That provision has been construed in a lengthy opinion, which appears on page 224 of the report of the Federal Power Commission for the year 1922. That opinion, which has particular reference to this situation since the laws of Arizona and Nevada do not recognize riparian rights, states:

This requirement has reference to the laws obtaining in the more arid regions of the country with respect to the appropriation of the waters to beneficial uses. The applicant must show that he has obtained, pursuant to the laws of the State, the right to appropriate, divert, and use the water for power purposes. If the applicant has obtained, in compliance with the laws of the State, a permit for the proposed diversion, from the State engineer or other agency of the State having jurisdiction in the matter, such a permit, in my opinion, satisfies the requirement of the statute.

Therefore, it would not follow, because the Southern California Edison Co., or any other power company, had an application for a power site on the Colorado River, that the Federal Power Commission would immediately issue a license. It would require, at Boulder Canyon, or Black Canyon, the concurrence of the State authorities of both Arizona and Nevada?

Mr. CARR. Yes, sir.

Mr. HAYDEN. And the requirements of each State would have to be fully satisfied before the Federal Power Commission could act at all?

Mr. CARR. Yes, sir; but Mr. Girand has already got his State authority, according to my understanding.

Mr. HAYDEN. Mr. Girand has been granted his State authority, and therefore, is in a different position from any other power project on the river.

Mr. CARR. That is a major project.

Mr. RAKER. Well, in that connection, there is nothing to prevent one who files and complies with the law now from putting himself in a position to proceed, is there?

Mr. CARR. I do not presume to construe the effect of the Arizona statute; but we have a similar statute in California; and our supreme court held about two years ago that, if an applicant complied with all of the laws of the State, and the water was unappropriated, the commission that grants the licenses is subject to mandamus in the courts to compel it to grant the license. I do not presume to say that the same rule would apply in Arizona, although the laws are generally similar. But our supreme court in an action where the State Water Commission had refused to grant a license, granted a peremptory mandamus against it, requiring the granting of the license.

Mr. LEATHERWOOD. That is all very interesting, Senator. What is the title of that case?

Mr. CARR. Tulare Water Co. v. State Water Commission; I think it is in about volume 168 of the California reports. But I will get that for you. (Correct citation, 178 Cal. 533.)

Mr. LEATHERWOOD. Unless I am mistaken, that runs in the face of the law that has been quoted here before.

Mr. CARR. That is the decision of our supreme court in California; and our law is of the same general purport as the laws in Oregon, and those that have been accepted quite generally in the Western States.

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Mr. RAKER. Under the law of California, before this act to which you refer, all that you had to do was to post your notice

Mr. CARR (interposing). Yes; but that was superseded by the water commission act.

Mr. RAKER. And you followed that up by proceeding to work?
Mr. CARR. Yes, sir.

Mr. RAKER. Now, when the applicant has complied with the conditions laid down by the law then the duty of the commission is to give him the permit. And I was just wondering whether that was not the same rule that applies in Arizona and Nevada?

Mr. HAYDEN. I can only say that under section 27 of the Federal water power act, whatever the law of the State is in that regard, it must be complied with,

Mr. CARR. There is no question but that you are correct in that. Mr. HAYDEN. Section 27 of the Federal water power act provides:

That nothing herein contained shall be construed as affecting or intended to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, pr distribution of water used in irrigation. or for municipal or other uses, or any vested right acquired therein.

Mr. CARR. Yes, sir. ,,,

Mr. HAYDEN. An interesting illustration is the case of the legislature of the State of Montana, where they feared that the State of Washington might acquire water rights within the State of Montana for the use of the Columbia Basin project. The legislature of Montana passed an act prohibiting any official of the State of Montana from granting an application for water for use outside of the State. except upon petition to the legislature and the enactment of a special law on the subject.

Mr. CARR. Yes, sir: but there was a time, back in 1913, when the State of California had launched upon it some such policy as that. I am glad to say that I, as a member of the legislature at that time. opposed it. And that policy was superseded at succeeding sessions of the legislature. :

Mr. RAKER. But there is no such law in Arizona or Nevada.

Mr. HAYDEN. The legislature meets every two years and can pass such a law.

Mr. RAKER. I think it is conceded that the laws of the States must be complied with. But there is no preference of the red-haired man over the black-haired man, or of one corporation over another. The first one that complies with the law, if he follows it up, is given an opportunity to proceed.

Mr. CARR. I think the situation is just as you have expressed it. Mr. Hayden. That as far as Girand is concerned he has got his clearance papers, so far as the State law is concerned; and so far as the Federal Power Commission is concerned there are official expressions of that body to the effect that as soon as the compact is ratified he will get his license for the project, and that is a major project.

So far as the Southern California Edison Co. is concerned I do not know what the attitude of the Federal Power Commission will be, but I think you noticed the confidence shown by Mr. Ballard, the spokesman of the company, that just as soon as the compact was ratified he will get authority under the Federal water power act and get the authority of the States and go ahead.

Mr. RAKER. Do you think that is the attitude of the Federal Power Commission now, that as soon as this compact is approved by the State of Arizona they will approve Girand's application? Mr. CARR. Well, I have read from the

Mr. RAKER (interposing). I know you have read that extract; but I am just asking you the question, outside of that?

Mr. CARR. Well, I have tried not to express my opinion from the outside such opinions are formed from many little circumstances. But I am trying to keep to the official records, and the official records show that they think that the Girand application ought to be granted. I think you can get nothing stronger or more cogent. than that as showing their attitude.

Mr. LEATHERWOOD. If I understand you correctly, you are in this situation in California: That if any private company applies to the proper commission in your State for a license or permit, or whatever you call it, to install a power plant, and if the commission of your State should determine that it was not for the best interests of the people to grant that permit or license, then your court of last resort would mandamus the State commission?

Mr. CARR. That is what our supreme court held. And that was contrary to the idea of most of us when the water commission act was passed. But they have held that if it was unappropriated water, and anyone comes in and makes application and makes the showing that he is prepared to use the water, the water commission can not exercise the judicial function of saying that he can not use it→→→→

Mr. LEATHERWOOD (interposing). Then that wipes out the discretionary power in the hands of the proper commission in California?.

Mr. CARR. I think probably it does not go as far as that; they have certain discretion, to determine whether the party is prepared to go ahead; but they can not say, as a matter of public policy, that the right to go ahead does not exist.

Mr. LEATHERWOOD. I would be very glad to have the citation of that case.

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Mr. CARR. I can almost give it now; I think it was Tulare Water Co. v. Water Commission: I will give the exact citation to the committee... (178 Col. 533.)

Mr. LEATHERWOOD. While you are on the discussion of this subject-I do not want to interrupt you, but I desire to give you an official expression, which is the last word of the Federal Power Commission as to its policy.

I have before me a letter dated March 6, 1924, from the Federal Power Commission, reading as follows:

Hon. E. O. LEATHERWOOD,

FEDERAL POWER COMMISSION.
Washington, March 6, 1924.

House of Representatives, Washington, D. C.

MY DEAR MR. LEATHERWOOD: I have your letter of February 29, requesting an expression of opinion from the Federal Power Commission as to its policy on the Colorado River pending ratification of the Clorado River compact.

The Federal Power Commission has taken a great interest in the steps leading up to the negotiation and partial ratification of the Colorado River compact. Appreciating as it does the difficulties and delays which have occurred on many interstate streams from failure to agree on the use of the

waters, the commission believes that a compact such as that negotiated by the Colorado River Commission is a matter of great importance to all the States in the Colorado River basin. Under such circumstances, its policy has been to defer action upon applications affecting the river until such time at least as adequate opportunity has been given for the State of Arizona to accept or reject the compact.

Very truly yours,

JOHN W. WEEKS, Secretary of War, Chairman.

Mr. CARR. Yes, sir; that is what I understood their attitude was, and I tried to express it in practically that language: That they are holding everything up until the compact is ratified. As soon as the compact is ratified the Girand application, which has got the local clearances, will go on, and I think there is a pretty good chance that the Southern California Edison Co. applications will do the same. Mr. RAKER. What effect would that have upon the construction by the Government of a dam upon the Colorado River, as contemplated by this legislation?

Mr. CARR. Why, the Government-if the power is developed by private agencies which absorb the market, there will not be any market, and the Government will simply put up the dam and not get its money back. I think that if those major applications are granted the project would not be feasible for the Government to undertake.

Mr. RAKER. I understand that your view is that if the Girand application is granted it would materially affect and possibly defeat such legislation as is now pending before the committee?

Mr. CARR. Well, it would take out quite a segment of the market. Mr. Ballard, if I remember his testimony right, suggested that probably the major development should be under one agency; and, of course, we all know that if one private development is permitted in the river, in the ordinary course, others will probably follow, and that will be the agency that will develop it, and that involves a broad question of policy as to which is the better agency for the interests of the public-whether the Government should itself construct the dam and assume the definite control of the water resources of the Colorado River or whether, as Mr. Ballard suggests, it should be turned over to a public-service corporation as a suitable agency.

Mr. RAKER. In other words, if the Girand application was approved by the Federal Power Commission, and also one or more applications of the Southern California Edison Co., is it your view that it would, in effect, defeat the Government's proceeding to construct a dam, a reservoir, and other works as contemplated by the pending legislation?

Mr. CARR. Yes, sir. And I think that is the question which is presented before the committee.

Mr. RAKER. It would be practically a defeat of it?

Mr. CARR. I think so. That is the view that we have always taken. Mr. RAKER. If your people believe that, why do you not-taking what the Federal Power Commission has said in their annual report and taking their last enunciation which has just been read into the record by the gentleman from Utah-why do you not have prepared and submit to this committee, so that it can be immediately passed before this Congress adjourns, a bill or resolution taking from the Federal Power Commission the power to issue any permit or license on the Colorado River until this legislation is disposed of?

Mr. CARR. I should be very glad to do that, Judge Raker, but we have been hopeful that we could make sufficient progress with this legislation so as to accomplish the same result.

I now wish to suggest the theories upon which an appropriate provision or amendment in the bill would meet the situation and the needs of the Northern States. We want to meet the views of the Northern States, Mr. Leatherwood

Mr. LEATHERWOOD (interposing). I do not want to interrupt your statement; but before you finish your discussion, I would like to have you consider this angle of the question: Do you think there will be anything particularly gained by attempting to immediately get the legislation to authorize the construction of the Boulder Canyon Dam, before the Colorado River compact is ratified by the State of Arizona if by so doing you would precipitate a court action by the upper basin States to determine the rights in the river?

Mr. CARR. Well, I am sure, Mr. Leatherwood, that the upper basin States will not precipitate a court action; and I think if you let me proceed-I hope I can convince you, Mr. Leatherwood, that it is competent for Congress in this measure to insert provisions that will give the upper basin States just as effective protection, if not more effective protection than they will get in the compact.

I realize that we are in the position of appealing to this committee as a court, practically. We do not want to do any injustice to the upper basin States. We think the upper basin States might well take the same attitude toward us.

We have a critical situation in the lower States; and we believe that we should have relief, and we believe that we have a good cause; and we believe it is possible in this legislation to accomplish both objects to protect the upper States and to give us relief.

But Mr. Leatherwood, if your position is correct and is maintained, it means that you can get what you want in the upper States, but that you, by the force of circumstances, are practically going to close the door to those of us in the lower basin that feel that we are entitled to the relief contemplated by this bill.

Mr. LEATHERWOOD. You say in this portion of your statement that we can get what we want. We would get, perhaps, a final decree of a court of competent jurisdiction, determining the rights of all the States in the Colorado River Basin.

Mr. CARR. No, I think you misunderstood me; I meant you would get the compact: you misunderstood me.

Mr. RAKER. Before you proceed, let me ask you this: There is now pending before the Committee on Public Lands a resolution requesting Congress to pass an act prohibiting the Department of the Interior from acting-there is a letter from the Secretary of the Interior: and one from the Secretary of Agriculture; likewise a letter from the President. They are fearful that the appropriate executive department would issue patents to about four million acres of land: that Congress might adjourn, and there would be nothing to prohibit it.

Now, in this case, suppose the House passed a bill, and suppose it was not passed in the Senate; in the meantime, suppose Congress adjourned, and the compact was ratified, then the Federal Power Commission say that they will act upon those applications; the