with the department who for any reason would be parties to the destruction or elimination of any documents contained in the records of the department, it seems to me that is a matter that should be at once inquired into. I think^although I may be mistaken — that there is a provision in the statutes on the subject; but at any rate such a suggestion affects the efficiency of my office. It was not because of any desire to interfere with the general line of the investigation that I make this suggestion, but I do suggest that at your earliest convenience, and as soon as you do think it is proper in your investigation, you have Miss Abbott's account of the thing and such evidence as will enable us to ascertain, if we can; whether there was such a paper, and if so, where it was and who had it when it was in existence, so we can determine the time about when it must have disappeared and ascertain exactly who had access to those papers and find out what has become of it if it ever did exist. The Chairman. We hope to reach that, Mr. Secretary, and I take pleasure in saying to you that if, as we go along, any point develops which we think would better enable you to conserve the public inter- ests the committee will take pleasure in informing you of it. Mr. Hanna. It was suggested by the Secretary that some of these men, who have been employees in the department, have resigned, and that others might leave, and so on. As I understand, the men are all interested who were there at the time this matter was up in the Department of the Interior ? The Chairman. Yes. Mr. Hanna. And it would seem to me that this matter ought to be settled ahead of and quite independent of other matters, because now it is easier to get at the facts in the case than it will be later, and it would seem to me that we might take it up, in view of that fact, as OONTBOLLER BAY LANDS. 33 the Secretary is here now and these men are available who were in the department at that time. ^ The Chairman. Could we have their names, so we can issue sub- poenas ? Secretary Fisher. Yes. Miss Abbott's suggestion is, as I under- stand it, that the person to whom she was referred and who got the records for her was Mr. Ashmim N. Brown, who was private secretary for Secretary Ballinger, and who continued in that capacity tmtil Mr. George Gove, of Milwaukee, Wis., was appointed by me. Mr. Gove came in at the time I saw Miss Abbott last, and Mr. Gove is now my private secretary, and he is here. The Chairman. Is there anyone else, Mr. Secretary, likely to leave and get beyond the jurisdiction of the committee ? Secretary Fisher. , I: wa? going to say that another man who would probably be most hkely to come in contact with the matter would be Mr. Don M. Carr, who was assistant to Secretary Ballinger, and he resigned from the service some time ago, but has stayed on simply because I have been unable thus far to find a satisfactory man to take his place. He has secured a position, and he notified me yesterday that he had a particular position that he wanted to accept as promptly as the change could be made. He has made other such suggestions to me, I may say, in fairness to him; his resignation is subject to acceptance at any time he should want to leave. I understand he wishes to go out West. Then I think that Mr. Wright, of the Assistant Attorney General's ofiice, had charge of the papers during the transaction itself; that is, after the original recommendation came over from the Forest Service to the Interior Department, or rather it was Stephen WilUams, I believe, who assisted in the preparation of the report in answer to the La Fol- lette resolution. Now, those three men are the men I should suppose would have to do with it, and then possibly they would be able to give you the names of the stenographers or others who might have had the papers in their custody for the purpose of copying them. The Chairman. You named four, in fact five, but one of those is your present secretary, Mr. Gove, and there is no need of haste about him. Secretary Fisher. I said Wright. It is not Wright; it is Stephen WiUiams. The Chairman. That is what I have got— Ashmun N. Brown, Don M. Carr, Mr. Wright, of the Assistant Attorney General's ofiice Secretary Fisher (interposing). Mr. Williams, instead of Mr. Wright. Mr. Gove, will be here right along, but Mr. Gove, of course, did not see these documents until some time after Miss Abbott saw them. The Chairman. His knowledge probably would be confined to a search made later. Secretary Fisher. His knowledge would be confined to the condi- tion of the records and papers at the time when he first saw them, which was after Mr. Brown left. With reference to the question of the ehmination of- the notice and the opening of this territory to immediate entry, I would say, for your information, that I know nothing about, it, except that I understand the reasons for doing it , are to be fully covered in the communication which is to go to, the Senate in the documents which I have mentioned. 34 CONTEOL.LEK BAT lANDS. The Chairman. We will probably, ask to hear from you later in a formal way on that point. Secretary Fisher. All right; I will be available whenever yoy desire. TESTIMONY OF MR. HERBERT C. GRAVES. (The witness was duly sworn by the chairman.) Mr. Fennell. What is your name ? Mr. Graves. Herbert C. Graves, of the Coast and Geodetic Survey. Mr. Fennell. How long have you been in that service, Mr. Graves ? Mr. Graves. Thirteen years. Mr. Fennell. Where have you been located during that tirue ? Mr. Graves. PrincipaUy in Washington, but part of the time in the field, and part of two years has been spent on the coast of Alaska. Mr. Fennell. Ho-vy recently was that ? Mr. Graves. I was last there in 1907, four years ago. Mr. Fennell. Did you ever do any field work in Alaska 1 Mr. Graves. Yes, sir. Mr. Fennell. And you learned of conditions there ? Did you know of other field work that was done there ? Mr. Graves. Yes, sir. Mr. Fennell. You had general supervisory powers ? Mr. Graves. No, sir; my work was confined to collecting informar tion for the coast pilot, but that work included an examination of the surveys, and I have examined the surveys of Controller Bay, and have consulted with the officers who made the surveys there. Mr. Fennell. Will you briefly explain to the committee the work that was done there that you have knowledge of, in your own way? Mr. Graves. Do you wish me to state what the condition is there as a harbor. Mr. Fennell. Yes. But teU me more particularly, before you get to that, what you know of the surveys of the coast line in that vicinity. Mr. Graves. The surveys have been made at different periods in the last 10 years. The latest nydrographic survey — that is, that covering the water — was made there in 1909, and all of the surveys have been made with the accuracy of the work of the Coast and Geo- detic Survey and can be reliea upon. Mr. Fennell. What extent of coast line has Controller Bay ? Mr. Graves. Controller Bay is a large shallow bay that is pro- tected by islands; the harbor in the bay is formed by a narrow chan- nel, about one-half a mile wide at its entrance, that makes into the bay between the extensive flats that form the bay, and this forms a harbor. Mr. Fennell. Well, now, what position does that channel or har- bor occupy with reference to the lands located by scrip entries that have been made there ? Mr. Graves. I do not know; I have never seen- the chart showing the scrip entries on the bay. The Chairman. Have you any map, prepared W any of the other departments, showing the vicimty of Cfontroller Bay, and the locar tions in question ? OOMTTBOLIBB BAT LANDS. 35 Mr. Graves. I have not them with me, but I have consulted the maps of the Geological Survey. The Chairman. Have you seen a map, prepared in the Interior Department, showing the four locations on Controller Bay ? Mr. Graves. No, sir. The Chairman. One made by James J. Ryan, one made by a Mr. Scheuer, and another made by a gentleman whose name I have for- gotten ? Mr. Graves. No, sir; I have not seen that. The Chairman. I regret to state that the only copy we had went to the Printing Office. Secretary Fisher. I have a copy of it here, if you wish it. The Chairman. I will thank you if you will loan it to the com- mittee. Secretary Fisher. I will say in explanation of it that I turned this copy over to the Geological Survey and asked them to put on it the channel as reported by the Geological Survey, so in that respect it is different, unless I have two copies. No; I have only one copy, and it is prepared in that way. This copy is the map attached to the report, except that this part in black, marked shipping channel 15 feet or plus, was not on it; I had that put on by the Geological Survey for my own information, to see where the deep water was. Mr. Fennell. Will you look at the map which has been given to us by the Secretary and tell me if you can answer my question as to the depth of the water in the vicinity of those scrip entries ? Mr. Graves. It is all shallow along the shore; the shallows extend out from the shore 2 miles; there is practically no water whatever at low water in front, of these scrip entries; the shipping channel is located several nules out from the shore. The scrip entries are on the shore here [indicating on map] and the channel is here [indicating] which is 3 miles, probably,, out in the bay, and shallow water between. Mr. Fennell. Was there a meander line, or a coast line, run along the shore ? Mr. Graves. You mean the distance along the shore off from these scrip entries? Mr. Fennell. I mean the survey of the shore abutting on Con- troller Bay, was there a meander liae run to see where the water began ? Mr. Graves. Yes, sir. Mr. Fennell. Do those entries abut on that land ? Mr. Graves. Yes, sir. The Chairman. How is that water line determined? Is it the water line when the tide is ia or whpn the tide is out ? Mr. Graves. When the tidie is in, at high water, I mean. The high-water line there is in some cases indefinite, because the shore there is a marsh and may be overflowed in part at high water, more- over, it might be overflowed at one condition of the tide, on one high water — that is, when you have exceptionally high water — but would not be overflowed with a lower high water. Mr. George. Do you know in feet and inches what the difference is between the high and low tide ? Mr. Graves. Trom 9 to 12 feet; 10 feet is about the ordinary mean range of tide there. Mr. Fennell. What were your instructions, Mr. Graves, in regard to surveying the shore line or the coast line ? 36 CONTEOIiLEK BAY LANDS. Mr. Gkaves. I will say, Mr. Chairman, that I have never made any surveys along there, as I informed you in the first place. As I havb said, I got information there for the use of the coast pilot; but the ordinary instructions of the coast stltTreyi'ng parties includes the run- ning of the shore line as existing and also to determine the courses of the streams, and determine them with a plane table, which is abso- lutely accurate. Mr. Fennell. You do not mean the committee to understand that in pursuance of those orders the surveyors left any unsurveyed- land between the shore and the bay ? Mr. Graves. No, sir; absolutely not. That is covered in this waly: The land is surveyed by means of the plane table or other land instru- ments, and the water, up to that point, is surveyed by means of the lead; that is, they run sounding lines over the water areas at high ■v^. But it is not Controller Bay ? Maj. Q^yAUAUGH. No, sir. ir CONTBOI/LEB BAY LANDS. 67 The Chairman. Katalla Bay lies between it and Controller Bay? Maj. Cavanaikjh. Yes; sir. The Chairman. It is adjacent to and a little west of Katalla Bay? Maj. Cavanatjgh. Katalla Bay; yes, sir. The Chairman. What is the character of that structure ? Maj. Cavanatjgh. It is a timber trestle. The, Chairman. For what purpose? Maj. Cavanaugh. As an approach to a wharf which was later to be built on another island of the group. The Chairman. Of the Martin Islands group ? Maj. Cavanattgh. Yes, sit. The Chairman. Has any structure of any kind been erected on the island at the end of this trestle? Maj. Cavanatjgh. There was what was called a lighterage wharf, but it is of a temporary character. There has been no structure erected there in the way of buildings, if that is what you refer to. The Chairman, ^o wharves or docks ? Maj. Cavanatjgh. No, sir; nothing that would be fit for commercial purposes. The Chairman. Is the water at that point of sufficient depth to adinit of any access to ocean-going vessels ? Maj. Cavanatjgh. No, sir. The Chairman. What is the depth of it? Maj.. Cavanatjgh. Not exceeding 6 or 8 feet. The Chairman. There are no harbor facilities, then, properly speaking, at that point? ' - ' . , Maj. Cavanaugh. No, sir. The Chairman. The )Var Department, of course, gave permission, as you say, to erect this trestle structure there ? Maj. Cavanaugh. So far as its jurisdiction went. The Chairman. To whom ? Maj. Cavanaugh. Alaska Pacific Kailway & Terminal Co. The Chairman. Is that the present name of the company, do you know? ' , Maj. Cavanaugh. So far as the records of the War Department show. The Chairman. Did it at any time, so far as you know, have any other name than that of the Alaska Pacific Eailway & Terminal Co. ? Maj. Cavanaugh. No, sir; not so far as I know. The Chairman. When was this grant made to it or authority given? Maj. Cavanaugh. The original permit was on June 22, 1906. The Chairman. Is it a part of some going railway concern, do you know? . • Maj. Cavanaugh. We would not know as to that. The Chairman. Unless you had information in some other way? Maj. Cavanaugh. No, sin . .i , -.,,,■ The Chairman. You would only loiow, then, as to that part which covers the ground over, which the War Departjnent has. jurisdiption? 'Maj. CAvANAUGH.rWe wcjuld have^, infprination only with.referr ence to "SUch points as come jstirictJy within the. juciduction of the War ^Department, r ■ „„ , ,.u .'^, "r ^'.„'-' ..,•,■ 68 OONTEOLLEE BAY lANDS. The Chairman. How is application made to your department for the right to erect structures of any kind on such land as is under your jurisdiction? Maj. Cavanaugh. Ordinarily by a letter addressed to the Secre- tary of War, inclosing copies of plans of structures proposed to be built, and on these the department takes action. The Chairman. In the case you have spoken of have you before you the documents showing how the application was made in that case? Maj. Cavanaugh. I have not here; no, sir. It would be merely a letter from the railway company presenting plans which would show the structures to be built in navigable waters and asking for the approval of the War Department of the plans presented. The Chairman. Before granting authority would the War De- partment make any investigation as to the nature of the concern making the application, and as to whether the application was made in good faith, and whether the railroad asking for it was really a going concern, what its capital stock and its financial standing was, and all that ? Maj. Cavanaugh. As we pass merely on the question of the effect of the structure on navigation, whether or not it is obstructive of navigation, all of the matters that you have in mind are not subject to examination or investigation by the War Department. The Chairman. Is there any limitation or bounds set so that the applicant would be required to show good faith before his appUca- tion would be allowed ? Maj. Cavanaugh. If there is anything in the papers which would indicate a lack of good faith, or any doubt as to the company's pur- pose, that matter might be investigated ; but if the papers presented to us are, on their face, a bona fide application, we pass upon them as such. In other words, the other matters are entirely outside of the jurisdiction of the War Department. The Chairman. Is there anything in this particular application showing who constituted the company? Maj. Cavanaugh. I think we have articles of incorporation. The Chairman. Have you those with you? Maj. Cavanaugh. I have not. The Chairman. The articles of incorporation would show the names of the incorporators and the subscribers to the stock of the corporation, I presume? Maj. Cavanaugh. I really do not know. ^ The Chairman. Do you recall under what authority they were issued or in what State or in what locality those articles were issued? Maj. Cavanaugh. I would not be able to recall at this time. I know that one of the companies was organized in the State of Washington. The Chairman. It was organized in that State? 5^, Maj. Cavanaugh. Yes, sir. .The Chairman. Have you any recollection now of the names of the correspondents in connection with this trestk? Maj. Cavanaugh. I think we have had communications from the Chief Engineer. And I may say that ordinarily appUcations are made hj the Chief Engineer or the attorneys for flheae railroad companies. CONTROLLER BAY lAlTDS. 69 The Chaieman. The committee may ask, Major, that such in- formation be furnished as you have in your files relative to the structure of which we have been speaking. As you have no per- sonal knowledge of it I suppose it is useless to pursue that further now. Maj. Cavanaugh. It would be, yes; because I did not bring any of these applications with me. Of course, they are matters of record, but it is impossible for me tb recall about them. The Chairman. Have any other applications for leave to erect structures on territory on the Alaskan coast been made to the depart- ment? Maj. Cavanaugh. For the information of the committee, Mr. Chairman, I have prepared a memorandum of the permits which have been granted by the War Department for structures in Control- ler Bay and the neighboring waters. The Chairman. I see by the size of it that it is not very long, and I believe we will ask you to read it. Maj. Cavanaugh. All right, sir. LIST OF PERMITS OR AUTHOKITIES GRANTED BY THE SECRETARY OF WAR FOR PRIVI- LEGES IN CONTROLLER AND KATALLA BAYS, ALASKA. JULY 14, 1911. (Proposed location of structures indicated on coast-survey chart herewith.) Location. — Katalla Bay (designated as Controller Bay in permit.) Grantee. — Alaska Pacific Railway & Terminal Co. Structures. — Wharf and approach. Date of permit. — June 22, 1906. Time limitations. — Construction to begin within one year and to be completed within two years from date of permit Extension of time limit. — Grantee given new permit July 8, 1909, covering slightly different plan for wharf. (Described below.) Remarks. — Original application, dated February 26, 1906, was a request for permission to construct, operate, and maintain a trestle across tide and shore lands in Controller Bay and across Bering Lake. Now, at that time, they spoke of this as Controller Bay in their application. The Chairman. Do you understand that the application for leave to build over the mud flats out to one of Martin's Islands could be properly located under the head of Controller Bay? How would you know about that? Maj. Cavanaugh. We have the maps here. Here is their applica- tion with their structures indicated on the map. The Chairman. Was any correction made of that error in subse- quent papers? Maj. Cavanaugh. Yes, sir. The subsequent permit is Katalla Bay. The Chairman. To make clear the point in my mind to those who may look at the chart, I will ask you to state approximately how far it is from the trestle about which you have been speaking to the nearest part of Controller Bay? Maj. Cavanaugh. About 10 miles. Mr. George. In one paper it is spoken of as Controller Bay, in another as Katalla Bay, and in another it is designated in the way you have described it? Maj. Cavanaugh. Yes. That is really the western limit of Ka- talla Bay. iisi— No. 3— 11 2 70 CONTBOLLEB BAY LANDS. The Chairman. It would not be erroneous to call it the western limit of Katalla Bay? Maj. Cavanaitgh. No, sir. The essence of these permits is not in the working but in the plans and locations, so that a mere technical error as to description still refers it back to the plans, which are the things upon which the department acts. The Chairman. Provided the fact is as it is stated ? Maj. Cavanaugh. Yes, sir. The Chairman. Go on, please. Ma]". Cavanaugh (reading) : Secretary of War replied June 21, 1906, that if waterways to be crossed are navigable the consent of Congress is necessary ; if not navigable, no action by the War Department is required. Subsequent application, dated April 16, 1906, on which permit was granted June 22, 1906, as described above, requested per- mission to " construct, maintain, and operate a wharf and approach across tide lands in the waters of Controller Bay. Permit in force or no*.— Expired June 22, 1908, by limitation. Privilege used or not. — Approach built under this permit from mainland to Whale Island, but no work was done on wharf. The Chairman. Have you reached the end of the first statement? Maj. Cavanaugh. Yes; the first. The Chairman. Have you any information as to who made that application, or for whose benefit it was made ? Maj. Cavanaugh. This is for the Alaska Pacific Kailway & Ter- minal Co. The Chairman. The same one you have been speaking of? Maj. Cavanaugh. Yes, sir. The Chairman. Very well ; go on. Maj. Cavanaugh. That same company was granted an extension and modification. (Extension and modification of No. 1.) ■ Location. — Katalla Bay. Grantee. — Alaska Pacific Railway & Terminal Co. Structure. — Wharf. Date of permit. — July 8, 1909. Time limitations. — None. jeem.ajfc«.— Trestle to Whale Island was constructed under the permit of June 22, 1906 (described as No. 1, above). Permit in force or not. — In force. Privilege used or not. — No work has been done on wharf proper. The Chairman. As you say, no work has been done. You mean by that, up to the present time? Maj. Cavanaugh. Yes, sir. The Chairman. Very well; proceed, please. Maj. Cavanaugh (reading) : Location. — Katalla Bay. Groji«ee.— The Copper River and Northwestern Railway Co Structure. — Breakwater. Date of permit. — February 1, 1907. Time limiiations. — Breakwater to be commenced within one year and com- pleted within five years from date of permit. Extension of time limits. — None asked for nor granted. Bemarfcs.— Breakwater designed to protect the railway company's terminal works. Permit includes a condition that the harbor formed by the break- water shall be free to all vessels, and that no toll whatever shall be imp ' ■on account thereof. C02Sr,TB.0LiLEB BAY LANDS. 71 Permit in fwce or not. — An attempt was made to construct the breakwater, but the greater part of the material deposited was carried away by a storm, together with the construction works. The time limit for completion of the structure has not yet expired. Privilege used or not. — See preceding question. The Chairman. You are about to pass to a new one? Maj. Cavanaugh. Yes, sir. The Chairman. Have you any information at this time as to who made the application for the permit to erect the breakwater? Maj. Cavanaugh. An official of the Copper Kiver & Northwestern Railway Co. ; that is all we would know. The Chairman. Proceed. Maj. Cavanaugh (reading) : Location. — Controller Bay. Grantee. — Bering River Railroad Co. Structures. — Landing wharf and bunkers. Date of permit. — March 13, 1908. ■J'inie limitations. — None. Extension of time limits.—None. Remarks. — Permit revocable at will by the Secretary of War? Structures not to be commenced until location and character are approved by the engineer officer In charge of improvements in the -Alaska engineering district. The application of the railroad company included a request for authority also to construct a trestle across waters of Controller Bay. Secretary of War replied that authority of Congress would be required for the trestle, but that he saw no objection to granting permission for construction of landing wharf and bunkers and he therefore granted such permission. Permit in force or not. — In force. Privilege used or not. — Not used. That permit is now in force, but no advantage has been taken of it. The Chairman. How long will it continue in force? Maj. Cavanaugh. Until revoked by the Secretary of War. The Chairman. It is revocable at any time? Maj. Cavanaugh. Yes, sir. The Chairman. Does that power of revocation apply in case some of the work has been done and some rights, so to speak, obtained in that way ? Maj. Cavanaugh. This right of revocation is exercised for the protection of navigation — the interests of navigation — and if causes for revocation existed, he would not only revoke but require removal. So that even under that, from our standpoint of view, there might be an equity, but not enforceable. The Chairman. The same principle would apply that enables a citizen of Washington to compel anyone who is intruding with his building to remove the intruding part? Maj. Cavanaugh. Yes; that is the attitude of the department toward all of these structures, that where they are obstructive of navi- gation they can be required to be removed and the permit revoked. The Chairman. I presume it is also true that you have no knowl- edge or recollection of the individuals connected with this proposed trestle of the Bering River Line? Maj. Cavanaugh. I have no official information. The Chairman. Your files would give the articles of incorporation and those articles would show the names of those connected with that company ? Maj. Cavanaugh. I think that is the case, sir. 72 CONTKOLLEB BAY LAJirDS. The Chairman. Now, this proposed trestle would reach across to the Kanak Island ? Maj. Cavanaugh. Yes, sir. The Chairman. Are you familiar with Kanak Island personally? Maj. Cavanatjgh. No, sir; I am not. The Chairman. Do you know whether it is included m the forest reserve that was created by President Eoosevelt in that region? Maj. Cavanatjgh. That is quite out of my jurisdiction. The Chairman. Or whether it is a part of the land that has been restored to settlement by the Executive order of President Taft? Maj. Cavanatjgh. I would have no information on that subject, sir. The Chairman. Kanak Island is one of the pieces of land which forms the lock for Controller Bay, and makes it a land-locked body of water. Proceed, Major. Maj. Cavanatjgh (reading) : Location. — Controller Bay. Grantee. — Katalla & Carbon Mountain Railway Co. Name changed February 16, 1910, to Controller Bay & Bering Coal Railway Co. Structures. — Wharf and trestle approach. Date of permit. — October 15, 1909. Time limitations. — To be " availed of by December 31, 1910." Extension of time limit. — Time for completion extended to December 31, 1912. Remarks. — The company stated In Its application for extension of time limits, that their improvements are designed vpholly for the handling of coal, and as no coal is yet available, they desired an extension until the matter of coal-land titles is finally settled. Permit in force or not. — In force. Privilege used or not. — Not used. The Chairman. Under your practice in the department, when the name of any railroad is changed or any change occurs in the articles of incorporation, do they file with you copies of such changes ? Maj. Cavanatjgh. They would have to be the authorized grantees of the original company, but they would not necessarily furnish us with that information. The Chairman. Would they not have to furnish you with such papers to show you that they were the legal successors of the original grantee of this right ? Maj. Cavanatjgh. Yes; they would do that. The Chairman. And, of course, all of those papers you would have in your files ? Maj. Cavanatjgh. Well, I will not say that, sir, because we would treat this, or perhaps may have treated it, as an entirely new appli- cation. In other words, we would not object to giving it to either railroad ; the structure is the thing that we consider, whether it is obstructive of navigation, and pass on it purely and solely from that standpoint. The Chaiiuian. Do you know what the rule of the department is as to granting rights to a number of persons in the same neighbor- hood ? For instance, at Martin Island, if some one else came in after these particular rights had been granted and applied for other rights of similar character in that neighborhoodj would they also be grante'i rights, as a matter of course, if they did not interfere with navi- gation ? CONTROLLER BAY LANDS. 78 Maj. Cavanaugh. We would grant them authority to build so far as the department was concerned. We have had cases of contention with reference to where claimants have stated that each possessed the right to build at a certain locality. The Chairman. Would that mean on a particular location in that locality or would it mean anywhere in the locality ? Maj. Cavanaugh. The location is always indicated on the map that we approve. The Chairman. Were these contentions over the very same loca- tions? Maj. Cavanaugh. Over the very same locations. To make it per- fectly clear, Mr. Chairman, the department, in approving plans, gives no property rights, gives no right to construct, gives no right to occupy the land or the submerged lamd ; it simply gives its consent to the erection of a structure, based upon the plans which the depart- ment approves and which the department considers will not obstruct navigation. The question of right is a question that must be settled under other laws and under another jurisdiction than that of the War Department. The Chairman. If the structure is once located and it does not in- terfere with navigation, have you any further control over it? Maj. Cavanaugh. Not ordinarily. Our control comes purely from the standpoint of navigation. The Chairm'an. In other words, after the trestle is located, for in- stance, across mud flats, and the improvement has been made accord- ing to the application and according to your license, have you lost control over that particular location, and does the person who got the license have a perpetual easement in it? Can he hold it against all comers and contenders from that on? Maj. Cavanaugh. That is purely a matter of property right that you are talking about. His right to hold it against all contenders does not come from the permission of the War Department. The War Department simply determines whether the erection of the structure will be obstructive of navigation in that locality. The Chairman. Let me add to the question as I put it : Can he do that, so far as the War Department is concerned ? Maj. Cavanaugh. He can, so far as the War Department is con- cerned. The Chairman. Once he has located under the license you give you can not further interfere with him, except in cases where he intrudes on the navigable waters ? Maj. Cavanaugh. Except under the jurisdiction of the War De- partment, which pertains purely and solely to matters of navigation. The Chairman. I understand by that you mean that, so far as his possession of the mud flats is concerned, once he has located the de- partment could not interfere with him at any time thereafter? Maj. Cavanaugh. We can interfere with him at any time that it becomes necessary to discharge our duty in relation to the protec- tion to navigation and remove him. The Chairman. Perhaps you do not catch the force of my lan- guage. I limit it to the mud flats, and there is no navigation on them?, Maj. Cavanaugh. Oh, yes, sir. 74 CONTEOLLEK BAY LANDS. The Chadrman. Of what kind ? Maj. Cavanaugh. Small-boat navigation. The Chairman. Is that navigation? Maj. Cavanaugh. Yes, sir. The Chairman. Is a rowboat navigation ? Maj. Cavanaugh. A log is navigation. The Chairman. Well, I have learned something. Then you could control, under that theory, even the mud flats out to the limit of tide v?ater ? Maj. Cavanaugh. Our jurisdiction extends to the shore line, which is the limit of high water. The Chairman. Do you know what construction the department would make of the view you speak of? Have you ever known of a case where a structure interfered with navigation which consisted in the running of rowboats or logs ? Maj. Cavanaugh. Yes, sir. The Supreme Court of the United States has clearly pronounced that commerce can be carried on by rowboats or the floating of logs ; and if it is useful commerce, that the stream is navigable water. The Chairman. So, that if there were logs to be rafted or floated out to deep water there, and you chosp to interfere, you would have the right to interfere if this trestle prevented the floating of the logs? Maj. Cavanaugh. Certainly, sir; that is if the structure interfered with navigation. The Chairman. That is within your discretion? Maj. Cavanaugh. Yes; that is within our discretion and that is our jurisdiction; we can require the modification or the removal of the structure. But as to the question of property right, the right to occupy, that is another question with which the department has nothing to do. The Chairman. I understand. Well, proceed with your memo- randum. Maj. Cavanaugh. That was the last of the permits, sir. The Chairman. That covers down to the present time, so far as you know? _Maj. Cavanaugh. Yes, sir. There has been legislation, as the com- mittee knows. The Chairman. I think, Major, that you know better than the committee about the legislation. Will you kindly specify the legis- lation of which you are aware which affects the situation. The witness hands to me a copy of Public Law No. 521, H. R. 32842, "An act to authorize the Controller Railway & Navigation Co. to con- struct two bridges across the Bering River, in the District of Alaska, and for other purposes." That is the act which was passed on the 4th of March last? Maj. Cavanaugh. Yes. The_ Chairman. By the way, Major, can you locate on your charts the points of the Bering River where those bridges were to be placed? Maj. Cavanaugh. That would be definitely determined by the plans. We would not have the data as to the exact location until the plans of the bridges, which include the locations, were presented to the department for departmental action. The Chairman. Let me ask you, harking back to a matter about which you enlightened me a little while ago : If a river in my State, CONTROLLER BAT LANDS. 75 wholly in the State of Illinois, were navigable for rowboats or logs, would the United States Government consider it navigable water — that is, if it were navigable for nothing but rowboats and logs ? Maj. Cavanaugh. It has been laid down by the Supreme Court as water which serves a useful purpose and as a means of transpor- tation for public commerce, and if the stream is used for the floating of logs and useful commerce is carried on by means of gasoline boats or small boats of any character, then the stream would be held by the courts to be a navigable stream. It is a matter, in other words, to be determined by the courts. The question of navigability is a fact which the courts determine. The Chairman. I understand you to say that the courts would determine it not so much on the facts as they exist — ^that is, the flow of water, the character, the width and depth of it, as they would by the use made of it ? Maj. Cavanaugh. In the doubtful cases, which are the only ones that would probably reach the courts, the determination has been made, I think, on the use to which the stream is put. The Chahiman. But that, of course, would be on the theory, pre- sumably, that the use helped to establish the fact? Maj. Cavanattgh. Yes, sir. In other words, only the doubtful cases would probably go to the courts. The Chairman. In that view of it, can you tell the committee whether the Bering River is navigable or not ? Maj. Cavanaugh. I should say that it is not. Now, that is merely a matter of opinion. The Chairman. Hence there is no necessity for securing leave from Congress to build bridges across it? Maj. Cavanaugh. In doubtful cases we never object to having Congress define it and take the stand that it is a navigable river. Mr. Hensley. You spoke of streams over which your department has jurisdiction, and you spoke of the floating of logs, and so on, and connected that with the use of gasoline boats. Now, if logs are continually rafted on a stream, does that put it under the jurisdiction of your department, even if no boats are used on the stream ? Maj. Cavanaugh. I did not mean to connect the gasoline boats with the logging at all. Mr. Hensley. That is what I wanted to know. Maj. Cavanaugh. In other words, there are streams upon which the only commerce, practically, is the floating of logs, but those streams are considered navigable and are improved by the United States. The Chairman. Have you any knowledge of any amendment or rider, as it is called, to any appropriation act passed by the late Congress affecting Alaskan conditions ? Maj. Cavanaugh. I do not know of any; no, sir. Unless it were river and harbor legislation it would hardly come to our attention, and I know of nothing in the river and harbor act. The Chairman. Major, I call your attention to topographic map of Controller Bay region, Alaska, by the Geological Survey Service ; I think if is known as 601-A, and on it I call your attention to certain locations on the north side of Controller Bay numbered 842, 844, and 845. By looking at that map can you recall about what the situation and location is with reference to your own chart? 76 CONTROliiBK BAY LAKDS. Maj. Cavanaugh. They can be located on this chart. The Chairman. You understand your chart where these are re- ferred to? Maj. Cavanaugh. Yes, sir. The Chairman. Has there been any license or grant of any kind made by your department to anybody as to rights across the mud flats out to the navigable water of Controller Bay opposite those locations Nos. 842, 844, and 845? Maj. Cavanaugh. Apparently the permit issued to the Katalla & Carbon Mountain Kailway Co. is opposite the eastern limit of No. 845. The Chairman. When was that authority granted? Maj. Cavanaugh. October 15, 1909. The Chairman. Originally? Maj. Cavanaugh. Yes, sir. The Chairman. Has there been any renewal of that grant or was there any need of a renewal ? In other words, is that grant in effect now? Maj. Cavanaugh. That grant is in effect now, having been ex- tended to December 31, 1912. The Chairjfan. I suppose it is true that', as of the others, that you can not give the names of any individuals connected with it ? Maj. Cavanaugh. I could not, without access to the files. The Chairman. Your files will show that, of course ? Maj. Cavanaugh. Yes, sir. The Chairman. Do you know whether any action has been taken on that grant? Maj. Cavanaugh. Our latest report is that nothing has been done on that grant. The Chairman. Are there, up to this time, any applications for leave to erect structures across the mud flats or on any portion of them opposite the shore line I indicated to you as covered by these locations, 842, 844, and 845, or any of the intervening space between those locations? Maj. Cavanaugh. None have reached the ofiice of the Chief of Engineers. The Chairjian. Have you any knowledge of the existence of such, even by hearsay or otherwise? Maj. Ca-sanaugii. I have no knowledge of any having been pre- sented to the district officer at Seattle or to the Secretary of War. In other words, it would be a question of a few days. They might be presented in Seattle, or might be addressed to the Secretary's office, and then be referred to our office. But up to the present time none has been received in the office of the Chief of Engineers. The Chairman. Are there any applications for such rights on Katalla Bay that you know of in anv wav. either by filing or by henr^ny, or otherwise? Maj. Cavanaugh. None. The Chair.man. Those contained in the svnopsis which you have given us, and which will be made a part of "our record, are the only ones of which you have any knowledge of any sort ? Maj. Cavanaugh. Those are the only ones of which we have any knowledge. The Chairman. Major, in view of the act to M'hich I have referred, House bill 32842, which was passed and approved by the President controlijEB bay lands. 77 March 4, 1911, do you deem it probable that applications will be made for rights across the mud flats opposite the locations I have pointed out to you? Maj. Cavanaugh. They would logically be expected. Mr._ Hanna. But none have been made up to the present time ? Maj. Cavanaugh. None have been made up to the present time. The Chairman. This, I think, was a bill introduced by Congress- man Walter I. Smith of Iowa. Maj. Cavanaugh. I have the original, I think, sir. The Chairman. The bill which you have just handed me and of which we have been speaking, as shown by the bill itself, was intro- duced on February 17, the calendar day of February 18, 1911, by Mr. Smith, of Iowa. Am I right in my statement? Maj. Cavanaugh. You are right; yes, sir. The Chairman. That is an amended bill, based upon other bills that had been theretofore introduced ? Maj. Cavanaugh. Yes^ sir. The Chairman. Will you just give the history of it from the be- ginning; who introduced the first bill and when; what was its House number, if introduced in the House ; and so on ; so that we may locate those facts. Maj. Cavanaugh. The bill as finally enacted was originally intro- duced by Mr., Smith, of Iowa, January 17, 1911, as H. E. 30796, and in the Senate on January 9, 1911, by Mr. Piles, of Washington, as Senate bill 9864. Both of these bills were referred to the War De- partment for report, and minor amendments were suggested by that department touching matters within its jurisdiction, and the bill was reintroduced by Mr. Smith, of Iowa, on February l7, calendar day of February 18, 1911, in the form in which it finally passed. Mr. Hanna. To what committee of the House was that bill re- ferred ? Maj. Cavanaugh. Interstate and Foreign Commerce. Mr. Hanna. Have you a copy of the report that was made by the committee ? Maj. Cavanaugh. That was a public document. I have our copy here. Mr. Hanna. I would like to have go into the record a copy of the report that accompanied this bill when it was reported back to the House. The Chairman. Have you a copy of it, Major? Maj. Cavaaugh. I think I have our office copy. Mr. Hanna. Have you the number of it? Maj. Cavanaugh. I can give you the date of it. It was trans- mitted to the chairman of the committee and is a part of the files of the Interstate and Foreign Commerce Committee. Mr. Hanna. What I wanted was not the report from the War Department, but the report that accompanied the bill from the Com- mittee on Interstate and Foreign Commerce when they reported the bill to the House. Maj. Cavanaugh. I have not that report; it is a committee docu- ment, and when we reported on it our concern with it ended. Mr. Hanna. I would like to suggest, then, that the secretary of the committee be instructed to get a copy and file it as one of the exhibits. 78 CONTKOLLBK BAY LANDS. (Said report is as follows:) [House of Representatives, Report No. 2257, Sixty-first Congress, third session.] The Committee on Interstate and Foreign Commerce, to whom was referred the bill (H. R. 32842) to authorize the Controller Railway & Navigation Co. to construct two bridges across the Bering River, in the District of Alaska, and for other purposes, having considered the same, report thereon with a recom- mendation that it pass. The bill has the approval of the War and Interior Departments, as will ap- pear by the letters attached and which are made a part of this report. The bill authorizes, first, the construction of bridges over Bering River con- formable to the general bridge act, and which authorization has the approval of the War Department, and also authorizes the construction and maintenance of approaches over a right of way over the tidelands to connect the railroad on the mainland with deep water. This company has heretofore filed its definite location under the act of May 14, 1898, which is the general law authorizing the building of railroads in Alaska. There is some question under that law, which this bill seeks to over- come, as to authority for a right of way over the tidelands. It appears from the hearings and also from the letters of the department hereto annexed that there are mud flats of a distance of 2 or 3 miles between the mainland and deep water. This bill authorizes a right of way over these mud flats or tidal lands not to exceed 100 feet on each side of the center line of such extension. In addition thereto authority is granted to construct piers and docks subject to and in conformance with the conditions of the general rail- road law above referred to, which safeguards the interests of the public as to the control of the piers and docks. This bill specifically excepts granting any title to the lands covered by this extension and reserves to the United States or to any future State organized In Alaska to fix reasonable charges for the use of the docks and wharves, as well as limiting the easement only so long as the railway is operated for rail- road purposes. • Depabtment of the Interiob, Washington, Feiruary 20, 1911. Sib : I have received your letter of February 20, 1911, inclosing a copy of H. E. 32842, Sixty-first Congress, third session, to authorize the Controller Railway & Navigation Co. to construct a bridge across the Bering River in the District of Alaska, and for other purposes, and requesting the views of the department thereon, so thiit the matter may be called to the attention of the committee on Tuesday morning next. In reply, I have the honor to invite your attention to my report addressed to you February 4, 1911, on a similar measure, H. R. 30796. The new bill has been examined, and the department has no objections to offer to its passage. Very respectfully, R. A. Ballingeb, Secretary. Hon. James R. Mann, Chairman Committee on Interstate and Foreign Commerce, Hoiisr of Representatives. Department of the Interiob, Washington, February i, 1911. Sir : I have received your letter of January 21, 1911, requesting the views of the department concerning H. R. 30796, to authorize the Controller Railway & Navigation Co. to construct two bridges across the Bering River in the Territory of Alaska, and for other purposes. This bill authorizes the company named in the title to construct, maintain, and oiierafe two bridges across the Bering River : One at a point near the mouth of Stillwater Creek and the other, the lower bridge, at a point about 4 miles above Bering Lake, such bridges to be approved by the Secretary of War in accordance with the provisions of the act entitled "An act to regulate the con- struction of bridges over navigable waters," approved JIarch 23, 1906. CONTROLLER BAY LANDS. "79 The bill further authorizes the company to construct, erect, maintain, and ~ operate its railway and the approaches thereto, from the terminus of Its line on *he north shore of Controller Bay, as shown on its map of definite location, on and over the tide lands and navigable waters of Alaska in said Controller Bay to the main channel, and " to construct, build, erect, maintain, use, and operate at the end of such approaches upon said main channel, wharves, docks, slips, waterways, coal and oil bunkers as may be deemed most feasible or practicable," to be approved by the Secretary of War, in accordance with the provisions of the act entitled "An act to regulate the construction of bridges over navigable waters," approved March 23, 1906, and a right of way on, through, and over the tide and shore lands of the United States 200 feet in width to connect its rail- way with the navigable waters in said Controller Bay, under the terms and subject to all the provisions of section 3 of the act of Congress approved May 14, 1898, entitled "An act extending the homestead laws and providing for rights of way for railroads in Alaska, and for other purposes." It is possible that the language of the act of May 14, 1898 (30 Stat., 409), is sufficiently broad to authorize a railroad company in Alaska, seeking water con- nection, to construct piers, docks, and wharves, and the necessary approaches thereto, across tidal lands and lands in fact covered by navigable waters, other- wise the language of the act which authorizes the connection with water trans- portation would be practically nullified. However, it is possible that the act of 1898 does not provide for a case exactly similar to the one under consideration, in which event, of course, further congressional action is desirable from the company's standpoint. It will be observed that there are no words of grant in the proposed law. It merely authorizes the company to construct, build, erect, maintain, use, and operate a right of way on, etc., and if it is intended by the bill to make an abso- lute grant of a right of way the language employed may be ineffective for that purpose. In the event it be deemed advisable to grant a right of way across tide lands from the present terminus of the company's road on the mainland to a point some 2 or 3 miles distint, where deep water may be reached, it is suggested that the grant be limited to the lands actually necessary for maintenance of a dock or pier from the terminus of the road on the mainland to deep water, not to exceed 100 feet on pach side of the center line of such dock or pier, and that such grant be declared to be subject to all the terms limitations, and conditions of the act of May 14, 1898, including full power and authority on the part of the proper officials of the Government to accord wharfage and other privileges in front of the reserved area, as provided for in said act, and subject, also, to the right of any other company to make joint use of such dock or pier, where necessary, upon like terms to those imposed by section 3 of the act of 1898, granting the use of a right of way through a canyon, pass, or defile. I am informed by the Commissioner of the General Land Office that on De- cember 14, 1910, the company filed in the local office at Juneau a map of definite location, showing the terminus on Controller Bay and 24.847 miles of road which, with other maps of definite location, has been received in the General Land Office, but has not been examined with a view to' its approval. This department has no objections to offer to the enactment of the bill as it now stands, because it seems to merely authorize the company to use necessary tide lands for the building of a dock or pier to deep water, which is already authorized by existing legislation. Neither has the department any objections to offer to the enactment of an amended bill specifically granting a right of way if the conditions above suggested are imposed. In conclusion I would respectfully refer to my report of January 4, 1911, ad- dressed to the chairman of the Senate Committee on the Territories, on Senate bill No. 8797, for the relief of the Copper River & Northwestern Railway Co., relating to a somewhat similar situation. Very respectfully, E- A. Ballinger, Secretary. Hon. James R. Mann, Chairman Committee on Interstate and Foreign Commerce, House of Representatives. 80 CONTROLLER BAY LANDS. [Second indorsement.] War Depabtment, Office of the Chief of Engineebs, Washington, February 21, 1911. Eespectfully returned to the Secretary of War. Tlie accompanylug bill (H. R. 32S42, 61st Cong., 3d sess.), to authorize the Controller Railway & Navigation Co. to construct two bridges across the Bering River, in the District of Alaska, is understood to be intended as a substitute for H. R. 30796, concerning which I had the honor to make report under date of the 19th ultimo, a copy of which is herewith. In that report I discussed the various propositions embraced in the measure, and recommended certain amend- ments to those which pertain to the War Department. The essential features of the two bills are practically the same, but the bill now under consideration (H. R. 32842) contains the amendments suggested by me as to the navigation features of H. R. 80796, Sixty-first Congress, third session, and some additional provisions relating to those features which come within the jurisdiction of an- other executive department. So far as the Interests committed to the charge of the War Department are concerned, I am aware of no ob.iection to the favorable consideration by Congress of H. R. 32842 as a substitute for H. R. 30796. W. H. BlXBT, Chief of Engineers, United States Army. [Third indorsement.] War Department, February 21, 1911. Respectfully returned to the chairman Committee on Interstate and Foreign Commerce, House of Representatives, inviting attention to the foregoing report of the Chief of Engineers, United States Army, and accompanying Inclosure referred to. Report on H. R. 30796, referred to by the Chief of Engineers (copy herewith), was transmitted to Committee on Interstate and Foreign Commerce under date of 20th ultimo. Robert Shaw Olives, Acting Secretary of War. The Chairman. Are you occupied with any matter just now, Major. Maj. Cavanaugh. No, sir. The Chairman. I want to call your attention to a paragraph in the response made by Secretary of the Interior Fisher to the resolu- tion adopted by the Senate on April 20, 1911, which you have before you; and I refer particularly to the last paragraph, completed on page 2 of his letter. I will read it : In addition to the claims hereinbefore described, the following right-of-way applications, affecting lands eliminated from the Ohugach National Forest by Executive order of October 28, 1910, apjiear of record in the General Land Office: Right-of-way application, preliminary location, filed by the Kush-ta-ka Southorn Itiiilwiiy, August 21, 1900; map of preliminary location, Catalla & Varbon Jlountain Railway (now Controller Bay & Bering Coal Railway), filed October 2, 1909, which has been superseded by the amended location of said road, filed February 10, 1910; map of location of the Bering River Railway, filed March 25, 1909; map of location of the Controller Railway & Navigation Co., filed January 4, 1910, which has been superseded by the amended map of location of said railway, filed December 14, 1910, and plat of terminal grounds of the Controller Railway & Navigation Co., filed December 14, 1910. Does the synopsis which you give us cover all of these, or are tliere some of these which have made no applications for rights to be granted by the War Department? Maj. Cavanaugh. Some appear in this statement which have made no applications to the War Department. CONTBOLLEB BAY lAUDS. 81 The Chairman. And those who have made applications are cov- ered, are they, in the synopsis you have given us? Maj. Cavanatjgh. Those that have made application; yes, sir. The Chairman. And all that have ? Maj. Cavanatjgh. All that have. The Chairman. I think the committee will ask you to furnish us with the papers in your department showing the personnel of the concerns, so far as your files show them, which have made application or to which rights have been granted in the Controller Bay region or Katalla region. Can you accommodate the committee in that regard ? Maj. Cavanatjgh. It can be furnished; but the War Department is making copies of certain papers for the Secretary of War, as I understand, to be called for by the President. Do I understand a call will be made on the Secretary of War for these papers ? The Chairman. Well, the purpose of my inquiry was to learn from you whether it would be necessary to make a formal call, or whether you could send them here by messenger or bring them your- self, they to remain under your control all the time, and to be takeii back after examination by the committee. ,Maj. Cavanatjgh. I will be very glad to send them up or bring them up. The Chairman. This afternoon? Maj. Cavanaugh. What time would suit the committee? The Chairman. I presume 2 o'clock would be the convening hour. Any time between 2 and 4. Maj. Cavanatjgh. All right, sir; I will bring them here at 2 o'clock. The Chairman. We will be obliged to you. (Thereupon, at 12 o'clock noon, a recess was taken until 2 o'clock p. m.) AFTER RECESS. The committee met pursuant to the taking of recess, Hon. J. M. Graham (chairman) presiding. STATEMENT OF MAJ. JAMES B. CAVANAUGH— Continued. The Chairman. Maj. Cavanaugh, in pursuance of the request made to you before luncheon, will you please produce now, in such order as seems to you apropos, the papers then called for ? Maj. Cavanaugh. First is the application of the Alaska Pacific Railway & Terminal Co., which has with it a certified copy of the articles of incorporation, a copy of the minutes of the organization, and an extract of the company's minutes, showing the company's present officers. The Chairman. Are the names of the incorporators in the papers before you? Maj. Cavanatjgh. Yes, sir. The Chairman. Who are they? Maj. Cavanatjgh. James Buzzard, J. C. Jeffery, and William Wray. 82 OONTKOLLEE BAY LANDS. The Chairman. Where was it incorporated? Maj. Cavanaugh. In the city of Seattle, King County, Wash. The Chairman. What is the capital stock? Maj. Cavanaugh. $2,000,000. The Chairman. Do the papers you have before you disclose the subscribers for the capital stock? Maj. Cavanaugh. They do not; no, sir. The Chairman. One of the questions asked you this morning was, Who filed the application in that case? Can you answer that ques- tion now? Maj. Cavanaugh. The original application was filed by William Wray, apparently attorney for the company. The Chairman. If the paper before you gives you any information as to Mr. Wray's business or residence, you might tell us what that information is. Maj. Cavanaugh. The letterhead indicates that he is an attorney at law, and at that time having as his address 610 Oriental Building, Seattle, Wash. The subsequent application papers were filed by Walter Brown, chief engineer of the company. The Chairman. What does the paper before you disclose as to his business, if anything? Maj. Cavanaugh. That he is an engineer, located in Seattle, Wash. The Chairman. Is there anything else in the file concerning that corporation which answers any of the questions that were unanswered this morning? Maj. Cavanaugh. I recall nothing. The Chairman. Pass to the next one, then. Maj. Cavanaugh. Application by the Copper Kiver & Northwest- ern Railway Co., filed by the president of the company, John Eosene. The Chairman. Does the file before you disclose his residence and occupation, or any facts concerning him ? Maj. Cavanaugh. Nothing except the application dated at Seattle, and he signed it as the president of the company. The Chairman. Who are the incorporators in that case? Maj. Cavanaugh. The names, post-office addresses, and residences of each of the original subscribers to the capital stock of this corpora- tion and the amounts subscribed by each are as follows, to wit: Sbares. John Rosene, Seattle, Wash 46 Moritz Thomsen, Seattle . 1 J. D. Trenholme, Seattle 1 William T. Perkins, Nome, Alaska 1 M. M. Perl, Seattle, Wash 1 Evidently they are the incorporators. The Chairman. How many shares of stock were there ? Maj. Cavanaugh. The total authorized capital stock is $5,000,000. The Chairman. Divided into shares of how much? Maj. Cavanaugh. $100 each; 50,000 shares, with a par value of $100 each, of which capital stock $5,000 has been subscribed and paid in by the undersigned incorporators. The principal office of this corporation is located in the County Building, Carson City, Ormsby County, State of Nevada. The Chairman. Where did the articles of incorporation or the charter issue from? CONTEOLLEE BAY LANDS. 83 Maj. Cavanaugh. They are incorporated under the laws of Nevada. The Chairman. Will you point out to me, Major, the purposes of the corporation? You can do it quicker than I can find them. (The witness showed a paper to the chairman.) The Chairman (continuing). Filed December 18, 1906. This was the first one. Has there been any other charter obtained by the company ? Maj. Cavanaugh. I would not have any information as to that. Those are the articles which gave the company the necessary standing to have us pass on the plans filed with their application. Mr. George. If the incorporation made any change, would you have later information ? Maj. Cavanaugh. Not necessarily. If it became necessary for the department to take any action in connection with a change it would be developed at that time, and then they undoubtedly would file their papers. The Chairman. Have you any subsequent papers? Was any change made in their charter provisions? Maj. Cavanaugh. We have nothing else filed in the nature of articles of incorporation. The Chairman. Have you any later articles of incorporation for this company in your files? Maj. Cavanaugh. We have not. The Chairman. Nor any amendment to these amended articles of incorporation ? Maj. Cavanaugh. So far as I am able to determine, we have not. The Chairman. Major, we do not want to detain any of these papers from you, as stated to you before. I believe I would like to read into the record the object and purpose of this corporation. Maj. Cavanaugh. If it would suit the convenience of the commit- tee, Mr. Chairman, we do not consider that an essential paper in our records, and I would be very glad to loan it to the committee for a while. The Chairman. I think perhaps you had better retain it, and I "will read some of these into the record. I will read various sections of the amended articles of incorporation of the Copper River & Northwestern Railway Co., as amended December 8, 1906 : Abticle II. — Principal office and other places of lusiness. The principal office of this corporation is located in the County Building in Carson City, Ormsby County, State of Nevada. The company may have offices or agencies a:nywhere in the United States and in foreign countries. Abticle III. — Objects and purposes. The objects and purposes for which this corporation is established are : (a) To purchase, construct, maintain, operate, take on lease, and conduct one or more railroads of either narrow or standard gauge in the Territory of Alaska, to be operated by steam, electricity, or other motive power, for the carrying of passengers and freight thereon and thereover for hire, with all necessary tracks, sidetracks, spur tracks, depot, and station grounds and build- ings and equipments for the same ; also to construct, purchase, own, and main- tain public and private telegraph and telephone lines along the lines of said proposed railroads, or either of them, and to operate the same and the business thereof- and to lease said telegraph and telephone lines, or either of them, to other persons or individuals, or to contract with other persons or individuals 84 CONTHOLLEE BAY LANDS. for the construction, operation, and maintenance thereof, or of either thereof, or for either such construction or maintenance of said telegraph and telephone lines, or either of them; and to carry on a general express business in con- nection with the operation of said railroad, and to have and exercise such other powers as any railroad company may be allowed by law to exercise at present or in future. The main line of said railroad shall be constructed from some point on or near tidewater in western Alaska tributary to the Copper River Valley in a general northwesterly and northerly direction by a practicable route to a point in the vicinity of the Copper River copper fields in the said Territory of Alaska, and thence by extensions in the general direction of either Eagle City or Fairbanks, in said Territory of Alaska ; also to construct, operate, and maintain such branch and other lines as the company may think it advisable to construct, operate, and maintain, the course and direction of which said branch and other lines and the termini shall be determined by the company. (6) To exercise the right of eminent domain in the Territory of Alaska for the purpose of carrying out any of the objects of this corporation, with full power to commence, maintain, and prosecute, in any of the courts in the Terri- tory of Alaska, suits that may be necessary or required for the purpose of obtaining, through the right of eminent domain or otherwise, grounds for right of way, depot, depots, and other purposes. (c) To institute, organize, maintain, and operate lines of transportation by water outside of the State of Nevada, for the carrying of passengei-s and freight for hire, separately or in connection with any railroad or line of transportation on land; and to construct, acquire, own, lease, occupy, use, and operate canals, basins, wharves, piers, docks, elevators, shipyards, and other worlcs and prop- erty outside of the State of Nevada which may be needful or desirable in con- nection with the operation "of such lines of water transportation. (d) To erect, construct, buy, charter, or acquire in any other manner, and to operate, maintain, improve, develop, manage, repair, work, control and superin- tend any steamers, wagons trains, pack trains, wagon roads, railroads, tram- ways toll roads, wharves, and warehouses. (e) To acquire, own, lease, occupy, use, and improve all real estate and lands that may be necessary or required for the conduct of the business herein pro- vided for, and when no longer of use to sell and dispose of the same. (/) To buy, acquire, own, handle, deal in, and deal with any and all kinds of goods, wares, and merchandise that may be necessary or required in the con- duct of the business provided for under these articles. (g) To acquire by grant, purchase, or otherwise, and to use and enjoy, any and all franchises, rights, and privileges from public corporations or authori- ties which may be necessary or desirable, or to otherwise dispose of the aime. (/s) To borrow money upon bonds, notes, mortgages, or other obligations, to issue bonds and debentures, and to mortgage and hypotheciite any and all of the property, immunities, and franchises of the corporation to secure the pay- ment of the same. (i) To consolidate, merge, or unite with any other corporation or corpora- tions as may be deemed proper or necessary in the interest of this corporation. (;■) Tfi hold, purchase, or otherwise acquire its own stock, and to sell and dis- pose of the same, and to hold, purchase, or otherwise acquire, and to sell, as- sign, transfer, mortgage, pledge, or otherwise dispose of, shares of the capital stock, bonds, debentures, or other evidences of indebtedness created by any other corporation or corporations, and while the owner thereof to exercise all the rights and privileges of ownership, including the right to vote thereon. (7.) To sell, lease, charter, or otherwise dispose of, absolutely or condition- iilly, or for any limited interest, the whole or any of the property, rights, con- cessions, or privileges of the corporation for such consideration in cash, shares, or otherwise as may be deemed best, and to abandon any part of the business of the coiiioration for the time being, and to carry on any of the objects men- tioned in this article, to the pxchision of others. (/) To make and rurry into effect, or deternune arrangements with Ameri- can or foreign shipping companies or railways, proprietors, or charterers of sailing vepfcls or vessels propelled by steam or other mechanical power, and with any other persons or companies. (m) To do all such acts and things as are incidental, conducive, necessary, or permissible to or under the above objects. (n) To have, exercise, use, possess, and enjoy such other rights, privileges, franchises, and powers as may from time to time be deemed by its board of CONTROLLEE BAY LANDS. 85 directors profitable, useful, or necessary, or incidental to the powers herein enumerated, or requisite, or proper in the conduct of the business of this cor- poration. The business or purpose of the corporation Is from time to time to do any one or more of the acts and things herein set forth, as principal or as agent for any other corporation or any individual. The objects and powers specified in this article shall, except where other- wise expressed in this article, be in no wise limited or restricted by reference to or inference from the terms of any other clause or paragraph in these arti- cles of incorporation, but shall be deemed each to be separate objects or powers, and said objects or powers shall be deemed to be in furtherance and not in limitation of the general powers conferred by the laws of the State of Nevada. Article IV. — Capital stock. The amount of the total authorized capital stock of this corporation is $5,000,000, divided into 50,000 shares of the par value of $100 each, of which capital stock $5,000 has been subscribed and paid in by the undersigned in- corporators, at the par value, to wit, $100 per share. Article V gives the names of the five subscribers, whose names Maj. Cavanaugh has already given us. Article VI provides that " the duration of this corporation shall be perpetual." Article VII provides that members of the governing board shall be called " directors" and that the number shall not exceed 16 and shall be fixed by the by-laws from time to time. Article VIII provides that the capital stock shall not be subject to any assessment whatsoever to pay the debts of the corporation. Article IX provides that the board of directors and the stock- holders also shall have the power to hold their meetings outside of the State of Nevada, and the place of the meetings may be fixed from time to time by the by-laws. Article X is as follows: Article X.— State agent. State Agent and Transfer Syndicate (Inc.) is hereby appointed agent of this corporation, resident in the State of Nevada, in charge of the principal office of said corporation, to act for said corporation as its resident agent, with the duties, powers, and authority required of and given to such agent under the laws of Nevada. Article XI provides for the first meeting, which was to be held in the city of Seattle, Wash., the principal place of business of the corporation, on May 22, 1905, in Room 202, Pioneer Building, at 5 o'clock p. m., for the purpose of electing directors, adopting by-laws, accepting payment of subscriptions, and generally for perfecting the organization of the corporation. Article XII provides for the powers of the board of directors. One of the paragraphs reads : The board of directors, by the affirmative vote of a majority of the whole board, may appoint from the directors an executive committee and such other committees as they may deem judicious, and, to such extent as shall be provided in the by-laws, may delegate to such committees all or any of the powers of the board of directors, including the power to cause the seal of the company to be affixed to all papers that may require the same; and such committees shall have and thereupon may exercise all or any of the powers delegated to them. Another paragraph of Article XII provides : The board of directors shall have power from time tci time to fix and determine and to vary the amount of the working capital of the company and to direct 1181— No. 3—11 3 86 CONTEOLLEB BAY LANDS. and determine the use and disposition of any surplus or net profits over and above the capital stocli paid in; and in its discretion the board of directors may use and apply any such surplus or accumulated profits in purchasing or acquiring its bonds or other obligations, or shares of its own capital stock, to such extent as may be authorized by law, and in such manner and upon such terms as the board of directors shall deem expedient. A further provision is : No director shall be disqualified from voting or acting in behalf of this com- pany in contracting with any other company in which he may be a director or a stockholder. Mr. Hanna. From what bay did that railroad start? Maj. Cavanaugh. This is the company which attempted to buUd a breakwater. Mr.IlANNA. From what place? Maj. Cavanatjgh. It is the point I gave you, where it was at- tempted to convert Katalla Bay into a harbor. The Chairman. Have you any information as to who the stock- holders of this corporation were or how we could ascertain who they are or were? Maj. Cavanatigh. We would have no information. It would seem that they would be found in the records of the State of Washington. If they do business there, they must file their names there. The Chairman. Do any of your files show the names of the regis- trars of the stock ? Maj. Cavanaugh. All the files we have are right here, and I have not seen anything of it. The Chairman. Have you any further files concerning this par- ticular corporation? Maj. Cavanaugh. We have no others. The Chairman. What is the next application, in the order of time or the arrangement you have, please. Major? Maj. Cavanaugh. Supplemental articles of incorporation of the Katalla & Carbon Mountain Railway Co., changing the corporate name to the Controller Bay & Bering Coal Railway G>. The Chairman. What is the date of those articles? Maj. Cavanaugh. February 11, 1910. The Chairman. Who are the incorporators ? Maj. Cavanaugh. John Schram, H. R. Harriman, W. M. French, .together with Clark Davis, T. S. Lippy, and Monroe B. Rankin, citizens of the United States, and a majority residents of the city of Seattle. The Chairman. What is the amount of capital stock in that cor- poration ? Maj. Cavanaugh. $2,000,000. The Chairman. How much of it has been subscribed, and by whom? Maj. Cavanaugh. It is apparently not shown by the articles of incorporation. The Chairman. Nor in any of the files which you have with youf Maj. Cavanaugh. No, sir. The Chairman. Are there the names of any other persons given m the papers before you as being connected with the corporation in any capacity? Maj. Cavanaugh. Not in our files; no, sir. CONTBOLLEE. BAY LANPS. 87 The Chairman. Will you please let me look at the papers to see the purpose of the organization. [The witness handed papers to the chairman.] I think you told us this morning by whom the ap- plication was filed. I think your synopsis or memorandum shows that, does it not? _Maj. Cavanaugh. Simply the name of the company. I did not give in the synopsis the names of the officials. The Chaieman. Was this name, French, the name of the appli- cant in that case ? Mai. Cavanaugh. The original application was filed by Walter M. French, assistant secretary. The Chairman. Of Seattle? Maj. Cavanaugh. Of Seattle, Wash. The application for exten- sion of time was signed by H. R. Harriman, apparently dictated with a " d " after it. The Chairman. Of Seattle also? Maj. Cavanaugh. The letter was dated at Seattle. The Chairman. Have you any knowledge whether the applicant in this case and others whom he represents — that is, his company, are in any way connected with the Copper River & Northwestern Railway Co.? Maj. Cavanaugh. We have no information concerning that. The Chairman. The application was allowed? Maj. Cavanaugh. Yes, sir; and it is still in force. The Chairman. Do you know who H. R. Harriman is ? Maj. Cavanaugh. I do not, exc^;^t as indicated by the paper. • The Chairman. The letter which he wrote the War Department indicates that his office is in 812 Alaska Building, Seattle. Maj. Cavanaugh. Yes, sir. The Chairman. The paper on which he wrote is headed " Con- troller Bay & Bering Coal Railway Co." He addresses the letter to Maj. C. W. Kootz, United States Engineer, Seattle, Wash. I will read the letter: " Sib : The Controller Bay & Bering Coal Railway Co. has a permit granted by the honorable Secretary of War to construct a wharf and pier in Controller Bay, Alaska, a condition of which calls for its completion on or about the close of December, 1910. The unsettled state concerning title to Alaskan coal lands has made it necessary for us to postpone the building of this dock until tljis matter is settled. As our improvements are designed wholly for the handling of coal, and no coal is yet available at this time, we have asked for an extension of time in which to do this work. It is desired that this extension be granted until the matter of coal-land titles is finally settled. If the regulations call for a specific time to be desig- nated, we may ask until December 31, 1912, for final completion. Begging that this matter may receive your favorable consideration, I am. Yours, truly, H. K. Hakbiman. The letter is marked in pencil " O. K.," which I suppose means that the request was to be granted, or that it was granted. Maj. Cavanaugh. Yes, sir; to December 31. The Chairman. And that permit is now in force, and will be un- less otherwise ordered, until December 31, 1912? Maj. Cavanaugh. Yes, sir. For clearness I might add one thing: Under the regulations of the department where Congress, by specific 88 CONTBOLLEK BAY L.ANDS. legislation designates a grantee, the department requires the filing of such papers as are necessary to establish an identity. But where an application is made under the general law, which imposes upon the Secretary of War and Chief of Engineers certain duties, we do not require the filing of articles of incorporation, or the formal evi- dence of identity which we would require in the case of special legis- lation. So that in these particular cases these are filed simply as evidence of good faith and of standing, and are not absolutely re- quired by the department. The Chairman. This case comes under the general law and not some special act? Maj. Cavanaugh. Yes, sir; under the general law. The Chairman. What is the next appucation^ in order? Maj. Cavanaugh. I have no other formal articles of incorporation, but I have the signatures to the applications for permit of the Bering Kiver Railroad Co. for crossing Controller Bay and the construction of wharves and bunkers. That application was signed by C. J. Smith, president of the Ber- ing River Railroad, dated February 28, 1908, located at 755 Empire Building, Seattle, Wash. The Chairman. In this paper they refer to Ostalee Channel; of course they mean Okalee Channel? Maj. Cavanaugh. Okalee; yes, sir. The Chairman. In that case the trestle would lead from the south bank of the Bering River to Kayak Islands ? Maj. Cavanaugh. Yes, sir. The Chairman. How far westward or northwestward would that be from the locations on the General Land Office map, 601-A, made by Mr. James J. Ryan, Mr. Scheuer, and Mr. Davis ? Maj. Cavanaugh. About 5 miles. The Chairman. That one, then, would have nothing whatever to do with permission given to erect piers or trestles from these land locations out to deep water ? Maj. Cavanaugh. No, sir; except that it communicates with the western side of Okalee Channel when finally completed, by the wharf structures. The Chairman. It would have access to the west side of the same channel ? Maj. Cavanaugh. Yes, sir. The Chairman. But would not in any way interfere with access to the east side of the channel ? Maj. Cavanaugh. No, sir. Mr. Hanna. And could not be built across there until Congress authorized it? Maj. Cavanaugh. No conection can be made from the main land with any of these outlying islands without the prior sanction of Congress, and Congress has not yet granted any authority to build to Kayak Island. The only authority is for a bridge from the main- land to Whale Island, which has already been constructed. The Chairman. Have you any other files. Major, which were re- ferred to at the morning session? Maj. Cavanaugh. No, sir. These complete the files with reference to permits which the department has issued. CONTROLLER BAY LANDS. 89 The Chairman. When was the act of Congress passed which au- thorized the building of a trestle over the mud flats from those land locations, by the Pile bill ? Maj. Cavanaugh. To Whale Island? The Chairman. No; Controller Bay; from the point I have shown you on Map 601-A out to the Okalee Channel. Maj. Cavanaugh. I know of no legislation of that character, ex- cept a bill that was passed on the ith of March. Of course I do not know that as Mr. Pile's bill — except as the Controller Railway and Navigation bill. The Chairman. Is it your understanding that the act of the 4th of March last gives congressional permission to a trestle over the flats from the Ryan, Scheuer, or Davis claims out to Okalee Channel ? Maj. Cavanaugh. That is a matter that does not come within our jurisdiction. The Chairman. But you have granted, have you not, permission to erect the causeway Maj. Cavanaugh (interposing). W^e have not approved The Chairman (continuing). Out from those claims to deep water ? Maj. Cavanaugh. Permission, so far as the War Department is concerned, would be granted for that in any case, irrespective of leg- islation, so long as the structures are not obstructive to navigation. The Chairman. The theory on which you refused to grant it from the mouth of the Bering River to Kayak Island is that it would ob- struct navigation ? Maj. Cavanaugh. That no bridge can be built across . navigable channels except by authority of Congress. The Chairman. And that the water between the mainland and Kayak Island at that point is a navigable channel ? Maj. Cavanaugh. Yes, sir. The Chairman. And it was on that theory and that alone Maj. Cavanaugh. That alone. The Chairman. That you refused it ? Maj. Cavanaugh. Yes, sir. The Chairman. Had that been mud flats, you would not have denied the application ? Maj. Cavanaugh. It is practically mud flats. We deny it in the same way. The Chairman. That brings us back to the other case of the mud flats from these land locations out to deep water, where you have granted it. Maj. Cavanaugh. But this is not across a channel. That is clearly not across a channel. This [indicating] was clearly across a channel, because it was water lying between two pieces of land. The Chairman. How deep is that channel at its deepest part ? Maj. Cavanaugh. The slightest depth as indicated here is about 3 feet at its low water, that would be from 11 to 17 feet at extreme high water. . The Chairman. Let me refer to this proposed trestle from the locations I have been speaking of, as shown on map 601-A, again, and I wish to ask you. Major, if you have in your department or if you have seen or if you know anything about an amended map from 90 contkoij:.ee bay lands. these locations, which I might call the Ryan terminal out to Okalep channel ? Maj. Cavanaugh. So far as I can determine there is nothing of that character in the department. I have had a careful search again made, after going back from the meeting here this morning. Per- sonally, I think I saTV such a map when the legislation was up for consideration. I think the people concerned brought such a map to the department for the information of the department in reference to that legislation. The Chairman. As to the navigability of the Bering River, you testified before once that your impression was as a matter of fact it was not navigable, but that in the last resort it would be a question of law to determine whether or not it was a navigable stream. Maj. Cavanaugh. To explain that answer, I meant that it has very little navigable value. Technically it is navigable, and in view of the action taken by Congress, would probably be so regarded by the War Department. The The Chairman. You mean their action in granting permission to bridge it? Maj. Cavanaugh. Yes, sir. The Chairman. Gentlemen, are there any questions to ask Maj. Cavanaugh ? Mr. Hensley. I do not believe I have any. Mr. Hanna. I have none. Mr. ScHEUER. Did you never have a map in the department from these Scheuer claims out to the channel? Maj. Cavanaugh. No such map can be found. The Chairman. The War Department never had such a map ? Maj. Cavanaugh. Understand, I speak primarily for the Engi^ neer Department. Any map submitted, or any plans for construc- tion requiring approval, must be approved by the Chief Engineer and the Secretary of War, and any permit must show on its face the approval of the Chief of Engineers. As to whether any map has been presented in the department- in connection with other matters I, of course, can not speak with certain knowledge, but so far as maps presented for the approval of plans for structures in Controller Bay, you have every map of that charac- ter that has ever been presented to the Engineer Department, If presented to the Secretary of War, they would be immediately re- ferred to the Chief Engineer for prior action. Mr. George. We have all the maps for all the structures approved by the department ? Maj. Cavanaugh. Yes, sir. Mr. George. And nothing has been approved of that is not shown here on the maps ? Maj. Cavanaugh. Exactly. The Chairman. My recollection is that you said a few momenfis ago that you had some sort of recollection of having seen such an amended map in the Ryan matter. Maj. Cavanaugh. All I base that on is that I have a recollection of talking with the engineers concerned in the construction of piers to withstand the ice in Controller Bay; and in connection with tliat have seen certain plans of heavy concrete structures that they pro- posed to meet the conditions in Controller Bay, but their plans have OONTBOLIxBB BAY LANDS. 9l never been ripe to file with the department until their legislation has been disposed of, and thej^ never have been filed in our department. Of course, I am speaking simply from impression. There are a great many matters presented before they are ready for considera- tion by the department, and the maps are not left with us. We do not care for them until the time is ripe for us to take action on them. The Chairman. When a map comes to the department to be filed, who is the first person there who would handle it and see it ? Maj; Cavanaugh. The chief clerk. The Chairman. Naturally, in the usual course of business, who would be the next? Maj. Cavanaugh. It would go to what is known as the Kecord Division. The Chairman., And when might it reach you, or come to your knowlec^e ? _Maj. Cavanaugh. Depending on the press of business in the office, within one to three days, I should say. Mr. IIanna. From the time it was first presented ? Maj. Cavanaugh. Yes. If the office was not crowded with work, sometimes they might send it right up in a day. But they have, to make a record. The gist of the application has to be put on the necessary record card, and the disposition of the paper, to whom it is to go, indicated. The Chairman. So that a map might easily get into the depart- ment, and out of it, for that matter, without any knowledge on your part? Maj. Cavanaugh. Oh, quite true; yes, sir. Mr. George. Do you remember what engineer it was that pre- sented this map that you think you saw ? Maj. Cavanaugh. No; I do not; no, sir. As near as I can remem- ber, a delegation of several gentlemen came to the office in connection with the legislation. Mr. George. Then it was not a United States Army engineer ? Maj. Cavanaugh. Oh, not at all, sir. I am speaking more of an impression I have that those interested in the legislation came to the office while the bill was under consideration by Congress, and indicated in a way what they had in mind. We would simply looj? at the plans in such cases, and they would take them away with them. We would have no concern with them until the time was ripe for formal presentation and formal action by the department. 'Mr. George. Do you remember any one member of that delegaton? Maj, CAVANAUGri. There are a good many delegations that come around there. Mr. George. Was Mr. Kyan one? ' Maj Cavanaugh. I do not recall ever having met Mr. Ryan, al- though he may have been there. The Chairman. Where is the map referred to in Secretary Fisher's report, the paragraph I read to you this morning, the last line of that paragraph — ■ Which has been superceded by the amended map of location of said railway, filed December 14, 1910, and plat of terminal ground of the Controller Railway '&' Navigation Co., filed December 14, 1910. Maj Cavanaugh. That must be with the Interior Department. We have no concern with it until they present the plans. 92 contboiaLek bay lands. The Chairman. And can you say whether or not it has been in your department ? Maj. Cavanaugh. I can not. The Chaikman. In any way ? Maj. Cavanaugh. I can not. Our records show that it has not. Mr. George. There is nothing on the records to show that it has? Maj. Cavanaugh. The records do not show that it has. All that I want to make perfectly clear is that no plans have ever been pre- sented to us in that connection other than what I have shown. The Chairman. Major, you speak of parties coniing there who might be interested in legislation and that they might come con- cerning maps. Have you any persons or parties in mind when you make that statement? For instance, who might it be; who was it? Maj. Cavanaugh. I have no one. I am speaking of the general case entirely. We have every session many bridge bills on which early action is important to those interested, and the matter is brought to the attention of the parties with the request for expedi- tion ; or where they think the case may require some explanation in order that the department may act intelligently they frequently come to the department and explain the condition. The Chairman. Have you any particular recollection as to any- one who did come with reference to Alaskan matters ? Maj. Cavanaugh. I have none; no, sir. I might modify that slightly and say with reference to Orca Bay, or Cordova Bay, that some gentlemen did come at that time. The Chairman. Who were they? Maj. Cavanaugh. Mr. McKenzie was one. The Chairman. Was he the applicant ? Maj. Cavanaugh. I think he was one. The Chairman. Do you think of any other? Maj. Cavanaugh. I do not recall any other. The Chairman. What is your plan or system of filing. Major? Maj. Cavanaugh. To have it strictly accurate, I would have to submit a memorandum to you on that. It is quite a complicated system, Mr. Chairman. The Chairman. In a general way, when a map comes into the office what are the steps taken toward filing it, and in what order are they taken? Maj. Cavanaugh. It is marked with the office stamp, which con- tains the date of receipt, and is filed with the chief clerk and sent to the Record Division, where an .abstract of the contents of the paper, of the character of the map, are put on what we call record cards, and then after that has been done the paper is sent to the proper division in the office. The Chairman. The record made by that clerk, the abstract, so to speak, is an accurate record, is it ? Maj. Cavanaugh. Such as these. These are record cards [indi- cating] . The Chairman. To be attached later to the thing itself? Maj. Cavanaugh. No, sir. The card is filed separately from the paper. The card contains an abstract of all communications, maps, or any papers of all characters that may come up in connection with the matter. OONTROLLBE BAY LANDS. 93 The Chairman. What is the abstract now before you of? Maj. Cavanaugh. Trestle across Controller Bay and Bering Lake, Alaska. The Chairman. In order to get the system in our minds, you might read the minutes, the abstract, made of it on your card. Maj. Cavanaugh. Under the heading of " Purport of communica- tion," it says : Eefer letter of Webster, from Seattle, Wash., February 6, 1906, requesting for the Alaska-Pacific Railway, a terminal company, permission to construct a trestle across tide shore lands, Controller Bay and Bering Lake, as shown on accompanying map and blue print. Inclosing copy of this letter to Lieut. Pillsbury, of February 24, 1906. Also minutes of the organization. Then there is a note : Seven inclosures; one tracing; two blue prints. And, as to the disposition of those, it says : Thirteen and 20 to map file, flat ; 3, 34, and 36 to map file. In other words, this card indicates the purport of the communica- tion and the disposition of the papers. The Chairman. Now, what is there in that statement. Major, that would prevent or even render _ difficult the substitution? For in- stance, if that entry were made in a book it would be difficult, almost impossible, to change or substitute. What is there in this system that would prevent substitution? Suppose, for instance, a clerk made a gross error and wanted to redeem himself and make away with the first copy and substitute another; what, if anything, is there to pre- vent his doing it? Maj. Cavanaugh. He would have to forge an acceptable substi- tute for the paper, which would have to bear the file mark of the office from which it originated. The Chairman. That would be the receiving office ? Maj. Cavanaugh. From which it originated. This is the paper which came from Seattle [indicating]. It has the Seattle file mark, signed by the officer in Seattle. Now, he would have to, as I say, by forgery, make an acceptable substitute, with all the file marks which were placed on it in the sending office. He would also have to get control of those papers, which, of course, is possible, and evade the vigilance and supervision of the officers. Of course, all those things would be possible, but I think quite impracticable. The Chairman. Are you personally acquainted with Dick — or, more elaborately speaking, Richard — S. Ryan? Maj. Cavanaugh. I am. The Chairman. Have you ever met him ? Maj. Cavanaugh. No; not to my knowledge ; although I may have. The Chairman. When persons appear in connection with those matters — that is, in an official way — your records show that appear- ance, do they not? Maj. Cavanaugh. Not necessarily; no, sir. The Chairman. What is the practice, the usual practice, in that regard ? Suppose some one came to the War Department for the pur- pose of pushing his application of right to erect a trestle or a wharf or docks, or anything of that sort, under the control of the depart- ment, and he did not leave any writing of his behind him, would 94 CONTROLLER BAT LANDS. your records show the call or show what statements he made or what representations he made? Maj. Cavanatjgh. That would depend very largely on the condi- tions or the character of his presentation. At times we have made records of hearings on some important matters, but in the ordinary case we simply take such action as may seem proper. The Chairman. Do you know, as a matter of fact, whether your records show any appearance there by Mr. Ryan? Maj. Cavanatjgh. I am satisfied they do not, but I would not be able to state positively. The Chairman. Or any one representing his interests on Con- troller Bay ? Maj. Cavanatjgh. We may have letters, but we would have no record of an appearance of that sort. The Chairman. If you have letters, I made myself little under- stood if I did not convey the impression that you were to bring them. We wanted whatever communications you have relative to this matter, whether of a formal character or otherwise. Maj. Cavanatjgh. You want the entire record in the department? The CHAiRMANi No, sir ; not quite that ; but we do want the entire records of the department with reference to the Controller Bay and Katalla Harbor matter; every scrap of them. Maj. Cavanaugh. Well, I can send for them now; because I cer- tainly have not all the communications. The Chairman. Will you do so? Maj. Cavanatjgh. Yes, sir; I will do so. The Chairman. We would be glad to have them. It is scarcely worth while going into it again, and we might just as well make one bite of the cherry. Mr. Fennell desires to ask you some ques- tions. Major. Mr. Fennell. Major, in your testimony this morning you referred to certain decisions of the Supreme Court relative to the naviga- bility of rivers and streams. We would like a little more light on that question. You are aware that at common law rivers are only navigable as far as the tide ebbs and flows? Maj. Cavanaugh. That is the common law; yes, sir. Mr. Fennell. And by the common law we mean the common law of England ? , Maj. Cavanatjgh. Yes. Mr. Fennell. You know also that it happens that the common law in England agreed with the facts? Maj. Cavanaugh. Yes. Mr. Fennell. In regard to the rivers of that country ? Maj. Cavanaugh. Yes. Mr. Fennell. There are only four or five navigable rivers there, and they are only navigable as far as the tide ebbs and flows? Maj. Cavanaugh. Yes. Mr. Fennell. And hence that law was reasonable and in accord- ance with the facts ? Maj. Cavanaugh. Yes. Mr. Fennell. When we adopted and inherited the common law of England, many of our judges applied that law to the rivers of this country. Some of the States held that the Mississippi River was CONTBOLl^K BAT LANDS. 95 a nonnavigable river. That question arose in regard to, property rights, which you spoke of ? Maj. Cavanatjgh. Yes. Mx. Fennell. The difference being that the owner of land abutting upon a navigable river owns only to the water line, and the owner of land abutting on a nonnavigable river owns to the bed of the stream — to the middle of the river ; ad "medio riparia flumehis, in the language of the books. So that the largest rivers in America were frequently held to be unnavigable rivers in the legal sense. Do you mean to say that the Supreme Court of the United States has refused to fol- low that doctrine, and has applied what the late dhieif Justice calls the rule of reason ? ; ' Maj. Cavanatjgh. I think so. That is my idea. Mr. FENNEUi. That if a river is navigable in fact it is navigable in law? Maj. Cavanaugh. Yes. Mr. Fennell. And that court has gone further than that and stated, as you said, that the question of the navigability of a stream does not depend so much upon the depth of the water as upon its actual use by a commercial standard? Maj. Cavanaugh. Yes. Mr. Fennell. Whether it be by log boats or barges, or if it is navigable by the public and there are public interests involved, it is in contemplation of law a navigable stream, though there may not be a foot of water in it? Maj. Cavanaugh. Yes. Mr. Fennell. That is what I understood you to say. But when we come to examine the shore lines of the sea and arms of the sea, and navigable lakes, we come to a different state of facts, you realize ? Maj. Cavanaugh. Yes. Mr. Fennell. With regard to location of these railroads and the construction of piers and trestles in the region of Controller Bay, I will ask you at the time these applications were made if the entire shore of Controller Bay was not public land ? Maj. Cavanaugh. I think such was the case. Mr. Fennell. The title to the land was in the United States ? Maj. Cavanaugh. That would not necessarily be of record in our department. Mr. Fennell. No, sir ; consequently, the title of the land being in the United States, no one could so much as put his foot upon it with- out being a trespasser? Maj. Cavanaugh. Yes. Mr. Fennell. And still less could anyone build a dock or trestle ? Maj. Cavanaugh. Yes. Mr. Fennell. For that reason permission had to be obtained from the, proper authority ? Maj. Cavanaugh. Yes. „ . . Mr. Fennell. Now, coming to the jurisdiction of the War Depart- ment, you are concerned only with the question of fact whether or not such construction interferes with navigation ? , Maj. Cavanaugh. Yes. Mr. Fennell. You have absolutely nothing to do with the property rights there or the right to construct piers; you can not give anyone a right? 96 OONTEOLLER BAY LANDS. The Chairman. Does he agree with you ? Maj. Cavanaugh. Yes; quite. Mr. Fennell. He is agreeing with me right along. Maj. Cavanaugh. Yes. Mr. Fennell. Are you familiar with the conditions in Chicago Harbor ? Maj. Cavanatjgh. Yes; in a measure. Mr. Fennell. Do you remember that that question came before the War Department in this way : The Illinois Central Eailroad Co. had purchased the fee title to certain lots south of Madison Street in the Fort Dearborn region, and also in the canal trustees' division. Their right to the submerged land in front of these lots was held to be different frpm their rights in the submerged land in front of their right of way. They did,- without any permission from anybody, fill up many acres of land there, so as to come in contact with navigable Waters, and in that case the matter was referred to the War Depart- ment to determine whether or not they had obstructed navigation. Do you remember that ? Maj. Cavanaugh. I recall some such case; yes, sir. Mr. Fennell. And your department decided that they had not by the filling in of that land ? Maj. Cavanaugh. Yes. Mr. Fennell. And that is the only question over which your de- partment had any jurisdiction? Maj. Cavanaugh. Yes. Mr. Fennell. Now, if these strip locations are theirs, and they have obtained fee title to the shore land, they would then be in the same position that the Illinois Central line was in with reference to those lots, and they would require no permission of anybody to con- struct their trestles or to fill in the land or to dredge out the land to bring them in contact with navigable waters; is not that so, Major? Maj. Cavanaugh. That is asking me to pass on a question of law that I am not competent to do. Mr. Fennell. It is a fact as stated? Maj. Cavanaugh. That depends entirely on the law of riparian rights. Mr. Fennell. Yes ; but so far as your department is concerned, if they owned the shore land and did construct a railroad or a wharf in front of that shore land, your department would have no juris- diction whatever over the subject, except to determine whether or not they obstructed navigation? Maj. Cavanaugh. Certainly; that is the limit of our jurisdiction. Mr. Fennell. Othei-wise, they could build as many wharves or as many railroads as they pleased, and your departrnent would not bother them? Maj. Cavanaugh. Yes; that is correct. Mr. Hanna. Do you mean to say, Major, they could build wharves and trestles along this land out beyond Controller Bay without get- ting jjermission from the War Department? Maj. Cavanaugh. No, sir; that is not the question. They can not build them unless they have our approval of the unobstructive char- acter of the structure. But the counsel was talking of the right to build. We have no concern with that, and if their structure is not objectionable, so far as the War Department is concerned we would CONTKOLLER BAY LAITDS. 97 give them permission to build in front of this land. Our permis- sion is necessary ; but also the permission of the owner of the neces- sary riparian rights, which would permit them to place the structure there. Mr. Fennei/L. And if the party who wished to build the structure there was the riparian owner he would not need to get permission from himself if he owned the right? Maj. Cavanaugh. Certainly. Mr. Henslet. Let me understand this, now. You mean to say that before the War Department would give any consent or approval to these plans they must have the consent of the owners of the ri- parian rights there? Maj. Cavanaugh. Before he could build. Before he can legally build he must have that consent. Mr. Henslet. That is a question he would have to take up with those people? Maj. Cavanaugh. Yes. Mr. Hensley. And not with your department, at all? Maj. Cavanaugh. We have no instrumentalities to determine th^ question of riparian rights. It is not within our jurisdiction, Mr. Henslet. I did not think you had. Mr. Hanna. You do not pass upon that question ? Maj. Cavanaugh. Not at all. Mr. George. It is merely the question of obstruction to navigation that you pass on? Maj. Cavanaugh. Exactly. The Chairman. That has been pretty well illustrated recently in the New York harbor, by the request for the extension of the docks for those great, ocean steamers. Maj. Cavanaugh. Yes. The Chairman. And I understand some objection was made from your department to the extension of those docks as a barrier to navigation ? Maj. Cavanaugh. Purely. The Chairman. You could object to it and prevent it? Maj. Cavanaugh. Certainly. Within the limits of its jurisdiction, the right of the United States to control structures is absolute. The Chairman. But nothing else gives you jurisdiction in those matters except obstruction to navigation? Maj. Cavanaugh. Yes; its jurisdiction is for the protection of navigable waters only. The Chairman. And the theory underlying that is that some time or other, in war, you might need it for defense ? Maj. Cavanaugh. Possibly. Mr. Fennell. Major, do you know where Wolf Lake is, in Indiana, near Chicago? Maj. Cavanaugh. I have heard of it; yes, sir. Mr. Fennell. Do you know where Calumet Lake it? Maj. Cavanaugh. Yes. Mr. Fennell. I presume we have trouble enough of our own, but I want to call your attention to the fact that the Standard Oil Co. is located there. Do you know for years that interested parties have been trying to get the War Department to make them a harbor there ? 98 OONTBOLiiEB BAY LANDS. Mai. Oavanauqh. Which particular place do you mean — in Calumet Lake? Mr. Fennell. I mean first at Wolf Lake. Maj. Cavanaugh. Yes. I think the proper statement of that would be that they have been trying to get Congress to make that harbor instead of the War Department. Mr. Fenneli.. No. But has not the War Department made surveys there looking to the question of whether they would or not recom- mend such legislation ? Maj. Cavanattgh. Yes. Mr. Fennell. The point that I want to draw out by asking you "that question is this — that the same condition might arise at Control- ler Bay. It has been put in evidence that these mud flats between the shore line and navigable water could be easily dredged out. Maj. Cavanaugh. Yes. Mr. Fennell. And if this syndicate could get the War Department to dredge out this mud at the expense of the Government, for their benefit, it would be cheaper than even building a trestle? Maj. Cavanaugh. Quite true. Mr. Fennell. I think that is all I want to ask him, Mr. Chairman. The Chairman. Major, I plead not guilty to being the artist of that drawing [handing rough drawing to the witness] ; but I wish to know from you whether or not that conveys to you any idea of the situation there in Controller Bay? It is marked "shore line" and *' Okalee Channel "; and connecting the two are a number of dotted lines diverging from the shore out to the channel. Maj. Cavanatjgh. Yes. The Chairman. You understand it to mean that? Maj. Cavanaugh. Yes. The Chairman. Have you at any time in your department seen a map substantially covering the idea put forth in that little diagram? Maj. Cavanaugh (after looking at blue prints). That would be a typical development. I do not recall that I have seen anything; possibly with me sidings much closer to the end of the wharf, proper. In other words, the development would be a couple of miles of trestle, perhaps double track, and then a fan-shaped diversion of the tracks to reach the coal pockets or wharves ; hardly starting from the shore as that does. The Chairman. You mean that it would start from the land, from the shore line, by a railway? Maj. Cavanaugh. Single or double track. The Chairman. And extend that way, to within a comparatively short distance of the docks or wharves or coal bunkers ? Maj. Cavanaugh. Yes; and there make their The Chairman. Divergence ; lines of divergence ? Maj. Cavanaugh. Yes. The Chairman. I do not claim that that is in any sense accurate. It is merely to illustrate the idea of a few tracks or a track leaving the shore line, crossing over the mud flats some distance, and before reaching the main channel diverging into four or five spurs or tracks. Maj. Cavanaugh. That is such a typical development that I could not say that I have seen that with reference to Okalee Channel. CONTEOLLEB BAY LANDS. 99 The Chairman, By that do you mean to say that you have seen so many of that sort Maj. Cavanattgh. Yes. The Chairman (continuing). That if you did see one applying to Okalee Channel you would not differentiate it from others ? Maj. Cavanaugh. No, sir. In other words, when the department has handled Controller Bay matters, they have not been of the im- portance which they have assumed there recently. In other words, they would not be differentiated from the regular work of the office. The Chairman. On the map which you have, can you locate Still- water Creek at the confluence of that stream with the Bering River ? Maj. Cavanattgh (after examining chart). I do not seem to see it on this map, sir. It is not on this chart. The Chairman. Have you any knowledge of where it is? Maj. Cavanaugh. I have not. The Chairman. Have you personal knowledge of the location of Bering Lake? Ma]. Cavanattgh. None, except as it is shown by the map. The Chairman. Does your map show it? Maj. Cavanattgh. Yes. The Chairman. What would you say as to the navigable or non- navigable character of the Bering River at a point 4 or 5 miles above Bering Lake? Maj. Cavanattgh. I would have to use the Supreme Court lan- guage on that, sir ; that navigability is a question of fact to be deter- mined. I would say that in view of the legislation that Congress has passed they intend to consider Bering River as a navigable stream. The Chairman. Would you venture to give the committee an opinion, leaving the law to the court, as to the fact of its navigability or nonnavigability ? Maj. Cavanaugh. Without a knowledge of the conditions in the river, as to the shoals and declivities — ^that is, the slope — I would not be able to pass any opinion. The Chairman. And of those facts have you any knowledge? Maj. Cavanaugh. I have none; no, sir. The Chairman. Then you can not inform us. On the back of the minutes or memorandum numbered 79555 I read, " January 11, 1911. W. D. refers letter of the Senate Committee on Commerce, January 10, 1911." Then, in red ink, " I. N. C, 2 ; referring for W. D. views copy of S. 9864, 1st session." Who is " W. D." ? Maj. Cavanaugh. War Department. The Chairman. I should have said what is " W. D." Maj. Cavanaugh. That stands for the AVar Department. That is the Secretary of War's office, down at the Chief of Engineer's. The Chairman. Mr. Fennell wishes to ask you another question. Mr. Fennell. You told us in your testimony about the construc- tion (if certain works at Katalla Bay. Maj. Cavanaugh. Yes, sir. Mr. Fennell. Now, I want to direct your attention to the testi- mony of Mr. Burch, the agent of what is called the syndicate, I believe. The Chairman. The Alaska syndicate. Mr. Fennell. The Alaska syndicate. He testified in what is popularly called the Ballinger-Pinchot investigation. He testified 100 OONTBOIi.BE BAT LANDS. as to the expenditure of money there by railroads, and he was asked this question by Mr. James and gave this answer : Question. What was the purpose of the Guggaihelm syndicate, or, if I am wrong In calling it a syndicate, of Daniel Guggenheim himself, in expending this amount of money to try to build a harbor at Katalla ? Mr. Btjkch. They were ill advised by Mr. Rogers. I have read that from page 2197, volume 3. I want to ask you, Major, if that work at Katalla, and the attempt to make a harbor there, was not abandoned as impracticable, or too expensive, and if they did not for that reason transfer their opera- tion to Controller Bay? Maj. Cavanatjgh. That is our understanding, sir. Mr. Fennbll. That is all. STATEMENT OF MR. ALFRED H. BROOKS, GEOLOGIST IN CHARGE, DIVISION OF ALASKA MINERAL RESOURCES OF THE UNITED STATES GEOLOGICAL SURVEY. (The witness was sworn by the chairman.) Mr. Fennell. You are Prof. Alfred H. Brooks, of the Geolo^cal Survey ? Mr. Brooks. I do not claim the title of professor; just Alfred H. Brooks. Mr. FENNEiiL. Of the Geological Survey ? Mr. Brooks. Yes. Mr. Fenneu.. You are in charge of the Alaska mineral resources? Mr. Brooks. My official designation is geologist in charge, Division of Alaska Mineral Resources of the United States Geological Survey. Mr. Fennell. Will you please tell us, concisely, something about that terra incognita called Alaska; first, in regard to its size? Mr. Brooks. Its area is 586,400 square miles, according to the best maps we now have. Mr. Fennell. With a purpose of giving us an idea of what that means, let us have some comparisons. About how many times as large is it as all of the New England States ? Mr. Brooks. Now, if you will excuse my answering that question, it is hard to recall these comparisons. The only thing I have in mind is that it is approximately two and a half times the size of Texas. Mr. Fennell. Would it aid you, Mr. Brooks, to look at your testi- money before the Ballinger-Pinchot investigating committee? Mr. Brooks. I remember distinctly making a statement there which was found subsequently to be wrong, and that is the reason I am a little more cautious now, Mr. Attorney. I have been accus- tomed to comparing it with Texas and I do not recall the area of New England, but if I might illustrate it by considering the map of the United States on the wall, if you had Alaska superimpose on that map on the same scale, the easternmost point would toucn Savannah, Ga., the westernmost point of the Aleutian Islands would touch Los Angeles, the southernmost point would touch the bound- ary of Mexico, and the northernmost point would touch Canada. Of course, that does not mean that it is as large as the United States, but that gives you an idea of the extent of the territory east and west and north and south. CONTBOLLEB. BAY LANDS. 101 The Chairman. You are willing to admit that there is a lot of it ? Mr. Brooks. It is an enormous territory. It is continental in its dimensions. Mr. Fennell. What is the extent of the coal fields? Mr. Brooks. The area of what we class as coal-bearing rocks, the known area, is about 12,000 square miles. Now, I want to modify that. Mr. Fennell. That happens to be about the area of the English coal fields, is it not? Mr. Brooks. Yes; as I recall. And it is about the area of the Pennsylvania coal fields. May I be permitted to modify the state- ment as to total area of coal fields? Mr. Fennell.' Yes; we will come back to that. I want to follow up that idea for a moment. The English coal fields have been worked for centuries, have they not? Mr. Brooks. Yes; since about the year 1000. I think the earliest mining was then. Mr. Fenjjell. And about what percentage of the coal have they extracted ? Mr. Brooks. About 6 per cent, as I recollect. Pardon me, I can give you those figures most accurately. I have the tables here. Mr. Fennell. That is sufficient for my purpose, unless you wish to go into details. Mr. Brooks. I do not like to rely on my memory for such facts. [After examining tables.] The English coal fields show something over 6^ per cent of exhaustion. Mr. Fennell. And in all probabilityj with the present rate of con- sumption, there is coal there for centuries to come ? Mr. Brooks. Of course that depends on the rate of increase of con- sumption. The rate of increase of the consumption in England is not nearly as large as it is in the United States, but still it is increas- ing somewhat. Mr. Fennell. Well, as far as we can estimate from what we know ? Mr. Brooks. As I recall, the English coal commission of 1869 estimated then that the coal would last for one or two centuries. About 15 years later the second commission was appointed to investi- gate the coal resources, and that one declined to make any statement as to how long the coal would last. Mr. Hanna. Is that by reason of the depth of the mines? Mr. Brooks. The reason given was that there were so many un- known factors involved that they decided that it was hopeless to arrive at any conclusion as to how soon the coal would be mined out. There are many factors involved in this problem ; it is a question of export and of- home consumption and possible greater depth of min- ing in the future; so that it appeared, to these men, engineers and others, not advisable to attempt an estimate as to how long the coal would last. Mr. Fennell. Is it not generally well known that the power of England, even its naval power, its importance as a nation, has been largely affected by its coal interests ? Mr. BKOOiiS. Its modern naval power certainly would depend very .largely on its coal. Of course the old English sailing frigates must have fought their way without the use of coal. 1181— No. 3—11 4 102 CON-TEOLLEK BAY LANDS. Mr. Fen NELL. Speaking of present conditions, give some idea of the relative importance of the Alaska coal fields. Mr. Brooks. The Alaska coal fields I have described as including 12,000 square miles. That estimate, I should say, is based on a sur- vey of only about 20 per cent of the territory ; so that there is about 80 per cent yet which may contain coal. That is the reason I would desire to make a reservation on the area of the coal fields. Mr. George. Do you mean to say that there are 12,000 square miles of coal? Mr. Brooks. Of coal included Mr. George. Included in the 20 per cent of land surveyed ? Mr. Brooks. It amounts to that, approximately; but of course in places we have information that there is coal, which we have included as an approximate area, without actually having made a survey. That is, to illustrate, we make a survey along the edge of a coal field. We know pretty definitely that that coal field extends beyond the extent of our survey, say, for 10 miles, and we then include that within our estimate of total area, without actually surveying it. Mr. Fennell. What proportion of those 12,000 square miles are known to contain coal mines that could be worked ? Mr. Brooks. Of course by your use of the term " coal mines " you mean coal deposits? There are no coal mines in Alaska. Mr. Fennell. Coal deposits? Mr. Brooks. Our estimates made a year or two ago indicated about 10 per cent of the total coal field, or 1,200 square miles. Mr. Fennell. And where is that coal located ? Mr. Brooks. It is very widely distributed in Alaska. Mr. Fennell. Taking into consideration the character and quality of the coal and its location, is it not principally located in the Bering Eiver district? Mr. Brooks. No ; I should say that was hardly a fair statement of the fact. We have in the Bering Eiver field a coal field which ap- proximates from 45 to 50 square miles of high-grade coal. We have in the Matanuska region a coal field which our recent surveys have shown to include about 80 square miles, Avith a possible considerable extension beyond that, so that the Bering Eiver coal field possibly includes only about 30 per cent of the linown coal area of high-grade coal which is accessible to the Pacific seaboard. Of the approxi- mately 130 to 150 square miles of coal field underlaid by high-grade coal in the Pacific province, approximately 45 or 50 square miles is in the Bering Eiver field. Mr. Fennell. What other coal field was that which you mentioned? Mr. Brooks. The Matanuska. Mr. Fennell. The Matanuska? Mr. Brooks. Yes. Mr. Fennell. Where does that lie? Mr. Brooks. That lies about 60 miles from the head of Cook Inlet. Mr. Fennell. About 60 miles from the head ? Mr. Brooks. Of Cook Inlet. Mr. Fennell. How near is that to the coast? Mr. Brooks. By the nearest practicable railroad route, it is 185 linear miles. Mr. Fennell. What would be its natural outlet ? CONTROLLER BAY LANDS. 103 Mr. Brooks. The outlet which has been developed is on Eesurrec- tion Bay, on the eastern side of the Kenai Peninsula. The town of Seward is the terminal of the railroad. Mr. Fennell. How far is the Bering River coal field from navi- gation ? Mr. Brooks. It is from 20 to 27 miles from deep water on Con- troller Bay, and from 54 to 90 miles from deep water on 0,rca or Cordova Bay. I give those two distances to Orca Bay because there are two routes which have been surveyed. One is about 90 miles, which is an indirect route, and the other is about 54 miles, which is the more direct line. I might also add that the official name of what is often called Cordova Bay or Orca Bay. Cordova is located on Orca Bay. Mr. Fennell. It is pretty generally known that so far as the Alaska syndicate is interested m this Bering River district, it has decided upon Controller Bay as an outlet. You have brought maps here indicating the route of their railroad ? Mr. Brooks. I should not want to make any statement as to what the Alaska syndicate had decided on their route to that coal field, because I do not know. I know that they have had two routes under advisement. One was from the Pacific seaboard direct, and one was from Cordova. In the one case it would involve the exten- sion of their present railroad now built, and in the other case it would involve the building of a new railroad, and I have no means of knowing which route they have chosen. Mr. Fennell. By a new route, do you mean to Controller Bay ? Mr. Brooks. Yes. I do not know that they have ever made a survey to Controller Bay. I have no knowledge of that. I only know that they started operations at Katalla and made a survey from there. Mr. Fennell. Well, I do not want to go over the same ground twice. I read you the statement of their agent about the abandon- ment of Katalla. Mt. Brooks. Ah, yes. The only point I make is that I have no knowledge, myself, that the Alaska syndicate has ever made any survey from Controller Bay. I know that they have made surveys from Katalla and from Cordova. They may or may not have made surveys from Controller Bay; I know nothing of that. Of course that is not a matter that would come within my knowledge except incidentally. Mr. Fennell. No, not personally; but have you not produced a map which shows a railroad? Mr. Brooks. I want to explain about that map, which I think has been before the committee, and apparently has been credited to the Geological Survey. It is correct that the base map is a work of the Geological Survey. Mr. George. What map is that? Mr. Brooks. I want to explain about this map. It is a base map — No. 601-A — published by our office, on which these lines were put on by somebody, I supposed by the land office, and we are not responsible in any way at all for the survey lines of railways. I have no knowledge of them. I knew nothing of this map until I saw it printed. We simply gave them this base map, and some one added 104 GONTEOLLBE BAY LANDS. these features. I can see, now, the purpose of your question, but you see it is not within our province to do that sort of thing. We locate on our maps only the railroads actually built. Mr. Fennell. At any .rate, I will ask you to look at the map of which you have just spoken, and tell me if the map does not indicate a line of railroad from the Bering River field to Controller Bay ? Mr. Brooks. That I know not only from the maps but from my own knowledge, but as to who is backing these railroads I have nO' laiowledge. Mr. Fennell. Oh, 'yes. Mr. Bkooks. I know that railroads have been surveyed there. I do not Iniow by whom. Mr. Fennel. From the Bering River coal field ? Mr. Beooks. To Controller Bay. I know of four or five different surveys that have been made there, taking different routes. Mr. Fennell. Do you know, personally or officially, or in a general way from public notoriety, that the Cunigham coal claims are located in the Bering River district? Mr. Brooks. I am familiar with the fact that the Cunningham coal claims are located in the Bering River district. Mr. Fennell. As a matter of public notoriety ? Mr. Brooks. Not only that, but it is within my official knowledge, because I was over the Cuningham coal claims four or five years ago before anybody else knew them. Mr. Fennell. This indicated railroad, then, is needed for the de- velopment of the Cunningham coal claims, is it not ? Mr. Brooks. I have no knowledge on that. Mr. Fennell. Is it not a fact ? Mr. Brooks. The Cunningham coal claims include what I would call about 5,000 acres. The field includes about 50 square miles. A railroad there projected might be for the development of the Cun- ningham coal claims or might be for some other claims. Mr. Fennell. But it would be for the development Mr. Brooks. Of that coal field ; yes, sir. The Chairman. The coal field is known as the Bering River coal field? • • Mr. Brooks. Yes; the Bering River coal field. The Chairman. And the Cunningham claims form really only a small portion of that field ? Mr. Brooks. Yes. (At 4.30 o'clock p. m. the committee adjourned until to-morrow, Saturday. July 15, 1911, at 10.30 o'clock a. m.) CONTROLLBlE BAY LANDS No. 4 HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT OP THE HOUSE OF KEPRESENTATIVES ON HOUSE RESOLUTION NO. 103 TO INVESTIGATE THE EXPENDITURES IN THE INTERIOR DEPARTMENT JULY 15, 1911 GOVERNMENT PBINTINa OrmOE. uu EXPENDITURES IN THE INTERIOR DEPARTMENT. (Committee room No. 296, House Office Building. Telephone 591. Meets on call.) J.'Vlf ES M. GBAHAM, Illinois, Chairman. SCOTT FEEEIS, Oklahoma. FRANK W. MONDELL, Wyoming. HENRY GEORGE, Jb., New York. LOUIS B. HANNA, North Dakota. ■WALTER L. HENSLEY, Missouri. THERON E. CATLIN, Missouri. John F. McCaebon, Clerli. II CONTROLLER BAY LANDS. Committee on Expenditures IN THE Interior Department, House of Representatives, Saturday, July 15, 1911. The committee this day met, Hon. James M. Graham (chairman) presiding. There were present Representatives George, Hensley, and Hanna. There was also present Mr. W. P. Fennell, attorney at law, Wash- ington, D. C, on behalf of the committee. TESTIMONY OF MR. A. H. BROOKS— Continued. Mr. Brooks. I would like to say as to the question of the relative size of New England and Alaska, which I did not know yesterday, that Alaska is six times as large as all of New England. I also discover that I said there were no coal mines in Alaska, which is not strictly true, because there are several small mines. The Chairman. How far from Fairbanks ? Mr. Brooks. There are none near Fairbanks; they are on the coast of southwestern Alaska, some small mines, and there is also one about 100 miles northeast of Nome. The Chairman. What maps have you with you now, or readily obtainable, that we could hang up so as to illustrate the testimony as it develops ? Mr. Brooks. Well, I have a very large map which you may recall was used at the hearings last winter; I brought it down not Imowing whether you would use it or not. The Chairman. I had it in mind and would Hke to have you pro- duce it, and we will manage to hang it up on the wall so that we can have it to illustrate the testimony as it develops. Mr. Brooks. It is here in this roll [producing map]. The Chairman. Mr. Brooks, beginning where we left off yesterday, you told us somewhat of your familiarity with the Territory of Alaska. How much time have you spent there altogether ? Mr. Brooks. I have spent from two to five months every year for the last 13 years. The Chairman. Those months would be what months ? Mr. Brooks. The earUest that I have been there is in March, the end of March, and the latest has been October. The Chairman. Have you been over the entire Territory? Mr, Bkooks. No, sir; I have bieen over part of it.. The Chairman. You were there on all of those occasions and at all 9/ ^ese times in a professional, way? ■, Mr. JBrooks. I was there as a geologist of the Geolo^cal Survey. 105 106 CONTKOLLEK BAY lANDS. The Chaikman. What was your particular business? Mr. Brooks. My first five years' work in Alaska; eonsist«d~Iargely in exploration in various parts of the Territory. In the last eight years I have had the supervision of the Alaskan surveys and investigations. The Chairman. What do you mean by "exploration" in the sense in which you use it ? Mr. Brooks. Traversing, surveying, and investigating areas which previously were but Uttle known, or almost unknown. We differ- entiate our work of explorations from the actual surveys, because the explorations are made first. Most all of that work, however, has been completed, and there are only a few parts of the Territory to which the term could be properly appUed, because they have been traversed. The Chairman. The term "exploration" in that sense would mean a sort of prehminary visit with a view to determining whether it was worth while to make an official survey at that time, is that it ? - Mr. Brooks. That expresses the idea, but with this reservation, that during the course of the exploration we do make a survey, but it will not be made, however, in as much detail as the later work. The CHAtRMAN. Is there any way to designate your map for the record ? Mr. Brooks. It is a relief map of Alaska. It is the only map we have, and it was made for the Seattle Exposition. The Chairman. We will not ask you for it. Have you any blue prints of it or any reproductions of any kind ? Mr. Brooks. 1 have a photograph of it on a smaller scale; that is all; it is a wall map and not accurate as to all details. The Chairman. Could you spare us a photographic copy of it 1 Mr. Brooks. Yes, sir. The Chairman. We will be obliged to you, if you will. Using this map, will you point out to the committee the portions of iJaska which you yourself have gone over in a professional way and, if you can, in a chronological way ? Mr. Brooks. I think that would be the easiest for me. In 1898— that is, at the time of the Klondike rush — I went to Skagway, that was to the south of the White Pass Railroad. There was a party of considerable size, and we crossed the White Pass with dog teams and made our way down to the head of Lake Marsh, that being on the Canadian side. There we were forced to wait until the ice broke, and with canoes, which we had brought with us, we continued our way down the Lewes River to the mouth of WTiite River, the Lewes River being a tributary of the Yukon and the White River being a tributarjr of the Yukon. Here our actual exploratory work began. The Chairman. That was in British territory ? Mr, Brooks. That was in British territory. Now, the object of our exploration was to cover this area here [indicating on map], which was then entirely unknown, the upper Tanana and White River region. The boundary had not been determined, so that we were forced to start our surveys on the Canadian side, to be sure that we covered the area. We made our way up the White River with canoes to a stream which is not shown on this map. The Chairman. You need not go into details as to how yoa travded. CONTEOIiEB BAY lAKDS. 1<)7 Mr. Bbooes. We crossed the pass — we p&cked our canofis across— and went on down to the mouth of the Tanana. That year our surveys included the White River and the major portion of the Tanana. The following year I landed at Haines, and The Chairman (interposing). Where is that from Skagway ? Mr. Brooks. That is on a branch of the Lynn Canal. And with a pack train we made our way along the inland front of the Alaska Range through and to the head of the White River, connecting with our surveys of the previous years and surveying and exploring the tributaries from the south to the upper Tanana. We crossed the Tanana and went through to the Yukon. The Chairman. To reach the point at which you went to work, then, you had to also pass through British territory ? Mr. Brooks. At that time ; yes. The Chairman. Why did you have to do that ? Mr. Brooks. This boundary, you see, was in disputis. If our con- tention had held, most of our work would have been on the American side. The Chairman. From the place where you landed you passed northwestwardly and back to the Mount St. Ehas Range ? Mr. Brooks. Yes, sir. The Chairman. Now, at that point, please tell the committee what is the eastern boundary line of the major portion of the territory ? Mr. Brooks. The one hundred and forty-first meridian, down to Mount St. Elias over there [indicating on map]. . The Chairman. What is the particular thing that marks the boundary line at the point where that meridian ceases to be the boundary ? Mr. Brooks. Mount St. Elias. The Chairman. The summit ? Mr. Brooks. The summit. The Chairman. Of the range ? Mr. Brooks. Yes. As a matter of fact, the summit is not quite on the one hundred and forty-first meridian, to be exact. The Chairman. The summit at that point, the top of the ridge ? Mr. Brooks. The absolute summit is not quite on the one hundred and forty-first meridian, but they agreed to use Mount St. Elias as the boundary. The Chairman. I did not mean the summit in the same sense you did. I did not intend that as the very highest peak or point, but the highest part of the mountain at any particular place, the ridge, if you please. Mr. Brooks. Well, Mount St. Elias towers up so high above the adjacent mountains The Chairman (interposing). But your map shows the Mount St. Elias Range, not a single peak, but the range of mountains ? Mr. Brooks. Well, we use the term "St. Ehas" to define two topo- fraphic features, one, the range which stretches eastward from the oundary or southeastward from the botmdary, and the other Mount St. Elias, which marks the boundary. The Chairman. Which is a mountain peak ? Mr. Brooks. Yes; within the range. The Chairman. From tha-t point southeastwardly what is the boundary lin« between British and American teiritory ? 108 CONTEOLLEE BAT LANDS. Mr. Brooks. That was determined by the boundary commisaion by agreement. It follows an irregular line, as you see it indicated on this map. The Chairman. Is it in any sense a natural boundary line or entirely arbitrary ? Mr. Brooks. In some places it is a natiu-al boundary line, as at the White and Chilkoot Passes ; the passes themselves are used as the boundary. In other places they appear to have been using simply the most prominent mountain peaks and connecting them by straight lines. The Chairman. The attempt in furnishing a boundary line was to make the highest points the boundary ? Mr. Brooks. Yes, sir. Of course, iMa range here [indicating on map], -following the coast, is a mass of snow and ice capped peaks, and it is almost useless to make a detailed survey of it. The Chairman. Beginning at the extreme southeastern portion, what is the height of that mountain range ? Mr. Brooks. At the head of the Portland Canal the mountains run up to 7,000, possibly 8,000 feet. The Chairman. And as you continue northwestwardly what is the height of the range? Mr. Brooks. Near Skagway, as I recall, one peak is about 11,000 feet high. Then the St. Elias Range proper has peaks varying from eight or ten thousand feet up to the altitude of St. Elias, which is 18.100 feet. The Chairman. From the Portland Canal, at the extreme south- eastern corner of the Territory, is that mountain range covered with perpetual snow? Mr. Brooks. No, sir. The Chairman. At what points is it not ? Mr. Brooks. Only the highest peaks are covered with perpetual snow. There are, however, quite a good many large glaciers which fiU the higher valleys. The Chairman. The canyons or valleys between the peaks ? Mr. Brooks. Yes, sir. ' The Chairman. Mr. Brooks, what is the size and general appearance of those glaciers ? Mr. Brooks. We have them of all sizes, Mr. Chairman. The Chairman. For instance, with reference to the thickness of one of these mountain gorges, how thick would the body of ice be? Mr. Brooks. It would measure hundreds of feet. The Chairman. And not possible or practicable to cut through it? Mr. Brooks. No, sir. The Chairman. And if an attempt were made to do it, it would immediately fill up again ? Mr. Brooks. Yes, sir; it would, sir. The Chairman. At Skagway there is a break in the mountain range ? ]\&. Brooks. Yes. The Chairman. That is the first one as you proceed northwardly, and which it is practicable to utihze as a pass ? Mr. Brooks. No, sir. There are three breaks, three water gaps through the range, one at the Unuk River, which heads east of the main range, and a trail has been built through there. .COKTIBOXilBB BAT LANDS. ^09 The Chairman,^ At the point where the pass is, is there any Ameri- can territory to the north or northeast of that pass ? Mr. Bkooks. No, sir. The Chairman. There would be no object, then, in Americans deYelopihgi that as a sort of entrance to the country beyond the mountains ? Mr. Brooks. No, sir. The second break is the Stikine Hiver, which heads way beyond the coastal barrier. ■ The Chairman. And as to its location, what I have just said is equally true of it ? Mr. Brooks. Yes, sir. The third is the Taku River, which also heads beyond the coastal barrier. The Chairman. And in that case it would be of utiUty only to those who desired to go into British territory ? Mr. Brooks. Yes. The watershed that Ues here [indicating] is within Canadian territory, and the water gap is close to the sea there; The Chairman. How far beyond the watershed would this gap be that you speak of ? Mr. Brooks. Oh, it is a matter of, perhaps, 100 miles. The Chairman. Anyhow, the water gap you speak of is close to the dividing hne between American and British territory ? Mr. Brooks. Yes, sir. The Chairman. Then you reach Skagway ? Mr. Brooks. Yes, sir. The Chairman. When were you last at Skagway ? Mr. Brooks. Two years ago. The Chairman. Wben was the railroad built there ? Mr. Brooks. They began building it in the summer of 1898. The Chairman. How often have you been there since the railroad was in operation ? Mr. Brooks. Oh, probably four or five times. The Chairman. Do you Imow who owns or controls it ? Mr. Brooks. No, sir. The Chairman. Do you know who manages it ? Mr. Brooks. I think the president of the road is a man by the name of Graves. The Chairman. Do you know him personally ? Mr. Brooks. No, sir. The Chairman. Where is its termhius ? Mr. Brooks. At Whitehbrse, on the Lewes River, which is. the head of steamboat navigation. The Chairman. And its starting point ? Mr. Brooks. Skagway, on the coast. The Chairman. From Skagway to the boundary Ittie between Alaska and British America is how far ? Mr. Brooks. Twenty miles. The Chairman. So there would be 20 miles of it in American territory ? Mr. Brooks, Yes, sir. : The Chairman. The rest of it would be about how much ? Mr. Brooks. Eighty-two miles. - The Chairman. In British territory ? Mr. Brooks. Yes, sir. The Chairman. What is its principal business ? . . 110 .C0KX110IX.br bait LA.KDS. Mr. Brooks. Its principal bxisiiiess in the past has bieea to supply the placer camps of the Yukon — Dawson, primarily, which is on the Canadian side. The Chairman. Point to Dawson on jour map. Mr. Brooks.. Dawson is on the Yukon River about 60 miles above the international boundary, perhaps 100 miles. The Chairman. Sixty to one hundred miles east of the meridian line? Mr. Brooks. It is hardly 60 miles directly east, a little less than that. The railroad was built to supply the Klondike gold placer district. The Chairman. Indicate with your pointer, Mr. Brooks, the EJon- dike region generally. Mr. Brooks. It is the region tributary to Dawson and embraces the drainage basins of the EHondike and some of the tributaries of the Stewart River, lying to the south. The Chairman. Has this railroad much, if any, other business than carrying machinery and other necessaries to this placer mining region, and food and persons ? . Mr. Brooks. There are a number of smaller districts on the Cana- dian side which are supphed by this railroad. Near White Horse there are some copper deposits, and there is the Atlin placer district, and at Caribou there is a small lode mining district. The Chairman. Are the copper deposits to which you refer being worked at all ? Mr. Brooks. They have developed them to a small extent. I think some copper ore has been shipped over the railroad. The Chairman. Do you know who is doing that ? Mr. Brooks. No, sir. The Chairman. Where is it being shipped to ? . Mr. Brooks. Presumably to one of the Canadian smeltera, dovm on Vancouver Island. The Chairman. Do you know who controls them ? Mr. Brooks. No, sir. The Chairman. Do you know the name of any of them — the com- panies controlling them? Mr. Brooks. I could not be sure as to the exact names. There is one called the Tyee smelter. I am not sure. They being on the Canadian side, I paid little attention to them. The Chairman. How much business is this Skagway and White Pass Railway doing ? A pretty good business or just a little 1 Mr. Brooks. In the days when the Klondike was producing a large amount of gold, they had a very great deal of business in carrymg sup- plies in there, but since then the business has fallen off very materially. Of course, the railroad also supplies, to a certain extent, the camps on the American side of the iaternational boundary. The Chairman. Within reach of the Yukon ? Mr. Brooks. Yes, sir. Emergency supplies and passenger traffic. The Chairman. Are there any a,gricultural interests in tk« region reached by this road or its boat connections ? Mr. Brooks. Nothing has been developed of any considerable amount. About Dawson there is considerable gardening and raising of potatoes and hay. The Chairman. For lacaJ, use, however ? CONrBOLUER BAY LANDS. J, 11 Mt. BjiQQi^. ,Yes; there is no exnort of agricultural, products. The Chairman. To what extent does the gold, in quarititiess to pay for operating, extend across the line into AmiBrican territory there? Mr. Brooks. The region which is bounded by the Yukon on the north and west and by the Tanana on the south. That includes a number of placer-bearmg districts of which Fairbanks is, of course, the most important. It has the largest production. The Chairman. Your map would indicate that the region you have described is quite mountainous in character. Mr. Brooks. It as an upland region; they are not high ranges; it is a country that is very easily traversed either by a wagon road or a railroad. The Chairman. Is "there any gold in quantities that would^ay for working it south of the Tanana, in the neighborhood of the Wrangell Mountains ? Mr. Brooks. No, sir; there has been no gold mining in the immediate vicinity of the Wrangell Mountains. Within the Copper River basin there are two placer districts, one the Nizina and one the Chistochina. Both of those districts have produced considerable fold, and both probably contain a considerable reserve which will e developed as they get cheaper transportation; that is, the region immediately to the south of Fairbanks, in the so-called Bonnineld district; there are also gold deposits in the so-called Valdez Creek district. The Chairman. I do not wish at this titfle to invade the interior territory^ reached through some other pass than the Skagway and White Passes. Passing now northwestwardly along the coast, where is the next available opening through the mountain range ? Mr. Brooks. Along the valley of the Chilkat River. The Chilkat empties into Pyramid Harbor, which is a part of Lynn Canal. There is a pass at the head of the Chilkat which is probably in the neighborhood of 3,500 feet high, and from there on there is an admirable railroad route which follows the St. Elias Range into the head of the Tanana. The Chairman. Through British territory ? Mr. Brooks. Yes; about 200 or 300 miles of it lies through British territory. The Chairman. What is the lowest altitude which is practicable for a railroad ? Mr. Brooks. The highest The Chairman (interposing). Well, the highest. We will put it that way. What is the limit of altitude which would make a practi- cable opening for transportation purposes ? Mr. Brooks. I should say there was no practicable limit in the absence of glaciers. Some glaciers, as you understand, reach nearly to sea level and might cut off a railroad route altogether. Then, again, we have mountain passes which are up to 4,000 to 5,000 feet. The Chairman. Would snowsheds be necessary for railroads at those places in the absence of glaciers ? ;-.- Mr. Brooks. The snowfall on :the coaSt side of this range is very . heavy, and any railroad from the Pacific seaboard which penetrates the interior would have to utiUze snowsheds to a certam extent. After the coastal barrier has been crossed the snowfall is light. 112 CONTBOLtfiB BAY LA2*DS. The Chairman. The traffic would have to be comparatively he»vy to justify the expense of building and maintaining snowsheds ? Mr. Brooks. Well, it would be a part, of course, of the expense of installing the road.. It would necessarily be more expensive than similar work in the more accessible regions. The Chairman. Do any of the railroads now in operation there require snowsheds at any point ? Mr. Brooks. The White Pass Kailroad has a considerable number of snowsheds along its course. Right on the summit there is an extensive snowshed; I am not sure whether they have a snowshed on the glacial side of the divide or not. The Chairman. Are there any glaciers in the opening you referred to at Chilkat « Mr. Brooks. No, sir. The Chairman. How far is it from tidewater to the boundary line at that point ? Mr. Brooks. By the Chilkat River proper I think it is about 30 miles; it is a httle nearer following the west fork of the Chilkat. The Chairman. Then to reach American territory in the Tanana you would have to go 200 or 250 miles through British territory? Mr. Brooks. Yes, sir. The Chairman. And how much American territory would be reached when you did get to it ? Mr. Brooks. Well, sir, that would depend, of course, on how far you built your railroad. The Chairman. You could go clear down the Tanana River Valley if you chose ? Mr. Brooks. Any railroad which was intended to develop Ameri- can territory and, following, that route, would naturally be built through to Fairbanks, and then might be extended through to Yukon, and then afford an admirable opportunity to develop the entire Tanana Valley. The Chairman. By means of utilizing the Yukon for navigation purposes in that connection ? Mr. Brooks. Yes; of course, the connection would be with the Yukon to reach other points. The Chairman. Well, what is the parallel of latitude that marks the boundary line between British and American territory east of the one hundred and forty-first meridian ? Do you follow me ? Mr. Brooks. No, sir. The Chairman. Is that the boundary hne [indicating on map] ? Mr. Brooks. No, sir. That is the boundary between American territory and British Columbia. The Chairman. But that is in British territory ? Mr. Brooks. Yes, sir. That is the sixtieth parallel. The Chairman. Well, what is the latitude at the point that the one hundred and forty-first meridian ceases to be the boundary line to the southern extremity? Mr. George. The summit of Mount St. Elias ? The Chairman. Yes. Mr. Brooks. Probably the latitude of 60°; it is a little north of that; I could not give it exactly. The Chairman. Passing northwestwardly still what is the next practicable opening through the mountain range ? CONTR0L.L.ER BAY LANDS. 113 ■': Mr. Brooks. There is a break in the mountains which is traversed by the Alsek River, about 50 miles east of Yakutat Bay. I suppose there is no question that a railroad could be built through there, but 'I do not regard it of any commercial' importance, because the ocean terminal would be a long distance from any good harbor. The Chairman. And at that point the strip of land belonging to America is probably the narrowest ? Mr. Brooks. Yes. The Chairman. So that any railroad built there would be on land almost in British territory ? Mr. Brooks. I think it is outside of any practicable route. The Chairman. Is there any point along that strip where tidewater reaches British territory ? Mr. Brooks. Up in Glacier Bay, since the boundary was estab- lished, the glaciers have been movmg back very rapidly, and now The Chairman (interposing). Toward the interior ? Mr. Brooks. Yes. And now it looks as though within a compara- tively few years the tide would actually reach across the boundary. The Chairman. And what is the character of the bay ? Mr. Brooks. It is an ice-bound bay. It is famous for its glaciers, with a high range to the north of it. The Chairman. Would it evermake a practicable harbor; that is, in any appreciable time ? Mr. Brooks. I think we would have to wait at least 100 years until the ice retreated farther. The Chairman. Then that can not be proved by any of us, whether it is practicable or not. Passing along through the line, what do you come to next as an opening througk the range that is practicable ? Mr. Brooks. The Copper River. The Chairman. Indicate on the map with your pointer where it is and trace it to the interior. Mr. Brooks. The Copper River enters the sea a little bit east of the one hundred and forty-sixth meridian. The Chairman. Where is it with reference to the towns of Katalla and Cordova ? Mr. Brooks. The river itself is about halfway between those two towns, which are probably 50 or 60 miles apart. Its lower course is through the so-caUed Chugach Mountains, which form the western extension of the coastal barrier or of the St. Elias Range. About 100 miles from the sea it enters a basin at a point where the Chitina River flows in from the east. Above that is a broad depres- sion, which is bounded again on the north by a high range,, the so-caUed Alaska Range. The Chairman. What is the name of the range of mountains that lies between the Copper River and its principal tnbutary, the Chitina ? Mr. Brooks. I presume you refer to the Wrangell Mountains, which are a volcanic mass in the great bend of the Copper River. The Chairman. Why is the Copper River so named? Mr. Brooks. It is the translation of the Indian name for copper, which is, I think, Chittitu. The Chairman. So that the Copper River and its chief tributary, the Chitina, really bear the same name 1 Mr. Brooks, xes. The Chairman. And both mean copper ? 114 CONTROLLER BAY LANDS. Mr. Bbooks. They have the same derivation. The natives Tor many years secured their supply of copper,"wMi5h they used for arrow heads and other purposes, on the upper ^waters of the Chitina River, The Chairman. What is the distance, approximately, from the Chitina across to the Copper River along the northern side of the Wrangell Mountains ? I want to get approximately the size of the basin oetween the two rivers ? Mr. Brooks. Including the Wrangell mass ? The Chairman. Yes; about how far is it? Mr. Brooks. I suppose that area there is about 100 miles. The Chairman. Are you familiar with it ? Mr. Brooks. I have been on both slopes of the Wrangell Range; yes, sir. The Chairman. How often ? Mr. Brooks. Well, I have made three trips into that general region; I did not duplicate any part of my trips; no part of my pre- vious journeys. The Chairman. They were professional trips ? Mr. Brooks. Yes, sir. The Chairman. Tell us something about the copper deposits. Mr. Brooks. On the south side of the WrangeU Mountains there is a belt stretching from possibly the international boundary —we do not know how far eastward it goes — but stretching anyway from Nizina westward, along the southern base of the Wrangell Mountains, a distance of, say, 150 miles, and within that belt maiLy copper deposits have been found. The Chairman. In what form is the copper ? Mr. Brooks. It occurs both as sulphide ores and as native copper. The important deposits on the south of the Wrangell Mountains show that they are chiefly sulphides; that is, bornite, chalcocite, and chalcopyrite. Those are the chief minerals. There are some native copper deposits, but their commercial importance has not as yet been definitely established. The Chairman. What do you mean by native copper ? Mr. Brooks. That is metallic copper, not combined with any other element. The Chairman. Where is it to be found ? Mr. Brooks. It occurs in the same belt. , The Chairman. Is it on the surface or is it covered up ? Mr. Brooks. The deposits that were first developed by the natives themselves were in the gravel which would rise from the bed-rock source of the ore. I might say that the native copper is compared to the deposits in the Lake Superior region, which are also native copp^ deposits. The Chairman. The use of the work "native" in connection wiUl the word "copper" means just what? Mr. Brooks. It is simply metallic copper. The Chairman. It is almost equal to saying pure copper ? Mr. Brooks. Yes, sir. The Chairman. And does nftt have to be refined ? Mr. Brooks. It does not have to be refined, no. sir. Well, of course, it is refined, as there are some impurities in it. Mr; George. About what percentage is pure copper ? CONTROLLEE BAY LANDS. H5 Mr. Brooks. Well, there is only a small per cent of impurities; I think that is the easiest way to express it. Silver and other metals are often found in it. The Chaieman. Now, what area in that neighborhood is rich m Gbpper, either in the native state or in the other ? Mr. Beooks. Well, the belt that I have -described has copper deposits atofig it^ -entire lenl^fc lido not Ispiowthat I could make a definite statement as to that, that any one part was richer than another. The developed part lies at the eastern end. Th« Chaieman. Is there any place there, or any way by which you could locate the eastern end that joii speak of ? Mr. Beooks. Yes; that is near the head of the Chitina and near Nizina. The "Chaieman. You, of course, have been up the Copper River Vallej' or gorge, whatever it is, and the Chitiiia? Mr. Beooks. Yes, sir. , The Chaieman. Is that the way you went to this copper region when you went ? Mr. Beooks. Yes, sir. The Chaieman. What means of transportation was there the last time you went ? Mr. Beooks. I might say that my visit to the Chitina copper belt has been very recent; the other trip was made a number of years ago, on the north side of the range: so I have only made one trip up this part of the Copper River. The Chaieman. When was the recent trip made ? Mr. Beooks. That was made two or three years ago ? The Chairman. At that time how far did the railroad extend ? Mr. Beooks. Fifty-one miles, as I recall. The Chaieman. Have you any knowledge how far it extends now ? Mr. Beooks. Yes ; it extends through to the vicinity of the Nizina, 196 miles. The Chaieman. When was it completed that far ? Mr. Beooks. I think in April or March. The Chaieman. Of this year ? Mr. Beooks. Yes. The Chairman. Do you know whether copper is actually being carried by that railroad' from the copper belt ? Mr. Beooks. Yes, sir. The Chaieman. To where ? Mr. Beooks. It is being shipped to Cordova on Orca Bay. The Chairman. What is the point to which it is brought on the coast ? Mr. Beooks. Cordova. The Chairman. Do you know where it is taken to from there 1 Mr. Brooks. Mr impression is that it is taken over to the Taeoma smelter. The Chaieman. In Washington ? Mr. Beooks. Yes; in the State of Washington. The Chairman. And oi course it is brought over the Copper River & North western. Raalway to the coast at Oordevai Mr. Beooks. Yes. . The Chaieman. How .much distance would you say would be saved hy taking it by way of KataUa and Controu would give the committee a pretty good, clear idea of howtms coal hes there. For instance, does it crop out on the mountain sides so you can see the depth of a vein at any particular point ? Mr. Brooks. In the first place, the region is very rugged, with steep sloping mountains. That is, when ;y ou get into the coal fields, after you cross the gravel flats which border Controller Bay, and on these slopes, and especiallj on the spurs and ridge tops, you see these outcrops of coal, which are irregularly spaced, of course, depending, on the amount of rock that is in between the coal beds, and they dip into the hills; but occasionally ^ou find evidence that they come up agaia. That is, a coal bed will dip into one side of a ridge and come out on the other side. In other words, we find that they are very closel> folded, and in some cases we find that they are broken by faults. There has been an actual fracture in the coal and one part of the bed has moved away from the rest of the bed. The Chairman. How near the surface are they workable ? Mr. Brooks. There is only a very few feet or a few yards at the most, especially on the steep slopes. The talus from the hilltop i& mixed with the coal. You have to go beyond that point before you get good coal. The Chairman. What would be the most economical way of getting the coal out — by shafts going straight down or by drifts or stopes ? Mr. Brooks. I think I had better not try to reply to that because it is a question for a mining engineer, and I am not famihar en'ough with it to give an opinion that would be of dhy value at all. The Pennsylvania anthracite is mined in both ways, and this is perhaps more comparable to the Pennsylvania anthracite than any coal we have in the East. But in Wasmngton we have coals similarly folded, and there they are worked by tunnels very largely. The Chairman. What is the mountain range paraUehng the Pacific coast in Washington and Cahfornia west of the Rocky Mountains ? Mr. Brooks. The Cascades. The Chairman. That is the name it is commonly known by there ? Mr. Brooks. Yes, sir. Mr. George. Does that run into California, too ? Mr. Brooks. Yes. Mr. George. That is the Coast Range, is it not ? Mr. Brooks. You have the Sierra Nevada and the Coast Range'. Mr. George. And the Sierra Madre, too ? 1181— No. 4—11 3 136 OONTHOIiLEB BAT LANDS. The Chairman. What amount of coal is there in that part of the United States ? Mr. Brooks. The area in the State of Washington is given as 1,100 square miles and the total estimated original coal supply is 20,000,000,000 tons. Those figures were made some years ago. Since the nmore detailed surreys have been made, and so I presume they have increased, because the surveys always develop more coal, and in the case of estimates we always try to err on the conservative side. The Chairman. Wliere were those coal beds ? Mr. Brooks. I think possibly I misled you in that statement. You asked me about the coal fields west of the Cascades. The Chairman. Yes. Mr. Brooks, The only figures I have here cover the whole State of Washington, and so, of course, there is a good deal of coal in the central part of the State. The Chairman. I believe I prefer the answer as you have given it. Are there any other coal beds on the Pacific slope ? Mr. Brooks. There is an area of 230 square miles in Oregon that is right on the seaboard, with an estimated tonnage of 1,000,000,000 tons, I think, and in California there is, according to a rough estimate, 500 square miles, with a billion tons. The Chairman. What is the character of that coal? Mr. Brooks. The California coal is for the most part a very low- grade coal; but recently there have been some discoveries south there of fairly good bituminous coal. I don't know much about it. The Chairman. In California, you mean? Mr. Brooks. Yes; in California. It is quite a recent discovery. I do not think there is very much of it. The Chairman. In your figures this morning you took into con- sideration the probability of coal being shipped to the Pacific coast through the Panama Canal when it is ready for shipments through it. Why is that necessary, if there is so much coal on the Pacific slope? Mr. Brooks. Well, the Pacific slope coal is all of comparatively low grade. There is a little coal in western Washington which is bitu- minous, but most of the California coal is either subbituminous or lignitic, and the demand out there for high-grade coal is such that coal has been shipped from the Eastern States to a certain extent, and coal has been brought from other countries. The Chairman. Will you give us a practical illustration of the difference between bituminous and subbituminous coal. Mr. Brooks. It rests on the amount of fixed carbon. I do not recall the exact classification, the exact division line, but a sub- bituminous coal, you might say, would run 50 per cent fixed carbon, and bituminous coal, say 60 per cent fixed carbon, and a higher grade bituminous coal 70 per cent. So it is a question of the percentage of fixed carbon. The Chairman. Do you know whether there is any shipment of anthracite coal overland to the Pacific slope ? Mr. Brooks. When I investigated that matter a year or two ago I never found that there was any shipment overland to the Pacific coast, but there is a little carried around by steamers from the Pennsylvania anthracite field and from England. CONTBOUiBE BAT liANDB. 137 The Chairman. Let me see if we understand each other. Did you include the Washington and Oregon coals in your classification as low-grade coal? § Mr. Brooks. Yes; comparatively so. There is a little coal in western Washington which runs up to about 60 per cent fixed carbon and perhaps a little higher, which can be classed as bituminous coal; but it does not seem to be in large enough quantity to supply the demand, and, moreover, one of the demands in the form of fuel there is for coke, and there is very little coking coal out there, and there- fore that had to be brought from a distance. Mr. George. Coking coal is bituminous coal ? Mr. Brooks. Yes. The Chairman. As far, then, as the higher grade coals are con- cerned, the competition would be between Alaska, if the Alaskan mines were opened and in operation, and the eastern coals. Mr. Brooks. Yes, that is true, so far as the high-grade coals are con- cerned. Recently, there has been a little Chinese coal brought into the west coast market, and I presume that is of a high grade, although ITiave not been able to find out. Mr. George. They have anthracite coal ? Mr. Brooks. Yes, but I think it is not mined. It is bituminous coal I think., Mr. Hanna. How about the coal in British Columbia ? Mr. Brooks. The British Columbia coal is of somewhat higher grade than our State of Washington coal, but its fuel value as com- pared with the Alaska bituminous coal is 25 per cent less. Mr. Hanna. Is there a large area of it? Mr. Brooks. No; there is not. I have not been able to find out how much there is, but I do not think there is any very great quantity of it. The Chairman. When you get up into the Yukon country in British Columbia and back there, is there any coal, for instance, in between Skagway and Dawson, up that way ? Mr. Brooks. There is. some coal near White Horse, a little high- grade coal, and a good deal of sub-bituminous and lignitic coal. The Chairman. Is that on the railroad there ? Mr. Brooks. Some of it is close to the railroad. Also some on the Lewes River, between there and Dawson, which is mined and used somewhat by the steamers. The Chairman. Does any gentleman wish to ask Mr. Brooks further about this feature ? I was about to pass to another point. Mr. Brooks. There is one statement I wanted to add to my last one. You spoke of competition with the Alaska coal. I understood you to mean competition with coal. Of course, the most competition IS with the California oil. That is the thing that the Alaska coal would have to compete with. Mr. George. I would like to ask about this coking coal. How does that compare in quality with the Connellsville coking coal of Pennsylvania ? Mr. Brooks. I think it would hardly be as good a grade. Mr. George. The Connellsville coal is the best coking coal there is as I understand it. Mr. Brooks. Yes. Mr. George. Have any tests been made that you know of ? 138 dbNTEOLl.EE BAY lANDS. Mr. Brooks. One of our geologists in the field made a rough test. He improvised coke ovens and coked some of that coal. I might say after that that the Bering River coking coal is probably not as good as the Matanuska field. Mr. George. But this in the Bering field is nevertheless first-rate coking coal ? , Mr. Brooks. Some of it is; yes. The distribution of coking coal is peculiar. You may have one bed of coal which is coking and one close to it that is not so good. But some of it is a low-grade coku^ coal. Mr. Hanna. . Are there large areas of lignite coal up in that country ? Mr. Brooks. In Alaska; yes; enormous areas. Mr. Hanna. Is that about the sai^^e character as the lignite coal of Texas and Montana and the Dakotrs ? Mr. Brooks. We have all grades. We have some inferior and some very good lignites. I can not make a definite comparison. I would say a good deal is probably about the same grade as that of the Northwestern States. The Chairman. You are not able scientifically to estimate the oil sui'T'ly as you can the coal supply? Mr. Brooks. No, sir. The Chairman. You do not know a grea| deal more than a layman about the quantity of oil in a given field or when it may be exhausted ? Mr. Brooks. After a field has been opened up and a large number of holes put down it furnishes some basis for estunating the size of the oil pool. I know very little about the matter. I have had no per- sonal experience in any of the oil fields in the States; but after a field has been developed it is possible to arrive at some sort of an approx- imation, but it is very different from estimating the tonnage of a coal field. The Chairman. And the approximation is not much more than a guess? Mr. Brooks. Not much more than a guess. The Chairman. Then, it might be that volcanic action or something akin to it would even stop the flow altogether ? Mr. Brooks. I would doubt that. It is not likely, because you have these pools down there, and if one hole was stopped up in some way you would put down another one and reach the same pooL Mr. George. Were you asked as to the quality of the oil? Mr. Brooks. The quality compares with our eastern refining oils. It is a heavy, base oil. Mr. George. Does it compare favorably in quahty with the Pennsylvania and Ohio oils ? Mr. Brooks. Yes; it compares with the Pennaylvania oils. It is a heavier oil than the CaUfornia oil. Mr. George. Commercially it is a better oil ? Mr. Brooks. If you want a refined oil. It is a better refining oil. As a fuel oil I do not know that it has any advantage over the lighter oil, but if you want to refine it and get the products out of it it is a better oil. The Chairman. Passing along the Alaska coast westward from Cordova, what is the next stopping place through which- we can get easy access into the interior ? Mr. Brooks. I spoke this morning of Valdez, so I do not know that it is necessary to repeat that. CONTEOLLEE BAY LANDS. 139 The Ohaieman. Valdez and Cordova depend on the Copper River for their access to the interior? Mr. Brooks. Yes. The Chairman. If there were 20 raih'oads from the coast leading to the interior from that part of the shore they would all have to concentrate in the Copper River Gorge and go through it ? Mr. Beooks. T here is one exception. By building a railroad from Valdez over the Ihompson Pass you would reach tlie Copper River above that gorge and avoid it altogether. Using Marshal Pass you come down into the gorge and follow the Copper River through the so-called Woods Canyon. The Chairman. Has the Thompson Pass been utilized^ Mr. Beooks. Yes — that is, the route that the military road from Valdez to Fairbanks takes. The Chaieman. Is the road still there? Mr. Beooks. Yes, sir. '1 he Chairman. How high is the pass above sea level? Mr. Beooks. Approximately 3,000 feet. I can not be sure of the exact elevation. ihe Chairman. Mr. Brooks, what would you say would be an equivalent elevation here, this being about latitude 40, I think, and that latitude -61, in the matter of temperature and vegetable growth and general conditions; what altitude at this latitude would be equivalent to an altitude of 3,000 feet in that latitude? Mr. Brooks. It is pretty hard to make a comparison of that kind, as the conditions are so different. At Valdez, for example, the timber line is probably 300 or 400 feet above the sea level. The Chaieman. For all grades of timber ? Mrr Beooks. Yes. I may be mistaken as to Valdez, because that is a sheltered valley and it may run up to a thousand feet, but I know on Prince William Sound the timber line is only a few hundred feet above sea level. The Chairman. What is the hardiest of the trees ? Mr. Brooks. Spruce. The Chairman. Does it beat the alder ? Mr. Brooks. I did not include the alder in the timber. I was thinking of timber that has a value. The Chaieman. The alder is not a tree ? Mr. Brooks. No. The Chairman. On Pikes Peak it is the last of the trees as you go up. Mr. Brooks. Yes. In Alaska we have above the limit of the trees the birch, but it is a bush and-not a tree. The Chairman. To illustrate the point I mean — although I am sure you get my thought — the old textbooks used to tell us about the conditions in Teneriffe, one of the Canary Islands. There, at sea level, we find almost tropical conditions, and the island is surrounded by favorable ocean currents ; it is a volcanic mountain ; at the base of the mountain are to be found tropical fruits and a little higher up the products of the temperate region, such as wheat; a little higher, oats; a little higher, other products, and then the various trees according to their hardiness, and finally no trees, but vegetable growth, and, last of all, hchens and mosses; then all vegetable growth disappears. Now, that is what might be called a duplication of what occurs as you go from the Equator north — going into higher latitudes you 140 OONTROIxLEE BAY LANDS. would pass through all those conditions, tropical fruits, cotton, wheat, oats, and then the hardier kinds of trees, fir and spruce, and then the alder, and finally they disappear and you get into the region of lichens and mosses. So this latitude of 61° would be equivalent to an ele- vation of how much in the latitude of Washington ? Mr. Brooks. I am afraid I am not competent to answer that question. The Chairmaji . The point that I wanted to get at was that a moun- tain pass of a certain elevation above the sea level at Cook Inlet or in that neighborhood would not need be so high above the sea level to be impracticable as if it were in our latitude. Mr. Brooks. That is true, but I do not think there is any question but what that 3,000 feet altitude on the coast there is entirely practical for a railroad. The White Pass Road crosses a pass 2,800 feet high. The Chairman. And has snowsheds ? Mr. Brooks. Yes; on top. The Chairman. And has to have them ? Mr. Brooks. Well, they ran without snowsheds the first time I went over the pass. The Chairman. In that event I suppose they would operate only a. portion of the year. Mr. Brooks. My impression is that they have been blocked several weeks each year. I can not be sure as to that. You see at Valdez the snowfall is enormous, even at the sea level. We have a snowfall there of from 8 to 10 feet, and probably the most serious difficulty to contend with might be close to the sea level, and that in the moun- tains there might not be so much snow, and it might be easier. The Chairman. What did you say the elevation at Thompson Pass and Marshall Pass is ? Mr. Brooks. Marshall Pass I happen to remember is 2,000 feet and Thompson Pass is somewhat higher. I think it is less than 3,000 feet. Yes, it is less than 3,000 feet; it is about 2,400 or 2,500 feet. The Chairman. Passing those, then, the next opening, I take it, would be at Seward ? Mr. Brooks. Yes. The Chairman. Please point to Seward on the map. Mr. Brooks. It lies on the southeast side of the Kenai Peninsula, at the head of Resurrection Bay. The Chairman. Will you point out to us the difference between the town of Seward and the paninsultv of Seward, Alaska. Mr. Brooks. Yes. The town, as I say, is on the Kenai Peninsula at 'the head of Resurrection Bay, about 60° north latitude, and the peninsula of Sev\rard is the peninsula which extends farthest to the west and separates Bering Sea from the Arctic Ocean. It is an unfor- tunate duplication of names, as the Seward Peninsula and the town of Seward are many hundreds of miles apart. The Chairman. The peninsula of Seward is the land which reaches nearest to Siberia and is separated from Siberia only by Bering Strait ? Mr. Brooks. Yes. The Chairman. And it must be several thousand mUes from the Seward Peninsula to the town of Seward ? Mr. Brooks. liardly that. The distance from the Seward Penin- sula to the eastern end of the Aleutian Islands is about 700 miles, and then to Seward from there it is probably 400 or 500 mUes. CONTROLLEK BAY LANDS. 141 The Chairman. It would be a little more than that, I think. Seward, the town, is about 60° north latitude, and in order to round the Alaskan peninsula a ship would have to come south to about 54° and then sail north to 65^° north latitude; and then the peninsula of Seward is very much farther west. It seems to me it would be about 1,500 miles or more. Mr. Brooks. I would say it was under 1,500 miles. The Chairman. To go from the Seward" Peninsula to the town of Seward you would have to come down from 65^° to about 54° [indi- cating on map]. That would be over 800 miles in a direct line, and then the distance from there east to the town of Seward [indicating] would be at least as much more. But still that is of little consequence. Now, what is the opening from the town of Seward to the interior ? Mr. Brooks. To make that clear, I ought to state that Cook Inlet is blocked with ice for five or six months a year, down to about the latitude of Kachemak Bay. So tliis Cook Inlet is only feasible as a possible route during the summer months. Hence the route to the interior from this part of Alaska is from Seward across this peninsula, reaching tidewater at Turnagain Arm and then on inland by one of the river valleys. This railroad has been built for a distance of 72 miles. It crosses two low passes, the first one in the neighborhood of 500 feet and the second one about 1,000 or 1,100 feet. Then it descends again to sea level at Turnagain Arm, and the end of the rail- road is at the head of Turnagain Arm, although the survey has been extended into the Matanuska coal fields. The Chairman. Has it been extended at this time any farther than that point ? Mr. Brooks. I was there last September and so far as I know there has been no construction work done on the railroad. It is possible that a few miles may have been built. The Chairman. When was that railroad built ? Mr. Brooks. I think the first work was done in 1902. Then about 20 miles was built. Then some years later they extended it. I think the last work was done about two years ago. It has been building about eight years. The Chairman. There was nothing done that you know of since your last visit to it ? Mr. Brooks. There may have been a httle construction work done. The Chairman. A few years ago it was in financial difficulties. Mr. Brooks. Yes, it was in the hands of a receiver for some time and they reorganized the company. It was formerly known as the Alaska Central Railroad and now is known as the Alaska Northern Railroad. The Chairman. Do you know who own, control, and operate it now ? Mr. Brooks. No. I have a general impression that it is Canadian or English capital, but no definite information on the subject. The Chairman. Do you know whether the so-called Alaska Syndi- cate has any interest in it or control over it ? Mr. Brooks. I have no knowledge of the matter; no, sir. The Chairman. Had you any knowledge of the creditors who caused its foreclosure and sale a few years ago ? Mr. Brooks. I have seen some testimony given before one of the committees of Congress about the matter, but nothing beyond that. The Chairman. Was that to the effect that the principal creditor was a Canadian bank, the Sovereign Bank of Montreal ? 142 CONTEOLLEB BAY LANDS. Mr. Brooks. Yes; I heard the testimony of a representative of the Canadian capital invested in it make the statement that the Sovereign Bank owned quite a considerable interest in that railroad. The Chaikman. Who was the witness to whom you refer 1 Mr. Brooks. I can not remember his name. I found it in the hearings of the House Committee on — — The Chairman. The House Committee on Territories, was it ? Mr. Brooks. No ; the House Committee on Public Lands, Mr. Mon- dell's committee. It was a hearing held probably some time between December and February, I should say. The Chairman. Were those hearings on any specific subject? Mr. Brooks. Yes. On the leasing of the Alaska coal lands. I appeared before the committee, I remember, and Judge Wickersham and Mr. Joslyn and then this Canadian banker, who made a statement as to who owned the Alaska Northern Railroad. The Chairman. Is there anything in that testimony as to who the persons interested in the Montreal Bank were ? Mr. Brooks. I do not recall. The Chairman. Is there any testimony as to any Americans who were stockholders or interested in that bank? Mr. Brooks. No. I do not know whether it is from that testi- mony or somewhere else I got the imprsssion that J . P. Morgan & Co. owned some stock; I do not know whether it came out in this testi- mony or whether it was brought out in some other hearings that I have read. The Chairman. Do you also know in the same way, or perhaps better, that J. P. Morgan & Co. own one-half of the Alaska Syndicate? Mr. Brooks. Yes: that, of course, I know. The Chairman. That J. P. Morgan & Co. and the Guggenheim brothers constitute the Alaska Syndicate ? Mr. Brooks. That is my understanding. The Chairman. You also know, do you not, in the same way that Mr. Graves, the general manager of the Skagway & White Pass Kail- road, were interested financially in the Alaska syndicate ? Mr. Brooks. I think my information there is that they were, from the hearings of the Ballinger-Pinchot committee. The Chairman. From the testimony given there ? Mr. Brooks. Yes. The Chairman. Mr. Graves was what is known as a subparticipant in the Morgan end of the syndicate ? Mr. Brooks. I do not recall the details. The Chairman. If all those things were true of the three liaes of railroads at present in existence running from the coast back into the interior, witn Mr. Graves, as president and general manager of the White Pass RaUroad, financially interested in the syndicate property, with the Copper River & Northwestern Railroad as syndicate prop- erty, and with at least some syndicate interest under the reorganiza- tion in the Seward & Matanuska line, or Alaska Northern, the syndi- dicate would be interested in every present available raUroad reaching from the coast to the interior ? Mr. Brooks. That would appear to be the logical conclusion. The Chairman. Taking the Alaska Northern, the line from Seward to the interior, how near the Matanuska coal fields has it reached? coNXKOij^eB 9AY i4.wm. 143 Mr. Brooks. The distance to the coal field is 186 miles and they huilt 72 miles, or had built last winter 72 miles, so they still had 114 odd. The Chairman. What is the character of the country between the interior terminal of the road and the coal field ? Mr. Brooks. On the north side of Turnagainarm there is a stretch there of about 10 or 12 miles where the mountain slopes are very steep to the water and require some very heavy ropk work. Beyond that, after passing Point Campbell, you come into a region where there is a flat below the foot of the mountains, and from there on the building of the railroad is much easier. When it is built out to near Point Campbell, from there on it will be easy to construct the rail- road. The Chairman. Is there anything in that direction but the coal to justify the building of a railroad ? Mr. Brooks. The railroad skirts the eastern side of a district which produces considerable placer gold, and in this same field there are some promising auriferous lode deposits, which are now being developed. On the north side of Turnagain Arm the same statement holds good, some placers and a few auriferous lodes. There are, however, no mines except the placer mines. Mr. George. Gold? Mr. Brooks. Yes. Then, passing north, you have the Matanuska coal fields. Then, northwest of that, is a small gold-bearing area known as the Will Creek district. There are some promising gold mines there, quartz mines, as well as a little placer. In the same region there is considerable arable land which the population attracted by the mineral resources would probably take up, and which would furnish the needed supply of vegetables and gram and some hardy fruits, and hay. The Chairman. But those would not be articles of export ? Mr. Brooks. Not of export, no. There is an area in between Knik and the Tanana Valley of which we have no very definite information. There have been some mineral deposits found there which may amount to something. The railroad, according to some advertised plans, is to be extended across the Pass at the head of the Susitna River, and on into the Yukon. Of course, its immediate objective point is the Matanuska. The Chairman. Going back to the Alaska Northern, Mr. Brooks, refreshing your recollection, was it not the receiver of that road who gave testmiony before the committee you speak of as to the sale of it, and the fact that the Sovereign Bank of Montreal was the principal creditor, and that Mr. Morgan was interested in that bank, the receiver's name being Mr. Larrabee ? Mr. Brooks. The testimony that I had in mind, given this winter, was not by Mr. Larrabee ; no, sir. The Chairman. Can you yet recall who it was ? Mr. Brooks. No; I can not remember the name. The Chairman. You would have to see the hearings to refresh your recollection on that ? Mr. Brooks. Yes. But it would be easy to identify it, because the man said he represented several banks, and his hearing was very brief. 144 CONTBOIIiEB BAT LANDS. The Chairman. Is it not true that at and after the time of the sale it was common report — -I will not say common knowledge, but com- mon report — that the agents of the Alaska Syndicate bought the road ? Mr. Brooks. Well, Mr. Chairman, there are so many things re- ported that I do not know whether that particular rumor prevailed at any one time or not. I have seen that statement in print, ia various papers, and I have seen it denied, again. The Chairman. Of course, I am not askmg you now as to facts; indeed, you stated, did you not, that you do not know what the fact is ? Mr. Brooks. No, I do not know, except that from the oflScers of the road I have always gained the impression that their backing was from English or Canadian backing; that is as far as my knowledge went. I have no definite information. The Chairman. Now, coming to the Matanuska coal field, will you please tell the committee, Mr. Brooks, about the extent and quality of the coal in that field ? Mr. Brooks. The coal is high-grade bituminous coal. There is some anthracite; but as to the quantity of the anthracite, I can not make a definite statement, whether it is there in commercial quanti- ties or not. I do not know. But the more valuable coal, the bitumi- nous coal, is there in large quantities. It is a coal which is as good as the Bering River coal, and the total area of the field, according to our survey of last summer, is some 80 square miles, which is about double what we previously supposed the field contained. So that doubles our estimate on tonnage also. In other words, we have pos- sibly 3,000,000,000 more tons of high-grade coal in Alaska than we supposed we had last year, when we started this work. The Chairman. From what you have already stated, even in this revised estimate you still endeavor to be conservative, so that if there is any change it will be in the line of even more than you now state "i Mr. Brooks. Yes, sir. The Chairman. How about the country north of the Yukon? Is there coal or other minerals of value up there, so far as you know ? Mr. Brooks. There is placer gold in the Koyukuk district; several milUon dollars worth of gold has come out of that country north of the Arctic Circle, mostly by individual miners. There have been some gold quartz prospects found in that region ; and there is some Ugnite coal. Tlie region is rather difficult of access and naturally has not attracted very many people. There are, however, in northern Alaska some very extensive coal deposits. We have in the north- western part of the Territory, here at Cape Lisburne, some valuable coals, and we know that there are coals several hundred miles east there, and it is quite possible that there may be larger coal reserves in that northern territory than in all the rest of Alaska put together. But they are inaccessible and really have no bearing on any present economic problem. The Chairman. Will you please point to Nome, on your map, for the benefit of the committee? Mr. Brooks (indicating on map). Nome is on the southeast side of the Seward Peninsula, on Bering Sea. The Chairman. I have another question as to Cook Inlet. When it is open for navigation, free from ice, how is it with reference to the depth of the water, and all that ? CONTROUCiER BAT LANDS. 145 Mr. Beooks. There is a channel which leads up Cook Inlet and enters Turnagain Arm. Here within about 60 miles of the coal field, it is deep enough for large vessels. It has been developed by the work of the Coast Survey the last two years, but I can not give the exact depth. But they have found that there was deep water right close to the entrance to Turnagain Arm, which means that it will not be necessa:ry to haul that coal, in summer, at least, across these two divides ; but it can be put directly on the ship there in Turnagain Arm. As fa-r as navigation is concerned, it is not easy there on account of the tidal bore on this Alaska seaboard. Mr. George. Is that a big bore ? Mr. Brooks. I do not remember how high it is ; it looks pretty high from a boat. The Chairman. Of aU the seaports along the Alaska coast, what one would you say was best fitted for coahng vessels of the Navy, battleships, and such ? Mr. Brooks. I hesitate somewhat to reply to a question that reaUy is not in my own field. I can only give an opinion as a layman on that subject. The Chairman. You have a knowledge of the waters there possessed by few; you might say you know already that there is 5 fathoms of water or more in the channel in Controller Bay at all times; and you know the protection of it, by the point and the islands, and you know, in a general way, the conditions at Cordova and at the other places. Mr. Brooks. I might say that my own choice would be of Cordova over Controller Bay; but not the actual water front at Cordova. There is better water above the town which could be reached by extending the railroad. At Cordova itself it is a rather awkward glace to bring a vessel into; it is rather narrow — that is, the wharf at ordova as it is now being used. But north of there there is better water, and it seems to me that the conditions for coaling there would be much better than at Controller Bay, because of the fact that you have absolute shelter. It is a harbor which is bounded by high mountains and not, at least on two sides, by spits or islands, as you have at Controller Bay. But I do not know that there is anything to choose between Cordova and Seward, as between those two. The Chairman. Is it your judgment that the mere action of the wind on the vessel itself would have any p articularly bad effects, providing the great ocean waves were prevented from reaching the vessel? Mr. Brooks. Only as I have talked wi h sea captains about it. We have that condition at Skagway, for example, and that is a pretty windy place. Sometimes the winds are fearful, and a vessel would actually be blown away from the wharf. As I understand the atti- tude of sea captains, they like to have protection from the wind as well as from the surf. The Chairman. Wingham Island is mountainous, is it not? Mr. Brooks. Yes. The Chairman. That is, the one which would protect Controller Bay from west and southwest winds, I believe ? Mr. Brooks. It would be from wind that comes from the south- west. The Chairman. Kayak Island is also considerably elevated? Mr. Brooks. Yes, sir. Kayak Island and Wingham Island, although they are a little too distant to furnish the best shelter, fur- 146 CKJNTEOLLEB BAY I4NPS. nish more or less of a break. But, you see, you could not moor your vessels alongside of those islands; your harlaor lies. consider ably north of them. In Resurrection Bay, for example, you can put your vessel almost alongside of the mountains, you might say, because deep water extends close to land. The Chairman. Where is Resurrection Bay ? Mr. Beooks. That is where Seward is. I used that as an illustra- tion. The Chairman. But there the water is of extreme depth, is jt not? Mr. Brooks. Yes, sir. The Chairman. So as to make anchorage impracticable 1 Mr. Brooks. I again hesitate to take exception to a nautical expert who appeared before the committee, but I do recall that the harbor at Seattle is so deep that they can not anchor in it; and yet they are using it very extensively. The Chairman. Do you disagree with Mr. Graves in that statement of his concerning the harbor at Seward ? Mr. Brooks. 1 do disagree with him. It seems to me that is an excellent harbor, and that it is a question of simply putting in moorr ing buoys to put your ships in there; such as they have m Seattle Harbor. There may be something of this that I am not conversant with. I hesitate to make these criticisms, because it is out of my field. The Chairman. I suppose, on this, as on a matter about which I inquired this morning, with that same mental reservation you would acknowledge that his information should be better than yours on those points ? Mr. Brooks. It certainly should. But I probably have seen a little more of the country, and perhaps talked to more seamen up there who were actually on the ground. That is the only advantage I have over his advantages of technical training and experience. The Chairman. And he actually worked in these harbors ? Mr. Brooks. Yes, sir. Mr. Hanna. He did not do any actual work himself in the harbors, did he? I thought Mr. Graves said his knowledge came from the notes and records, and so on, that had been turned over to his office. The Chairman. If I made any error in that, I wish to withdraw it. Mr. Brooks. I happen to know he has been in Alaska; I do not know as to his work. Mr. Hanna. I may be mistaken. The Chairman. His map is here, giving the figures and depths at the various points. Mr. Brooks. I have a copy here. The Chairman. Are you informed, Mr. Brooks, as to the present prices the Government is paying for coal in the Pacific ? Mr. Brooks. I do not know whether I have the exact figures at hand here or not. Here are some figures which are furnished our , office by the Navy Department for the months extending from July 1, 1908, to December 1, 1909. The cost price of coal furnished the Navy on Puget Sound averaged $8.12 a ton; that furnished at San Francisco, $7.88 a ton; that furnished at Honolulu, $7.20 a ton; the mean of these figures being $7.76 per ton, the price the Navy paid for coal on the Pacific. That did not include a little coal that they got in Alaska, which I think was somewhat higher. COSTTROliiER BAY LANDS. 147 Mr. Hanna. Mr. Brooks, there has been quite a little talk about this Controller Bay Harbor; you have been in that harbor, have you ? Mr. Brooks. Yes, sir. Mr. Hanna. What is the general character of the water there; is it rough, or is it generally smooth ? Mr. Brooks. It never gets very rough. I have been across it in small boats. Mr. Hanna. Is it a good deal like the harbor is there at Seattle ? Mr. Brooks. No, it is nothing like that at all. You see, it is sur- rounded by comparatively lowland, so that you get gusts of wind even from the land. Mr. Hanna. Of course, at Seattle it is very quiet, almost Uke a lake or pond. Mr. Brooks. My experience with Controller Bay Harbor is lim- ited to a comparatively short time. I think I was in that coal field about three weeks, and I saw it at various times. But it certainly does not get very rough in there — if that was your question. I think there is never any sea in there to speak of. (Thereupon, at 4 o'clock p. m., the committee adjourned until Tuesday, duly 18, 1911, at 10.30 o'clock a. m.) CONTROLLER BAY LANDS No. 5 HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT OF THE HOUSE OF REPEESENTATIVES ON HOUSE RESOLUTION NO. 103 TO INVESTIGATE THE EXPENDITURES IN THE INTERIOR DEPARTMENT JULY 18, 1911 WASHINGTON GOVERNMENT PBINTING OFFICE 1911 EXPENDITURES IN THE INTERIOR DEPARTMENT. (Committee room No. 296, House OSBce Building. Telephone 591. Meets on call.) JAMES M. GR.4.HAM, Illinois, Chairman. SCOTT FERRIS, Oklahoma. FRANK W. MONDELL, Wyoming. HENRY GEORGE, Jr., New York. LOUIS B. HANNA, North Dakota. WALTER L. HENSLBY, Missouri. John F. McCaeeon, Clerk. II CONTEOLLER BAY LANDS. Committee on Expenditdees IN THE InTEEIOE DePAETMENT, House op Representatives, Tuesday, July IS, 1911. The committee this day met, Hon. James M. Graham (chairman) presiding. There were present Representatives George, Hensley, and Hanna. There was also present W. P. Fennell, attorney at law, Wash- ington, D. C. TESTIMONY OF ME. OHAELES D. DRAYTON. (The witness was duly sworn by the chairman.) The Ohaieman. Please state to the committee your full name. Mr. Deatton. Charles D. Drayton. The Chairman. Where do you reside, Mr. Drayton ? Mr. Drayton. I am a practicing attorney here in Washington. The Chairman. How long have you been practicing law in Wash- ington ? Mr. Drayton. Since April, 1909. Tho Chairman. Are you in any special line of practice ? Mr. Deayton. Yes, sir ; I am making a specialty of practice before the Interstate Commerce Commission. The Chaieman. How long have you been doing that ? Mr. Drayton. Well, practically since I have been practicing at all. In April, 1909, I resigned from the commission as one of its attorneys and special examiners and took up this special line of work, owing to my experience with that body. The Chairman. What experience would you gain as a special ex- aminer for the commission ; what was the line of your duty ? Mr. Drayton. My duty consisted in going out for the commission, under its authority, to conduct hearings of contested cases, formal cases, and reporting the result of that investigation or the result of the testimony which I had heard to the commission for their con- sideration and for the formulation of their decision. The Chairman. How long were you employed in that capacity ? Mr. Drayton. Well, I can give it to you approximately. The Chairman. That is all right. Mr. Drayton. About two years. The Chaieman. Had you at any time any professional connection with parties on the Paciftc coast? 149 150 OONTBOLIiEB BAY LANDS. Mr. Drayton. Since the severance of my relations with the com- mission I have been employed by the Humboldt Steamship Co., of Seattle, Wash., a California corporation, in connection with the case against the White Pass & Yukon Kailway Co. operating between Skagway, Alaska, and Fairbanks and Dawson. The Chairman. I have before me case No. 2518 before the Inter- state Commerce Commission, entitled Humboldt Steamship Co. v. The White Pass & Yukon Route and! otheite, and I find in the report and order of the commission the names of Charles D. Drayton and Charles F. Munday for complainant. Are you the Charles D. Dray- tion mentioned here? Mr. Drayton. I am, sir. The Chairman, Who is Charles F, Munday, who was associated with you? Mi^. Deayton. He is the general counsel for'the Humboldt Steam- ship Co., resident at Seattle, and he associated me with hiiii in this case on account of my experience with the commission. He is a practicing l^-wyer there, too. The Chairman. What is the Humboldt; Steamship Co. ; is it a cor- poration or a partnership? Mr. Drayton. A corporation of California. It is a very small company, having only one steamer, the Humboldt, wMch plies be- tween Seattle and Skagway, on the coast of Alaska. The Chairman. What is tlie character of that run? Mr. Drayton. To transport freight and passengers, both. Of course, it is chiefly dependent on freight. The Chairman- Has the company had, at any time, more than one steamer plying between those ports ? Mr. Drayton. I think not, sir. The Chairman. It was the complainant in this case ? Mr. Drayton. Yes, sir. The Chairman. What do you know of the White Pass & Tfiikon Eoute, one of the defendants ? Mr. Drayton. Well, the White" Pass & Yukon Eoute is practically the only defendant in that case. That is a holding corporation, I think, a British corporation — at least it was supposed to be-^for the other companies, one of which at least is a West Virginia cor- {)oration; but it operates those lines there, one of which is 20 mUes ong, extending from Skagway to White Horse on the international boundary line, and I believe another extends up the river. The Chairman. You think it is a holding company ? Mr. Drayton. I think it is; yes, sir. The Chairman. Can you give the constituent corporations or com- panies for which it is a holding company ? Mr. Drayton. Well, they are given in that case. The Pacific & Arctic Navigation Co., I believe, is one. It has been some time ago The Chairman (interposing). Could you, from either of these papers, answer the question ? [Handing witness papers.] Mr. Drayton (after examining papers). The Pacific & Arctic Railway & Navigation Co., the British Columbia Yukon Railway Co., the British Yukon Railway Co., and the British Yukon Navigation Co. (Ltd.) are the constituent companies of the White Pass & Yukon Route. CONTEOLLEK BAY LANDS. 151 The Chairman. Will you please take those up seriatim and tell us what business each one is engaged in, where it was organized, if you know, and such facts about it as you do know. Mr. Dhayton. It is recited here in the opinion, and of course I would have to refresh my memory. The White Pass & Yukon Route extends 20.2 miles through Ameri- can territory, from Skagway to the international boundary line; the remainder of the rail line is in Canadian territory. As I recollect it, the British Columbia Yukon Co. operates a line of railroad up to the Yukon River, and there it is taken over by the British Yukon Navigation Co., which operates a. line of steamers on that river. I think in the winter time one of the companies operates a part of the route by reindeer sledges. I can not give you the exact inf ormaition, perhaps, you want. I have in my ofiice, of course, the brief and other papers in connection with this which might give it to you better than I can from memory. It has been some time since I had to deal with those facts. The Chairman. I think you spoke of one of the corporations as being organized in the State of West Virginia ? Mr. Dratton. -I think so. The Chairman. Which one ? Mr. Drayton. If I am not mistaken it is the Pacific & Arctic Railway & Navigation Co. However, I am not sure about that at all. ' The Chairman. What is the general purpose of the larger con- cern, the holding company? Mr. Drayton. Well, I do not know what the purpose of operat- ing these different lines by the holding company was, but that com- pany does operate these lines between Skagway and Dawson, which, I think, is the other terminal. At Skagway they have a wharf which they seem to operate for the exclusive benefit of that railway com- pany, operated by the holding company, and they do not afford equal wharfage facilities to independent companies. That is one of the grounds in our complaint here. They charge us $2 per ton for freight on the wharf and the other steamship lines out of Seattle they charge $1 a ton. The Chairman. That I expected to reach by another question. Can you give any further information from recollection with refer- ence to the constituent companies than you have given? For in- stance, is one of those companies organized for the purpose of carry- ing passengers and freight by water from the States or from Van- couver to Skagway? Mr. Drayton. I do not think so. The White Pass & Yukon Route does not operate under that name a line of steamers— -that is, between the States and Alaska— but the Pacific Coast Steamship Co. and the Alaska Steamship Co. operate between Seattle and Skagway, and I suppose other points up there, in which I was not particularly interested, operated in conjunction with its railway company, thereby extending their line from the Alaska points to Seattle. The Chairman. So that this holding company and its constituent companies were organized rather for the purpose of taking freight and passengers from Skagway to different points in the interior? Mr. Drayton. Yes, sir. The Chairman. Now, will you tell us, Mr. Drayton, as succinctly as you can, but so fully as to make it clearly understood, what this 152 CONTEOLLEE BAY LANDS. lawsuit was about before the Interstate Commerce Commission? Perhaps " hearing " would be more proper than "lawsuit." Mr. Drayton. The Humboldt Steamship Co. for several years prior to the institution of this proceeding had operated under an ar- rangement with the Pacific Coast Steamship Co. and the Alaska Steamship Co. from Seattle to Skagway, and thence, in conjunction with the White Pass & Yukon Route & Railway Co., to these interior points in the Yukon Territory and Alaska. That arrangement con- tinued for several years, as I understood it out there and as we showed by our testimony. It was continued by leave of these other steamship companies, which were the competitors of the Humboldt Steamship Co. The Chairman. Name them. Mr. Drayton. The Alaska and the Pacific coast steamship com- panies. It seemed, according to the best information we had then, that these other steamship companies suddenly realized that they were giving up a part of this through traffic which they could handle in conjunction with the White Pass & Yukon Route from Seattle to those Alaskan points and from the Alaskan points to Seattle;, that they were giving that up to the Humboldt Steamship Co. quite un- necessarily, and they brought pressure — this is our belief and infor- mation-^— they brought pressure on the White Pass & Yukon Railway Co. to have this through route arrangement annulled. It was there- upon done. Our only relief then appeared to be before the Interstate Commerce Commission, which had the right under the amended law of June 29, 1906, section 15 of the act to regulate comnierce, to prescribe through routes and joint rates. That brought the case before the commission, and 1 went to Seattle for the purpose of putting in that testimony and making the argument. I think theretofore the commission had itself discussed the jurisdictional question as to its authority over carriers in Alaska, and it turned upon the question as to whether Alaska was a Territory or a District. I argued that question to the commission in Seattle in October, 1909. The case was instituted May 26, 1909, and on June 6, 1910, over a year subsequent to the institution of this proceeding, we got a decision from the conunission denying its authority over carriers in Alaska. We thereupon instituted a mandamus proceeding in the District Supreme Court here ; .that was immediately after the rendition of the decision in June, 1910, and it took us, I think, a year to get a decision from the supreme court which was favorable to our con- tention on one point — that is, that Alaska was a Territory and that the commission did have jurisdiction there under the law; but the court was of the impression that he could not control the commis- sion in that regard by a mandamus, and therefore he dismissed the case. We then instituted an appeal to the Court of Appeals of the Dis- trict, and I think it was June 6 of this year they rendered an opin- ion sustaining our contention and reversing the lower court and the commission. That is over two years since we first started this pro- ceding. The commission has taken an appeal by writ of error to the Supreme Court of the United States, and we will probably be another year or two years before we get a final decision. CONTEOLLEE BAY LANDS. 153 The Chairkan. What court was it that held that it did not have power to coerce a subordinate tribunal into acting in a particular case? Mr. Drayton. Justice Barnard, of the District Supreme Court. The Chairman. The law is well established that it could compel them to act, but could not interfere with the character of the action? Mr. Drayton. Yes, sir. He considered that the commission in de- ciding this question had exercised a discretion committed to it under the law, and that in view of the discretion exercised in that way the court could not by mandamus control it. The court of appeals took the position which we argued that this was not committed to the discretion of the commission, that Alaska's status as a Territory was fixed by the laws relating to it, and that it was not for the commis- sion to determine that question at all — it had no discretion to deter- mine it — and that the question was a legal question susceptible of determination by a court certainly, and they therefore overruled the lower court. The Chairman. Let me understand clearly the course followed in the matter. What was the first court or bocjy with which you filed your petition? Mr. Drayton. The commission. The.CHA;iRMAN. The Interstate Commerce Commission? Mr. Drayton. Yes, sir. We filed a petition asking for the estab- lishment of through routes and joint rates. The Chairman. And the commission divided on that question? Mr. Drayton. Yes, sir; 4 to 3. The Chairman. Four holding that they had no jurisdiction and three dissenting from that view ? Mr. Drayton. Yes, sir. The Chairman. Where did you next go ? Mr. Drayton. Well, we had to ask for a rehearing by the commis- sion under the law. The Chairman. Yes, sir. Mr. Drayton. That is, we had to exhaust our remedies there before going to court. The Chairman. Yes, sir. Mr. Drayton. And the petition for a rehearing was denied. The Chairman. Then where did you go? Mr. Drayton. We filed a petition for mandamus with the Supreme Court of the District of Columbia. That was dismissed, and we there- upon took an appeal to the Court of Appeals of the District. Mr. Hensley. The only point that the commission refused to de- termine was the question of Alaska being a Territory? Mr. Drayton. That was the only point ; yes, sir : . except this, there had been a law passed in 1898, I think it was, it was a sort of a rider to the general land bill, I suppose it was, which gave the Secretary of the Interior power to mcKiify rates pf transportation in Alaska. We claimed to the commission that that was merely a temporary expedient, that the point was discussed in Congress, as we showed in our brief, and that the commission had been shorn of all power by the maximum-rate case decision of the Supreme Court in 1897, just the year prior to this special law putting them under the Secretary of the Interior, that is, Alaska. Then, they said on the floor of the House that the Secretary of the Interior has his 154 CONTEOLLEE BAY LANDS. special agents employed regularly there who /go into Aiaska; he 1ms general authority in Alaska anyhow, and the commission has no such special agents. Now, it would be rather an inconvenience for that body to have to travel up there with inadequate machinery, and especially in view of this maximum-rate decision wherein the Supreme Court took occasion to say that the commission had not power to prescribe a rate for the future. They thereupon put this authority with the Secretary of the Interior. We claimed that when this amended law was passed in 1906, giving the commission ample power, amending it because of that decision of the Supreme Court, giving them special examiners and special agents to make these investigations and to travel all over the country, we then said that they had ample authority and much more authority than the Sec- retary of the Interior. Mr. Heissley. Which removed all those objections that had been raised ? Mr. Drayton. Yes, sir. Mr. Hensley. That is all. The Chairman. The appeal to the court of appeals of the Dis- trict was perfected and, I believe, a decision rendered on the appeal? Mr. Drayton. Yes, sir; sustaining our contentions, and reversing the lower court and the commission. The Chairman. As I understand, the lower court decided against you both on the question of the territorial character of Alaska and on the question of its own jurisdiction? Mr. Drayton. No, sir. The lower court agreed with us absolutely about the territorial status of Alaska, but they disagreed with us as to its power to coerce the commission. Mr. George. The court ? Mr. Drayton. Yes, sir. They said, in other words, the commis- sion has jurisdiction, but we have not. Mr. Hensley. That it was a discretionary matter with the com- mission ? Mr. Drayton. Yes, sir. The Chairman. I read from their opinion the last paragraph, which, perhaps, states the case as they would want it stated. Mr. Drayton. The opinion of the Interstate Commerce Commis- sion ? The Chairman. Yes, sir. Beyond the foregoing outline of the situation presented in this case we deem it unnecessary to state the facts in greater detail, and expressly refrain from passing judgment upon, the merits of the controversy, because we are eon- strained to hold, upon authority of the decision recently announced In the Matter of Jurisdiction over Rail and Water Carriers Operating in Alaska, 19 I. C. C. Rep., 81, that the commission is without jurisdiction to make the order sought by complainant. That, then, was the turning point? Mr. Drayton. • Yes, sir ; that is the point decided. The Chairman. You are familiar with the decision of the court of appeals, I presume? Mr. Drayton. More or less; yes, sir. The Chairman. I now read from a copy of that opinion which, I believe, was rendered by Justice Van Orsdel. Mr. Drayton. Yes, sir. CONTEOLLER BAY LANDS. 155 The Chairman. The concluding paragraph: We are therefore of opinion that Alaska is a Territory of the United States embraced within the provisions of the act of Congress to regulate commerce, and that the Interstate Commerce Commission has jurisdiction of the matter and things presented in the relator's complaint. The judgment is reversed, ■with costs, and the cause Is remanded with directions to issue a peremptory writ of mandamus directed to the Interstate Commerce Commission requiring it to take jurisdiction of said cause and proceed therein as by law required. Since then, what action, if any, has been taken in the matter? Mr. Drayton. I have merely been served with a notice and a copy of a writ of error sued out to the Supreme Court of the United States by the commission. The commission's solicitor served me with that notice. The case will probably be reached, at the next term of the Supreme Court. The Chairman. Is that a statutory power which the Interstate Commerce Commission has in the nature of an appeal from its own decision? How is it that the commission can take the case to the Supreme Court? Mr. Drayton. The commission was a party to this proceeding ; we sued the commission, of course, and any party has the right to ap- peal. The Chairman. Yes, sir. Mr. Drayton. The judgment of the court of appeals was against the commission, and therefore they had that right of appeal, neces- sarily. The Chairman. Is the case before the Supreme Court of the United States now ? Mr. Drayton. Yes, sir; it is docketed there. The Chairman. But has not been heard? Mr. Drayton. No, sir. The Chairman. It has preference of the docket of that court? Mr. Drayton. If the commission shall prevail upon the Attorney General of the United States to expedite the case, I believe the ex- pediting act would apply to it. It would therefore have preference on the calendar. Unless they do that, it will await its turn. Mr. Hensley. If they do, how long will it take to reach it? Mr. Drayton. That is problematical. I should hope this next year. We are certainly anxious to have it disposed of. Mr. Hensley. As against two years or more the other way ? Mr. Drayton. Yes, sir. It certainly would not be reached at the next term unless expedited under the act. The Chairman. In the paragraph which I read from the opinion of the court of appeals I notice that the judgment is reversed with costs. That means, of course, that the losing party has the costs to pay? Mr. Drayton. Yes, sir. The Chairman. That losing party is really the Mr. Drayton (interposing). The Government. The Chairman (continuing). The railroad company, the White Pass and Yukon Route? Mr. Drayton. No, sir. They are not a party to this case. It would be the commission. The Chairman. Do you know if those costs have been paid ? Mr. Drayton. No, sir. 156 OONTROLLEK BAY LANDS. The Chairman, Do you know if any of the costs have been paid? Mr. Drayton. Certainly not any of our costs. The Chairman. In the first case that came up, were there any costs ? Mr. Drayton. Before the commission? The Chairman. Yes, sir. Mr. Drayton. There are no costs before the commission, except the attorneys' fee. The Chairman. So far as you know no costs have been paid in any of these proceedings up to this time ? Mr. Drayton. No, sir. Either party pays his own costs in the Supreme Court. The Chairman. Do you know whether any of the Alaskan cor- porations or syndicates other than the named defendant, the White Pass & Yukon Koute, has taken any active interest or participation in these proceedings? Mr. Drayton. Yes, sir. The Copper River Railroad intervened against our petition before the commission and they were also inter- ested, I think, in the case when it was. before the supreme court of the District and the court of appeals. They took no part in the argu- ment because the commission's solicitor was amply able to hold his own. The Chairman. How were the physical rights of the Copper River Railroad involved in this proceeding? Mr. Drayton. They appear in .Alaska in the same way that the White Pass & Yukon Route appears there. I do not know just what territory they touch. They only argued the case on the legal ques- tions, and I was not concerned about the physical condition of the road. The Chairman. Do you know anything of the affiliations of the Copper River Railroad in Alaska? Mr. Drayton. I have always understood, sir, although I can not state with knowledge, that that road is controlled by the Guggen- heim interest, and that the White Pass & Yukon Route is likewise controlled by it, but I am not sure of that. That would not have influenced the commission at all, at least it is not supposed to, and it would have bfeen improper for me to argue it as a reaBon for granting our petition. The Chairman. Did any facts bearing upon that part of the case come out in the taking of the testimony ? Mr. Drayton. I do not think so, sir. We were strictly sticking to the legitimate field, as we considered it, and we thought that- we had no right to go into that matter. The Chairman. What do you know of the ownership of the White Pass & Yukon Route? Mr. Drayton. I have very little actual knowledge, except that Mr. Kelish, my client in Seattle, and Mr. Munday, my associate, informed me then that the White Pass & Yukon Route was a Gug- genheim concern. The Chairman. Of course you are quite aware that in the present case we are not limited in the production of evidence as you were or would be in court, and we want to know from you such information as you have, even through others — that is, hearsay information, giv- ing us the source of your information when you can. CONTKOLLEK BAY LANDS. 157 Who is the general manager of that road, do you know ? Mr. Drayton. The White Pass & Yukon Eoute? The Chairman. Yes, sir. Mr. Drayton. Really I did know once, of course, but I had no idea as to what your committee was going to question me about this morning, and I have forgotten. The Chairman. May I suggest, is it a Mr. Graves ? Mr. Drayton. I think that is the name. The Chairman. Did you in your work in this case meet him? Mr. Drayton. No, sir. I think Mr. Kelish had some telegraphic correspondence with him when we were out in Seattle, or Mr. Mun- day, perhaps, trying to bring about a compromise of this case, and I happened to know his name in that way. The Chairman. Now that you have mentioned that compromise, you might just tell the committee all about it, whatever there is of it — your attitude and your associate counsel's attitude — tell us all about it. Mr. Drayton. Unfortunately there is not a great deal to tell, excepting this: The compromise arrangement was attempted to be made prior to this hearing before the commission, but it fell through. Mr. Graves, I think, intimated in at least one of his telegrams that it was a matter that he would not undertake to control and that we would have to see the Pacific Coast and Alaska Steamship Cos. before he would acquiesce in any arrangement of through routes. Since the decision of the court of appeals I have had a telegram from Mr. Munday in Seattle saying that the White Pass & Yukon Route was exceedingly anxious to settle now on any terms, and I had hoped that we might get those through routes established in view of that telegram, but it appears that the appeal to the Supreme Court may have' influenced them to hold out somewhat longer and see if they, can not dispose of us on this jurisdictional question before the Su- preme Court. I do not know anything more to tell you about the compromise ex- cept that it seems to be altogether dependent upon these companies, ^nd the Alaska Steamship Co., which is said to be controlled also by the Guggenheim interests, is the one, as I recollect, which is holding out against the establishment of the through route between the White Pass & Yukon Route and the Humboldt Steamship Co. They are the people who object to it. The others have told us that if " you can get the consent of the Alaska Steamship Co., we are willing now to es- tablish this through route." Apparently that is the only obstacle in our way. The Chairman. What was the other steamship company that you mentioned ? Mr. Drayton. The Pacific Coast Steamship Co. The Chairman. Is it connected with the Alaska Syndicate in any way? ' Mr. Drayton. I do not know. I have a notion that it is controlled by the Canadian Pacific, but I am not sure about that. The Chairman. Between what ports does it operate? Mr. Drayton. Between Seattle and Skagway and various other Alaskan ports. They have numerous steamers as against our one steamer and they can control that business very largely and rout us out of the competitive traffic. 158 CONTEOLLEE. BAT LANDS. The Chaikman. Do you know whether the steamers plying be- tween Seattle and Alaska generally stop at Vancouver or any of the British- American ports? Mr. Dkatton. The Pacific Coast Co. does, I think, sir. The Chairman. You think that is a British concern ? Mr Drayton. I believe so; yes, sir. The Chairman. If the White Pass & Yukon Route is connected with the Guggenheim Alaska Syndicate, is it or is it not probable that this Pacific steamship line would be ? Mr. Drayton. Necessarily, they handle traffic under this arrange- ment, because each of them is a powerful concern and their mutual interests are subserved by freezing out independent lines such as the Humboldt Steamship Co. Whether or not the White Pass & Yukon Eoute interests also control the Pacific Coast Steamship Co. I do not know; but, even so, their interests would be identical in handling this traffic. The Alaska Steamship Co. which, I under- stand, is controlled by the same interests controlling the White Pass & Yukon Route, has inadequate facilities for handling all of that traffic, and the Pacific Coast people come in for their share. For a time the Pacific Coast and ■ Alaska Steamship Cos., as I men- tioned at the outset, were willing to see the Humboldt Co. participate ill this traffic because of their meager facilities, but as that traffic increased, as it got more profitable and as it warranted an increase in their facilities, they wanted all of it, and then they called upon the Wliite Pass & Yukon Route to stop this arrangement with the Humboldt Steamship Co. The Chairman. In doing that both of the other steamship lines acted together, the Alaska Steamship Co. and the Pacific Coast Steamship Co.? Mr. Drayton. I think necessarily they must have ; I do not know. The Chairman. Both antagonistic to you and apparently friendly with each other? Mr. Drayton. Yes, sir. They did the business together and di- vided it up. The Chairman. How many ships have the Alaska Steamship Co. plying between the States and Alaska ? Mr. Drayton. I think they have several, but not sufficient to make a daily schedule between Skagway and Seattle. The Chairman. How many would it take to make a daily schedule between those points ? Mr. Drayton. They have probably three ships in that service; I do not suppose more, and, perhaps, the Pacific Coast Steamship Co. has three or four. It takes five days to go and come. The Chairman. My recollection is that either Mr. Burch or Mr. Steele, representatives of the Alaska Syndicate, testified a little over a year ago that the syndicate owned either 12 or 13 steamers engaged in the ^Vlaska trade. Do you know what companies those belong to? Mr. Drayton. They might own all those boats. It comes to me that those boats plying between other ports of Alaska than Skagway would take a somewhat longer time to make the round trip. When the case was tried they did not have facilities for making a daily schedule, and one of our points was that since the steamers did not make a daily schedule there was room for our boat, and that there- fore we ought to have these through routes. You know the authority CONTBOLLEB BAY lANDS. 159 of the commission is limited in the establishment of a through route to a case where there is not in eflEect a satisfactory through route atid joint rate arrangement. We claimed that there was no such through route then existing because they did not make a daily schedule between those points, and perhaps you are correct in your recollec- tion that there are 10 or 12 steamers. The Chairman. Twelve or thirteen is my recollection. At that time they claimed that they only did about one-half of the carry- ing trade between the States and Alaska. That would be a mere conclusion, however. Mr. Dbayton. I do not know how many others are so engaged, but certainly the Humboldt Steamship Co. would not carry the other half. The Chairman. Do you know of any other independent companies than the Humboldt? Mr. Drayton. No, sir. I did not hear of any up there. The Chairman. Do you know how this one ship compares with the ships owned by the competing companies ? Mr. Drayton. I think it is comparatively — well, I guess it is about the same sized boat. They go on the inside passage up there and that will not accommodate very large vessels. They go all the way inside. The Chairman. Do you know the water facilities, the depth of draft in that inland route ? Mr. Drayton. I do not think it can be more than 20 or 24 feet, but I am not acquainted with the details. The Chairman. Coming back again to the subject matter of the cause of difference between the Humboldt Steamship Co. and the others, I want to make that quite clear: What was it y^our company complained of, what discrimination, if any, was there against it on account of wharfage, on account of transportation over the White Pass & Yukon Route, or any other ground of discrimination?. Please make that as clear as you can. Mr. Drayton. Our boat had been operating in that territory for several years, and they had satisfactory through-route arrangements, with this railroad company. They had had the same arrangements a? had the other steamship lines. They were friendly to the White Pass & Yukon Route. When this relationship was severed our freight was Compelled to pay $2 a ton wharfage charge at Skagway — they control that wharf and all facilities in connection with it — whereas the other freight handled by these other steamships in connection with the White Pass & Yukon Route paid half as much — $1 a ton. That in itself was a very burdensome restriction. " In addition *o that those lines cbuld make a through rate on a great many articles in order to kill out our competition to Dawson, from Seattle to Daw- son, exactly the rate which we could name from Seattle to Skagway and pay expenses. In other words, if we charged $30 a ton to Skag- way, they would make their rate $30 a ton to Dawson. The Chairman. Let us look at the map just a moment. I will in- dicate on the map with this pointer Skagway, the point at which the White IPass Railroad reaches the Yukon River. From there Where did the boats ply on the river, did you say? _ Mr. Drayton. One of the constituent companies operates from Skagway to White Pass here [indicating on map], which is 20.2 miles. The Chairman. That is all within American territory? 160 CONTROLLER BAY X.ANDS. Mr. Deayton. Yes, sir. Then another corporation takes it up there and operates up here to Caribou or White Horse [indicating on map]. The Chairman. That is on the Yukon ? Mr. Deayton. That is on the Yukon. Then a steamboat, open navigation, takes it, I think, all the way to Dawson, and from there the traflSc moves on, I think, to Fairbanks. The Chairman. And down the Yukon to the confluence of the Tanana Eiver? Mr. Deayton. Yes, sir. The Chairman. You will continue your statement, Mr. Drayton. Mr. Drayton. I really have forgotten just where I left oif. The Chairman. Well, you were telling about the discriminations and about the charges from" Skagway by the White Pass Route and how your line was discriminated against in the shipments which it had from Dawson, Fairbanks, or other points. Mr. Deayton. Yes, sir. You see, in reaching Skagway, which is a comparatively unimportant point — ^that is, there are not a great many people there, and they consimie comparatively little — we nave to have some means of gettmg into that rich interior country where the main part of the supplies going from the States are used. Now, these lines, which also operate from Seattle up to Skagway, having connections with the White Pass and Yukon routes, being enabled thereby to get up into that territory, could by that joint arrange- ment make such rates as they might choose, or such joint rates, and whatever our rate might be to Skagway, they could put up the balance of the rate from Skagway on, when received by our steamer, to such a point that nobody would ship via our steamer. They would take advantage of these lower rates by our competitor. Not only that, but they would escape that wharfage charge and could have shipments routed straight through from Seattle to points in all Alaska districts. So we suffered every sort of disadvantage. Our passengers had to stop at Skagway and go to the office of the White Pass & Yukon Route and buy another ticket, and they were charged a much higher rate. They could not check their baggage through. The Chaieman. Was there any certain way for the White Pass & Yukon people to identify the ticket buyers who came to Skagway by your ship? Mr. DEATrroN. Yes, sir; they had our tickets; they did not have tickets issued by the Alaska Steamship Co. or the Pacific Coast Steamship Co. ■ The Chairman. Can you tell us what difference it made in the Skagway office whether they had your ticket or the syndicate's tickets? Mr. Deayton. Of course we could not sell tickets through to points on their lines. The Chaieman. In buying tickets from Skagway on, what differ- ence did it actually make as to which route the passengers came to Skagway by ? Mr. Drayton. If they started at Skagway, there would be no difference, but there was no through rate or joint rate wJien they came from Seattle up to Skagway and then over the White Pass & Yukon Route to those interior points. CONTB0I»LBR BAY LANDS. 161 The Chaihman. What was the difference between the case of a passenger leaving Seattle by the Humboldt Co.'s steamship and going to Dawson, as against the other route, both in money and con- venience? Mr. DEAY*roN. I can not remember that exactly in figures. I can not tell you, but there was a considerable difference from Seattle to Dawson as to whether you came by our line and on by the White Pass & Yukon Eoute, or whether you came by the Alaska Line and went through to these points on a through ticket. It is the same as buying a ticket from here to Boston via the Baltimore & Ohio and New York, New Haven & Hartford Eailroad. They have a joint arrangement and sell a round trip through ticket. Now, if they did not have such an arrangement as that, you would have to buy a ticket from here to New York, and then buy a ticket over the other line. They might charge you the sum of the local or separate rates, which usually means a much higher rate than the through or com- bination rate. The CiTAiEMAisr. Could not a passenger making the trip on your boat buy a ticket .from Seattle to Dawson ? Mr. Dratton. No, sir; The Chairman. Only to Skagway ? Mr. Drayton. Yes, sir. The Chairman. And then would have to pay such short-rate fare as they choose to charge? Mr. Drayton. Yes, sir. The Chairman. Were there any means whatever of regulating or limiting these charge, or was the company a law unto itself ? Mr. Drayton. There is no way I can think of, for this reason : The Secretary of the Interior, as I understand, for some time — certainly since June 29, 1906, when this amended act to regulate commerce was passed — had been doubtful as to his authority to modify rates in Alaska under the act of 1898. The Chairman. Was he doubtful that he did not have the author- ity, or would he not attempt it ? Mr. Drayton. Well, I have no positive information about that, but I understand that recently there has been no attempt on the part of the Interior Department to regulate these charges. The Chairman. Can you furnish us in specific figures information as to the cost of going from Seattle to Dawson by your boat and by the syndicate's boat? Mr. Drayton. I think I have a copy of a brief embodying our tes- timony in this case, which would give that information to you. The Chairman. We would like to have that specific information. Mr. Drayton. I will send it to you, sir. The Chairman. You may have a chance to bring it. Mr. Drayton. I will be glad to do so. The Chairman. Will you now explain to the committee, as clearly as you can, the difference in shipping a ton of freight from Seattle to Dawson by your boat and by the syndicate's line ? Mr. Drayton. Do you mean in the matter of convenience ? The Chairman. Both in the matter of convenience and cost. Mr. Drayton. As I said, I have not these cost figures, but when we billed our freight from Seattle, it necessarily was billed to Skag- way, and our steamship company had in some way to make arrange- 162 CONTROLLEK JiA^' JL-AJSlUa. ' ments for rebilling, whereby the stuff was sent through over the Wliite Pass & Yukon Route. That was an inconvenience, of course. Of course the shipper could not go up there, unless he happened to be at Skagway, for the purpose of billing that stuff. The shipper, through us, had to take out separate billings and have the transit there interrupted. That meaht delay, in case the shipper was in a great hurry for his supplies, because it took some time to go over to their office and rebill this stuff. Aside from the actual additional cost, there was that delay in performing that extra service. Then he had to pay wharfage at Skagway — I do not believe that was included in the rate that was billed against the shipper — and that was $1 per ton itself. The principal inconvenience was to the passengers. I remember an instance which we had some testimony on. Ido not recollect it except in a hazy way, but it appears that our passengers from Dawson or Fairbanks, going through on a through ticket whichi they did not know read via Alaska or Pacific Coast steamers, had such through passage from Dawson to Seattle. They came down there thinking they could take any steamer at the docks. They tried to go on our steamer, and, of course, they were not good, because we had no arrangement with them,, and we would not have been paid a cent by the White Pass & Yukon Eoute for that transportation, and we could not afford to take them through. The Hurriboldt was then at the dock making the trip, and these people were delayed there five days, as I recollect, waiting for another steamer belonging to these other lines. It involved a substantial hardship, and we had some of these people to testify for us at the hearing, and they related what it amounted to in inconvenience. The Chaihman. Has the syndicate an interest in any hotels at that place ? Mr. Drayton. I do not know about that. The Chairman. You. do not know whether they were interested in holding the passengers up ? Mr. Drayton. No, sir. The Chairman. I understood you to say awhile ago that a'wharf- age charge of $2 per ton, or $2 for some unit of freight, was made against your company, and only $1 a ton against the Alaska & Pacific Coast Line. Mr. Drayton. Yes, sir. The Chairman. Please explain that. Mr. Drayton. Well, sir, it just costs the shipper $1 per ton more if he ships by our line or the Humboldt than by way of the Alaska roate. The Chairman. How do you manage to go on with business under these adverse conditions? Mr. Drayton. Only because in Alaska the people are willing to pay high prices when they want things done. When a man came down to our wharf and saw our boat there, and he wanted that stuff to go on that day, he was willing to pay the difference in freight and charges. Now, in many cases, where he could stand the delay, he would wait for the other boat. Of course, the shippers out of Seattle would wait when they could. In that country, you know, the people have considerable money to pay for what they want ; and $30 there, I pre- sume, is equivalent to $5 here. The Chairman. Does the spirit of opposition to the syndicate's methods have anything to do with your getting patronage? CONTBObLBR BAY LANDS. 163 Mr. Dkayton. I think so. There has been quite a little antagonism developed up there against this syndicate. For instance, four of the merchants of Seattle, who had been shipping by way of the Hum- boldt, and who wanted to continue shipping by the Humboldt, in- tervened in behalf of our complaint, in order to show to the com- mission that they wanted these rates established and that they were necessary. These people agreed to come and testify in our behalf when the hearing came off. However, in some way the Alaska Steamship Co.'s officials got wind of the fact that these men were in- terested for us, and I do not believe we got but one of them, if we got any, to testify. They were scared about it. They were afraid they would lose some business. They were selling supplies to this company, and they were absolutely frightened, and would not say a woi-d in our behalf. One of them, I think, withdrew his interven- ing petition. The Chaiemak. Did any of them give any reasons for their ac- tions ? Mr. Deatton. Yes, sir ; they told us that they would not be able to sell 1 pound of supplies to the steamers of the Alaska Steamship people if they testified for us. We went to see them afterwards and tried to persuade them that it was the right thing to do, but they refused. The Chairman. Did any of them testify for you, that is, any of these volunteers you spoke of? Mr. Deatton. Perhaps one did. It has been so long ago that I do not remember clearly, but I think that one of them did. I can tell you definitely when I bring or send you that petition or brief. The Chairman. I will ask you again to make it clear whether if the Humboldt Co. was driven out of business, would the syndicate have any opposition in the carrying trade between Seattle and Alaska ? Mr. Drayton. I do not think so. The Humboldt, itself, is barely on a living basis. I do not think they are making any money, and certainly, if you deduct the expenses of this lawsuit, they will not have made any money. I think Mr. Kalish, the vice president and general manager of the company, told me they were just holding on and they hoped that some day the commission would give theni an order in this case that would enable them to live. The Chairman. That does not quite answer my question. Mr. Drayton. I was coming to that. From the meager business which the Humboldt has been able to control, being an independent company, no other line operating independently of the White Pass Route, could live pn this Alaskan business. It is profitable if they can get it. It has been profitable, but not immensely so, which can be deduced from the fact that the Humboldt Co. has but one steamboat. If it was immensely profitable, they would have been able to put on other steamers. The Chairman. But you have not yet given a specific answer to my question, that is, if the Humboldt Co. was put out of business, would the syndicate lines have any opposition? Mr. Drayton. I do not think so. As I said before, I have no exact knowledge, and I can not speak from my own knowledge, whether there are other independents there. I do not believe there 4274— No. 5—11 2 164 CONTEOLLEE BAY LANDS. are, and I do not believe they could live in competition with these other lines. The Chairman. If the Court of Appeals of the District is right and, the Interstate Commerce Commission has jurisdiction over the Alaska carrying lines, and they would make a through rate which would apply to your company and would thus give them a fair chance, what would that mean to the HumBoldt Co.? Could they then do business? Mr. Drayton. Oh, yes; they could do business on a paying basis and make some money. The Chairman. Do you think the situation would be such as to justify other Richmonds entering the field — that is, the organization of any other companies or Competing lines ? Mr. Drayton. Well, if I was advising other companies as 'their attorney, I should say this, that it is difficult to get the commission to establish these through rates, and that it would be necessary for the commission to establish these through rates or otherwise they could not live. I say that the commission's authority to establish these through rates is so limited that I should advise them that they would be taking a great chance to establish and operate another line between these points. If they did not succeed in getting the com- mission to establish the through rate, they could not live, and the fact that the commission would here establish an additional through rate, would limit its authority under the law to establish another one, because they are authorized to establish a through rate in the exer- cise of a sound discretion where there is no existing satisfactory and reasonable through rate. The Chairman. Well, it is fair to assume that, in the absence oi action by the commission, there would not exist a satisfactory through rate from Seattle to Alaska ports and interior ^Doints. Mr. Drayton. But if the commission should establish our through rate, there might be other lines asking them for the establishment of through rates, and so far as it establishes through lines, it thereby limits its authority to establish others under this law, because, pre- sumably, the commission has thereby established another reasonable and satisfactory through rate. The Chairman. Of course, in my question, I am assuming that, if the Supreme Court of the United States holds that the Interstate Commerce Commission has jurisdiction and must act, it would act reasonably and establish a through rate, which would be a reason- able rate, and which would apply to competitors for business between these points. Mr. Drayton. I see that I have not made myself quite clear. The order of the commission, establishing this through rate, would be limited to our company, but would not be an open invitation to all other companies to come in and avail themselves of this order es- tablishing these through rates; that is, to any number of them that might choose to establish themselves. The Chairman. It appears that our minds did not meet. Mr. Drayton. I beg your pardon for not explaining it better. The Chairman. Do you know any more about the Copper River Railroad than you have told of; that is, as to who are in control of it? CONTROLLER BAY LANDS. 165 ■ Mr. Draytpn. No, sir; I do not. I understood that it was a new line which the Guggenheims had constructed up there. The Chairman. What do you know about the other Alaska rail- road from Seward, then along Eesurrection Bay, up near Turnagain Arm, toward the Matanuska coal fields? Mr. Drayton. Nothing at all ; they were not involved in this case. The Chairman. In your Alaska investigations, have you heard of _ Mr. Drayton. No, sir; I have not made any very extensive inves- tigation into Alaska, such as your committee is upon. I just con- fined myself to this one case that was in my hands, and that is all I was paid for. The Chairman. Coming back again to the attempted settlement of this matter, I think you stated that you and your associate counsel had different views as to what should be done in the premises; that is, Mr. Munday and yourself. Did I understand you rightly when I got the impression that he rather favored the settlement and that you did not? Mr. Drayton. No, sir. The Chairman. ^VTiat are the facts on that line ? Mr. Drayton. I do not know that we had any real difference about it. I think, however, I was more favorable to the settlement than Mr. Munday was, because I appreciated the difficulties more. Mr. Munday is an older man than myself, but has never specialized in this work, and he left the entire conduct of the case and the argu- ment of it to me. He has not come on here for this court proceeding, and I had a keener appreciation of the obstacles in the way, and I favored more than he did the compromise proposition. I was willing to settle if they would pay us some reparation on account of this thing in the past, and, perhaps, I would have waived any such claim at all, and simply have had a through rate. The Chairman. Otherwise, you would be inclined to think that your client should have damages for the past injuries? Mr. Drayton. Well, we might get damages from them ; Mr. Mun- day thought so. , The Chairman. Have you ever been to Alaska? Mr. Drayton. No, sir ; I went to Seattle and stayed there. The Chaieman. Are you familiar with the time which steamers make from Seattle to Sk'agway, or to other points in Alaska ? Mr. Drayton. I think it is about five days, or maybe a little more for the round trip between Seattle and Skagway. The- Chairman. Is the time equally divided between going and coming, or is it longer one way than the other? Mr. Drayton. It is about the same. The Chairman. It is two and one-half days each way? Mr. Drayton. It may be five days each way instead of the round trip. The Chairman. Is that the fact. Judge Wickersha'm ? Mr. Wickeesham. Yes, sir. The Chairman. Have you any loiowledge, from reading or from conversation with others, as to the length of time it takes to go from Skagway to other points, such as Valdez or Katalla ? Mr. Drayton. No, sir; I have not the least idea. 166 CONTROLLBE BAY LANDS. The Chairman. What do you know about the feasibility or the practicability of navigating these waters in the wintertime? Mr. Drayton. I think they are not navigable in winter. The Chairman. What months would they not be navigable, as you understand it? Mr. Drayton. Perhaps in January or February, or along there. In those months, I believe, they operate by reindeer sledge on a part of that route. The Chairman. What months do you think the waters are not navigable ? Mr. Drayton. I suppose along in January and February. The Chairman. In going to Skagway, I believe,' there are two routes, known as the inside and outside routes ? Mr.' Drayton. Yes, sir. The Chairman. Can you tell us the difference between these routes, or could you indicate them on the map ? Mr. Drayton. No, sir; I can not. The Chairman. Can you describe, as you understand it, what the difference is? Mr. Drayton. I was going to say, all I know about it is that per- haps they use larger steamers on the outside passage and smaller ones on the inside passage. The Chairman. What effect would that have on the time necessary to make the trip ? Mr. Drayton. It would take a longer time to go by way of the outside passage; it would not be as direct, of course. I know so little about that that I really think I could not help you very much on that subject. Mr. George. Is there an inside passage all the way from Seattle? Mr. Drayton. Yes, sir. The Chairman. Do the islands continue all the way from Alaska to the States? Mr. Drayton. From Skagway; yes, sir. The Chairman. And is the route which you call the inside route available for the entire .distance ? Mr. Drayton. Yes, sir; all the way up there. The Chairman. Have you any knowledge as to how much further it is by the outside route than by the inside route ? Mr. Drayton. No, sir ; but these are pretty big islands, and I guess they would have to go a pretty good distance out; they would have to avoid the rocks and shoals. They would have to go quite a dis- tance, and of course that would lengthen the time. The Chairman. You have an opinion, of course, as to the syndi- cate's reason for its proposition to settle this matter out of court. What, in your opinion, was this reason ? Mr. Drayton. Well, usually a man had rather do voluntarily, or in a voluntary, way, what he is asked to do than to be forced to do it, and perhaps when they saw that we meant to fight the thing all the way through, and when we ' got the favorable decision from the court of appeals — and I think it is a correct one, and I think it would impress their lawyers as being well founded— they then thought if we went on with it we would succeed in getting the through rate established, and perhaps that might affect their rates. They probably thought that perhaps the commission would take up their CONTROLLER BAY LANDS. 167 rates and establish lower rates or smaller divisions to them than they would want. "They thought, perhaps, they could get by a comparison a better division out of us than the commission would give. All these things might have entered into it; and then, too, the pendency of this general investigation into Alaskan matters might have influenced them to settle this thing and hush it up. This case has created some little comment and has been bruited about somewhat. I guess they would like to stop it. The Chairman. Did they open the door to you and invite you in ? Mr, Drayton. Not a bit, sir. The Chairman. Was any proposition of any kind made toward letting you into the syndicate ? Mr. Drayton. Well, the White Pass & Yukon Route officials, as I understand from a telegram from my associate, Mr. Munday, stated that if we could get the permission of the Alaska Steamship Co. they would make this arrangement. Mr. George. When did they say this ? Mr. Drayton. That was subsequent to the rendition of this opinion by the court of appeals, about the middle of June. Mr. Hanna. They only asked as to one steamship company ? Mr. Drayton. Yes, sir; that is the only one I represent, and they have only one steamer. The Chairman. But Mr. Hanna means they were speaking about only one steamship company. Mr. Drayton. Yes, sir. The other lines, the. Pacific Coast, and they had the matter up with the Canadian Pacific, and they were willing to have this arrangement made, but the Alaska Steamship Co. was standing out against it. The Chairman. Do you know who the officers of the Alaska Steam- ship Co. are? For instance, who is the president and the board of directors of that company ? Mr. Drayton. It seems to me that a man by the name of Reeves is an officer, but I am not sure about that. I can not tell you about that. I could get you these names, however. The Chairman. We would like to have the brief you spoke of. I suppose you have the bill of exceptions?. Mr. Drayton. Yes, sir; we have the testimony. The Chairman. The brief you spoke of quotes some of the evidence of the witnesses? Mr. Drayton. Yes, sir. ■ The Chairman. And that paper you have promised to send or bring up? Mr. Drayton. Yes, sir. The Chairman. Do you know anjrthing of a Mr. Heney connected with any of these companies? Mr. Drayton. No, sir. The Chairman. He is associated, perhaps, with Mr. Gray. Mr. Drayton. I never heard of him as I recollect. The Chairman. You stated that none of these matters were gone into in your hearing?, Mr. Drayton. No, sir; they were not. Mr. Hanna. What did you say were the names of the rival steam- ship companies? 168 CONTEOIiliEE BAY LANDS. Mr. Drayton. The Alaska Steamship Co; and the Pacific Coast Steamship Co. Mr. Hanna. Now, before you had this trouble and the suit was entered into, your company and these companies made the same rates all the. way through? Mr. Drayton. Before this trouble started our steamship was under some sort of lease or contract to be operated by the Pacific Coast Steajnship Co. "We were simply to be paid a part of the rate by tiiem, and they operated our boat just as though it belonged to them. Mr. Hanna. There was a combination as to rates and traffic? Mr. Drayton. Yes, sir; but just as soon as we went from under their control the White Pass Kailroad, with which we sought to bill business direct, stopped this through-rate privilege. Mr. Hanna. Now, you spoke about the difference in wharfage — that is, the difference between $1 and $2 per ton. Who paid that difference, you or the party shipping the freight? Mr. Drayton. The shippers paid it. Mr. Hanna. So your company lost nothing so far as that was concerned ? Mr. Drayton. No, sir ; but we lost business, of course. Mr. Hanna. Are there any tramp steamers doing business in that country ? Mr; Drayton. I can not say, but I guess there are. I have never heard of any, however. Mr. Hanna. What is the name of the party you said was associated with you in this suit? Mr. Drayton. In Seattle? Mr. Hanna. Yes, sir. Mr. Drayton. Mr. Charles F. Munday is a lawyer in Seattle who represents the Humboldt Co. generally, and he employed me in this particular case because of his unfamiliarity with this practice. Mr. Hanna. Is this Charles F. Munday now under indictment by the United States? Mr. Drayton. I have not heard anything of it. Mr. Hanna. You have not heard anything of the kind? Mr. Drayton. As to some connection with a coal case ? Mr. Hanna. Was he in Seattle? Mr. Drayton. There is only one Charles F. Munday out there. Mr. Hanna. You know nothing as to that ? Mr. Drayton. No, sir. Mr. Hanna. Or as to his having been interested in a certain group of coal claims? Mr. Drayton. I have known that he was in some coal cases. I know nothing about them, but it seems to me he was in Canadian territory. It seems to me he went up to Canada frequently. Since I have been out there he told me that he made a trip to Alaska, but I do not know whether it was on business or pleasure. Mr. Hanna. Do you know whether he was interested in any Bering coal claims ? Mr. Deayton. No, sir; I have no idea as to that. Mr. George. Do you know anything about any reduction made recently by the Canadian. Eailroad Oommissioin in the rates of Canadian traffic ? CONTROLLER BAY LANDS. 169 Mr. Deayton. I know they did establish some sort of through rate from Skagway up to Dawson, which is in Canadian territory. That, however, was a year or so ago. I do not know anything about their more recent actions. Mr. George. Do you know anything about any reductions in rates all the way to Seattle? Mr. Deayton. No, sir; but I do know that they took jurisdiction over that matter in some particulars, and established a through rate, or said that those carriers participating in that traffic must publish and file with the Canadian Commission their through rates or joint rates 'from Skagway, which is in our territory. I am somewhat surprised to know that they did assume that power. Mr. George. You do not know anything more about it ? Mr. Drayton. No, sir. The Chairman. Do you know anything about the Northwestern Commercial Co.? Mr. Drayton. Nothing at all, sir. The Chairman. Do you know one Charles Peabody? Mr. Drayton. I am just trying to recollect whether he was con- nected with these steamship companies at one time. I just had a notion that he was connected with either the Alaska or the Pacific Coast Steamship Co., but I am not sure about that at all. The Chairman. Did anything concerning these matters come out in the testimony in your case? Mr. Drayton. No, sir. The Chairman. Do you know anything about the steamers plying between Seattle and the points I mentioned; for instance. Controller Bay, Katalla, Valdez, Seward, and Nome? Mr. Drayton. No, sir; I do not know anything definitely about them, except that one of the reasons why these other steamship lines might be willing to compromise with us was because our manager, Mr. Kalish, told them that if he could not get into Skagway, he would in some way try to return via these other points up there on the Yukon River. The Chairman. Do you mean by that that he would go around the Alaska Peninsula, up along the river? Mr. Drayton. Yes, sir; but I have a very hazy recollection of it. I just recollect about a threat which was made to put in competition up there, and that had some little influence upon them. I do not think it was much, however, and it turned out to be very little, indeed. The Chairman. But that referred to through steamers plying be- tween Katalla, Controller Bay, Seward, and around to Nome, which ' is beyond or north of the mouth of the Yukon River. Mr. Drayton. I do not know anything about that. The Chairman. Well, I think that covers all that I wish to ,ask you. Mr. Drayton. I should like for it to appear that I came here under a subpoena and did not thrust myself upon this committee in giving this testimony. I do not know what purpose that might serve, but it will not hurt me. The Chairman. I will'state that Mr. Drayton was subpoenaed here at this time and came in obedience to that subpoena. (Thereupon, at 12.45 o'clock p. m., the committee took a recess until 2.30 o'clock this afternoon.) 170 CONTROLLER BAY LANDS. AFTER RECESS. The committee reconvened at 2.30 o'clock p. m., Hon. James M. Graham (chairman) presiding. Mr. Hanna. Mr. Chairman, I would call your attention to No. 3 of the hearings, i\,t page 77, where the matter came up for consid- eration regarding the bills that _were introduced by Mr. Smith, of Iowa, in the House and by Senator Piles, of Washington, in the Senate. The Chairman. About the bottom of the page ? Mr. Hanna. Yes, sir; and following on down. At that time I made a request, and that was that the secretary of the committee should be instructed to get a copy of some exhibits. That was with reference to these letters which I have here, and at this time I would like to ask that these letters be put into the record. One is a letter of Mr. James R. Mann to the Secretary of War, dated January 9, 1911. The' Chairman. Are you confident that that letter is not included in the printed report of the Secretary of War ? Mr. Hanna. No, sir; I have looked for all these and do not find them. The Chairman. There can be no objection to their going into the record. Mr. Hanna. Then there is a letter dated Januaiy 19, 1911, signed by W. H. Bixby, Chief of Engineers, United States Army, to the Secretary of War. That has not been printed heretofore. Then there is a letter dated February 15, 1911, signed by R. A. Bal- lingej. Secretary of the Interior, addressed to Hon. James R. Mann, chairman of the Committee on Interstate and Foreign Commerce of the House of Representatives, relative to these same bills again. Then there is, Mr. Chairman, a copy of a letter under date of January 4, 1911, addressed to Hon. Albert J. Beveridge, chairman of the Committee on Territories, United States Senate, signed by Mr. R. A. Ballinger, Secretary of the Interior. These all pertain to the matter that was under consideration at the time Maj. Cavanaugh was on the stand. That is all I have. Mr. Hensley. Mr. Chairman, can the members look over those letters? Mr. Hanna. They all pertain to this matter, Mr. Chairman. You might look over the file, if you want to. Here is the file which was given to me. The Chairman. They are official letters relating to these matters,, and I will say to the reporter that they may be inserted at the end of this day's record. (The letters referred to will be found appended to this day's hear- ing.) Mr. Hanna. If Mr. Hensley wants to look over these letters, I will be very glad to have him do so. Mr. Hensley. My purpose in saying what I did was that it seems to me that the matter ought to be made as cjear on those propositions as possible, and only those things that are apropos and connect with this matter ought to go in the record. Putting m a whole lot of let- ters is like putting in a little grain in a lot of chaff. CONTEOLLBR BAY LANDS. 171 Mr. Hanna. I think that you will find that all of these letters per- tain to the matter under discussion at this time. Mr. HensLey. When you get these parties here and get them on the witness stand you get what they say at first hand. "Would not that be better ? The Chairman. The chairman is of the opinion that even if they were here,, the letters,, so long as they are official and pertain to this matter, ought to go into the record. I would not like to rule out anything that appears to be at all relevant to the matter we are investigating. Mr. Hensley. I am not objecting. I just want to know about them. The Chairman. We have to give the widest latitude in the ad- . mission of any matter that is even slightly relevant. Although it might be rejected by a court, and properly so, it might still be admis- sible, and properly admissible, here. Mr. HJENSLEY. I have never been on a committee of this kind before, and I know that some things have gotten into the record that I would object to strenously if it was in a trial before a court; and that prompted me, more than anything else, to say what I have said. The Chairman. Very much greater latitude is given here than in a court proceeding, and the Chair would not like to assume the responsibility of keeping out of the record anything that appears to be relevant, or anything that the members of the committee would feel, in good faith, ought to go in here. Mr. Hanna. Mr. Chairman, when the matter was under discus- sion the other day T made the request to you through the secretary of the committee that these letters which had been filed with the Committee on Interstate and Foreign Commerce might be gotten, so that they might be introduced and put into the record here, and the secretary has brought these letters to me to-day, and I believe, as a matter of fact, that they ought to be put in. The Chairman. If there is anything else in that file that Mr. Hensley or anyone else thinks ought to go in, let them examine it, and we will put it in. Mr. Hanna. You may look at these, Mr. Hensley. There is not anything else in there that ought to go in, I think. Mr. Hensley. Very well. (The file referred to was here taken and examined by Mr. Hensley.) TESTIMONY OF CHARLES D. DRAYTON— Continued. The Chairman. Mr. Drayton, you were to favor us with some of your literary productions. Are you ready to do it ? Mr. Drayton. As I stated, Mr. Chairman, I came into my office at 2 o'clock and found your message there asking me to produce these communications between Mr. Munday and myself and Mr. Munday and Mr. Kalish, and I came immediately with my entire file, the time being so short that I did not have time to look through it, and I am running through this file now. The Chairman. With reference to the record in_ the Interstate Commerce Commission case, have you brought that with you? 172 CONTROLLER BAY LANDS. Mr. Dkayton. I have that ; yes, sir. There are a few inaccuracies, I discover, in my statement of this morning which I have been able to find upon refreshing my recollection a little. • As I stated, my rec- ollection was very hazy. I find that, instead of the Alaska Steamship Co. objecting to the proposed compromise which we have tried to bring about, the Pacific Coast Steamship Co. seems to be the party. I refer to a letter from Mr. Munday of March 9, 1911, in which he says, among other things: The other steamship companies are now trying to arrange for this season's business with Mr. Kalish, but he is insisting that before he will negotiate witk them on any basis whatever the White Pass route must be opened to him on the same terms as to the other companies. The White Pass people have agreed to do this whenever the other steamship companies request them to. The Alaska Steamship Co. has agreed, but the Pacific Coast Steamship Co. is holding out. Mr. Hanna. Do you understand the Pacific Coast Steamship Co. is a Qanadian company? Mr. Drayton. That has been my understanding. Mr. Hanna. You are not positive as to that? Mr. Deayton. No, sir. Mr. Hanna. Do you know the names of any of their steamships? Mr. Dkayton. I do not think so. I can get that by reference to the record in this case. Mr. Hanna. Will you just refer to that? I think that would al- most tell us. I know how those names go up there. Mr. Dkayton. It might take me a little time to find this, Mr. Hanna. It was mentioned very incidentally in this case. Mr. Hanna. Never mind about looking it up, then. Mr. Drayton. I gave some sort of an explanation this morning as a reason why no compromise had been effected some time ago, befoi:^ this case was instituted, and if the committee cares to have me do so I can read just a few pages from the testimony, which, I think, will indicate. This is from the testimony of Mr. Pearce, who was manager of the Pacific Coast Steamship Co. for some time. The Chairman (after examining record). How much of this do you think apropros— the direct examination?' Mr. Drayton. Of that one witness. The Chairman. Of that one witness? There are some objections in this record by attorneys, and there is some discussion about the admissibility of evidence there that we do not care to have put in our record. Mr. Drayton. Yes; I understand that. The Chairman. But the questions and answers I see no objec- tion to. Mr. Drayton. I do not care to go into it, sir, unless you are inter- ested in it. The Chairman. It is all right. The questions and answers you may read into the record here, cutting out the discussions among the attorneys themselves. Mr. Drayton. Yes. _ I read from the examination of Mr. Pearce, who was for some time manager of the Pacific Coast St-eamship Co., one of the rival lines at Seattle, in this case before the Interstate Commerce Commission, No. 2518, the , Humboldt Steamship Co. v. The White Pass & Yukon Rbilte. CONTROLLER BAY LANDS. 173 ' The testimony in this case was taken at Seattle, Wash., on October 7, 1909. I read, beginning from page 102, as follows : Mr. Drayton. What do you understand to have been the. reason for the reten. tion of the Pacific Coast Co. in this through-route arrangement with the White Pass & Yukon Eoute? Mr. Pearce. I would say that the reason was because they are afraid to put them out ; that they are stronger than the rest of them. Meaning the Pacific Coast Steamship Co. Mr. Dbatton. It is your understanding that they would have been glad to have put the Pacific Coast Co. out of the business? The question was objected to and, after some argument, the ex- amination was continued as follows : Mr. Drayton. What are the facts about that? Mr. Peaeoe. There has been or was a case where the Alaska Steamship Co. obtained the full agreement with the White Pass Co. As I recollect it, it was in the early part of 1907, for the 1907 business. And at that time I saw a tele- gram to Mr. Kallsh from one of the White Pass officials, asking if he would go in with the Alaska Steamship Co. I asked him to keep quiet about it, and asked him point blank, "Are you going -to leave us?" He says, "No; you have treated us very well, so we will stay with you." I said, " Keep quiet about this and let us develop it and find out what there is to it." We found that the Alaska Steamship Co. had an agreement whereby they were to be the sole connection with the White Pass people. Of course, I was looking to shut that off if I could, and there was only one way I could figure out to shut it up, and that was to tunnel through the mouth of the Yukon Kiver. Mr. Drayton. And it was owing to your threat or their understanding that your company would divert traffic, was it? Mr. Pearce. No; at that time tiiere was — the usual annual agreement for the mouth of the river business was coming up, and the Northern Commercial or Navigation Co.," which have steamers from the mouth of 'the river up to Fairbanks and Dawson, had submitted the usual agreement to be signed, and I suggested to our people that we don't sign that for the time being, because if we did it would take away our only method of fighting out of the way, as we would have to live up to whatever agreement we had with them. Mr. Drayton. What was that method of fighting? Mr. Pearce. Simply to put freight up the river and divert it from the White Pass Co. Mr. Drayton. Up what river? Mr. Pearce. The Yukon River. Mr. Drayton. Via what point? Mr. Pearce. Via St. Michael. Mr. Drayton. You understood at that time that it was the object of the White Pass & Yukon Route to combine with the tHumboldt and the Alaska Co. and to shut out the Pacific Coast Co. from participiition in that business? Mr. Pearce. My understanding was that the Alaska Steamship Co. had ob- tained a sole agreement with the White Pass people, but that the White Pass peoplie wanted them to make an arrangement with the Humboldt Co., so that they could get the benefit of the HumboMt running on that run and obtain a more frequent service than they could have done with their own vessels. That shows that they were more interested in having the Alaska Co., which, as I intimated this morning, is controlled by the White Pass Route, than to have it go via the Pacific Coast Co., and that supports my view that the Pacific Coast Co. is an independents- independent of the White Pass Eoute. The Chairman. Do you know whether Senator Keane, the Senator recently from New Jersey, was in any way connected with the Pa- cific Coast Co. ? Mr. Deayton. No, sir ; I have no idea. The Chairman. When you say that you think, or you are inclined to believe, that it is a British company, have you any information on which to base that, or is it a mere guess? 174 controujEk bay lands. Mr. Drayton. I can give you that, sir. The reason for my opinion about that is based on a statement by the counsel of the White Pass Eoute made at Seattle. The Chairman. Who was he ? Mr. Drayton. Mr. Bogle and Mr. Hartman were the two gentle- men; and Mr. Hartman gave this information. The Chairman. Unless you can find it quickly, it is scarcely im- portant enough to cause much delay. Mr. Drayton. Yes, sir. The Chairman. I think we can reach the facts. Mr. Drayton. I think that opinion of mine is based on some tes- timony here, on a statement made by counsel in this record. The Chairman. Have you the telegrams located that you were searching for? Mr. Drayton. I have some of them here, sir; but I think there are several others, in the other part of my file. The Chairman. Will you kindly look through your files, and when you get ready let us know ; and in the meantime we can proceed with other matters. Is Capt. Adams in the room? Mr. Adams. Yes, sir. TESTIMONY OF MR. JAMES B. ADAMS, ASSISTANT FORESTER, FOREST SERVICE. (The witness was sworn by the chairman.) The Chairman. Where do you reside? Mr. Adams.- My present residence is 2135 P Street, in the city of Washington. The Chairman. What is your occupation, Captain ? Mr. Adams. Government employee; or do you wish my specific position ? The Chairman. Any way you wish. Mr. Adams. Assistant Forester. The Chairman. That is, you are assistant to the Chief Forester? Mr. Adams. Yes. The Chairman. How long have you been connected with the Forestry Bureau? Mr. Adams. About 11 years. The Chairman. Not in the same capacity all of that time, I sup- pose? Mr. Adams. No, sir. The Chairman. How long have you been assistant to the Chief Forester ? Mr. Adams. Mr. Chairman, I have been assistant to the Chief Forester practically the whole time of my connection with the For- est Service. This position of Assistant Forester, which I refer to, is an appointive position. I have occupied that position, I think, for about four or five years. The Chairman. What is the nature of your duties — the duties of that office? Mr. Adams. I have supervision over the details in relation to operation and lands. The Chairman. Explain both those a little more fully. First, as to operation? CONTBOLLEK BAY LANDS. 175 Mr. Adams. The branch of operation is one of the administrative units into which the Forest Service is divided, and concerns itself with the organization and equipment and handling of the personnel of the service. It also has to do with the routine of establishing and determining boundaries of the national forests and of areas to be excluded or included. v The Chairman. Is there anything further that you deem worth mentioning that comes under that head of operation? Mr. Adams. No, sir; I believe that is all. The Chairman. And the other feature you mentioned as to the land? Mr. Adams. The branch of lands is concerned with the land claims, the alienations of lands v^rithin the national forests under any land law, and with the occupancy of the forests under permits, which in- cludes water power, or any form of occupancy of land, occupancy for water power or any other purpose. The Chairman. How are the forest reserves segregated? Mr. Adams. By proclamation of the President. The Chairman. There is, I suppose, a statute authorizing the mak- ing of such proclamations creating forest reserves? Mr. Adams. Yes; the act of 1897. The Chairman. That act provides for the manner of making the proclamation ? , Mr. Adams. I do not think that the act provides specifically for the manner. It provides that the President may withdraw public lands for forest purposes. The Chairman. As a matter of practice, how does the President usually do it, by direct action or through some of the department officers? Mr. Adams. I hardly understand the question, Mr. Chairman. The Chairman. Does the President himself make the issue of the proclamation ? Mr. Adams. Yes; in every case. The Chairman. Or does he do it through the Secretary of the Interior or through the Secretary of Agriculture ? Mr. Adajms. In every case the President signs the proclamation which actually takes the action. The Chairman. What is the initial step? Tell us, if you please, how the matter of eliminating or withdrawing land and creating a forest reserve is started." Mr. Adams. The act may be initiated by an application from citi- zens, or it may be on the recommendation of some field officer, after a recoimoissance of the land considered for either elimination or addition. The Chairman. Such petition or recommendation would be ad- dressed to whom ? Mr. Adams. It would be addressed to either the Forester or the Secretary of Agriculture. The petition would be referred, or the suggestion would be referred, to the district forester, who has gen- eral supervision over the particular forest in his district, and he, in turn, would direct the supervisor of the particular forest to which the addition was proposed, or from which the elimination was pro- posed to be made. / 176 CONTEOLLEE BAY LANDS. The Chairman. Forest reserves are supposed to be land with trees that are merchantable, or land that is susceptible of growing such trees ? Mr. Adams. Yes. The Chairman. Or in some instances water-power sites, whether 'there be trees in the vicinity or not? . Mr. Adams. The law provides, as nearly as I remember, that the land must be covered by trees or undergrowth and the reason for withdrawal must be to provide for a continuous supply of timber or the protection of a watershed. The fact that a water-power site happens to exist within the area would be no reason for or against ■ The Chairman. The creation of a forest reserve ? Mr. Adams (continuing). The creation of a forest reserve. It is not one of the things considered. The Chairman. All right. By protection of a watershed, of course, you mean the growing of trees on mountain sides, and thus not only preventing the .erosion of the soil, but also preventing rapid evaporation of the moisture, so that instead of leaving the ground quickly, it remains there as long as possible and thus furnishes a supply to streams. Mr. Adams. Yes. The Chairman. As well as keeping the soil moist and fertile? Mr. Adams. Yes. • The Chairman. After a forest reserve is created how may it be eliminated ? Mr. Adams. By exactly the same process ; by recommendation from tile departments to the President, and an act of the President in de- claring the area eliminated. The Chairman. While it continues forest reserve, it is not open to settlement by anyone? Mr. Adams. It is open to homestead settlement only under the act of June 11, 1906, which provides that the Secretary of Agriculture, upon application or otherwise, may in his discretion examine land, and if he finds it chiefly valuable for agriculture and not needed for forest purposes, he may list it with the Secretary of the Interior for settlement and entry, and the settlement and entry is substantially in accord with the general homestead law thereafter. There are some special features of the act of June, 1911. The Chairman. In creating forest reserves, I suppose it is quite usual that within the limits of the forest' reserve there would be some lands capable of agricultural development, and probably with- out tree growth ; but that would not interfere with putting it in and keeping it in the forest reserve, would it ? Mr. Adams. Not at all, sir. In establishing the boundaries of a large area it is impossible, of course, to exclude by survey or de- scription all the little areas which may be susceptible of cultivation, and this act of. June 11, 1906, was passed for the express purpose of providing a way by which such land could be put to its highest use, namely, to open it to settlement and entry by a home builder. The Chair:man. When that is done, does it continue under the jurisdiction of the Forestry Bureau any longer? Mr. Adams. No, sir; it is no longer within a national forest, and to all intents and purposes has the same status as the other public lands which are open to settlement and entry. CONTBOLLBR BAY LANDS. 177 The Chairman. In. matters of that kind, in dealings concerning such land, the work is carried on between the heads of the respective departments— the Secretary of the Interior and the . Secretary of Agriculture ? Mr. Adams. Yes. The Chairman. The Forestry Bureau being a service within the Department of Agriculture? Mr. Adams. Yes. The Chairman. When a forest reserve is created, what name do you give to the technical order of the President creating it ? Is it a. proclamation, or an Executive order, or what is it? Mr. Adams. In some instances it is called a proclamation. In ©thers.it is an Executive order. The effect, so far as I am aware, of the two forms is identical. The choice between the two from the point of view of the Forest Service is purely a mechanical one. The proclamation contains a printed description of the lands to be cre- ated or eliminated, as the case may be. ' , The Chairman. Created now is the only thing I am speaking of. Mr. Adams. To be created; but it refers in print tp a diagram which accompanies the proclamation and is made a part of it, a dia- gram showing graphically the boundaries of the forest to be created. The Chairman. Have you with you now any proclamation made by the President creating a forest reserve? Mr. Adams. Have I one with me? The Chairman. Have you such a paper with you ? Mr. Adams. Yes. The Chairman. Creating what forest reserve? Mr.. Adams. The Chugach National Forest, in Alaska. The Chairman. The printed document which you have handed me is of the date of February 23, 1909. That was not the date of the original creation of the Chugach National Forest Reserve, was it? Mr. Adams. No, sir ; I think that was the third proclamation affecting the lands in that region. The Chairman. When was the original proclamation made first creating a forest reserve in that vicinity ? Mr. Adams. I am sorry to say I can not give you, from my memory, the date. The Chairman. Can you tell us during what administration the first forest reserve was created there ? Mr. Adams. I am sorry to say I can not, sir. The Chairman. The addition to that forest reserve shown by the proclamation you handed me is entitled a proclamation? Mr. Adams. Yes. The Chairman. And, as I said, is dated February 23, 1909. That would be quite near the end of the last Roosevelt administration. Mr. Adams. Yes. The Chairman. The map which accompanies this proclamation, and which is referred to in the body of the proclamation as a dia- gram, shows by a continuous black line the outer boundaries of the forest reserve? Mr. Adams. Yes. The Chairman. And by diagonal black lines across a gray surface it shows the additions made by this proclamation? Mr. Adams. Yes. 178 CONTROLLER BAY LANDS. The Chairman. One of those additions is on the east side of the original forest reserve, and the other on the west side of it. Mr. Adams. Yes. The Chairman. The eastern one appears to be bounded oh the north by the black line which follows the watershed at that point, on the east by the one hundred and fourteenth meridian line, on the west by the Copper River, and on the south by a straight line drawn from the point of Cape Suckling to the southern extremity of the left bank of the Copper River, which would be the east bank at that point? Mr. Adams. Yes. The Chairman. That straight line seems to include as forest reserve quite a good deal of what I take it would be Controller Bayj is that correct ? Mr. Adams. Yes. The Chairman. Cape Suckling seems to have two projections, one to the south and the other to the west of that. Which is the cape, so far as this proclamation is concerned ; the southern ? Mr. Adams. The southern. Tlie Chairman. That is the one farthest south? Mr. Adams. Yes. The Chairman. What is this point here [indicating on large wall map] ? Mr. Adams. There is no description, except that it is the southern point of the east bank — east shore — of the Copper River where it enters into Controller Bay. I think that description is given here in this proclamation. It says, " thence in a northwesterly direction to the southern extremity of the left bank of the Copper River." The Chairman. Accordiilg to a map before me (referring to forest reserve map of the Chugach National Forest, dated 1910), that seems to exclude Kyak and Wingham Islands and most of the Okalee Snit, and to include all or nearly all of Kanak Island. Do you know what the fact is about that — the latter part — Kanak Island ? Mr. Adams. From the proclamation diagram it appears that it ex- cludes Wingham Island and Kyak Island, but it would seem to in- clude that peninsula. The Chairman. The Okalee Spit? Mr. Adams. Yes. The Chairman. I do not know as to the authenticity or authori- tativeness of that map. Mr. Adajvis. That spit is not shown on this proclamation diagram. The scale of the proclamation diagram is too small to show it. The Chairman. What do you say as to whether Kanak Island is all within the forest reserve or not? Mr. Adams. Is that this island down here [indicating on proclama- tion diagram] * It is impossible for me to tell from this diagram whether or not that is included or excluded. ■ The Chairman. I nnw call your attention to map 601-A of the Geological Survey, which is drawn on a larger scale than any of the others yon have looked at. Are you able to tell from it how much, if any, of Kanak Island is in the forest reserve? Mr. Adams. No, sir; it is impossible to tell from this map, be- cause this map does not show Cape Suckling, and according to the wording of the proclamation any land that would be included in CONTBOLLEB BAY LANDS. 179 a line " thence in a northwesterly direction to the southern extremity of the left bank of the Copper River " would be inside of the forest. But since this map you have just shown me does not show Cape Suckling you can not project the line td determine whether or not it includes this spit. The Chaiemak. Have you any recollection of the fact ? Mr. Adams. None whatever, sir. The Chairman. Now, if you please, tell the committee the steps which are usually taken in eliminating land from a forest reserve. Mr. Adams. After the area to be eliminated has been examined and reported upon by a field officer, under the direction of the super- visor of the forest from which the land is to be eliminated, the re- port, accompanied by a map and a definite recommendation from the supervisor for or against the elimination, is submitted to the district forester, by wh,om it is considered, and if in his judgment it is necessary, a further examination is made and further informa- tion is obtained. When the Assistant Forester is satisfied to make his recommendation he submits it, together with all the papers in the case, to the Forester. The Chairman. What examination is made on such occasions? What is the nature of it? Mr. Adams. The examination consists of a study of the cover of the land. The Chairman. That means what? Mr. Adams. Tree growth, its topography, soil and water condi- tions, and a consideration of the effect upon the surrounding country of materially changing the conditions existing at present. For ex- ample, if land which is now covered by a stand of timber was elimi- nated, and the timber removed, what would be the effect on the run- off, and what would be the effect of that run-off on the watershed on.jwhich the land is situated? The Chairman. You mean the run-off of the water that falls on it? Mr. Adams. The flood water ; the rainfall. The Chairman. Yes. Mr. Adams. That report is considered by the Forester, and if he concurs in the recommendations made by the field officers, he prepares a statement or memorandum for the Secretary of Agriculture; he prepares a letter addressed to the Secretary of the Interior for the signature of the Secretary of Agriculture, and prepares also a draft of the proclamation or Executive order, as the case may be, and sub- mits the whole case, usually in person, to the Secretary. The Chairman. Just there let me repeat. On account of the great noise in the street outside, I may not have heard you accurately. The initial step is taken by whom ? Mr. Adams. The very first step? The Chairman. Yes. After the examination by the Forestry Bureau as to the character of the land in question, he reports to some one? Mr. Adams. The Forester ? The Chairman. Yes. Mr. Adams. The Forester reports to the Secretary of Agriculture. The Chairman. His chief? Mr. Adams. His chief. 4274— No. 5—11 3 ;180 CONTEOLLEK BAY LANDS. The Chairman. And that report is either in favor of or adverse to the elimination of the land in question ? Mr. Adam's. Yes. The Chairman. After the report is made to the Secretary of Agriculture, what is the next step ? Mr. Adams. Assuming that the report is favorable to the elimina- tion, the Secretary signs a letter prepared by the Forester, and sub- mits the matter to the Secretary of the Interior, with a definite recom- mendation that the elimination be made. The Chairman. You say " submits the matter." What does he submit ? Mr. Adams. The question of elimination. The Chairman. What papers does he submit? Mr. Adams. He submits the draft of the proclamation or executive order, as the case may be, and a type map of the area to be eliminated. I think that is all, sir. The Chairman. What becomes of the written statement or recom- mendation of the forester to the Secretary of Agriculture ? Mr. Adams. It remains in the files of the Forest Service. The Chairman. Does any copy of it remain in the Agricultural Department, or accompany the proposed proclamation to the Inte- rior Department ? Mr. Adams. No, sir. That has been largely more a matter of per- sonal explanation to the Secretary. The Forester in taking the matter to the Secretary takes with him all the papers in the case, including the reports of the field officers. The Secretary has an opportunity then to ask the Forester such questions as he may desire answered, before deciding that he approves the recommendation of the Forester. The Chairman. But is there a statement in writing made by the Forester to the Secretary of Agriculture? Mr. Adams. Not in every case. In a good many cases the Forester simply indorses his approval of the recommendation of the field offi- cers, there being no occasion to duplicate what has been said by the field officers if the Forester concurs in those recommendations. The Chairman. That report made by the field officers is necessarily made in writing? Mr. Adams. Yes. The Chairman. And where is it preserved? Mr. Adams. In the files of the Forest Service. The Chairman. And nowhere else? Mr. Adams. Nowhere else. The Chairman. And it would have an indorsement by the Chief Forester? Mr. Adams. Yes. The Chairman. And what is the action by the Secretary of Agri- culture when it is laid before him? Mr. Adams. The letter that he signs to the Secretary of the In- terior is a complete indorsement of his approval of what has been recommended by the Forester. The Chairman. Does anything pass from the Secretary of Agri- culture to the Secretary of the Interior but the proposed procla- mation ? CONTBOLLBE BAY LANDS. 181 Mr. Adams. A letter transmitting a draft of the proclamation or the order showing the area to be eliminated. The Chairman. And the letter, of course, will be from the Secre- tary of Agi;iculture Mr. Adams. To the Secretary of the Interior. 'The Chairman. When it reaches the office of the Secretary- of the Interior, what is the course to be pursued ? Mr. Adams. It is referred to the General Land Office, where the map is checked against the records of the land office, and it is eventually returned to the Secretary of the Interior with the recom- mendation of the Commissioner of the General Land Office. The Chairman. I assume the Secretary of Agriculture keeps copies of all papers in the matter which he sends to the Secretary of the Interior ? Mr. Adams. As a matter of general information only, I know that every letter signed by the Secretary of Agriculture is supposed to be press-copied in his office. The Forest Service is a bureau of the De- partment of Agriculture, and the files of the Forest Service are equally the files of the S^^cretary. They are as much under the Sec- retary's control as the files of his own office, so that it would be an unnecessary duplication of filing to place in his files, in his own office, duplicates of all the papers on file in the Forest Service. . The Chairman. Quite so. He goes on the theory, then, that what is on file in the Forestry Division is on file in the Department of Agriculture ? Mr. Adams. Exactly, because the Forest Service is a part of the Department of Agriculture, and it is as much under his immediate control as if its headquarters were located in his own office, instead of in another buUding. The Chairman. The draft which is prepared in the Department of Agriculture and sent to the Department of the Interior, and which you call a proclamation, is invariably styled by that name, is it not — a proclamation? Mr. Adams. No, sir ; it may be a proclamation or it may be an Executive order. The Chairman. What is the difference between a proclamation and an Executive order? Make that as clear as you can, and make your explanation as full as you are able. Mr. Adams. I am afraid I am unable to give you a very satisfac- tory explanation, but I have given you a copy of a proclamation, and I have here a copy of an Executive order. You will probably get the most intelligent reply to your question by comparing them. The Chairman. Let us borrow your greater knowledge and vastly greater experience, and ask you to indicate what differences you dis- cover in them. . Mr. Adams. The only difference that I am able to discover is that one is a very much shorter document than the other and apparently is prepared with a good deal less labor and expense. So far as I can make out, the effects of the two are identical. Mr. Hanna. Which one is it that is shorter ? Mr. Adams. The Executive order is the shorter one. The procla- mation is the one which involves the more laborious process. The Chairman. The President signs both? 182 OONTBOLLEB BAY LANDS. Mx. Adams. He issues both — signs both — and both go through ex-, actly the same process, as far as I am aware, when they reach the President. As far as I know, there is not any difference between the two except in the matter of execution. The preparation of that diagram is rather a laborious process. The map has to be carefully checked and compared against all the available records, and it is prepared by a draftsman by hand, and that — what we call a manu- script tracing — is photographed in order to get a negative, and that photograph is transferred to stone in order that it may be litho- graphed, and these lithograph copies are made. That is the cheapest process that we know of to get out an accurate map in that way. Mr. George. That map goes with the proclamation ? Mr. Adams. Yes. Mr. Geokge. And not with the Executive order? Mr. Adams. Well, that is true. The difference in this case is that where an addition can be described, or an elimination can be de- scribed, in a few words of printed matter it is not necessary to get out the diagram. You will notice that this particular diagram is on a very small scale, and it would be almost impossible to show on it an area of a few hundred acres. TESTZMONY OF CHARLES D. DRAYTON— Recalled. The Chairman. We will make a break here in order that Mr. Drayton may get away. Mr. Drayton, have you located the tele- grams you were hunting for? Mr. Drayton. These telegrams are very few in number, and of no material importance, as I regard it, to this inquiry. But they are here and subject to your examination, if you choose to examine them. I did have a statement which might interest the committee The Chairman. There was one other question, before you leave, that it occurs to me the committee would like to have some informa- tion about, and that is the nature of the wharfage or dockage priv- ileges and conditions at Skagway. Mr. Drayton. We showed by the testimony in this case, and by photographs which were submitted to the commission, that there was room at Skagway for only one wharf. The mountain comes right down to the water, and there is no room there at all for any other wharf than that which is controlled by the White Pass & Yukon Route. That wharf is not owned by them, but is owned by the Northern Pacific Wharf & Trading Co. The Chairman. Do you know whether that last concern is one of the syndicate corporations or entities? Mr. Drayton. No, sir; it is separately incorporated, and I do not know whether it is controlled by this railway company or not. But, in any event, they do control the facilities which that wharfage com- pany have at Skagway. And the Humboldt Steamship Co. would find it impossible to build another wharf at that point. So that the only wharfage facilities there are absolutely controlled by this railway. The Chairman. If there is any additional statement, Mr. Drayton, which you deem pertinent to the inquiry, the committer would like to have it. CONTBOLLEB BAY LANDS. 183 Mr. Dbatton. I do not think of anything more, sir. That was the statement I was going to make, and you put it in the form of a question. The Chaikman. Very well. Mr. Dbatton. In answer to Mr. Hanna about the Pacific Coast Steamship Co., I can say that I have since ascertained that that is not a Canadian or a British corporation, but a California corpora- tion. Mr. Hanna. Is it owned by the C. P. R. Co.? Mr. Dbatton. I do not think it is. Mr. Hanna. It is independent entirely? Mr. Dbatton. Yes, sir. Mr. Hanna. Both of these companies, then, are American com- panies, are they? Mr. Dbatton. Yes, sir. Something was said also, Mr. Chairman, about Mr. Peabody. I was just going to say that Mr. Charles E. Peabody appears to have been the managing agent and president of the Alaska Steamship Co. You asked me something this morning about Mr. Peabody, and I suppose that is the same gentleman. TESTIMONY OF MR. JAMES B. ADAMS— Continued. Mr. Henslet. There is one point I would like to have cleared up in my mind. Mr. Adams, you have spoken of field officers, and then again referred to the same officers, as I understood you, as being local foresters. Did you mean to distinguish between them? Mr. Adams. No, sir; I meant to refer to the same class of em- ployees. The force on the forests is composed of rangers, who are actually on the grounds, on the forests — distributed through the forests. The forests are divided for administrative purposes into ranger districts. Men live in those districts and perform duties as rangers. Now, we speak of them as forestry officers. It is a general term. Mr. Henslet. From whom these recommendations come, as a rule, that you speak of? Mr. Adams. Possibly. Mr. Henslet. Then the chief forester Mr. Adams. The man who has local supervision over the forest itself is the supervisor. The rangers are subordinates of the super- visor. The supervisor is the local manager or local superintendent, the supervisor of the work on the forest. They figure that forest as a unit, and the supervisor is the manager on that. Mr. Hanna. Is there a supervisor on every forest ? Mr. Adams. On each forest; and there are approximately 160 forests, and they are divided into six districts, each district having approximately 25 forests. There is a district forester in charge of the district, to whom the supervisors report; and the six district foresters report to Washington. Mr. Henslet. To the Chief Forester? Mr. Adams. To the Chief Forester and his -assistants. Mr. Henslet. I understand. I wanted to get clear on that. Mr. Adams. And these branches I speak of, a branch of lands, a branch of operation, and a branch of grazing, are very similar to the organization of a railroad company that has departments in charge 184 CONTROLLER BAY LANDS. of the executive officers, as the traffic department and the operating, department. The branch of operations is comparable with the oper- ating department of any big railroad organization. Mr. Hbnslet. This recommendation to restore lands to the public comes from which one of these foresters that you speak of? Mr. Adams. It is from a forest officer, but not necessarily from a ranger, because the supervisor might delegate, or designate, his. deputy supervisor, or a forest assistant, to go and make the exami- nation. Similarly, the district forester might send a special man to the supervisor to act as an examiner on that tract. In other words, in every case they would select the man who was best qualified to make the examination. But, whoever he was, he would make it primarily under the direction of the local supervisor, who would be responsible. If the district forester, was in doubt as to the comple- ntess or accuracy of the report, the maps, or the wisdom of the recom- mendation, he might send one of his immediate subordinates, as an inspector, to make a reexamination entirely independent of the super- visor. Mr. Hensley. But if he was satisfied ? Mr. Adams. Then he would pass it on up to the Forester with his recommendation. He would pass all the papers, the map, fhe report,- title map — if one is necessary, title map meaning the map which shows the alienations of land, which land is Government land and which land is within the area as private land. The Chairman. Captain, you spoke awhile ago of a copy of a let- ter prepared in the Forestry Bureau going through the Department of Agriculture to the Secretary of the Interior's office with the draft of the proclamation. Mr. Adams. Mr. Chairman, I could not have said that it goes through the Department of Agriculture or the Secretary's office, because the Forest Service is a part of the Department of Agricul- ture. The Chairman. Does it go by way of the Secretary's office to the Interior Department, or does it go direct from the Forestry Bureau to the Interior Department? Mr. Adams. It goes directly from the Secretary of Agriculture to the Secretary of the Interior. The Chairman. Does it go from the Forestry Bureau by way of the Secretary of Agriculture's office to the Interior Department office ? Mr. Adams. I do not think you could properly say it goes through the Secretary of Agriculture. The Forest Service merely prepares a letter for the signature of the Secretary of Agriculture ; it is his letter. It could hardly be said that the Forestry Service sent it through the Secretary of Agriculture. The Chairjian. I understand, now, the routine of it. That letter accompanies the draft of the proclamation? Mr. Adams. Yes, sir. The Chairman. A copy of the letter is kept in the Forestry Bu- reau ? Mr. Adams. Yes, sir. The Chairman. And, of course, a copy of the proclamation also? Mr. Adams. Yes, sir. The Chairman. And the copy is made by letterpress method? COSTTEOLLEB, BAY LANDS. 185 Mr. Adams. Yes, sir. The Chairman. And copies of all letters and all drafts of procla- mations or Executive orders are now on file in the Forestry Bureau? Mr. Adams. Yes, sir. The Chairman. Going back a bit to the Chugach question, I have before me a map marked " U. S. Department of Agriculture, Forest Service, Henry S. Graves, Forester. Chugach National Poorest, Alaska;. Compiled from official records and other sources. 1910." I will ask you- to look at that. Is there any short name by whick it is known that we could refer to in the record ? Mr. Adams. " Chugach sheet, No. 1." The Chairman. Then we will refer to it as " Chugach sheet, Na 1." I ask your attention to it, Capt. Adams, especially with reference to the location of Kanak Island, and more particularly as to whether it is all within or whether part of it is without the national forest there? Mr. Adams. Mr. Chairman, it is utterly impossible for me to tell definitely ; but I should say that the line shown on this map" running from Cape Suckling to the southern point of the east bank of Cop- per Kiver leaves a portion of that island outside of the national forest. The Chairman. Has there been a survey of that region ? Mr. Adams. No, sir. There have been, doubtless, a number of sur- veys made of small areas in that region; but there has been practi- cally no extensive survey in that region. The Chairman. Have the lines of the national forest been run by a surveyor? Mr. Adams. No, sir. The Chairman. So that whether it is in or out of the forest re- serve would depend entirely on where a straight line between the two points described would, go ? Mr. Adams. That is exactly my understanding. The Chairman. And, according to that map, it would go in such way as to leave a small portion of the south end of that island out- side of the forest reserve and include the rest of the island in the reserve ? Mr. Adams. It appears so to me. The Chairman. Speaking now of the difference between a proc- lamation and an Executive order, have you any recollection as to whether the act authorizing the doing of that makes a distinction between the two forms of order? Mr. Adams. It is my understanding that the act does not draw any distinction at all between the two. The Chairman. And the only distinction you know of is that the Executive order is briefer than the other ? Mr. Adams. Yes, sir. The Chairman. Less comprehensive ? Mr.' Adams. It is a much simpler step to take, from a purely office point of view. . The Chairman. Are you prepared to say that what is brief is always simple; that brevity simplifies? Mr. Adams. I am convinced that, judged by the labor, the effort expended by the office and field force in connection with the two methods, the Executive order form is very, very much cheaper. 186 CONTROLLER BAY LANDS. The Chairman. Simpler? Mr. Adams. Simpler and cheaper. The Chairman. In that I would agree with you. Let me see how it strikes me as to the difference in the two documents you have placed before us — the proclamation adding to the Chugach National Forest, made on February 23, 1909, and the Executive order, made on Octo- ber 28, 1910. I find, as the most striking difference, at first blush, that the proclamation has a map accompanying it, or a plat, or chart, or diagram, outlining the exact boundaries of the forest reserve. Mr. Adams. Yes, sir. The Chairman. I find that there is no such diagram accompany- ing the Executive order. Is there in any way a substitute for that diagram which accompanies an Executive order? Mr. Adams. The substitute for the diagram is the printed descrip- tion of the land contained in the Executive order itself. The Chairman. 1 will read this Executive order into the record, known as Executive Order No. 1260. Executive Obdeb. chxjgach national fobest, alaska. Under authority of the act of Congress of June 4, 1897 (30 Stat., 11, at 34 and 36), and on the recommendation of the Secretary of Agriculture, it is here- by ordered that the proclamation of February 23, 1909, enlarging the Chugach National Forest, be modified to reduce the area of such national forest by eliminating therefrom the following-described tract, containing approximately 12,800 acres of land, which has been found upon examination to be not chiefly valuable for national forest purposes: Beginning at a point where the meridian of longitude 144° 5' west crosses the coast line of Controller Bay, thence north along said meridian line to the parallel of latitude at 60° and 10' north ; thence west along said parallel to a point where the same crosses the coast line at or near the mouth of Bering River, and thence .nlong the coast to the place of beginning. The tract above described is hereby restored to the public domain. Wm. H. Taft. The White House, Washington, October 2S, 1910. (No. 1260.) The only way by which the survey could be made to locate and de- termine this land is from the description of this order? Mr. AriAMS. Yes, sir. The Chairman. But no chart or diagram of any kind accom- panied it? Mr. Adams. None whatever. The Chairman. The proclamation is introduced by two "where- ases " ; the Executive order has none. Are those conditions usual in proclamations and Executive orders? Mr. Adams. Yes, sir. The Chairman. Following the whereases, the proclamation begins " Now, therefore, I, Theodore Roosevelt, President," and so forth. There is no such formal language in the Executive order; and those conditions are usual ? Mr. Adams. Yes, sir. The Chairman. The proclamation which you have handed me has some provisions in it about fishing; or, rather, I presume about fish nurseries. Please explain what they are. OONTEOLIiEB. BAY LANDS. 187 Mr. Adams. A part of the area included was originally withdrawn under some other act foi^ use by the Fish Commission. It was orig- inally drawn under the name Alfognak. The Chairman. Have you any form of proclamation with you eliminating land from a forest reserve? Mr. Adams. Proclamation? The Chairman. Yes, sir ; that would be more akin in form and in character and in spirit to the executive order eliminating land from a forest reserve. Mr. Adams. I have a proclamation here which I took at random merely to read some of the conditions in it. I find that this procla- mation makes both additions and eliminations. The Chaieman. What one is it? Mr. Adams. It is a proclamation of the 23d day of August, 1910, making additions and eliminations from the Kaibab National Forest in Arizona. The Chairman. I have in my hands a proclamation piarked "Third Proclamation," eliminating land from the national forest in Arkansas. That is a proclamation issued by President Taft on the 26th of Sep- tember, 1910. In it I read this paragraph : The lands hereby eliminated from the Arkansas National Forest which are not embraced In withdrawals for administrative sites for use in the management of the forest, or in any other reservation or appropriation, shall be restored to the public domain and become subject to the settlement under the general pro- visions of the homestead laws on such date and after such notice by publica- tion as the Secretary of the Interior may prescribe, but shall not become subject to entry, filing, selection, or other form of appropriation until the expiration of 30 days from the date so fixed, and no person will be permitted to acquire or exercise any right whatever under any settlement or occupancy begun prior to such date, and all such settlement or occupation is hereby forbidden. Is that notice as to time a usual feature in those proclamations eliminating land from a national forest reserve ? Mr. Adams. Yes, sir. The Chairman. Do you know of any proclamation eliminating land from a national forest reserve which has not that element of notice in it except the one of October 28, 1910? Mr. Adams. Yes, sir; I know that a number are in existence. The Chairman. How recent? Mr. Adams. They were proclamations which were issued a num- ber of years ago. The Chairman. How many? Mr. Adams. Say, more than three years ago. The Chairman. A special reason arose in the General Land Office for departing from the old practice, Capt. Adams, did there noi? Mr. Adams. I am not aware of what arose in the General Land Office. The Chairman. Have you any knowledge of a case entitled " In the matter of Mary A. Coffin," reported in 31 Land Decisions, where a question arose showing the necessity for making this reservation as to time, and that after that decision was rendered do you know of any proclamation or Executive order eliminating land from a forest reserve which did not have this time limitation in it ? Mr. Adams. I can not recall any just at present. The Chairman. Until October 28, 1910? 188 CONTBOLLER BAY LANDS. Mr. Adams. I do not recall one on that date. The Chairman-. Is there any time, limit or any notice required by tlie proclamation of October 28, 1910? Mr. Adams. There does not appear to be. The Chairman. Look at it carefully enough to answer positively, not only what a^ppears to be but what is or is not in it. Mr. Adams. I find, on reading it over, that it does not contain any such provision. The Chairman. You saw the original draft of it, Captain, did you ? Mr. Adams. I undoubtedly did, although I can not recall the cir- cumstance. The Chairman. The original draft of it did contain a provision as to notice? Mr. Adams. To the best of my knowledge and belief it did. The Chairman. What was that limitation ? Mr. Adams. As to the time ? The Chairman. Yes, sir. Mr. Adams. I am unable to state. I take it for granted it was 30 or 60 days. The Chairman. Another proclamation before me, covering the Holy Cross National Forest — that, I think, would be in Colorado r Mr. Adams. Colorado ; yes, sir. The Chairman. Has this provision in it : Tlie lands hereby eliminated from the Holy Cross National Forest which are not embraced in withdrawals for adminstrative sites for use in the manage- ment of the forest, or in any other reservation or appropriation, shall be restored to the public domain and become subject to settlement under the general provisions of the homestead laws on such date and after such notice by publication as the Secretary of the Interior may prescribe, but shall not become subject to entry, filing, selection, or other form of appropriation until the expiration of 30 days from the date so fixed, and no person will be per- mitted to acquire or exercise any right whatever under any settlement or occupancy begun prior to such date, and all such settlement or occupation is hereby forbidden. You notice, do you not, that is word for word the same language I read from the case of the Arkansas National Forest ? Mr. Adams. Yes, sir. The Chairman. Is not that the langTiage usually inserted in those proclamations ? Mr. Adams. Yes, sir ; it is. The Chairman. And is not that, in all human probability, the same language which was in the original draft of this Executive order when you saw it ? Mr. Adams. I think it was. The Chairman. How soon after you saw^ it, when the provision as to notice was in it, did you see it again ? Mr. Adams. I am quite sure that I did not see it again until I saw it in print, after the Executive order had been issued. The Chairman. That would be how long after you first saw it? Mr. Adams. Ohj six months or more. I recall that after that mat- ter was first considered and that draft prepared, just after that I went to the field and was in the field when it was finally acted upon, , and I think the action was concluded before my return. CGNTEOLLER BAY LANDS. 189 The Chairman. You say that you did not see it after the first time, you saw it until it, was in print, and that was some six months later? Mr. Adams. I think so. The Chairman. You first saw it about what date, as near as ypu can fix it? Mr. Adams. I imagine it was in the spring of that year — 1910. The Chairman. Could you not get closer to it than the seasons ? , Could you not name a month ? Mr. Adams. I am afraid I could not. I would have to consult my , office records to see just what my movements were. It is customary'' for me to make a number of trips during the year to the field. The Chairman. You could tell the exact time by consulting your office records, could you? Mr. Adams. Oh, yes ;. I could, undoubtedly ; certainly I could. The Chairman. It is scarcely fair to press you when you have the matter of record. At least when I have a matter of record I do not trouble my memory about it, except to remember where I can get the information. Do you mean the spring of this year or spring a year ago? Mr. Adams. 1910. The Chairman. We will trouble you to bring your memoranda or entries, whatever they are, which will enable you to fix the date with particularity; please remember that. Mr. Adams. Yes, sir. The Chairman. In the ordinary course of business in the office a . proclamation like this could not issue until some preliminary ex-' amination of the ground had been made? Mr. Adams. That is true. The Chairman. And have you personal knowledge — that is, through the records of your office, or the correspondence there, or otherwise — of the fact as to when the preliminary work was made' upon which this Executive order is based ? Mr. Adams. You mean at that time? , The Chairman. Unless you know it exactly. Mr. Adams. No, sir ; I know that the preliminary recommendation was made in the fall, or about the fall, of 1909. The Chairman. By whom ? Mr. Adams. By the supervisor; W. A. Langille, the supervisor of" the forest. The Chairman. Where is he located ? ; Mr. Adams. He resigned from the service, I think, effective the' 30th of June, after remaining in the service a number of years, and at present his new address is to be Portland, Oreg. He is going into business there. The Chairman. Where is he now ? , '■ Mr. Adams. I have not any idea where he is ; but I know that Port-! land, Oreg., is where he is going into business, and he is probably' there now. The Chairman. At that time he was located in Alaska? Mr. Adams. Yes, sir. ' The Chairman. With headquarters where? Mr. Adams. Ketchikan. It is a good ways down ; down here [indi- cating on map] . 190 CONTEOU^EE BAY LANDS. The Chairman. Have you office records showing the examination that he made ? Mr. Adams. Yes, sir. The Chaikman. We will want those records, too. You do not re- call now just what time the examination was made? Mr. Adams. Not with any more accuracy than I have already stated. Incidentally, these records are at the present time, all we have in Washington, in the hands of the Secretary of Agriculture. The Chairman. Do you recall at whose suggestion or direction he would make this examination, or, I might say, he did make it; who stirred up his activities in the matter? Mr. Adams. I am unable to state that from memory. That could be ascertained from the records. If it was the result of a request for elimination, that request may have been fil^d with the supervisor and forwarded by him to the Forester, with his recommendation; or it may have come through the Secretary of Agriculture direct. It may have come through the attorney of the parties interested and come direct to the Forester. But in any case it would have gone back to the supervisor with instructions to cause an examination to be made on the ground and submit his recommendations. Just what did transpire you can ascertain with certainty from the records. The Chairman. Will the records show where it originated and the steps and processes it went through ? Mr. Adams. I am sure they wiU. The Chairman. Have you any recollection as to who did request it, or whether it came about through a request? Mr. Adams. No, sir ; I am sorry to say I have no recollection at all upon that specific point. I am unable now to say whether that was taken up by the supervisor on his own motion or on a verbal inquiry of somebody up there, or as a result of the direction of the Secretary to the Forester. I may add this, that there are a good many cor- rections to the boundaries of these forests which shomd be made and which we have anticipated making. For instance, this northern boundary line is supposed to follow the divide. The Chairman. And watershed ? Mr. Adams. And watershed. We are not at all sure that this line, as shown on this paper, would conform to the topography of the CTound. What we want to do is to correct all the discrepancies. There will be some land over here, possibly, that should be elimi- nated, perfectly barren land, that it is futile, useless to have in the national forest. The Chairman. Is it not as well there as anywhere else ? Mr. Adams. There is an agreement between the two Secretaries, the Secretary of Agriculture and the Secretary of the Interior, about a year old, under which a reexamination was made of the boundaries of all the forests for the purpose of excluding from the forests any land which was not of the character contemplated by the act, and during the last year there have been eliminated something like 6,000,000 acres, four or six million acres, on all the forests, some of it in very small tracts, but all of it consistent with the agreement, and following the policy agreed upon between the two Secretaries. These corrections I speak of here that ought to be made are just along that same line, and it seemed to us that it would not be more than another year before we would hav(! to get out a new proclamation CONTEOLLBR BAY LANDS. 191 correcting these boundaries. I am quite sure that that fact would have in itself at once decided the question of whether the form of action taken in this case should be that of an Executive order or a proclamation. These other matters that you have just been discuss- ing, questioning me about, in regard to the paragraphs in the order, of course, have no relation to any decision as to which form should be adopted. The Chairman. The changes in the boundary line that you refer to would not be material, inasmuch as I presume the intention is to make the watershed the dividing line, or the northern boundary of that Chugach Forest? Mr. Adams. Yes, sir. The Chairman. And they would locate one peak and then another? Mr. Adams. Yes, sir. The Chairman. And imagine where the watershed lies between those peaks? Mr. Adams. Exactly. The Chairman. Until later on they could, by survey, determine it with accuracy? Mr. Adams. There may be ranges running out in here [indicating] that contain timber of sufficient value to Justify its inclusion ; in other words, there may be additions in there, ]ust as there may be elimina- tions there or elsewhere. We do not know exactly. The Chairman. Would the arrangement between the departments, which you have described, affect a tract of land in the interior of a forest reserve that is not near the boundary line ? Mr. Adams. Yes, sir; if it was of sufficient size to make it wortli while. The agreement would not contemplate an attempt to elimi- nate 40 acres. The Chairman. On account of the impracticality? Mr. Adams. Exactly. But if any large body of land were found inside of the exterior lines, which was of such a character that under that agreement it could be thrown out, it would probably be thrown out. Mr. Hanna. You threw out about 6,000,000 acres' last year ? Mr. Adams. Somewhere between 4,000,000 and 6,000,000 acres. Mr.' Hanna. Were there any additions? Mr. Adams. Oh, yes, sir ; there were probably in the neighborhood of 2,000,000 acres. Mr. Hanna. Added to it? Mr. Adams. Added. That was a straight location of the boundary lines all the way through. Of course, in the six northwestern States the law prohibits any additions, except by congressional action, so that such additions as were made were made outside of those six States. Mr. Hensley. Four or six million over and above the 2,000,000 that were added to the forest reserve ? Mr. Adams. Yes. I would be very glad if you do not take this down, because my figures may be away off. I will be very glad to furnish you with the exact figures. But my recollection is that there was a net increase of about 3,000,000 acres. Mr. Hanna. In regard to these notices that are in some of these proclamations, is that a matter of law or custom, as to this time, this 30 or 60 days? 192 CONTROLLBE. BAY LA^^'DS. • Mr. Adams. I think it is a matter of custom. It is a matter of dis- cretion, administrative discretion, I should say. 1 do not think it is required by the law. Mr. Geoegb. But is required by usage? Mr. Adams. Yes. The Chairman. TeU us at that point the purposes and the objects it might serve. It would seem to an ordinary layman to be the fairer and the better way. Tell us fully about that. Mr. Adams. I think the attention of the department was first drawn to that on account of the practice of using lands in the national forests which were added to the national forests as b^se for lieu selections, under the lieu-selection act, which was then in effect; that law has since been repealed. The Chairman. Would you mind telling us, Capt. Adams, the abuses you refer to, with greater particularity? Mr. Adams. A man having advance information that certain land was going to be included in a national forest might take advantage of that knowledge to purchase the land at a very low rate. After the location of the forest, then he could, under the lieu-land law, ex- change for land elsewhere of far greater value. That is about the plain English of it. Mr. Hanna. That lieu-land law has since been repealed ? Mr. Adams. It has since been repealed. The Chairman. When was it repealed? Mr. Adams. I am very sorry to say that I can not give you the date ; but it was within the last three years, I think. The Chairman. Let me see if I get your thought. Mr. Adams. Five years, I guess it is. The Chairman. A person who had advance information that cer- tain land was to be erected or created into a national forest reserve would hurry up before the forest reserve was created and locate on the land within that area? Mr. Adams. Yes, sir. It might be private land, and he might buy it outright — acquire it. The Chairman. He would get possessioii of it either by purchase or location? Mr. Adams. Yes, sir. The Chairman. He would in either event have a claim on it — in the one case a claim which would ripen into a title later on, and in the other case he would have a title by purchase ? Mr. Adams. Yes, sir. The Chairman. Then when that land was created into a forest reserve the Government, of course, would want the land that he had,, and in order to get it would give him what is known as a lieu selec- tion, meaning a selection instead of the one he had ? Mr. Adams. That is it. The Chairman. With that lieu-selection scrip he could go out and locate an equal amount of land anywhere in the country which was Government land? Mr. Adams. Unoccupied public land. The Chairman. And while the land he gave up might not be worth more than $1.25 an acre, he could take under that scrip land worth $50 an acre, if he could find it ? Mr. Adams. Yes, sir. CONXEOLLBR BAY LANDS. 193 The Chairman. For instance, timberland? Mr. Adams. Yes, sir. The Chairman. Possibly worth more than $50 an acre? Mr. Adams. Yes. The Chairman. But, as I understand you, that has been carried on to such an extent as to become an abuse, if not a scandal ? Mr. Adams. Yes, sir.. The Chairman. And it was to prevent that sort of thing that the President determined a preliminary notice should be a requirement on those locations ? Mr. Adams. Yes, sir. The Chairman. So that the public generally would have equal opportunities ? Mr. Adams. Yes, sir. The Chairman. If the notice was not in the proclamation, or Executive order, some one who had knowledge on the quiet or secret information could have a very decided advantage over everybody who did not have such information ? Mr. Adams. Yes, sir. The Chairman. And the purpose of the time limit was to prevent that, and to secure fairness to all the people ? Mr. Adams. Yes, sir. The Chairman. That was the understanding I had. Mr. Henslet. That fraud could only be perpetrated by acquiring private property, could it not? Mr. Adams. Yes. Mr. Henslet. If you had a right of entry there would be no occasion for you to go and locate on this, for the very sufficient reason that you would go elsewhere and select public land ? Mr. Adams. Your entry rights; yes, sir. The Chairman. Capt. Adams, it would seem as if the reasoning we have just reviewed, concerning the creating of forest reserves, would apply with equal force in the case of eliminating forest re- serves, would it not? Mr. Adams. I presume it would. There is a special law applicable to Alaska known as the trades and manufactures law of 1898, under which land may be taken up for purposes of trade and manufacture, under which head these various terminal or wharf facilities would come. But that law is not applicable to lands within a national forest, and if that law was extended to national forest land it would not have been necessary to make any elimination, and I think the opinion has been held that it would be desirable to extend the opera- tion of that law to the national forest land, provided it was safe- guarded in the same way that the act of June 11, 1906, under which land may be acquired for homestead purposes, gives protection. That is to say, that the' land must first be declared by the Secretary of Agriculture to be more valuable for purposes of trade and manu- facture, and then, in his discretion, be listed with the Secretary of the Interior for opening. In other words, allow discretionary power in the Secretary of Agriculture to prevent misuse ; but, at the same time, afford an opportunity so that the law might apply within the forest as well as outside. 194 CONTEOLLBB BAY LANDS. The Chairman. At present, however, it does not apply within a forest reserve ? • Mr. Adams. It does not apply within a forest reserve. The Chairman. And even outside of the forest reserves', do those who take it under the conditions you name get the fee, or a mere easement in the land only ? Mr. Adams. I am under the impression that they get a fee, although I may be mistaken in that. The Chairman. I think you will have to revise your opinion on that. Mr. Adams. I am sorry to say I am not entirely familiar with the operation of the law. The Chairman. Who, in your bureau, or wherever it originated, probably prepared the original Executive order of October 28 ? Mr. Adams. There have been several different persons employed on that work during the last year or more, and I would be very glad to give you the names of those persons. I can ascertain by being given a little opportunity who is likely to have been engaged upon the ■work but I am unable to say from my memory which one it would be. The Chairman. You can answer all those questions later on? Mr. Adams. Yes, sir. The Chairman. It is probably not fair to be bothering you about matters which are shown of record, and which you do not remember, when we expect you to produce all those records later. By the way, the law officer of the Agriculture Department is Mr. McCabe, I believe ? Mr. Adams. The solicitor of the department. The Chairman. Is he connected professionally with your bureau? Mr. Adams. No, sir. He is the solicitor of the- department, and in accordance with a certain act all the legal business of the department must be done under the supervision of the solicitor. - The Chairman. These matters would, then, necessarily pass under his observation — such as proclamations, executive orders, and all that? Mr. Adams. Yes, sir ; as to the form and compliance with law. The Chairman. And any changes in the form? Mr. Adams. Yes, sir. The form of all the proclamation would be subject to his scrutiny. The Chairman. Captain, you understand that at the next meeting you are to bring all the records of your office of any nature and char- acter bearing upon this question? Mr. Adams. I am very sorry that I will have to ask the indulgence of the chairman on that. Our records at present are all in the hands of the Secretary of Agriculture, and as soon as they are returned by him I will be glad to comply with the wishes of the chairman. The Chairman. Have you any notion when that will be ? Mr. Adams. No, sir; I have not. I know that the Secretary has been using them within the last few days, consulting them. I know that they will be at the disposal of the committee as soon as the Sec- retary knows that the committee needs them and as soon as they can be spared. (Thereupon, at 4 o'clock p. m., the committee adjourned until Thursday, July 20, 1911, at 10.30 o'clock a. m.) CONTEOLLiEB BAY LANDS. 195 (The letters offered in evidence by Mr. Hanna at the beginning of the afternoon session are here printed in the record in full, as fol- lows :) Committee on Interstate and Foreign Commerce, House of Eepbesentatives, WasJiington, D. C, January 9, 1911. Hon. J. M. Dickinson, Secretary of War, City. Dear Sir: I herewith beg to inclose to you copy of the bill (H. R. 30796) to authorize the Controller Railway & Navigation Co. to construct two bridges across the Bering River, in the Territory of Alaska, and for other purposes, pending before the Committee on Interstate and Foreign Commerce, and to ask for the views of the department concerning the bill. Tours, very truly, jAMfis R. Mann, Chairman. [First indorsement.] War Department, January 20, 1911. Respectfully returned to the chairman Committee on Interstate and Foreign Commerce, House of Representatives, inviting attention to the accompanying report of the Chief of Engineers, United States Army, dated 19th instant, and copy of amended bill referred to. Robert Shaw Oliver, Assistant Secretary of War. War Department, Office of the Chief of Engineers, Washington, January 19, 1911. The Secretary of War. Sib : 1. I have the honor to return herewith a letter, dated the 9th Instant, from the House Committee on Interstate antfForeign Commerce, inclosing for the views of the "R^ar Department thereon, H. R. 30796 (61st Cong., 3d sess.), a bill to authorize the Controller Railway & Navigation Co. to constrct two bridges across the Bering River, in the Territory of Alaska. 2. This bill proposes to confer upon the corporation named therein four privi- leges, ta wit : (d) To construct and maintain two bridges across Bering River in the Terri- tory of Alaska. (6) To construct, maintain, and operate docks, wharves, slips, and other structures at the "terminus of the railroad on the main channel of Controller (c) To extend, construct, and operate its railway, and the approaches thereto, from the terminus of the line on the north shore of Controller Bay, on and over the tide lands and navigable waters of Alaska in said Controller Bay to the main channel thereof. , . ^ , ^ , , . ^ , (d) A right of way on, through, and over the tide and shore lands of the United States, 200 feet in width, to connect its railway with the navigable waters In said Controller Bay. ^,. ^ . j j 3 The first proposition is embraced in section 1 of the bill, which is worded in the usual form and makes ample provision, in my opinion, for the prote^aon ot any existing or prospective navigation on the waterway to be bridged. With a St amendment, indicated in red, I see no objection to the favorable consid- eration bv Congress of the said section 1. „ ^ ,,,..„ ,. r. ^ i^ t 4 The second proposition is carried in section 2 of the bill. Imes 9 to 17 of Daee 2 Tothis there seems to be no special objection, although the necessity for its' enactment is not apparent. Under the provisions of section 10 of the river and harbor act of March 3, 1899, wharves, docks and other terminal structures may be constructed in navigable waters, with the consent of the ChTef of Engineers and the Secretary of War Moreover section 2 of the act of mT^ 1 4 1898 entitled "An act extending the homestead laws and providing m^riSt of way for railroads In the Territory of Alaska; (30 Stat. L., 409), ^ovides that when any railway coming within the pur\^iew of that section 4274— No. 5—11 4 196 * CONTEOLL.EE BAY LANDS. " Shall connect with any navigable stream or tide water such company shall have power to construct and maintain necessary piers and wharves for connec- tion with water transportation, subject to the supervision of the Secretary of the Treasury." And section 10 of the same act provides that the Secretary of the Interior may grant, to any citizen or lawfully organized corporation, the use of certain lands of the United States abutting on navigable streams in Alaska, for landings and wharves. The proposition under discussion seemingly constitutes an exception to these general laws on the subject, and while the reason for making such an exception is not obvious, I do not see that any harm to the public interests would result therefrom. I therefore make no objection to the favorable consideration by Congress of the portion of- the bill authorizing the construction of docks and other terminal structures If the pro- vision covering such authorization be amended as Indicated in red. 5. It is thought that the remaining provisions of the bill herein designated as propositions 3 and 4 do not come within the jurisdiction of the War Department. Possibly they pertain to the Department of the Interior, and assuming .that the views of that or the proper department will be obtained by the committee, I express no opinion regarding them except to say that I am aware of no ob- jection to them so far as the interests committed to the charge of the War Department are concerned. Very respectfully, W. H. Bixby, Chief of Engineers, XJ. 8. Army. Department of the Interiok, Washington, February 15, 1911. Hon. James R. Mann, Chairman Committee on Interstate and Foreign Commerce, House of Representatives. Dear Sir : Responsive to your letter of February 13, 1911, requesting a copy of my report of January 4, 1911, on Senate bills Nos. 8797 and 9163, relating to the Copper River & Northwestern Railway Co., I have the honor to inclose here- with a copy of said report for the use of your committee in considering H. K. 30796, a somewhat similar measure relating to the Controller Railway & Navi- gation Co. Replying to the last paragraph of your letter relative to the amendments which have been inserted In Senate bill 9864, authorizing the Controller Rail- way & Navigation Co. to construct two bridges across the Bering River in the Territory of Alaska, and for other purposes, I have the honor to advise you that I have examined the bill as amended and am of the opinion that the Inter- ests of the Government are fully protected, and this department will offer no objections to Its passage. Very truly, yours, R. A. Ballingee, Secretary. Department of the Interior. Washington, January 4, 1911. Hon. Albert J. Bevebidge, Chairmam Committee on Territories, United States Senate. Sir: I have your letter of December 13, 1910, submitting for report and recommendation a copy of Senate bill 8797, to authorize the Copper River & Northwestern Railway Co. to maintain and operate a wharf In Orca Inlet, In the District of Alaska, and for other purposes. This bill authorizes the Copper River & Northwestern Railway Co., a cor- poration organized under the laws of the State of Nevada, successor in interest to the Copper River Railway Co., to maintain, use, and operate for railroad and all other necessary purposes, the wharf in Orca Inlet, or Cordova Bay, in Alaska, and the railway approaches thereto, from the mainland, said wharf having been constructed at Three Tree Point by the Copper River Railway Co. at the terminus of its line shown on Its map of definite location approved by the Secretary of the Interior October 29, 1907. The bill further authorizes the Copper River & Northwestern Railway Co. to construct, maintain, and operate other wharfs, piers, docks, slips, etc., and approaches thereto, on and OONTBOLLER BAY LANDS. 197 over the navigable or tide waters of Alaska in Orca Iiilet or Cordova Bay, at sucti point as may be deemed most practicable in the vicinity of its terminal grounds. The bill also grants a right of way to the company through and over the tide and shore lands of the United States in the District of Alaska to the extent of 100 feet on each side of the center of its road as constructed from a point be- ginning at the said dock on the east shore of Orca Inlet, or Cordova Bay, to station 5484.4 on the south shore of Odiak Bay, and also over the tidelands of the United States lying between mile 20 and mile 45.21, as shown on the Copper River Railway Co.'s map of amended definite location filed December 11, 1908. Section 2 of the bill reserves the right to alter, amend, or repeal the act. I have the honor to advise you that the act of May 14, 1898 (30 Stat., 409), grants rights of way for railroads in the District of Alaska, there being a pro- vision to the effect that — " when such railway shall connect with any navigable stream or tidewater, such company shall have power to construct and maintain necessary piers and wharves in connection with water transportation, subject to the supervision of the Secretary of the Treasury : Provided, That nothing in this act contained shall be construed as impairing in any degree the title of any State that may hereafter be erected out of said district, or any part thereof, to tidelands and beds of any of its navigable waters or the right of such State to regulate the use thereof, nor the right of the United States to resume possession of such lands, it being declared that all such rights shall continue to be held by the United States in trust for the people of any State or States which may here- after be erected out of said district. The term ' navigable waters ' as herein used shall be held to include all tidewaters up to the lin^ of ordinary high tide and all nontidal waters navigable in fact up to the line of ordinary high-water mark." ' See section 2 of said act of May 14, 1898. Under date of October 29, 1907, the Acting Secretary of the Interior approved the application for right of way flle'd by the Copper River Railway Co. from the dock to a point on the bank of the Copper River between 44 and 45 miles from the coast. The approval was granted " subject to all valid existing rights, to the exception as to tide lands and beds of navigable wateri, and to the roadway reserved along shore lines." Inasmuch as it appears that the line of road for a distance of perhaps 25 miles from its terminus on Orca Inl'et traverses in places tide lands or the shores of navigable waters, and as it is understood that the dock was constructed without the supervision of the Secretary ofthe Treasury, the company desires congressional approval of its right of way. From conferences with local counsel for the beneficiary of the proposed legis- lation it Is gathered that 'the Treasury Department has held that, because of the construction of the railroad and wharf in question in advance of the grant- ing of permission therefor by that department, , the latter hSs declined to con- sider application for permission to exercise the right of operation and main- tenance of the wharf and railroad as constructed, and that it is the desire by legislation to avoid this difficulty. A further question is presented in that the road as constructed along the seashore occupies at intervals certain tide lands, some of which front on lands reserved under the act of May 14, 1898, by provisions requiring space of 80 rods to be allowed between entries of public lands fronting on the navigable waters. Possibly an additional reason for desiring legislation confirming the right of way exists in the fact that the right of way was originally acquired by the Copper River Railway Co. and assigned to the Copper River & Northwestern Railway Co. May 10, 1909, while the act of May 14, 1898, supra, provides in section 8 thereof that the right of way therein authorized shall not be assigned or transferred in any form whatever prior to the construction and completion of at least one-fourth of the proposed mileage of the road. The department is not definitely advised as to what proportion of the road had been constructed at the time of the transfer of the right of way, and it is therefore suggested that this constitutes an additional reason for seeking action from Congress at tills 1^11106 It may be that the language of the act of May 14, 1898, is sufficiently broad to authorize a railroad company seeking water connection to construct piers, docks and wharves and the necessary approaches thereto across tidal lands and lands In fact covered by navigable waters ; otherwise the language author- 198 COHrTEOLiL.EK BAY LANDS. izing the connection with water transportation would be practically nullified. However, it is possible that the law may not have intended to authorize the company to construct a road in the manner in which the Copper River Railway Co. did actually construct this road and its approaches to the dock, and in that event congressional action, of course, is desirable from the company's stand- point. Having under consideration the title and disposition of tidal lands, the Su- preme Court, in the case of Shivley v. Bowlby ( 152 U. S., 1 ) , held, in the course of a most exhaustive opinion covering the entire subject, that there can be no doubt that Congress has the power to make grants of land below high-water mark of navigable waters in the Territories of the United States whenever it becomes necessary to do so in order to perform international obligations or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States or to carry out other public purposes appropriate to the objects for which the United States holds the territory. At the same time the court stated that Congress has never undertaken by general laws to dispose of such lands, leaving the final disposition of lands covered by tidal and navigable waters to be made by the States to be erected out of the territory. In view of the court's opinion in the case cited, it would seem that Congress has ample power to pass the legislation contained in the bill under considera- tion. However, as above indicated. Congress has never seen fit by general law to grant absolutely the title to lands covered by navigable waters, and it is not believed it should be done in this case. Since the bill was reeeived in the department, resident counsel for the com- pany have filed a copy of Senate bill 9163, containing the same title, which appears to have been referred to the Committee on Commerce. This bill (9163) is not so broad as that submitted by you and for that reason is less objec- tionable. This department does not feel that it could consistently go further thdn to recommend legislation which would avoid the difficulty arising out of failure to present application for the construction of the proposed road, wharf, and approaches to the Treasury Department in advance of the building or construc- tion thereof, and that in any legislative approval of said road, wharf, and ap- proaches as now coilittucted, there should be retained in the United States and any future State erected out of this Territory the same right over tidelands and the beds of navigable waters as is provided for in the act of May 14, 1898, including full powdt and authority on the part of the proper ofiScials of the Government to accoM wharfage and other privileges in front of the reserved area, as provided for, in said act It is also believed that, upon satisfactory proof of necessity tilerefor, any other railroad company should be permitted to use the constructed road, wharf, and approaches, under conditions and limita- tions similar to those imposed by section 3 of the act of May 14, 1898, granting the use of a right of way through a canyon, pass, or defile. Very respectfully, R. A. Balliwges, Secretary. COMPTROLLER BAY LANDS No. 6 HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE INTERIOR DEPARTMENT OF THE HOUSE OF EEPRESENTATIVES ON HOUSE RESOLUTION NO. 103 TO INVESTIGATE THE EXPENDITURES IN THE INTERIOR DEPARTMENT JULY 20, 1911 WASHINGTON GOVERNMENT PBINTING OPI'IOE 1911 EXPENDITURES IN THE INTERIOR DEPARTMENT. (Committee room No. 296, House Office Building. Telephone 591. Meets on call.) JAMBS M. GRAHAM, Illinois, Chairman. SCOTT FERRIS, Oklahoma. FRANK W. MONDBLL, Wyoming. HENRY GEORGE, Jr., New York. LOUIS B. HANNA, North Dakota. WALTER L. HBNSLEY, Missouri. CHARLES H. BURKE, South Dakota. John F. McCaekon, Clerk. n CONTROLLER BAY LANDS. Committee on Expendittiees IN THE InTEEIOE DEPARTMENT, House of Representatives, Thursday, July 20, 1911. The coBamittee met at 10.30 o'clock a. m., pursuant to adjournment, Hon. James M. Graham (chairman) presiding. There were present, besides the chairman, Representatives George, Hensley,- Hanna, and Burke. Also present, Mr. W. P. Fennell, attor- ney at law, on behalf of the committee. TESTIMONY OF JAMES B. ADAMS, ASSISTANT FORESTEI^- Continued. The Chairman. Capt. Adams, just before adjournment at the last sitting, you were requested to bring with you certain papers and records of your office, indeed all papers and records of every nature and character bearing on the question of Controller Bay and vicinity. What have you to say about that ? Mr. Adams. As I explained to the committee, Mr. Chairman, those papers are in the hands of the Secretary of Agriculture, who, I under- stand, is using them in the preparation of a reply to an inquiry from some other congressional source The Chairman. In answer to the Senate resolution eaUing for infor- mation on that fine 1 Mr. Adams. Yes, sir. The Secretary has the entire file, and I regret that it has not been returned, and hence I am unable to submit it to the committee at this time. The Chairman. Are you able to give us any information as to when that work-will probably be completed and reported to the Senate ? Mr. Adams. No, sir; I have no information from the Secretary's office. The Chairman. So we can not have any of those papers this morning ? Mr. Adams. No, sir. I regret it is impossible. The Chairman. Well, it is through no fault of yours. I call atten- tion to volume 5 of the hearings, at page 187— Mr. Burke. Before you pass to that, may I ask one question ? The Chairman. Certainly. Mr. Burke. I would like to ask this of the chairman: Has the Sec- retary of the department been requested to produce this record ? In other words, has there been any request m£^de fpr it except the one made to Mr. Adams ? 199 200 OONTKOLLEE BAY LANOB. The Chairman. There has been no written or formal request made Mr. BuKKE. Except to Mr. Adams ? The Chairman. Yes; when Mr. Secretary Fisher appeared before the committee, I think at the second sitting of the committee, he then stated that he was engaged in preparing a response to the Senate resolution to which Capt. Adams has referred, and that that answer to the Senate resolutix)n when completed wouW probably give us a great deal of information that we desire, and that they were using the original papers in the compilation of that response. So we have, of course, for the accommodation of the department down tbere, refrained from calling for any of those papers tkftt would epibarrass them in the preparation! of the answer to the Sei;iate resolution. We may be compelled to wait some time- until that answer is completed and printed, and then we may go over it to see how much of it we want, and whether it contains all we want, ajid q. call for isolated, papers in the meantime would probably ^^ a b^d, way for ue to. proceed and embarrassing to them. The stenographer repeated tb.e question of the chairnj#ij, ae reCord,44 as follows:) The Chaikm.\n. I call attention to volume 5 of the hearings, at paRe 187 The Chaebman (eontinuing) . And- on that page I call attention- to a quoted paragraph in the middle of the page with reference to the Arkansas National Forest, and specially with reference to an elimi- nation from that national forest. Have you any knowledge of the time limit that was fixed with reference to that eliminated territory before any locations or settlements could be made on the land so eUminated' ? Mr. Adams. Thirty days. The Chairman. Thirty days after when ? Mt. Ajjams. Thirty days after the date fixed by the Secretary of the Interior. The Chairman. And has the date to be fixed by the Secretary of the Interior any necessary cofanection with the date of the proclama,tion itself ? • Mr. Adams. No, sir. The Chairman. It might, in fact, be long after ? Mr. Adams. Yes, sir. The Chairman. I have before me a paper headed ''Eliminations from National Forests; Circular No. 2," wnich I ask you to look at. (The witness did so.) The Chairman (continuing) . Are you able to identify that circular? Mr. Adams. No, sir; I never saw this circular before. The Chairman. By whom is it signed ? Mr. Adams. By Mr. Fred Dennett, Commissioner of the General Land Office. The Chairman. Of course, being a circular, it is signed in facsimile ? Mr. Adams. Yes, sir. The Chairman. Is it a facsimile of Mr. Dennett's own signature* Mr. Adams. It appears to be to me. The Chairman. loti are famiUar with his signature, are you? Mr. Adams. I have seen his signature a great many tirnes and it appears to be a facsimile. (JonTboller bay lands. 201 The ChaiEman. Can you tell the oommi'ttee briefly what that cir- cular purports to be ? Mr. Adams. I understand this to be an annoutEcement 'of the fact ■that land has been ehminated from a number of national forests. The Chairman. Do you find the one I mentioned— the Arkansas Forest « Mr. Adams. Yes; on page 2 of the circular. The Chairman. As a matter of fact, what time did elapse between the date of the proclamation and the time fixed by the Secretary when the notice would begin to run ? Mr. Adams. I am afraid I will have to consult the proclamation The Chairman. Does not the circular give that information ? Mr. Adams (after examination of circular). It appears that the proclamation is dated September 26, 1910, and by announcement in this circular the land is open to settlement February 1 and to entry March 3, 1911. The Chairman. That would • make the time from September 26 to March 3 Mr. Adams. About five months. The Chairman. It would be about five months and ten days, or jfive months and one week ? Mr. Adams. Yes, sir. The Chairman. Will you please look over the circular letter in your hand and tell the committee how many different tracts of land are described in it as about to be eliminsited fr'>m reserves ? Mr. Adams. There appear to" be 26 eliminations announced in this circular, or, rather, elimmation from 26 national forests. The Chairman. I now hand you another paper of the same general character Mr. BtiRKE. One moment, please. I presume that circular you have just referred to will go in the record so that we can see what it is. We now have simply what the witness has said as to what it con- tains ; The Chairman. If anyone .desires it, it will go in, but not at this time. (The Circular No. 2 referred to was handed to Mr. Burke by the chairman and examined by him.) Mr. Burke. I think it ought to go in the record at some place. The Chairman. I now hand you another paper of the same general character. Mr. Adams (after examination of the paper referred to). Yes. The Chairman. How many tracts of land are eliminated from reserves, as shown by that paper ? Mr. Adams. Eliminations are announced in 17 national forests. The Chairman. There is a proclamation for each one of those ■ehminations ? Mr. Adams. Yes, sir. The Chairman. Is the Chugach National Forest one of those men- tioned in that circular ? Mr. Adams. Yes, sir; it is an announcement of the ehmination of 12,800 acres from the Chugach National Forest, in Alaska, to be restored to the pubhc domain by Executive order, October 28, 1910. The Chairman. Of those 17, how many have time limits fixed as shown by the circular? 202 CONTEOLLBR BAY LANDS. Mr. Adams. I am unable to determine from this circular. The dates upon which the tracts eUminated are to be opened to entry are stated m the circular, but the date of the proclamation does not appear. The Chairman. Would it be necessary to have the date of the proclamation to determine whether there had been a time Hmit fixed before entry could be made ? Mr. Adams. It might seem from the wording of these paragraphs that the proclamation may have been dated at some prior date to that given for the opening to settlement, but that is merely an inference. The Chaieman. Well, what is the provision in the 16 of them with reference to a time for entry beyond the date of the proclamation or the date of the opening ? Mr. Adams. I do not find anything in the other 16 paragraphs in reference to the date of the Executive order or proclamation. The dates given in each paragraph are the dates upon which the land is subject to settlement ana entry, but it does not show the date of the proclamation. The Chairman. As I recall your testimony the other day, the pro- cedure is that the proclamation is made, it reaches the Secretary, and the Secretary then issues a letter. That letter must be subseqijent to the proclamation, of course. The Secretary could not issue a letj;er based upon a proclamation until the proclamation had been issued. Mr. Adams. Certainly. The Chairman. Therefore the proclamation must have antedated the Secretary's letter. Mr. Adams. Yes, sir. The Chairman. Now, then, taking the Secretary's letter as a starting point, what do you find from the circular in your hand with •reference to a time limit before entry after the issuance of the letter by the Secretary? Mr. Adams. "This is a circular by the commissioner, not by the Secretary. You do not refer to this letter? The Chairman. The circular by the commissioner may also have been subsequent to the letter issued by the Secretary. Mr. Adams. That of course follows, but there is nothing in this circular from which you could determine the date of the proclama- tion in any one of these items, except the one relating to the Chugach National Forest. So to make a comparison to determine whether the date of settlement and entry as stated in these other paragraphs is after the date of the proclamation in each case, respectively, it would be necessary to refer to another record, namely, copy of the proclamation in each case. ' The Chairman. I read to you from the very first paragraph of the circular letter I handed you, dated February 11, 1911. Sir : The vacant unappropriated public lands in the following; areas which have been eliminated from national forests by recent proclamations of tlie Pre.»ident will'become subject to settlement under the provisions of tie homestead laws and to entry under the public land laws on the dates and at the land offices given belo^. Does that clarify the matter somewhat as to the question of date ? Now, following that, the dates when they are opened to entry are given in each paragraph. For instance, the very first paragraph, 108,920 acres from the Angeles National Forest in southwestern Cali- OONTBOLL.ER BAY LANDS. 203 fomia, chiefly surveyed and unappropriated, mountainous, non- timbered and nonagricultufal, subject to settlement April 1, and to entry May 1, 1911. Los Angeles district. Mr. Adams. It indicates to my mind that the proclamation in that case is dated prior to the date upon which settlement and entry is announced. The Chairman. The date of the proclamation must have been prior to the date of this circular; that is, February 11, 1911 ? Mr. Adams. Yes. The Chairman. And the statement with reference to it in the para- fraph I read shows it is subject to settlement April 1, which would e seven weeks after the issuance of the circular and more than that after the issuance of the proclamation ? Mr. Adams. It would appear that it antedated this date of entry of opening to settlement and entry by seven weeks. The Chairman. And that after it was opened to settlement then one month elapsed before it was opened to entry ? Mr. Adams. It must be at least that, and it may be more. The Chairman. Now, wiU you look at the other 15 of the 16 and see whether that is not equally true of all of them except that the time may vary. Mr. Adams. That is equally true in all the other 15 cases. The Chairman. There is one exception to the general rule, is there not ? " Mr. Adams. There appears to be an exception. The Chairman. Which one is that? Mr. Adams. In the case of the Chugach National Forest in Alaska. The Chairman. There is absolutely no time limit of any character in connection with that ? Mr. Adams. No, sir. The paragraph relating to the Chugach National Forest Reserve does not show that there is any time limit after the signing of the proclamation. The Chairman. And you know from the proclamation itself that the statement in this paragraph is true ? Mr. Adams. Yes, sir. The Chairman. The proclamation itself does not make land subject to location or entry, does it, ordinarily? Mr. Adams. Only in accordance with the public-land laws. The Chairman. Without further action on the part of anybody the proclamation itself, without any action on the part of the Secretary or anyone else, does not make the land subject to entry? Mr. Adams. No, sir; it does not; that is right. It requires a suc- cession of subsequent official actions. The Chairman. Can you explain this pecuharity ? This letter is dated February 11, 1911. The proclamation is dated September 26, 1910. The date of the locations on Controller Bay seem to be in December, 1910. Now, December, 1910, would be more than two months before this circular was issued, which seems to be the initial step toward opening the land to entry. So that if I get it right, the locations on Controller Bay would have been made two months and a couple of weeks before the official steps had been taken to open that land to entry under the proclamation of the President. Do I make the point clear to you ? Mr. Adams. I am afraid not. 2'0'4 CONTROLLER BAY LANDS. The ChaihMan. You answered ye^ to 'toy pattial statement of it, alid by the longer statement I guess I have corifused you. Mr. Adams. In one case 70U have referred to this proclamation^^ Thie Chairman. September 26. Mr. Adamb. Dated September 26, and the Executive order making the elimination from the Chugach appears to be dated October 28, 1910. The Chairman. I guess you are right. Mr. Adams. I wondered if you were referring to the same'thing-^ — The Chairman. It was my mistake, I think. To restate it, then: The Executive order was dated October 28, 1910. No locations or settlements Or entries could be made on the land under that Executive order in and of itself. It required additional 'action by the Secretary aUd the Commissioner of the General Land Ofl&ee. That action a^ shown by this circular was not taken until February 1 1 and following; so th^t from October 10 to February 11 would elapse, that would be four months Mr. Adams. May I ask what official action you refer to that was taken on February 11? The Chairman. The issuance of leave, so to speak, as shown in the first paragraph of the circular, which I will read for you: (Reading from circular of February 11, 1911, hereafter marked "Adams No. 2:") The vacant unappropriated public lands in the following areas which have been eliminated from national forests by recent proclamations of the President will become subject to settlement under the provisions of the homestead laws and to entry under the public-land laws on the dates and at the land offices given below. That was the official act which made it susceptible of location and entry, was it not ? Mr. Adams. I am not sure that it does, sir, in view of the wording of this Executive order, which reads that the tract above described is hereby restored to the public domain. I am not sufficiently famiUar with the pubHc-land laws bearing on this point to be able to tell you whether or not The Chairman. Clearly, the Commissioner of the Land Office thought so or he would not have put it in this circular. Mr. Adams. I understand that that is not an official document which opens the land to entry, but an official announcement. You will notice on it that in the other 16 paragraphs it is announced that the lands eliminated will be subject to settlement and to entry on the dates specified in the paragraphs. The Chairman. In each paragraph. Mr. Adams. In each paragraph. And I think you will find that that is in accordance with the terms of the proclamation under which elimination was made. Now, in the case of the Chugach Reservation it appears from the Executive order that the tract described therein was restored to the public domain on the date the order was signed. The Chairman. Can you think of any reason why the Commis- sioner of the General Land Office would insert it here if he thought it had no application ? Mr. Adams. It occurs to me that it might be a matter of public information. Mr. George. Four months after the event. The Chairman. What was the answer ? OONTEOLLEE BAY LANDS. 205 ■Mr. Adams. It occurs to me that it might be a matter of pubUc information. The Chairman. But would it not be a little late to inform the public about it after the choice locations had been settled on some months; what good would it do the people up there to know that it was open after it had been taken ? Mr. Adams. I have no information as to whetiher lands were occupied The Chaieman. You have seen the official map here rfiowing the date. I call your attention to it again and fix the date at this time, and in that connection the (map does not give the date, but the letter fiom Secretary Fisher, which accompaliies the map, I think does. Mr. BtTRKE. You will pardon me, Mr. Chairman, I know, because this is all new to me. I have just come on this committee, and I have not had oppoxtunity to read the record yet. Your questions are assuming a great many facts, and for my information I desire to ask you this question: How much land was restored in this procla- mation ? The Chaerman. Twelve thousand eight hundred acres. Mr. Burke. How many acres were actually appropriated at the time your question covers, if I may ask ? The Chairman. So far as we know, four one-quarter sections. Mr. Burke. That would be 640 acres ? The Chairman. Six hundred and forty acres, out of 12,800 ? Mr. Burke. Out of 12,800 « The Chairman. Yes; out of 12,800; but those four quarter sections are located on the shore of Controller Bay in such a way as to vir- tually cover access to that portion of the harbor which is really nav- igable, and the rest of the 12,800 acres, or most of it, so far as we Imow, has little or no value. Mr. Burke. Simply for my information, is that a fact as admitted in the record, or is there any testimony to show The Chairman. Will you repeat that ? I did not hear it on account of the noise outside. Mr. Burke. I do not understand when you make that statement that it has been demonstrated by evidence. Is that so— has it been demonstrated by the evidence, or is it simply the opinion of the chairman ? The Chairman. Well, as you know much better than I, informa- tion of this character does not have to be demonstrated. There is much evidence that tends strongly to sustain what I have stated. I would not say that it has demonstrated it. Mr. Hanna. There has been left 80 rods between each entry, has there not ? The Chairman. I was going to say that the law requires that an intermediate space of 80 rods shall be left, which faces on the tide flats. , 1 . Mr. Burke. In order to understand it, let me ask this: You say 640 acres have been located. How much frontage would that be in length? The Chairman. I am not able to answer that question, as the shore line is not a straight line, but a curved one ; whethei; the shore line on 160 acres is just a half mile or whether it is more than half a mile I can not say. ' But the plat would indicate that it is more. 206 CONTBOLX.ER . BAY LANDS. Mr. Burke. It might be 2 miles or more ? The Chairman. Well, the fourth location is not on this map ; so I can not speak as to that. Mr. Burke. In any event it might be 2 miles or a little more. The Chairman. A.t worst it might be 2 miles or more, and you must add to that three intermediate spaces of 80 rods each. Mr. Burke. That is what I wanted to ascertain. There is an 80-rod opening between the different locations? The Chairman. There is. One of them which really occupies the most controlUng position of all has been, it appears, appropriated already for railroad purposes. That would be the westerly one. Mr. Hanna. One of these locations is not on the water front, as I understand it. There are really only three I think on the water front. The Chairman. I am not informed where the fourth location referred to by the Secretary of Interior really is. Mr. Hanna. According to the map it is back on one of these [indicating on map]. The Chairman. The map shows a location on there, but it is marked on it, " ehminated." It is not a location as I understand it. But you will find on page 2, paragraph 4, claimant, James J. Ryan. The SecretaiT says the information as to the location of the claim had not reached him when he gave the Senate this information, and we do not know where that fourth claim is located, but if I were guessing I would guess it is on the water front in the most commanding position that would be left after the other three and the spaces between them were taken up. James J. Ryan seems to have two locations. Mr. Burke. Am I to understand that this land fronts on the water where there is a harbor where boats may land or is it not some distance out to where the deep water is ? I am simply asking for information on the point. The Chairman. Of course I will assume that you will read the tes- timony already taken, because of course we could not go over simply for your benefit all the testimony taken ; but in this case your ques- tion is a perfectly proper one. There is a space of 2 or 3 miles of tide lands or mud flats intervening between the shore line shown on the map and the deep water in the channel. I might say for your ben- efit, further, so you may understand, other maps we have had before us show that the deep-water channel comes in between the islands of Wingham and Kanak and winds up the bay to a point near the dotted line ending in a square at the word "Bay," that beyond that there is some deep water, too, but not so located as to be practicable for navigable purposes. Mr. George. It is a very narrow channel? ' The Chairman. Yes. (The stenographer read the last statement of the chairman addressed to the witness, as follows:) I call your attention to it again and fix the date at this time, and in that connection the map does not give the date, but the letter from Secretary Fisher, which accom- panies the map, I think does. The Chairman (continuing). With reference to the term "pro- mulgation," Mr. Adams, let us have a clear understanding about that. Is an Executive order or a proclamation self-acting ; that is, does the mere filiag of it amount to a promulgation of it, or is it necessary to OONTEOLLEE BAY ' LANDS. 207 take some additional steps in order to make it public — ia order to pro- mulga-tie it ? Mr. Adams. It is my understanding that some of the subsequent steps to be taken depend upon the wording of the proclamation. The Chairman. Will you make that quite clear, and also make it clear whether you know it yourself or whether it is a mere impression you have? Mr. Adams. I j&nd m this Executive order of October 28, 1910, the words, "The tract above described is hereby restored to the public domain." In the proclamation concerning the Arkansas Reserve which I think you nave before you, from which a quotation appears on page 187, there appears to be in the proclamation a provision that the land eliminated shall not become subject to entry, etc., until the expiration of the 30 days from the date so fixed by the Secretary of the Interior. So that I understand that in this latter case the subsequent steps to be taken are determined by the form of the proclamation itself. • The Chairman. Mr. Burke, have you looked over the elimination notices which you were examining to determine whether you wanted them to go into the record ? Mr. Burke. Yes. I would prefer in order that we may have an opportunity, if it becomes necessary to examine these several procla- mations for reference, to have these circulars in the record. I do not insist on it at all, however. The Chairman. It is enough if you wish it. Mr. Burke. Then they may go in as exhibits. (The two circular letters referred to were accordingly marked "Exhibit Adams No. 1" and "Exhibit Adams No. 2," the same being dated, respectively, December 1, 1910, and February 11, 1911.) (The exhibits are as follows:) I Exhibit Adams No. 1. [Circular No. 2.] eliminations from national forests. Department of the Interior, General Land Office, Washington, December 1, 1910. ■ Sir: The vacant lanappropriated public lands in the following areas, which have been eliminated from national forests by recent proclamations of the President, will become subject to settlement under the provisions of the homestead laws and to entry under Uhe public-land laws on the dates and at the land offices given below: ■ Sixteen thousand and twelve acres from Deerlodge National Forest m west-central Montana- chiefly surveyed and about three-fourths unappropriated; subject to settle- ment January 16, and to entry February 15, 1911 ; Helena district. One thousand four hundred and forty acres from Wasatch and 15,122 acres from Nebo National Forests in northern Utah; chiefly surveyed and about two-thirds .unappropriated; subject to settlement January 16, and to entry February 15, 1911; 'Salt Lake City district. ■ ^ . ,, j- • -n at Thirtv-nine thousand eight hundred and sixty-five acres from Medicine Bow Na- tional Forest in southern Wyoming; surveyed and chiefly unappropriated; subject to settlement January 16, and to entry February 15 1911 ; Cheyenne district. . Six thousand and seventy-five acres from Hayden National Forest m southern Wvoming- surveyed and chiefly unappropriated; subject to settlement January 16, and to entrv February 15, 1911; Cheyenne district. . , „ Fiftv one thousand and twenty-four acres from Pike National Forest m northern Colorado- surveyed and two-thirds unappropriated; subject to settlement January 16, and to entry February 15, 1911 ; Denver, Leadville, and Pueblo districts. 208 OONTEOLLBB, BAY LANOSS. Forty-two thousand ttfee hundred and forty acres from Leadville National Forest in north-central Colorado; chiefly surveyed and unappropriated; subject to settle- Inent January 16, and to entry February 15, 1911: Denver and Leadville districts. Two thousand five hundred and sixty^one from Atepaho National Forest in northern Colorado; surveyed and about tteee-fourths unappropriatBd; subject to settlement January 16, and to entry Februairy 15 1911; Denver distifict. Eighteen thousand eight hundred and ten acres from San Juan National Forest in Southwestern Colorado; chiefly surveyed and aboiA onte-foui't'h unappropriated; subject to settlement January 30, and to entry March 1, ipil; Durango district. ' Sixtjr-four thousand eight hundred and forty-nine acres from Rio Grande National Forest in southern Colorado; surveyed and ahout one-half unappropriated; subject to settlement January 30, and to entry March 1, 1911; Del Norte district. Three hundred and forty-eight thousand six hundred and eighty-one acres from Montezuma National Forest in southwestern Colorado; chiefly surveyed and three- fourths unappropriated; subject to settlement January 30, and to entry March 1, 1911'; Durango and Montrose district^. One hundred and ninety-eight thousand six hundred and three acres from Coconino (nowTusayan) and ten thousand eight hundred and eighty acres from Kaibab National Forests in northern Arizona; area eliminated' near Tusayan chiefly surveyed and tcnappropriated; that from Kawbab unsurveyed and unappropriated; subject to set- tlement January 30, and to entry March 1, 1911; Phoenix district. Sixty-five thousand four hundred and ninety acres from the Sequoia National Forest in eastern and soufiheastem California, chiefly surveyed and appropriated; subject to settlement January 30, and to entry March 1, 1911; Visalia and Ind'e' pendence districts. Five thousand two hundred and nineteen acres from Zuni National Forest in western New Mexico; surveyed and about one-fourth unappropriated; subject to settlement January 30, and to entry March 1, 1911; Santa Fe district. Eight thousand six hundred and seventy-eight acres from Tahoe, and one thousand nine hundred and twenty acres from Plumas National Forests in eastern California; about one-fourth unappropriated; subject to settlement January 31, and to entry. March 2, 1911; Susan ville district. One hundred and twenty-eight thousand seven hundred and sixty-three acres from Jemez National Forest in northeastern New Mexico; chiefly unsurveyed and unappro- priated; subject to settlement January 30, and to entry March 1, 1911; Santa Fe district. Sixty-eight thousand four hundred and fifteen acres from Sitgreaves National Forest in east-central Arizona; chiefly surveyed and about one-half unappropriated; subject to settlement January 31, and to entry March 2, 1911; Phoenix district. One hundred and one thousand six hundred and two acres from Routt National Forest in northwestern Colorado; surveyed and about one-half unappropriated; subject to settlement January 31, and to entry March 2, 1911 ; Denver and Glenwood Springs districts. Seventy thousand three hundred and seventy-six acres from Apache National Forest in east-central Arizona; chiefly surveyed and unappropriated; subject to set- tlement January 31, and to entry March 2, 1911; Phoenix district. Pour thousand four hundred and eighty acres from Crook National Forest in east- central Arizona; unsurveyed and unappropriated; subject to settlement January 31, and to entry March 2, 1911; Phoenix district. Seven thousand and forty acres from Tonto National Forest in central Arizona; unsurveyed and chiefly unappropriated; subject to settlement January 31, and to entry March 2. 1911; Phoenix district. Eighty-one thousand and eighty-one acres from Prescott National Forest in central Arizona; chiefly un.'iurveyed and unappropriated; subject to settlement January 31, and to entry March 2, 1911 : Phoenix district. Four hundred thousand nine hundred and eleven acres from Arkansas National Forest in western Arkansas; surveyed and a very small area unappropriated; subject to settlement February 1, and to entry March 3, 1911; Little .Rock and Camden districts. Fifty-five thousand six hundred and eighty acres from Powell National Forest ia southern Utah; unsurveyed and chiefly unappropriated; subject to settlement Feb- ruary 1, and to entry March 3, 1911; Salt Lake City district. The work oE restoring to the public domain agricultural lands not needed for forest uses has not been completed. Eliminations from reserves other than those enumers ted will follow. As the work progresses, cixculars will be issued from time to time showing such restorations. Very reapectfullv, Feeu Denvett, Commiss''ontT. CONTROLtEK BAY LAKDS. 209 Exhibit Adams Np. 2. ebiminations from national porests. Dbpabtmbnt op the Intbhiobj, Gbnj!EAl Laj^u OpicE, Washington, February 11, 1911. Sih: The vacant unappropriated public landa in the following areas, which have been eliminated from national forests by recent proclamations of the President will become- subject toi settlement uadjer. w provj^iojfs o^ the homestead. la,w;s arui to entty under the public lapd laws on the elates and a.t the land offices given below: One hund;i;ed ai)id, ei^t thousand nine hundred and twenty acres, froni, Angeles National Forest, in southwestern California; chiefly surveyed and unappropriated; mountainous, nontimbered, and npnstgriculturaj.; sijbject tpi s^tl^ijient April 1, and to entry May 1, 1911; Los Angeles district. Two hundred and forty-five thousand four hundred aud fifty acres from Alamo National Forest, in southern New Mexico; about one-half surveyed and largely unap- propriated; subject to settlement April 1, a,nd to entry May 1, 1311; Las Graces and Roswell districts. , Twelve thousand eight hundred acres from the Chugach National Forest', in Alaska; eUiuinated aui restored to tihe public domain by Executive order of October 2B, 1910; nwucv^yed, in Juneau district. Three hundred and sixty acres fr(?m Wichita National Forest, in southern Oklahpnjaj; surveyed and chiefly unappropriated; subject to settlement April 1, and to entry May 1, 1911; Lawton district. Three thousand and eighty-four acres from Stanislaus National Forest, ia east-cen- tj^l California; sur-yeyed and. chiefly unappropriated; subject tfl settlejcnjent April 10, and to entry May 10, 1911; Sacramento district. Thirty-eight thousand five hundred and seventy-four acres from Trinity National •Forest, in northwestern California; surveyed and about 72 per cent unappropriated*; subject to settlement April 10, and to entry May. 10, 1911;. Eureka and Bedding districts. > , Fifty-eight thpusand seven hundred and thirty-t\vo. acres from Califproift National Forest, in northwestern Oaliftimia; surveyed and about one-half unappropria,ted; subject to settlement April 10, and to entry May 10, 1911; Sacramento, Oakland, and Eureka districts. One, hundred and sixty-seven, thpusand six hundred and eigbt acres from Shasta National Forest, in northern California; chiefly surveyed and very little unappro- priated; subject to settlement April 10, and to entry May 10, 1911; Redding district. Nineteen thousand fourhundred and thirty-six acres from Monterey Nataonal For- est, in southwestem CaJatenia; surveyed and. about one-fourth unappropriated; sub- ject tosettlement April 15 and to entry May 15, 1911; Oakland and Visalia districts. Five hundred and sixty-three thousand three hundred and thirty-one acres from Qzark National Forest, in northwestern Arkansas; about one- tenth unappropriated; subject to settlenient April IS, and to entry May 15, 1911; Harrison and Little Rock Seventeen thousand six hundred and ten acres from Chelan National; Forest, in northern Washington; surveyed and about 40 per cent unappropriated; subject to ■settlement April 15, and to entry May 15, 1911; '^aterville district. Sixty-five thousand seven hundred and fifty-five acres from Toyabe National Fpr- ,est, in central Nevada; chiefly imsurveyed and unappropriated; subject to settlei- mentAprill5 and to entry May 15, 1911; Carson City district. „,' , , Twenty-two thousand eight hundred and seventy-eight acres frpm Cleveland National Forest, in southern California; s^rveyed and about,one-thfrd unappropriated; ■subject to settlement !A.pril 18 and to entry May 18, 1911; Los Angeles district. Twelve thousand one hundred acres, from Holy Cross National Forest, m west- central Colorado; chiefly surveyed and unappropriated; subject to settlement April 18 and to entry May 18, 1911; Denver and Glenwood Springs districts; Four thousand nine hundred and seven acres from Sundance JNational liorest, in northeastern Wyoming; surveyed and about 10 per cent unappropriated; subject to settlementApril 18 and to entry May 18, 1911; Sundance district ■ .' Two thousMid five hundred and sixty acres from Sevier National Forest, m soutljern Utah- chiefiy surveyed and UAappropriated; subject, to settlement, April 18 and to entry May 18, 1911; Salt Lake City district. . , , t. - . • Nme thousand' nine hundred' and forty acres-fronl Boise -National Forest, m south- western Idaho; chiefly surveyed and about 73 per cent unappropriated; subject to settlement April 18, and to entoy May 18, 1911; Boise and Hailey districfs. 210 CONTBOLLEB BAY LANDS. The work of restoring to the public domain agricultural lahds not needed for forest uses has not been completed. Eliminations from reserves other than those enumer- ated will follow. As the -frork progresses, circulars will be issued from time to time showing such restorations. very respectfully, Feed Dennett, Commissioner. The CHAraMAN. Mr. Adams, when Mr. Dennett, Commissioner of the General Land Office, was on the stand several days ago, he testified as follows : Mr. Fennell. Mr. Dennett, is it not a matter of practice that all proclamations and Executive orders touching the public domain are promulgated through your office? Mr. Dennett. All of them through the Land Office, and they are made of record in my office. Mr. Fennell. Through the General Land Office? Mr. Dennett. All of record in my office. Mr. Fennell. They are under yom: supervision? Mr. Dennett. Yes, sir. Mr. Fennell. They are promulgated- by you? Mr: Dennett. Officially; yes, air. You may read the marked passage so you may get it clearer in your mind. Does that convince you that a proclamation does not become public by the mere signing of the President but that after being signed it has to go to the Commissioner of the General Land Office and to be by him officially promulgated ? Mr. Adams. I am not sure of hhe proper construction to place on the word "promulgated." An act may be official with the signi^ and yet there may have to be promulgation through some office. It may be eflfecfcive, however, from the time it is signed. I may be mis- taken about that, however. The Chairman. And then you disagree with Mr. Dennett in that regard, do you ? Mr. Adams. No; not at all. The Chairman. How do you reconcile your view and his as expressed in his testimony ? Mr. Adams. Mr. Dennett's statement is to the effect that all proclamations and executive orders are promulgated through his office. The Chairman. That is what he states; yes. Mr. Adams. I undersiand that to be a fact; but my doubt is as to whether the act of promulgation determines upon which the act of the President is effective The CSairman; But does not the introductory paragraph of Mr. Dennett's circular now in the record as Exhibit Adams No. 1 clearly show that the order is not in effect until it is promulgated through his office; and that this circular was for the very purpose of giving it vitality and making it effective ? Mr. Adams. I understand that that is true in the case of all the promulgations referred to in this Exhibit No. 1, since it appears that m every one of the cases referred to in this circular the terms of the proclamation provided for its promulgation by the Secretary of the Interior. ' The Chairman. Would it be true of all but one of them in Exhibit No. 2? Mr. Adams. It would seem to be true in all but one. The Chairman. Then in either event the Chugach Executive order is exceptional? CONTEOLLER BAY LANDS. 211 Mr. Adams. It is an exception to those referred to in these two cir- culars. The Chairman. If what I claim to be Mr. Dennett's view as ex- pressed in his testimony — if I am right as to what Mr. Dennett means— then the Executive Order 1260 of date October 28, 1910, would not have been effective until after February 11, the date when the Commissioner of the General Land Office issued his circular including it. Mr. Adams. Mr. Chairman, I have no doubt that your judgment in this matter is much better than mine and Mr. Burke. I was going to inquire The Chairman. Just a moment, until we get the witness's answer. Mr. Adams (continuing). And so I hesitate to express a disagree- ment with your opinion, but it seems to me that determination is in the wording of the proclamation and has got to be considered in each case. The Chairman. Now, Mr. Burke ? Mr. Burke. What I was going to inquire was this: Of course, I do not know what your policy of procedure is, but what difference does it make to the committee how the witness answers the question just propounded ? Is it not a matter for the committee to determine? And whether this witness may think something or not,, it does not seem to me affects the question at all. It would not have any effect on my mind what he says, very frankly, and I do not see how it can make any difference what his opinion is. , The Chairman. Capt. Adams has shown himself to be an exceeds ingly intelligent and well-informed witness in reference to public- land matters Mr. BuBKE. I understood him to sa- The Chairman. Just a moment. When you ask for an explana- tion you must wait until you get it. Mr. BuBKE. All right. The Chairman. It would be for each member of the committee to determine for himself what weight he can give to the testimony of Mr. Adams. You might, not give any weight to it and I might give some and another member might give more weight, and, of course, you are well aware that in investigations of this sort you can not be guided by the ordinary rules of evidence Mj. Burke. I understand that, but I understood that Mr. Adams was connected with the Department of Agriculture and not with the Land Office, and therefore I did not see why his opinion would make any difference one way or the other in a matter of procedure before the Land Department. The Chairman. He has shown us that he is an intelhgent witness and is quite well informed in these matters, and even if it were not absolutely conclusive I still think it would be worth gettmg. I have great respect for the captain's opinion. So far as you know, the circular letter of February 11 was the first notice the public had as to the ehmination of this land from the Chugach Forest Eeserve ?,. , . . , ,,. , t Mr. Adams. So far as I am definitely informed. Might I correct my reply to that ? The Chairman. Certainly. 212 OOKTEOLIiEE BAY LANDS. Mr. Adams. I would say that I have no knowledge to the eontrary. That would be a more correct reply. The Chairman. The question really included that element, so far as you knew ? Mr. Adams. So far as I know; yes. The Chairman. That was in the question, I think. Did you know anything about this land having been eliminated before February 11 ? Mr. Ajdams. Yes, sir. The Chairman. Did others have any knowledge of it ? Mr. Adams. They must have. The Chairman. What others ? . Mr. Adams. Employees in the Forest Service who are concerned in the preparation and handling of these things, boundary matters. They would naturally have learned of the Executive oi-der within, a very short time after it was issued ; in fact, they would have received copies from the department much sooner than February 11. I can not say on what date. The Chairman. To whom do you. refer; who. are those who. have received copies in an ofi&cial way before that date ? Mr. Adams. Copies would probably have come to the office of the Secretary of Agriculture and have been transmitted by mail messeiir ger service to the Forest Service. They would have com« iaito my office and. into the section, of boundaries in which at least one field assistant and one or two clerks are einployed. The Chairman. Are there, any others to whom it would have come necessarily ? Mr. Adams. No, sir. The Chairman. They are all employees in the department ? Mr. Adams. Yes, sir. The Chairman. It could be no part of their official duty to inform the pubhc of it? . Mr. Adams. No, sir. The Chairman. Indeed, doing so would be a violation of a rule of the office which would probably cause the termination of tkeir employment with the Government ? Mr. Adams. It undoubtedly would if' they pubUshed it. They would not, however, be censurable if they answered a question by any citizen who came in and asked from the official records whether they knew that a certain Executive order had been signed, because for all proper purposes the official information in the department is for the information of the people generally. The Chairman. I understand the practice to have been and to be that you have a hook or a box or a receptacle of some sort where you place such papers, proclamations, etc., as you wish the pubUc to get, so that the newspaper boys have access to them ? Mr. Adams. Yes, sir. The Chairman. Can you state whether the order of October 28 was placed in such a place or receptacle ? Mr. Adams. I can not state positively whether it was or not. I presume it was. The Chairman. On what do you base your presumption ? Mr. Adams. On nothing more definite than that it was the custom _ The Chairman. It was the custom to do that ? UUJNXWUJjUJiii, J3ax LANDS. 213^' Mr. Adams. Yes. The Chairman. Do you not think if it had been so placed the' Washington newspaper boys have such noses for news that it would' Tu S?**^°- ^*° ^^^ pubhc prints — into the newspapers, in short ? Mr. Adams. I can not say that all 'of the information which we ^ %^ ^* the disposal of the newspapes is used by the newspapers. The Chairman. I hardly think that is an answer to my question. I will ask the stenographer to repeat the question. (The stenographer repeated the question as above recorded.) Mr. Adams. I think there would have been every opportunity for getting it in, but I am not sure it would have gotten in. The Chairman. You are not a newspaper man, of course, but even in your judgment do you not think it would have been a good news item ? Mr. Adams. They miss very few bets. The Chairman. Do you not think it would have been a pretty good bet? Mr. Adams. As I say, they miss very little. The Chairman. That is not quite an answer to my question. Mr. Adams. I really think, Mr. Chairman The Chairman. Do you not think that this Executive order would have beeri, as you put, it, a pretty good bet, that is a very good news item? , Mr. Adams. Well, as I remember the transaction, it did not at the time impress me as being unusual or that there was anything about it that would occasion special interest. They miss very little, that is true, and I presume if it had interested them they would have gotten it. The Chairman. Do you not think, in the light of subsequent events^ that it would have been a fine news item ? Mr. Adams. I think it would. ■ The Chairman. And do you not think a Washington newspaper man would have known at the time that it would have made a good news item, in view of the fact that the Alaskan situation was at the time a matter of considerable public excitement ? Mr. Adams. If it was there and did not get in, I take it that they did not consider it a matter of very much importance or interest. The Chairman. Keversing that and stating it conversly, is it not very likely true that when they did not get it and did not pubhsh it the reason is that it was not there ? Mr. Ajjams. It is quite possible that it was not there. The Chairman. I might add in that connection that you never saw any reference of any character to it in any newspaper, Washing- ton or otherwise, until after February 11, the date of Exhibit No. 2,, did you ? Mr. Adams. No, I do not recall of ever having seen any reference, to it at all. In fact, as I beUeve I told you in my previous examina- tion, I was absent from Washington a good deal about that time^ out in the field. The Chairman. Where were you in the field ? Mr. Adams. In probably nearly every State west of the Missouri River. 1 • 1-1 1 The Chairman, Well, would it not be quite as hkely to get mto- the newspapers there as anywhere if it had become public information ?' 42T4r— No. 6—11 2 214 CONTEOLLEE.BAY LANDS. Mr. Adams. Yes, sir. The Chairman. Were you as far west as the Pacific slope ? Mr. Adams. I was not in the State of Washington. I think I was in both Cahfornia and Oregon. Iri fact, I know I was in Cahfomia about that time, and I was ill Oregon. The Chairman. It would be particularly valuable as a news item in those States ? Mr. Adams. Yes, sir. The Chairman. And the newspapers there would have considered themselves grievously scooped if such information were obtainable and they did not get it ? That is true, is it not ? Mr. Adams. I think so. The Chairman. Whose duty was it about that time to dish out the news to the newspaper men; that is, to place these proclamations, Executive orders, or other papers which were considered to be of news interest where the reporters would have access to them? Mr. Adams. That would be the duty of some employee in the editor's office, the office of ,our publications in the Forest Service. Just who that employee wou d be at that time I an unable to state. The Chairman. State more specifically than I did, or am able to, just what the arrangements were for getting information to the news- papers or otherwise; that is, was it a hook or a box, or what place was it where you placed such papers as you wished them to have access to ? Mr. Adams. Mr. Chairman, I am under the impression that those copies are placed upon the desk of a certain employee, and I am really unable to tell whether it is on a hook or in a basket or on a clip. The Chairman. The practice was, the fact was, that the then Chief Forester, Mr. Pinchot, realized the necessity of newspaper publica- tion, news items, in connection with the Forestry Bureau and its , connection with this work ? Mr. Adams. Before October, 1910? The Chairman. I mean before he left office. That was his pohcy? Mr. Adams. Yes, sir. The Chairman. And in pursuance of that policy this arrangement in connection with — what did j^ou call it ? Mr. Adams. Office of publications. The Chairman. Office of publications was established? Were there one or more persons who presided over that office and whose duty it was to look after the publication of matters connected with the bureau ? • Mr. Adams. The gentleman in charge of that was Mr. H. A. Smith. The Chairman. How long had the practice prevailed of placing those papers that were for public information where the newspaper men or others would have access to them ? Mr. Adams. I think that practice was in effect four or five years ago. The Chairman. Did it originate or was it arranged for at or near the time when the change was made as to the method of notifying the public about the opening of forest reserve land, and changing the form so that there would be a time limit before locations or entries could be made ? Mr. Adams. No, sir; I do not think it was at that time, nor do I think there was any connection between the two, matters. The Chairman. It was earlier in point of time ? CONTBOLLEK BAY LANDS. 215 ^iv. Adams. The plan of giving information to the pubhc was designed to give information in that way to anyone who desired it or on any subject that was thought to be of interest in connection with the work of the service, not only tliis matter of announcement of proclamations, but a vast number of other details which it was thought the public might find interesting and instructive. The Chairman. Had the Forestry Bureau or Forestry Service any notice concerning a survey of lands on the shore of Controller Bay and in the territory where the land eliminated was ? Mr. Adams. I suppose you refer to a survey of 320 acres that was made? The Chairman. I refer to the first notice the bureau had of any survey on that forest reserve, either before or after the issuance of the Executive order. Mr. Adams. The only survey that I have any knowledge of on that particular area, the area which was eliminated by this Executive order, was a suryey of a tract of 320 acres, which I understand was made by Mr. — what is the name ? I forget the name of the company, but by some railroad company; T don't remember the name of it. The Chairman. The Controller Bay Railway & Navigation Co. ? Mr. Adams. I am not certain as to the name, but by a railroad company". The Chairman. When was that ? Mr. Adams. That was in the fall of 1909, as nearly as I can remember. The Chairman. It was then, of course, part of the forest reserve ? Mr. Adams. Yes, sir. The Chairman. Was that survey made with the consent of the Forestry Bureau ? Mr. Adams. Yes, sir; and incidentally, Mr. Chairman, the forests are open without any permission of the Forest Service to survey, for lawful purposes The Chairman. Such as what; what would be lawful purposes? Mr. Adams. Surveying rights-of-way which the parties making the survey believed they could secure under any existing law. The Chairman. Well, even in that case, would it be necessary for the surveying party to have permission of the Forestry Bureau before making the survey ? Mr. Adams. No; no permission is necessary to go on the forest and make a survey. Mr. George. A survev for a railroad ? Mr. Adams. Yes, sir; "or for any purpose for which the use of the forest may be subsequently obtained. Mr George. But not a survey for an elimination? Mr Adams. No. In this case, as I remember it, the company sur- veyed a tract which they said would be necessary as a terminal for a proposed railroad which they either had or expected to get the right of way for That would not be primarily for an ehmination, but it was to locate the land necessary for terminal^ purposes. Wliether it was for the purpose of subsequently obtaining a permit from the department or for obtaining an elimination would not matter, it would be a survey for a tract to be put to some lawful use. The Chairman. But as shown by the map 601-A, the original pro- posed elimination did not reach to tidewater, did it ? 216 CONTKOLLER BAY LAUDS. Mr. Adams. I am unable to say just where that original survey- was The Chairman. My question was as shown by this map. Mr. Adams. I am unable to say just where that original survey was. I see here that one of the tracts shown on tms map was indorsed, "Original proposed elimination." But I am still unable to identify that with the survey of which I was speaking. The Chairman. Well, if they conincided, if that tract marked "Original proposed elimination," was the same you have in mind, it did not reach tidewater according to the map ? Mr. Adams. No ; according to the map it would not reach tidewater. The Chairman. When was- that survey made ? Mr. Adams. To the best of my recollection in the fall of 1909. Mr. Hanna. Which one are you referring to — this 320 acres? Mr. Adams. Yes, this 320 acres. It was entirely independent, as I understand! t, of the survey shown on this map (referring to 301-A). It may or may not coincide with this. The Chairman. Of course you can, with the data in your office, locate it with certainty ? Mr. Adams. I presume it can be located with certainty;. yes, sir. The Chairman. Who made it ? Mr. Adams. It was made by employees of a railroad company. The Chairman. And your office files will show what railroad com- pany, of course ? Mr. Adams. Certainly, if the map is among the files it will show by whom it was made. The Chairman. Is this letter in use now with reference to the compilation of the response to the Senate resolution ? Mr. Adams. Yes. As I explained, the entire file was, on instruc- tions from the Secretary,- delivered to his office and we have nothing in our files now except the memorandum of the fact that all the papers have been delivered to the office of the Secretary. The Chairman. What was the next survey in that area of which you have knowledge ? Mr. Adams. I have no knowledge of any other survey. The Chairman. Your office records will of course show every one, by whomsoever made or whensoever made ? Mr. Adams. Yes. The Chairman. Have you any knowledge of the survey of the locations Nos. 842, 844, and 846, on map 801 ? Mr. Adams. No, sir; none whatever. The Chairman. But your office files will disclose all the facts ? Mr. Adams. No, sir; I am not sure that our files will disclose any facts or maps with reference to those entries. The Chairman. Have you not surveys for them ? Mr. Adams. No, sir; because that is a matter of record in the General Land Office — that is, in the local land offices — and our records will naturally be confined to maps filed in connection with proposed eliminations, and nothing either proposed or actually made The Chairman. WeU, would not your office records show everything that actually took place with reference to that territory up to the time of the ffiing of the Executive order ? Mr. Adams. Yes, sir. CONTBOLLBR BAY IANDS. 217 The Chairman. Would it show anything after the fihng of the Executive order except the Executive order itself ? Mr. Adams. No, sir; aU future records would be in the Land Office. That land is ehminated from the forests and we have no more concern with it than we would have with land up in Pennsylvania. The Chairman. Did you have any time or did you think of looking up the questions asked you with reference to Kanak Island as to whether any part of it is outside the forest reserve or whether it is within the area eliminated ? Mr. Adams. No; I was not able to get any information on the subject at aU. The Chairman. Will you tell us, Captain, whether it is necessary to eliminate the land from the forest reserve in order to give a rail- road right of way through it or could the right of way be given and still have it within the forest ? Mr. Adams. I am afraid I am unable to answer that question. I am not as familiar with the laws of Alaska as I am with the laws of this part of the United States. The Chairman. And nothing that has occurred in the office has established a practice in that regard ? Mr. Adams. No, sir. The Chairman. You have had no cases of that kind ? Mr. Adams. No cases of that kind; no, sir. The Chairman. I suppose, that being true, you probably could not distinguish for us the difference between a mere easement and owner- ship in fee of the land. Are you informed on that point ? Mr. Adams. I am not quite sure that I understand your inquiry as to easement, but as I understand the difference, is it your wish that I express an opinion as to the difference between own'ership in fee simple and the holding of an easement ? The Chairman. If you have an opinion which you think worth giving. My qtiestion was whether you have an opinion; that was the immediate question. Mr. Adams. I have an opinion, but I doubt whether it would be The Chairman. Give us the benefit of the doubt, and let us have it. Mr. Adams. I understand that in case of fee simple in property the owner may do with his land what he pleases as long as he does not interfere with the easement rights of others; but with an ease- ment right,' you can use it as long as you please, but when you cease to use it, it reverts to the owner. • The Chairman. Then, to put it in other language, the ownership of a fee would give a perpetual right to an ownership; an ownership by easement only would not give a perpetual right but only a feasi- ble right, and one which would be terminated under certain condi- Mr. Adams. Yes, I had the chairman's idea; but the chairman has expressed it in better language. , n ,, The Chairman. In that event anyone acquiring land there for railroad purposes would much prefer the fee simple to the mere easement ? Mr. Adams. Yes, sir. ., . ., -r, ^ t. The Chairman. It is suggested to me that the Forestry Bureau could grant an easement in the land, butnot the fee simple. Is that right ? 218 CONTROLLER BAY LANDS. Mr. Adams. The only easement that could be granted by authority of the Secretary of Agriculture is a revocable — a permit revocable at his discretion, which can hardly be called an easement. The Chairman. Well, it is an easement. Mr. Adams. If it could be considered an easement, however, one which would depend for its continued existence not on continued use, but on the discretion of the officer who issued it. The Chairman. It would be such a one, then, that the owner of the easement would not care to put valuable improvements upon ? Mr. Adams. Yes, sir. The Chairman. Now, another question there. Is it your under- standing that even Congress could not give a perpetual right in the land until it first had been released or eliminated from the forest reserve by an Executive order ? ' Mr. Adams. Yes; that is my understanding; by an Executive order or proclamation. The Chairman. They amount to the. same thing? Mr. Adams. The same thing; yes^ sir. The Chairman. So that the first step toward getting a perpetual right there was to get an Executive order or proclamation eliminating the land from the forest reserve ? Mr. Adams. Yes, sir. The Chairman. That placed it in a position where Congress could by legislation make the right of the person having the land a per- petual right; an indefeasible perpetual right. Mr. Adams. Assuming that Congress had not already done so. The Chairman. In tms case had Congress already done sol Mr. Adams. In this case I understand that Congress had already done so. The Chairman. And to what act of Congress do you refer ? Mr. Adams. I understand that these tracts — the tracts shown on this mar The Chairman. 601-A ? Mr. Adams. Yes, sir. Have been filed upon under some existing pubfic-land law. The Chairman. In that event, then, the law permitted the filing of the land and the obtaining of the fee, and nothmg delayed the doing of it but the want of an Executive order, and when the Executive order was made, then the coast was clear to the obtaining of the fee or perpetual ownership of the land ? Mr. Adams. Yes, sir; in accordance with existing law. The Chairman. Certainly, in accordance with existing law. Are there any members of the committee who desire to interrogate the witness ? Mr. Burke. I have a few questions. Mr. Adams, am I to understand you to say that in your opinion Congress could make no disposition of land in the forest reserves until there had been an Executive order changing Mr. Adams. No, sir; I do not recall having made that statement. Mr. Burke. I understood, in answer to a question by the chair- man, that you did make that statement and I did not think you in- tended to so answer. The Chairman. Might I say ,how I understood him — that even though Congress had taken such action, such action would be qui- escent; that it could not be vital until the Executive order. CONTROLLER BAY LANDS. 219 Mr. Burke. But Congress would have the absolute right, and I do not think that would be (questioned by anyone, t6 legislate as it sees fit; to make any disposition it sees fit of any forest reserve, any part of it or all of it. The Chairman. Let me understand. Is it your thought that in this case Congress could have removed the 12,800 acres m question from the forest reserve whether the President took any action or not ? Mr. Burke. The bill would be subject to the President's approval, of course, and he could veto it if he wanted to, but Congress would have power by legislation to say that all of that forest reserve should be disposed of under the mineral laws or the homestead laws or make any other disposition it might wish to make of it. I do not think Mr, Adams meant to be understood in the way his answer seemed to indicate. Mr. Adams. No, sir; I did not. Mr. Burke. Are you a lawyer? Mr. Adams. No, sir; I am not, I regret to say. Mr. Burke. Then you are expressing your opinion as a layman as to these questions propounded as to what an easement is and what a fee simple means ? Mr. Adams. Yes, sir. Mr. Burke. After the Executive order issued in this case what department of the Government then had jurisdiction of the land ? Air. Adams. The Department of the Interior. Mr. Burke. And before the issuance of the proclamation what department had jurisdiction of the land ? Mr. Adams. The Department of Agriculture. Mr. Burke. And the Department of the Interior then had nothing to do with it ? Mr. Adams. The Department of the Interior has jurisdiction over the question of title of land in the national forests, but the Secretary of Agriculture has the custody and control and administration of the lands and of their use. Mr. Bxjrke. After this Executive order of October 28, 1910, was issued, which department of the Government would be the department that would give it to the public ? Mr. Adams. The Department of the Interior. The Department of Agriculture would have nothing further to do with it. Mr. BxiRKE. Then the fact that it may not have been put in the receptacle or upon the hook or clip referred to in a question asked you by the chairman, in the Bureau of Forestry, of course they would know nothing about. It would be through the Interior Department ? Mr. Adams. Yes. ,,t , • -u Mr. Burke. I believe you stated you were out of Washmgton about this time ? Mr. Adams. Yes, sir. Mr. Burke. For how long were you away, and when did you return « Mr. Adams. I am unable to give you the exact date Mr. Burke. Approximately r. Adams. Because I was away on several trips, i would say 1 was in the field more than half the time at about this season. Mr. Burke. You do not wish this committee to understand, and you do not intend to so state, that, as a matter of fact, notice of the 220 CONTEOLLEE. BAY LANDS. Executive order or proclamation of October 20, 1910, was not given to the press 1 Mr. Adams. To the best of my knowledge and belief it was given; but my belief is based not on precise knowledge but on merely a knowledge of what is usual and customary. Mr. Burke. So far as you know, it may have been given to the press, including the Associated Press? Mr. Adams, i es, sir. Mr. BtTRKE. And about the time, you do not know anything about ■of your own knowledge ? Mr. Adams. No, sir. Mr. BuBKE. I want to refer a moment to volume No. 5 of the record in this case at page 192 and to the testimony there found. I do this because I have this morning read it and have not had an opportunity of reading your other testimony. I call attention to page 192, toward the bottom of the page. The Chairman asks you several questions relating to the application of the law as to forest reserves, and the questions would indicate that Tinder the law one might do certain things upon a forest reservation. I want to ask you whether or not the several things referred to there ican be done under existing law or whether the law has been repealed ? Mr. George. Referred to where ? Mr. Burke. Well, at the bottom of page 192. For instance, the ■questions : The Chairman. A person who had advance information that certain land was to be ■erected or created into a national forest reserve would hiirry up before the forest reserve "was created and locate on the land within that area? And then further down: Then when that land was created into a forest reserve the Government, of course, -would want the land that he had, and in order to get it would give him what is known as a lieu selection, meaning a selection instead of the one he had. Then it goes on, further: And while the land he gave up might not be worth more than $1.25 an acre, he could take under that scrip land worth |50 an acre, if he could find it? Now, is that the law at the present time as you understand it ? Mr. Adams. No, sir; that law has been repealed, as stated on page 194. There the chairman, as you will see, asked the question: "At present, however, it does not apply within a forest reserve?" I answered: "It does not apply within a forest reserve." Mr. Burke. That the law that applied to that is no longer in ex- istence and was repealed some years ago ? Mr. Adams. Yes, sir. Mr, Burke. Now, as to a proclamation, do you know whether or not the Executive order of October 28, 1910, was promulgated in the General Land Office and the commissioner's office or not ? Mr. Adams. May I ask what is the definition of promulgated? I am not quite clear about that. Mr. Burke. Well, I think in view of the questions you answered to the chairman you probably had in mind some definition as to what " promulgation " means and I would prefer to let you state what you think it means. Mr. Adams. If " promulgation " means the publication of the order ■contained in the proclamation or Executive order, all orders or CONTEOLLEK BAY LAKDS. 221 proclamations are promulgated, as Mr. Dennett said, by or through the General Land Office . > J b Mr. Burke. An Executive order unquestionably may have been promulgated through the Commissioner of the General Land Office, may it not ? Mr. Adams. According to my understanding it was promulgated, II promulgated means an announcement, a puHication of an official act. Mr. Burke. Well, around what date Mr. Adams. I have no information on that subject, except the announcement in this Exhibit No. 2 of the act of the General Land Office. Mr. BuBKE. The fact that this particular proclamation is referred to in the. exhibit, being circular dated February 11, does not mean to you that that is the first suggestion that was made that this land was withdrawn from forest reserve ? Mr. Adams. No, sir. Mr. Burke. In other words, it may have been publicly announced before ? Mr. Adams. It may have been announced before by the General Land Office or the Department of the Interior ? Mr. Burke. Now, to make it clear, as I understand it you are connected entirely with the Department of Agriculture ? Mr. Adams. Yes, sir. Mr. Burke. And not with the General Land Office ? Mr. Adams. That is true. Mr. Hensley. Have you reference to the Executive order in this particular instance instead of the proclamation ? Mr. Burke. The witness was asked a question that would indicate that after the proclamation was issued that there was some other act necessary in order to restore land that had theretofore been excepted from public entry to entry. Now, when he tells me he is not connected with the General Land Office I do not care to inter- rogate him as to what his opinion is, because, while he is an intelli- gent witness, it would be useless to encumber this record with his opinion if the proper official in charge of the office who would know about it is in another department Mr. Hensley. But that was not the point I was getting' at. You referred to the proclamation. I wanted to know whether he referred to the Executive order. Mr. Burke. I would like to ask Mr. Adams what he understands to be the difference between a proclamation and an Executive order? Mr. Adams. I do not understand that in substance there is any difference at all. They both seem to accomphsh the same purpose. Mr. BuKKE. Why, certainly. And does it not pften happen that laws are enacted providing for the restoration to public domain lands that may have been raserved for military purposes, forest reserve, Indian reserves, wherein the law provides that the President shall issue a proclamation, and then the land shall be disposed of under rules anci regulations perliaps to be prescribed by some other officer of the Government, perhaps the Secretaryof the Interior? Mr. Adams. I am unable to recall a particular instance of the kind. Mr! Burke. This land, the 12,800 acres, was restored by an Executive order? 222 OONTEOLLER BAY LANDS. Mr. Adams. Yes, sir. Mr. Burke. And do you know of any other order having issued except the one of October 28, 1910 Mr. Adams. Kegarding this land? Mr. Burke. Yes, sir. Mr. Adams. No, sir. I have no knowledge of any other order re- lating to this same tract. The Chairman. You stated to Mr. Burke, Capt. Adams, that it was your impression that the proclamation was given out for publica- tion. Did you tell the committee when you thought it was so given out? Mr. Adams. Was prepared for publication ? The Chairman. No. If you will turn back to the questions and answers I think you will find that you stated to him that you thought this Executive order took the usual course and was given out for publication ? Mr. Adams. Yes, sir. The Chairman. When do you think that was done ? Mr. Adams. If it was done it was probably within a few days or a week after the date of the order. The Chairman. Then, the only reason you have for thinking so is that that would be following the general course ? Mr. Adams. Certainly. The Chairman. But it did not follow the general course in other respects ; then, why do you think it did in that respect ? Mr. Adams. I think it followed the usual course as long as it was ia the Forest Service. The Chairman. And you have no other reason for thinking so other than that would be the usual way ? Mr. Adams. Yes, sir; I have no definite knowledge of what course it followed after it left the Department of Agriculture. The Chairman. You say you have no definite knowledge. Would it not be more accurate to say you have no knowledge at £ul as to this particular paper ? Mr. Adams. I have knowledge that it was referred by the Secretary of the Interior The Chairman. I mean especially with reference to the part of publishing it. Mr. Adams. Yes; I have no knowledge whatever of what happened in the Department of the Interior with reference to it except that which is contained in the public records. The Chairman. It was referred by the Secretary to whom ? Mr. Adams. Which Secretary? The Secretary of the Interior? The Chairman. The Secretary of Agriculture. Mr. Adams. It was referred from the Secretary of Agriculture to the Secretary of the Interior. The Chairman. And from there where would it go ? Mr. Adams. It would go to the General Land Office for verification as to the correctness of the description, and so forth, as checked against the plat books and other records of the General Land Ofiice. It would then be referred in the usual course back to the Secretary with the recommendation of the Commissioner of the General Land Office. It would then be referred from the Secretary of Interior to the Presi- dent with the recommendation of the Secretary of Interior. CONTROLLER BAY lANDS. 223 _ The Chairman. When you first saw it you told us it had the pro- vision as to notice ? Mr. Adams. Yes, sir. The Chairman. Where was that provision taken out of it ? Mr. Adams. After it left the Department of Agriculture. I can not say where. The Chairman. Where was the next place it would go to from that department ? Mr. Adams. The office of the Secretary of the Interior, and from thence to the office of the Commissioner of the General Land Office. The Chairman. Have you any information as to where the time notice was taken out of the original Executive order ? Mr. Adams. No, sir. The Chairman. You have no such information ? Mr. Adams. None whatever. The Chairman. Either by hearsay or otherwise? Mr. Adams. Neither by hearsay or otherwise. The Chairman. Are there any further questions by members of the committee ? Mr. Burke. I would like to ask one or two questions. Do you know whether or not any officer of the Department of Agriculture made any written recommendations or suggestions to apply to this Executive order wherein it was suggested that the proclamation be so changed ? Ml-. Adams. No, sir. Mr. BxjRKE. Would you have knowledge of it if something of that kind had been done ? Mr. Adams. Unless it was taken when I was in the field; even then I would probably catch it up in subsequent consultations with the records. Mr. Burke. Then will you tell me what particular officer of the Department of Agriculture would pass upon it as to its form? I refer to. what law officer would do that, if any. Mr. Adams. The solicitor. Mr. Burke. And who is that? Mr. Adams. Mr. George P. McCabe at the present time. Mr. Burke. Was he solicitor about October 28, 1910? Mr. Adams. He was a solicitor of the department, but I was uncer- tain — I hesitated in my reply because there has been recently, within the last year or so, a crystallization of the procedure in legal matters in his office and there have been numerous changes, and under the present procedure all proclamations would be referred to the solicitor for scrutinv. Mr. Burke. I understand that all proclamations and Executive orders having to do with forest reserves pass before they go to the President to the two departments — the Agricultural Department and the Interior Department ? Mr. Adams. Yes, sir. Mr. Burke. Now, I would ask you what the custom is as to what action the President takes if a matter is presented to him with the approval and recommendation of the two Secretaries in regard to matters of this kind. 224 CONTKOLLEB. BAY LANDS. Mr. Adams. I have no information as to what transpires when that paper is submitted. The President evidently signs the order or the proclamation Mr. BxjEKE. Well, from your knowledge — and. I assume you are quite familiar with the matter — of issuing proclamations, because it appears that there are a great many issued, do you find usually that when the matter comes back to the department after it has been sent to the President that it has been changed ? Mr. Adams. I do not know of any case where it was changed. Mr. BxjBKE. You do not know of any case where it was changed? Mr. Adams. No, sir. Mr. BuEKE. Then so far as you know matters of this kind have gone to the President, where both departments have concurred in recommending it the President has approved ? Mr. Adams. That I am sure. I do not recall a single instance in ■ which there appears to have been any change in the proclamation as submitted by the Secretary of Interior. The Chairman. Before leaving that point I wish to call Mr. Burke's attention to page 186 of the record, which is in No. 5, where Mr. Adams gave testimony a httle more elaborately as to the difference between a proclamation and an Executive order, when Mr. Burke was not on the committee. Of course, as I said, Mr. Burke has not had time to read the record. In justice to Mr. Adams I want this statement to go in, in connection with his answer awhile ago, as to the difference, if any, between a proclamation and an Executive order. A reference to page 186 and the pages following it will show more fuUy Mr. Adams's views as to this difference. Mr. Fennell. Captain, you seem to have some difficulty with the word "promulgation." Now, so far as my question is concerned, you may call it publication, or notice, or any other word that you understand better. Whether it be proclamation or an Executive order, when signed by the President it could not be effective of itself ? It might lie on that table forever, might it not, and would give no right to anybody until it was either pubhshed, promulgated, or handed out, or you may use any other term you please; some action would be necessary to give that order effect, would it not ? Mr. Burke. Do you think that is a fair question to ask Mr. Adams in view of his statement ? He says he is not a lawyer. The Chairman. The Chair thinks it is a fair question. Mr. BtntKE. All right. Let him answer it. Mr. Adams. It appears to me that when a proclamation or order is signed which declares that the land is eliminated from the national forest, that it is no longer a part of the national forest, from that date. When it says that the land is herebyopened to entry under the pubUc- land laws, of course it foUows that in order to acquire the land which has been ehminated the entryman must take the steps prescribed by the pubUc-land laws. If the proclamation goes a step further and sa\s that between the time of the signing of the proclamation and the action which the entrjman must take there shall be a period during which no entries may be made and no action ma}" be taken, that would be an additional step, but one which would be provided by the wording of the procla- mation or order. CONTEOLLEK BAY LANDS. 225 _ Mr. Fennell. I understand that, Mr. Adams, and admitting that distinction, admitting that -you were correct in that distinction, that order when signed by the President must be published in some way, in some manner, or nobody would ever know of its being signed. Mr. Adams. Yes, sir. Mr. Fennell. Now, did you ever know of an Executive order to be promulgated or pubhshed or handed out by the President direct, pertaining to the pubhc-land laws ? Mr. Adams. No, sir. Mr. Fennell. Would you have known it if such was the custom ? Mr. Adams. I would have known it if it related to national forests. Mr. Fennell. Now, then, is it not the invariable custom to send this Executive order to the General Land Office, and is it not pub- hshed or promulgated or given out by the commissioner ? Mr. Adams. Yes, sir. Mr. Fennell. By a public letter ? Mr. Adams. Yes, sir. Mr. Fennell. Have you not before you a public letter in which the commissioner does give out that information ? Mr. Adams. Yes, sir. Mr. Fennell. And is not that letter dated February 11, 1911 ? Mr. Adams. Yes, sir. Mr. Fennell. And does not that letter state that the public lands have been eliminated by recent proclamation, will be subject to entry at the dates hereinafter mentioned ? Mr. Adams. Yes, sir. Mr. Fennell. That is, on February 11 for the first -time the com- missioner gives out the information that the land in question will be subject to entry October 28, 1910, some months prior to the date of the letter? Mr. Adams. Yes, sir. Mr. Fennell. Have you any reason for presuming that he, had issued a letter prior to that time of February 11 ? Mr. Adams. No, sir. Mr. Fennell. Or, in other words, why would he duplicate the information ? Mr. Adams. But I think it possible that he may have issued instruc- tions prior to the date of this letter to the registers and receivers of the local land offices to publish notice in local papers. Mr. Fennell. Or to hand out information to anyone that might be standing around the local office ? Mr. Adams. Yes, sir. Mr. Fennell. Would you consider that pubfic notice ? Mr. Adams. I beheve that is the sort required by the law. I be- lieve the law requires this sort of notice [referring to circular]. Mr. Fennell. The practice does. Mr. Adams. I beheve the law requires a notice iu the local news- papers. . , , ^ . ^ . ^, . » Mr. Fennell. But is it not the mvariable practice to give, the mtor- mation to the public by those circular letters ? Mr. Adams. les, sir; it is. Mr. Fennell. And it was done m this case i Mr. Adams. Yes, sir. 226 CONTKOLLEB BAY LANDS. Mr. FENKEtL. And joir have no reason for thinking it was done prior to that time ? Mr. Adams. No, sir. Mr. BuBKE. Did you ever see any such letters as that before ? Mr. Adams. That is the first time I ever saw a letter of that kind. Mr. BuEKE. Then you do not know whether it is the practice to so proclaim these restorations to the public domain as these circulars proclaim or not ? Mr. Adams. No, sir. Mr. BuBKE. All you know about- it is these two circulars you have seen? Mr. Adams. Yes, sir. Mr. BuBKE; And you do not claim that the land that was elimi- nated by this Executive order was not subject to entry under existing law the moment the Executive order was issued, do you ? Mr. Adams. No, sir; I do not claim it. Mr. Fennell. In view of that question, I would like to follow that up with another. You answer simply that you do not know? Mr. Adams. Yes, sir. Mr. Fennell. I want to call attention to the general order issued by R. A. Ballinger when he was commissioner, and approved Febru- ary 21, 1908, by James Rudolpli Gai^field, Secretary, in reference to the location of scrip [reading]: In cases of applications to locate all scrips, warrants, certificates, soldier's additional homestead rights, or to make lieu selections of public lands of the United States, the following requirements will govern on and after April 1,. 1908. Mr. Adams. This order fixed the rule in regard to the publication of notice of the intention to locate, and it is short, and without read- ing it I will ask that it be put in the record. (The paper in full is as follows:) PUBLICATION AND POSTING OF NOTICE — SCRIP, WARRANT, CERTIFICATE, SOLDIBE's additional and lieu locations and selections. Department of the Interior, General Land Office, Washington, D. C, February n, 1911. Registers and receivers, United States land offices. Gentlemen: In cases of applications to locate all scrips, warrants, certificates, soldier's additional homestead rights, or to make lieu selections of public lands of the United States, the following requirements will govern on and after April 1, 1908: 1. The location or selection must be acconipanied, in addition to the evidence required by existing rules and regulations, by affidavit of the locator, selector, or some credible person possessed of the requisite personal knowledge of the premises, showing that the land located or selected is not in any manner occupied adversely to the locator or selector. 2. You will rec[uire the locator or selector, within 20 days from the filing of his location or selection, to begin publication of notice thereof, at his own expense, in a newspaper to be designated by the register as of general circulation in the vicinity of the land, and to be the nearest thereto. Such publication must cover a period of 30 days, during which time a similar notice of the location or selection must be posted in the local land office and upon the lands included in the location or selection, and upon each and every noncontiguous tract thereof. 3. The notice must describe the land located or selected, give the date of location or selection, and state that the purpose thereof is to allow all persons claiming the land adversely, or desiring to show it to be mineral in character, an opportunity to file objection to such location or selection with the local officers for the land district in which the land is situate, and to establish their interest therein, or the mineral char- acter thereof. CONTEOLLEE BAY LANDS. 227 4- Proof of publication must consist of an affidavit of the publisher, or of the foreman or other proper employee of the newspaper in which^the notiEB waspublisiied, with a copy of the publication notice attached. Proof that the netice remained posted upon the land dvuMng the entir&period of publication, must be made by the locator or selector or some credible person having personal knowledge of the fact. The register will eertify to the posting in his office. The first and last days of such publication and posting must in all cases be given. Very respectfully, R. A.'Ballingee, Commimwer. Approved, February 21, 1908. James Rudolph Garfield, Secretary. Mr. Fennell. You know of no reason why that order would not apply to these locations in question, do you ? Mr. Adams. After the promulgation ? Mr. Fennell. Yes, sir. Mr. Adams. No; I know of no reason. Mr. Fennell. If that order is enforced and governs then no location could have been made after October 28, 1910, except in compliance with that order, could it? Mr. Adams. I am not aware of the authority under which the commissioner promulgated its — tissued these instructions to registers and receivers or under which the Secretary of the Interior approved them. I take it for granted, however, on general principles that if the Secretary of the Interior had the right to make and approve these recommendations his successor would have the right to amend or revoke them at any time and he may have so done. Mr. Fennell. By general order ? Mr. Adams. By a similar order. Mr. Fennell. Yes; a general order. He would have no right to say to an individual that the rules and regulations promulgated by his successor shall not apply to this individual; he would have no right to do that, would he ? Mr. Adams. No, it would have to be Mr. Fennell. An order revoking the former order ? Mr. Adams. Yes, and in the same form. Whether such a change has been made I do not know. Mr. BxjEKE. I would hke to ask one question that I overlooked. The Chairman. Very well. Mr. BuBKE. I think you stated, Mr. Adams, that there had been some notice in the Department of Agriculture or in the Bureau of Forestry that somebody was endeavoring to in some way acquire land for terminal purposes at or about this map 601 -A, where these loca- tions appear. Mr. Adams. Yes, sir. Mr. BuEKE. And there had been some surveys, I think you said, brought to the attention of the department ? Mr. Adams. Yes. Mr. Burke And about how long had that been pendmg, so that you had any notice of it? Mr. Adams. I think that matter came up m the fall, was brought to the attention of the Forester in the fall of 1909. Mr. Burke. The fall of 1909 ? Mr. Adam^. The summer or fall of 1909. Mr. BuBKE. And was the matter urged from time to time there- after? 228 CONTEOLLEE BAY LANDS. Mr. Adams. Yes, sir; I think it was. The matter was under con- sideration from time to time until the final action was taken. Mr. Burke. Was it done in the regular way, or by some unusual method ? Mr. Adams. It was done in absolutely the customary and usual way of receiving and starting such inquiries and applications. Mr. BuEKE. And these parties that were active m urging the ma.t- ter are the parties that are now interested in these locations ? Mr. Adams. That I am entirely unable to say. That I am sure you can ascertain from the records. Mr. Burke. Do you know whether or not in reference to these lands the requirements of this circular which has been referred to were filed or not ? Mr. Adams. No, sir; I do not know. Mr. Burke. You do not know anything about it ? Mr. Adams. No, sir. Mr. Burke. What is the date of that circular ? The Chairman. It is not numbered. Mr. Burke. But what is its date ? The Chairman. It is dated February 21, 1908. Gentlemen, that seems to conclude the hearing to-day. I do not think we can make any further use of you, Capt. Adams, until you bring your Uterature that we have asked for. (Thereupon, at 1.15 p. m., the committee adjourned until to-morrow, Friday, July 21, 1911, at 10.30 o'clock a. m.)