The Birmingham age-herald., 1912-12-20

To the Editor of The Age-Herald:
 In reply to the editorial in this morn ing's paper in reference to the right to charge for water power etc, as outlined by Secretary Stimson: also criticisng the age of decisions cited by me, I have nu- merous supreme court decisions on this question, some as late as March 1, 1912.
 In the case of Philadelphia Go. vs. Henry L. Stimson, Secretary of War, Justice Hughes delivered the opinion of the court, and referring to old decisions uses the following language:
 'rhe established doctrine is invoked that the title to the soil under navigable waters within their territorial limits and the extent of riparian rights are governed by the laws of the several states, subject to the authority of Congress under the constitution of the United States. Martin vs Waddel. Is Pet s67: Pollard vs. Ho- gan. How. PIP; Weber vs. Harbor com missioners, IS Wall 57; Barney vs Keo- kuk 9i U. s. s2i, SSs; Packer vs. Bird, 137 L. S. 661, 669; St Louis vs. Rutz 13S |. s. 226, PAP; Hardin vs. Jordan, 40 |. s. 311. 3S2. 402; Illinois Central R. R. Co vs. Illinois. 146 T.. s. ss7. 435. d52; Shively vs. Bowlby, 152 U. s. 4O-47: Water Power Co vs Water commissioners. 16S U. S. 3.9 s65. upholding all the old decisions.
 think it is only necessary in this dis :, cussion to refer to the opinion delivered by President Taft when Secretary of War as that covers all questions involved in your editorial in this mornings paper. Discussing the relative rights of the fed eral government. of the state, and of the riparian owner. President Taft, when, as Secretary of War, gave an opinion on the occasion of the application of riparian owner on the Des Plaines river for the approval of plans to construct dam for water power, stated as follows
 "The truth Is. that the Des Plaines river. not being a navigable stream, no permit was necessary to put any obstruc- ton into it which the war department could prevent. But even if it had been a naviga ble stream, and even if the appli- cation had been made. and properly made to this department, to say whether this would interfere with navigation, if the department concluded 1t would not inter fere with the navigation. then it Is not within the power of the department to withhold it's expressing such an opinion and granting such permit. so far as the United States is concerned for the purpose of aiding the state in controlling the water power. If the state has aus' control over the water power. which 1t may exercise in conflict with the claimed rights of the riparian owner, then it must exercise it itself. through it's own legisla- tion and through it's own executive off cers. All the United States does, assum- ing it to be a navigable stream. is merely to protect the navigation of the stream. With reference to the water power, il has no function except in respect to water power which it itself creates by its own investment in property that it itself owns, and then. of course, it may say how that water power shall be used.
 But. with respect to the water power on a navigable stream. which may be ex- ercised without interference with the use of the river for navigation purposes, thai is controlled by the laws of the state. II is controlled by the riparian ownership and by the common law as it governs those rights. Therefore. do not sss with reference to this matter that this