Kansas City journal. [volume] (Kansas City, Mo.) 1897-1928, 1897-05-13
SABINE CITY PORT ARTHUR con-
TROVERsY STILL OPEN.
ATTORNEY GENERALS OPINION.
SAYS SECRETARY ALGER MAY ISSUE
A PERMIT FOR a CANAL"
Expressly RefraIns From Stating That
Proposed Channel Is n Canal
Ex-senator Paddock At
tacbeS Little Import
ance to Opinion.

Washington. May 12.--(Special) Attor
ney General McKenna transmitted 10 th'
secretary of war to-day an opinion upor
the question propoundcd to him whether
the secretary of war had authority tC
grant A permit 10 the Kansas City, Pitts
burg & Gulf railway to dredge canal be-
tween deep. water at Sabine Pass and Port
Arthur. eight miles distant. The opinion
seems to evadc the main point and leaves
it for subsequent adjudication in the
courts.
The opinion. after reviewing the case and
quoting the federal statutes, concludes:
THE only question submitted to me and
which it is at all proper that 1 should an
swer, Is. Whether the secretary OF war
has authority to permit the construction
of this canal Without assuming TO decide
whether or not a canal is one Of the
works provided for in section :, / am of
the opinion that II it is, the secretary of
war has the authority, under section T. of
the act of July l3. 1892. to authorize and
permit its construction"
Ex-senator Paddock of Nebraska. who
has been representing the Sabine Pass I'm
provement Company, said to-day of the
opinion Of the attorney general:
This is simply an opinion Of an execu-
tive department, and not a decision. 1t is
him by the secretary of war whether, un-
der section OF the river and harbor bill
OF 's2, a permit could be issued for the
dredging of a canal in Sabine lake. After
traversing the law as to the proposition in
question the attorney general decided that
the secretary Of war was authorized by
the provision OF section to grant rer-
mits for work to be done of the classes in
dicated in section {.
But he says. as to the question raised by
the secretary of war whether il is permis-
sible for him. the secretary of war, TO au-
thorize the construction OF a canal, that
he exercises no opinion beyond this,
that II it is a work authorized by law he
thinks he has the authority. In fact. there
is no such inclusion of canals in the law.
This leaves the question entirely open for
subsequent adjudication by the courts. and
the attorney generals opinion is, therefore,
no opinion whatever, even il the secretary
OF war should grant such permit TO pri-
vate parties to appropriate government
waters. The secretary of war has not yet
made up his mind as to the action which
he will take II request for such a per-
NIT be made to him.
"Our contention is. as it has been, that no
executive officer, in the entire absence OF
authority from the lawmaking power Of
the United States. has the right to grant
TO private company, without cost, for its
exclusive use ana henefit, a Strlp OF ITS nav
igable waters miles I'm length. Congress
certainly contemplated that in an act
passed by IL intended TO cover emergency
work in and about its harbors and rivers Il
authority should be given the
secretary OF war to grant away in such
manner a part of the navigable waters of
the United States for canal purposes. While
the statute books are full of legislation con-
cerning the subject of ship and other ca
nails there Is not one case where a COM
pany organized under state laws or any
other has received an unconditional grant
of navigable waters for distnctively ship
canal purposes. except through an act of
congress. The Baratria ship canal act for
a canal from New Orleans to the Gulf of
Mexico was case in point, where most
rigid restrictions with respect 10 its con-
TO the use OF riparian lands ad-
joining. to rates Of tolls and tonnage charg-
es were thrown about the congressional
grant.
1T is understood that, the company has
abandoned its proposed ship canal through
the lake, on account of tie rigid require
army insist must surround its construction,
u the right Of the secretary of war to
grant such permit should be sustained by
the court. These include revetmentS for
all its entire course. which would be ex-
tremely costly 10 construct and very eN-
rensive to maintain. The project as IL Is
The land connecting Port Arthur with deep
water. In either case. much litigation Is
luite certain 70 ensue before work can be
prosecuted. IL the canal on the lake shore
should be attempted. IL would cut OFF from
The lake owners of property who are pre-
pairing 20 erect manufacturing enterprises.
and would destroy their riparian rights II |
4 is dug through the land the courts will |
IN all prOba bility be called upon to decide |
whether property can he destroyed for . |
purpose of this character. |
The controversy has accomplished one /
hing, which is to make it clear, both to |
he government and the public. that the |
teep water harbOr of Sabine Pass Is at |
PRESENT eight miles from the proposed town |
lite at Port Arthur and to expose the pre- |
enseS that Port Arthur Immediately ad- |
oins or Is adjacent to the roadStead where |
hips are daily loading for foreign ports.
This has been accomplished and Is a de- |
'ided victory for those who oppose perma-
lent injury to the harbOr by the dredging
II an unprotected canal, which, under no |
will the government permit. ]
ina Tor those who now know geographical /
'Ondttions at the pass and the reasons /
which have controlled MS in struggling TO |
make them known"
At the Gulf offices last evening the fol-
owing statement was made:
The opinion of the attorney general |
'ompleteS the partial victory which the
Port Arthur people secured when they got
an order from the secretary of war a few
lays ago TO permit them to continue dredg-
ng. The secretary of war stated that ne |
would grant IA formal permit in case the
attorney general gave him the power TO
iillham left Washington. he arranged i'm
ADVANCE with the secretary of war fo-
such notifications of his plans as regards |
'ertain details which the war department |
and II was agreed that in event
he attorney general should give a dacis- |
on such as he did yesterday. that the per-
nit should be issued at once. The decision
" the attorney general therefore makes |
he victory Of Port Arthur complete. Port |
Arthur wins on every point"