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At the Goat Island end of the Horseshoe Falls, approximately ninesixteenths inch.

At the Canadian end of the Horseshoe Fall, less than 1 inches. At Lake Erie, approximately one-fifth inch.

These quantities are evidently insignificant, and with reference to the effect of the diversion of an extra 4,400 cubic feet per second Gen. Bixby on Tuesday stated to this committee that the diversion of that extra quantity would have no appreciable effect upon either the American Falls or upon the Horseshoe Falls.

Therefore, the diversion, over which Congress is assuming control, for the preservation of the scenic grandeur-that is, the diversions up to the treaty amount upon this side of the river, and especially the additional amount of 4,400 now asked to bring the American diversion up to the treaty amount, can have no appreciable effect upon the scenic granduer of either the American Falls or the Canadian Falls.

So I say, gentlemen, so far as this 4,400 feet is concerned, it should be granted to somebody. In other words, the limit of 15,600 feet total diversion upon the American side which is fixed by the Burton Act should be extended to 20,000, as provided by the treaty.

Mr. GARNER. That could be effected by changing the figures in the Burton Act.

Mr. BROWN. Sure; certainly; I could make that change and other changes very easily. [Laughter.]

Now, gentlemen, let us examine the other propositions. The first (already discussed) is to raise that restriction which now deprives everybody, individuals and the public, of the use of 4,400 cubic feet of water per second. The second is to do away with the prohibition upon the transmission of power from Canada. The limitation is now 160,000 horsepower. Mr. Watrous made the statement or inference here the other day that of the 160,000 horsepower allowed to be imported from Canada under the Burton Act they are now permitting only 110,000. Now, gentlemen, I have those figures; and this will be the third insertion I wish to make. It is as follows:

The following permits for diversion have been operative since August, 1907 (H. Doc. No. 246, p. 13):

Niagara Falls Power Co----.

Cubic feet per second.

8, 600

Niagara Falls Hydraulic Power & Machinery Co. (now Hydraulic Power
Co.)-

6,500 500

Lockport Hydraulic Co.--

Total...

These figures are maximums.

15, 600

By the same report the following have been the permits for transmission from Canada since August, 1907:

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The same report (H. Doc. No. 246, p. 15) shows that the transmission permit from the Canadian Niagara Power Co. and from the

Ontario Power Co. was practically all transmitted, the 52,500 allowed from the Canadian company being fully transmitted, and about fivesixths of the amount permitted to the Ontario Co. of the 46,000 permitted from the Electrical Developing Co. only 10,000 has been used. This is because of temporary conditions.

Mr. GARNER. The total authorized importation is 160,000 horsepower?

Mr. BROWN. Yes; and the total amount actually permitted is

158,500.

Mr. GARNER. The total amount actually transmitted is how much? Mr. BROWN. The maximum in June, 1911, was 110,000, the difference being because the electrical company does not use all theirs; but that does not give the other companies the right to import more. Mr. GARNER. I assume those permits are revocable?

Mr. BROWN. Yes, sir.

The CHAIRMAN. In a nutshell, as I understand it, you are in favor of utilizing the additional power we are entitled to under the treaty; secondly, you are in favor of removing any restrictions upon the importation of power from Canada; third, we would like to know, now, which of these two bills you prefer the Smith bill or the Simmons bill?

Mr. BROWN. I would like to finish certain points. We are in favor of lifting these restrictions, from the standpoint of business men. When Gen. Bixby spoke to you Tuesday he said: "Gentlemen, the treaty between these two countries allows 36,000 cubic feet diversion upon the Canadian side" (now these are not his exact words, but it is the substance of them). "If you think that by prohibiting the importation of Canadian power you are going to do anything that is directly or indirectly to protect scenic beauty, you are mistaken, because it is not going to have the effect in the end of diminishing what would otherwise be the actual diversion on the Canadian side." Somebody asked the question, "How long-five or ten years?" "No, gentlemen," he replied, "I say if you don't take this restriction off within two or three years, they are going to use every bit of that power on the Canadian side."

Mr. DIFENDERFER. Where?

Mr. BROWN. On the Canadian side. There are industries in Buffalo and on this side which can not be run by electricity economically, because they can not get this power that would be developed on the Canadian side. There is great demand on this side for more power. Industries would immediately take up this power if it is found that the policy of the American Government is to refrain from restriction on importation. They can only import about half of that power, because they have practically agreed to save half of that for the Canadian side.

Mr. DIFENDERFER. You say that power is likely to be used to its limit within the next few years?

Mr. BROWN. I said that Gen. Bixby said it would be within two or three years, and anyone who knows conditions up there knows he is correct.

Mr. DIFENDERFER. For the very reason, as I have stated before, that they can get that power for 12, while on our side the minimum is 29.

28305-12- -5

Mr. BROWN. Those figures are not correct, but I was going to speak about the rates in a moment. And right here, would it not be a strange thing for a legislative body to come in and interfere in the matter of rates between the consumer and the producer when there is no demand for interference? The only cry from the present and prospective consumers is for more power at the same rates. Have you heard any substantial complaint of inequity or inequality or injustice on the American side?

Mr. DIFENDERFER. It is quite evident that there is a discrimination. Mr. BROWN. Isn't the man who is taking the power and paying for it the man to kick? And is it not strange that this rate question is not troubling him, but is troubling only outside agitators? The rate question in Buffalo is not an economic question; it is simply one of politics.

Mr. DIFENDERFER. If you take the evidence of the counsel of the city of Buffalo, it looks to me as if it would take $35,000 to make the kick.

Mr. BROWN. Wait a minute. The city of Buffalo has devoted $35,000 to have the rates investigated. Is that right?

Mr. DIFENDERFER. That is right-to appease the kickers.

Mr. BROWN. Now, gentlemen, when anybody makes a complaint the party that asks the change has to show the proper facts. And isn't that true before a commission or before a court or before any judicial body? Isn't that true? If somebody says that in the city of Buffalo the rates are high they know it requires an investigation, and it is long and it is expensive; and then there is that other awful item-lawyers' bills.

Mr. DIFENDERFER. Yes, sir: that is an item.

Mr. BROWN. And they have to be paid-at least they have to be incurred. [Laughter.]

Mr. DIFENDERFER. I am glad you make that distinction.

Mr. BARTHOLDT. I should like to ask a few questions. I want to ask for my own information and satisfaction.

Mr. BROWN. You see, I have been drawn off on this question of rates. I am coming to the conclusion that the Congress should not trouble itself about rates.

The CHAIRMAN. In regard to rates, the Public Service Commission of New York can fix them if there is any complaint?

Mr. BROWN. Certainly, sir.

Mr. BARTHOLDT. I am concerned only in the beauty of the Falls. I regard it as the greatest asset of the people of Buffalo; I regard it a very poor investment to detract from it.

Mr. COOPER. Would you amend that by saying "the people of the world?"

Mr. BARTHOLDT. Yes, sir.

Mr. COOPER. At many places in Europe Niagara Falls is the first thing they ask about-Have you seen the Falls?"

Mr. BARTHOLDT. Now, I want to ask this question. Mr. Brown, the only excuse for the Burton bill was to prevent detraction from the Falls-from the scenic beauty of the Falls?

Mr. BROWN. To protect the scenic grandeur.

Mr. BARTHOLDT. Precisely. Now, was the question, in connection with the treaty, between Canada and the United States, of limitation, as fixed in the treaty, considered as satisfactorily answering all possible doubts as to detraction from scenic beauty?

Mr. BROWN. Certainly; yes.

Mr. BARTHOLDT. And also to the extent that the treaty findings were made after very careful investigations by the Government engineers and the National Waterways Commission, and the question of international

Mr. BROWN. Yes; all those were considered by those who made the treaty.

Mr. GARNER. Doctor, Mr. Brown went over that before you came in.

Mr. BARTHOLDT. Now, is there any law on the statute books of the United States to preserve the beauty of Niagara Falls?

The CHAIRMAN. Nothing but the treaty.

Mr. BARTHOLDT. So that the jurisdiction of Congress is only with regard to navigation, and the other is all sentiment?

The CHAIRMAN. Yes.

Mr. LEGARE. I understood Gen. Bixby to say it would be imperceptible.

Mr. BARTHOLDT. We are naturally interested in preserving the beauty of the Canadian side as well as the American side.

Mr. BROWN. So far as the 4,400 feet is concerned, it is practically imperceptible in the length of the Falls. If you take the entire amount of diversion, you have only 4 inches less depth on the American side of the Horseshoe Falls and 9 inches less on the Canadian side.

Mr. BARTHOLDT. But Gen. Bixby said that amount would be total? The CHAIRMAN. That is on the Horseshoe Falls side.

Mr. BROWN. But remember this thing. The United States has power only to protect the American side. When the two countries have got together and said that Canada may take 36.000 and we may take 20,000 feet, is there any reason why we should say: "You Canadians over there are not doing anything to protect scenic grandeur; we will take care of that by refraining from exercising our privilege under the treaty and by restricting importation to our side, so as to force industrial development on your side at the expense of American interests which are now ready to use the power." We know the Canadian companies are going to take the 36.000 feet. We know that it can not hurt in any degree that is sensible to the eye. Now, the extra amount on this side is 4,400 feet, and the Canadians have only to add 15,000 to get their allotted amount. Are we going to hang back until they utilize their last foot and lose this vast power forever? Is it wise, gentlemen, when the Canadians are going to divert their entire 36,000 feet and when the whole amount is, for all practical purposes, not sensibly injurious to scenic beauty?

Now, gentlemen, while I am more than willing to answer all your inquiries as best I can, your questions often anticipate points which I have in mind to cover later and thereby cause diversions, which, in this instance, I frankly admit are injurious; they injure the continuity, and hence the scenic beauty, as well as the boundary lines, of my argument. [Laughter.] Now, before I come to the questions of rates, I wish to emphasize further the objections to any restriction upon importation. It is clear, from what has been shown, that discouragement of importation can not serve any public interest. It can not help to preserve navigation, nor any boundary line, nor help military defense, nor help to preserve scenic beauty. On the contrary,

it is positively repugnant to both our public and private interests. That country will permanently enjoy the advantage of this as yet unused power which first preempts it by actual use. The next year or two is to decide this question and the decision depends upon the fact of whether you continue provisions prohibitive or restrictive of importation. It is clear, then, that any such restrictions are bad policy. Even from an American viewpoint alone, the interests of this country and of the people of the State of New York demand that we should get hold of this power as quickly as possible. But there are other objections which are conclusive against any attempted restriction or prohibition by act of Congress. I refer to the legal objections. This special and localized prohibition which is suggested is arbitrary and unreasonable. It does not treat all citizens alike in regard to the same subject matter. It is a special restriction inposed for the mere purpose of asserting the power of restriction. There is no demand for it, there is no need for it. No one appears here to advocate it, except the representative of that association of self-appointed guardians of a theory prevalent 8 or 10 years ago, but which theory has been exploded by the careful surveys and reports of the War Department; and the Chief of Engineers now tells you that if this restriction is not removed immediately this country will lose forever the use of this power, and that such restriction will not, in any degree, limit the total diversion at the Falls.

But, what is even more important, any prohibition of or restriction upon importation is contrary to the spirit and terms of the treaty of 1909, by which this country and Great Britain agreed upon the limitations to be allowed by either country with respect to the use of power at Niagara. All these questions, including that of importation, were discussed and passed upon. It was decided that it was neither necessary nor expedient to restrict importation, and such restrictions were omitted from the treaty. That treaty spoke the promise and policy of each country to the other. Each country said to the other that Canada might divert 36,000 feet; that we might divert 20,000 feet per second, and with those amounts as a maximum each country might fix limits on its own side, but that in every other respect the rights and privileges and opportunities of each country should be left free. The idea was that the Canadians could use their 36,000 feet to supply a demand wherever they might find it; and the American market was in mind. By a prohibition or restriction upon importation of power from Canada to this side we assert the right not only to control amounts of diversion upon this side but also upon the Canadian side. We deprive the Canadian investors of the market with reference to which the treaty was made. For Congress, after the treaty, to attempt to control or restrict the intended use by the Canadians to their share of the total diversions allowed (as by restricting importation) is not keeping good faith with the other party to the treaty. It is an invasion of the rights of Canada and of the Canadian investors, contrary to the treaty.

Developments and construction proceeded upon the Canadian side on the theory that the demand for power on the American side might be freely supplied by Canadian investors. This proposed legislation is for the purpose of carrying out the treaty provisions, to give effect to the treaty in so far as legislation is required. Importation should be free, therefore, not only because it is wise and consistent with the

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