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CONSTRUCTION OF LEVEES FOR FLOOD PREVENTION

Mr. HUMPHREYS of Mississippi presented the following

ARTICLE BY T. C. CATCHINGS ON THE POWER OF CONGRESS TO APPROPRIATE MONEY FOR THE CONSTRUCTION OF LEVEES FOR FLOOD PROTECTION.

DECEMBER 6, 1913.-Ordered to be printed.

What is commonly called the "Ransdell-Humphreys bill" does not by its terms seek an appropriation to protect the Mississippi Valley from floods for the purpose of conferring a benefit upon the owners of the lands in the valley. It provides an appropriation for continuing the improvement of the Mississippi River from the Head of Passes to the mouth of the Ohio River, including the salaries, clerical fees, traveling and miscellaneous expenses of the Mississippi River Commission, with a view to securing a permanent channel depth of 9 feet, preventing the banks of the river from caving, and protecting the valley from floods. The appropriation sought by it is to be expended under the direction of the Secretary of War in accordance with the plans, specifications, and recommendations of the Mississippi River Commission, as approved by the Chief of Engineers, for the general improvement of the river and for surveys, including a survey from the Head of Passes to the headwaters of the river, in such manner as in their opinion shall best improve navigation and promote the interest of commerce at all stages of the river, and for the building of levees between the Head of Passes and Cape Girardeau, Mo.

In addition to the twelve millions sought to be appropriated for immediate use, the Secretary of War is authorized, by hired labor or otherwise, to continuously carry on the aforesaid plans of the Mississippi River Commission, to be paid for as appropriations may be made from time to time by law, not to exceed in the aggregate forty-eight millions in addition to the twelve millions intended to be immediately available.

The bill provides that the forty-eight millions shall be used in prosecuting the improvement for not less than four years, the work for each year to cost approximately $12,000,000. It directs that of the money appropriated and authorized to be expended nine millions per annum or so much as may necessary, shall be expended in the protection, repair, and construction of levees. The balance of the appropriation is directed to be used in the construction

and repair of bank revetment and for work in the interest of navigation, including the construction of suitable and necessary dredge boats and other devices and appliances, and in the maintenance and operation of the same.

It is then stipulated that in the discretion of the Mississippi River Commission, upon the approval of the Chief of Engineers, allotments may be made from the amounts appropriated or authorized for improvements now under way or hereafter to be undertaken upon water courses connected with the Mississippi River, and in harbors upon it now under control of the commission and under improvement. The bill contains no statement as to why appropriations are sought for protecting the Mississippi Valley from floods. There is a simple declaration that the appropriation is made, among other things, for the purpose of protecting the valley from floods. The bill gives no reason why nine millions per annum are directed to be expended in the protection, repair, and construction of levees; that is to say, the purpose to be subserved by the protection, repair, and construction of levees is not indicated. The statement that the balance of the appropriation shall be used in the construction and repair of bank reventment, and for work in the interest of navigation, including the construction of suitable and necessary dredge boats and other devices and appliances, and in the maintenance and operation of the same, is simply descriptive of the manner in which such balance of the appropriation shall be expended. The words "in the interest of navigation" do not imply that building levees is not in the interest of navigation, and are simply descriptive of the character of the work specifically defined in the concluding portion of the sentence in which these words appear. That is to say, the appropriation referred to as "the balance of the twelve millions annually," is specifically devoted to the construction and repair of bank revetment, the construction of suitable and necessary dredge boats, and other devices and appliances, and for the maintenance and operation of the same, and for work in the interest of navigation. This means that if there should be any other work which in the judgment of the commission should be done in the interest of navigation other than that specifically designated, they shall do that work.

Levees are not referred to in this closing paragraph for the reason that they have already been specifically provided for.

Although the purpose for which appropriations for the construction and maintenance of levees are sought by the bill is not expressed, yet the appropriations, if made, will be just as valid as if the purpose in making them had been expressed. The only question which could be raised, if we assume that the appropriations are made, will be as to whether the construction of levees bears any proper relation to the powers of the Government under the Constitution.

In the case of Cherokee Nation v. Southern Kansas Ry. Co. (135 U. S., 641), the Supreme Court said:

It is not necessary that an act of Congress should express in words the purpose for which it was passed. The court will determine for itself whether the means employed by Congress have any relation to the powers granted by the Constitution.

And Congress has a very great latitude in determining by what means it will perform an act which it has authority under the Constitution to perform.

In McCulloch v. State of Maryland (4 Wheat., 409), Chief Justice Marshall said:

The Government which has a right to do an act, and which has imposed upon it the duty of performing that act, must according to the dictates of reason be allowed to select the means; and those who contend that it may not select any appropriate means, that any particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.

And again, on page 413, he said:

To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable.

And on page 423 he said:

But where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This court disclaims all pretensions to such power. And on page 421 he said:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.

The Constitution expressly confers upon Congress the power to make all laws which shall be necessary and proper for carrying into execution its enumerated powers and all other powers vested in the Government of the United States or in any department or officer thereof.

Discussing the clause of the Constitution conferring this power to make all such necessary and proper laws, the Supreme Court, in the legal tender case of Juilliard v. Greenman (110 U. S., 440), said:

By the settled construction and the only reasonable interpretation of this clause the words "necessary and proper" are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished and which in the judgment of Congress will most advantageously effect it.

It quoted with approval from the opinion of Chief Justice Marshall in the early case of United States v. Fisher (2 Cranch, 358) as follows: In construing this clause it would be incorrect and would produce endless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution.

The question, therefore, is as to whether the construction of levees and the prevention thereby of floods in the Mississippi Valley may justly be regarded as one means for the regulation, and as a necessary incident thereof, the protection of interstate commerce, and the facilities for the transportation of mails, whether by steam vessels engaged in the navigation of the Mississippi River or by

railroads traversing the large area of territory embraced in what is known as the Mississippi Valley.

What is generally known as the Mississippi Delta has an area of 29,000 square miles of territory, all of which is exposed to more or less serious damage by the flooded waters of the Mississippi River. This delta comprises portions of seven of the States. Something like 1,000,000 people reside in this delta. Many railroads traverse it, and many villages and a number of considerable towns or cities are located within its area, and a very extensive intercourse through interstate commerce and the postal business of the Government is carried on between the inhabitants of this delta and the States of this Union.

The serious attention of Congress was directed to the magnitude of the interests centered in this delta and to the great possibilities of its increase in population, with consequent growth of interstate commerce and postal business, as far back as 1879, when it created the Mississippi River Commission. The duties of that commission in the main were as follows:

To direct and complete such surveys of said river between the Head of the Passes near its mouth and its headwaters and to make such additional surveys, examinations, and investigations, topographical, hydrographical, and hydrometrical, of said river and its tributaries as may be deemed necessary by said commission to carry out the objects of this act, to take into consideration and mature such

plans and estimates as will correct, permanently locate, and deepen the channel, and protect the banks of the Mississippi River; improve and give ease and safety to the navigation thereof; prevent destructive floods; promote and facilitate commerce, trade, and postal service.

It is not worth while to discuss with any detail the question as to the value of the confinement of the floods of the river as a means to the improvement of its channel. Congress has access to the many reports made from that day to this by the Mississippi River Commission in which this question has been from time to time more or less discussed. It is sufficient to say that the members of the commission have differed in their opinions as to the efficacy of levees in the work of channel improvement. Some of them have steadily maintained that the confinement of the flood waters serves a useful purpose in maintaining the channel and in deepening it, and by that means improving it. Others have doubted whether the confinement of the floods would have any material effect upon the channel. Congress, however, has proceeded for many years upon the view of those who thought that the confinement of the floods operated beneficially in the great work of channel improvement. Large sums of money have been expended by the Government in the construction of levees. The inhabitants of the Delta have cooperated freely and actively, and, stated broadly, have expended considerably more than twice as much as the Government has in this direction. The result of it all is that there now exists very considerable protection from floods. It is the belief that ordinary floods can be substantially restrained by the levees as they exist. They need, however, to be greatly enlarged and strengthened to enable them to cope with such great floods as that which passed down during the last 12 months. The soil through which the river runs being alluvial and consequently very friable, the banks cave badly, and it is essential not only to channel improvement but to the permanence of any system of levees that at the worst places the banks shall be revetted to prevent

their caving. Bank revetment, therefore, may be regarded not only as a feature of channel improvement but as a feature of levee construction. It is within the power of Congress, under the interstatecommerce clause, as defined in the quotations made from the several opinions of the Supreme Court of the United States, too clearly it would seem to admit of controversy, if it chooses to accept the view that levee construction has a direct relation to channel improvement, and, therefore, to the improvement of the navigation of the river, to expend money for the purpose of constructing levees. The courts would never deny the power of Congress to make such appropriations.

This question must not be considered, however, purely as one affecting the navigation of the river. As said by Mr. Justice Nelson, in delivering the opinion of the court in Penn. v. Wheeling & B. Bridge Co. (18 How., 421), "the regulation of commerce includes intercourse and navigation.' That is to say, under the interstatecommerce clause, Congress is not limited to questions of navigation, but may consider and deal with questions of intercourse as well. All of the members of the commission, it is believed, have been of the opinion that the construction of levees, leaving out of consideration entirely the mere question of navigation, facilitates commerce and trade. For example, in their report for 1885 the commission said. that they "promote and facilitate commerce and trade by establishing banks or landing places above the reach of floods upon which produce can be placed while awaiting shipment, and where steamboats and other river craft can land in times of high water." The truth of this statement must be manifest. If the whole Mississippi Delta were covered by water there would indeed be no commerce upon the river at all, and consequently no navigation of it.

Again, in their report for 1912 they say that levees have a certain degree of utility in the improvement of the channel "and are necessary to promote the interests of commerce by providing landing places for the interchange of traffic in times of flood and protecting the lines of railway behind them."

It is self-evident, therefore, that, leaving out of consideration entirely all questions relating to the mere navigation of the Mississippi River, Congress has the power under the interstate-commerce clause to construct levees as a suitable means for promoting the interests of

commerce.

It is submitted that if the Mississippi River was incapable of navigation at all, Congress would still have the power to prevent the escape of its flood waters by the construction of levees. In Cal. v. Pac. R. R. Co. (127 U. S., 39) the Supreme Court said:

It can not at the present day be doubted that Congress, under the power to regulate commerce among the several States, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from State to State is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges it would be without authority to regulate one of the most important adjuncts of commerce. This power in former times was exerted to a very límited extent, the Cumberland or National Road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention H D-63-2-vol 157—15