The west shore., March 01, 1882, Page 57, Image 13

.larch, 1882.
THE WEST SHORE.
57
l From the New York Times of Jan. 13th, 1881.
THE LAW WHICH DETERMINES THE
J RIGHTS OF THE NORTHERN PACIFIC
RAILROAD COMPANY TO ITS LAND
GRANT.
I beg to submit to your readers the following
"tement m relation to the land grant of the
forthern Pacific Railroad Company. This cor
poration was created and its land grant conferred
by act of Congress (13 Statutes at Large, page
365), containing the following provisions of the
charter:
I "Sao. 8. And be it further enacted, That there be
and hereby is, (ranted to the Northern Paolfiif Rail
road Company, its successors and assigns, for the
purpose of aiding in the construction ef said railroad
and teleuaph line to the Paolfto coast, and to secure
the safe and speedy transportation of the malls,
troops, munitions of war, and publlo stores, orer the
route of said line of railway, every altornate seetion
of publio lands, not mineral, designated by odd num
bers, to the amount of 20 alternate sections pfr mile,
' on each side of said railroad line, as said company
may adopt, through the Territories of the United
States, and 10 alternate seotlons of land per mile on
each side of said railroad whenever it passes through
any State.
"Sko. 9. And be it further enacted, That the
United States make the several conditional grants
herein, and that the said Northern l'aclfio Railroad
Company aooept the same, upon the further condl
tionsthatif the said company make any breach of
the conditions hereof, and allow the same to oontlnue
for upward of one year, then in such oase, at any
time hereafter, the United States, by its Congress,
may do any and all, acts and things whloh may be
needful and necessary to Insure a speedy completion
of the said road."
The power or right reserved by Congress to
alter, amend or repeal the charter is as follows:
"Sko. 20, And be U further enacted. That the bet
ter to accomplish the object of this act, namely, to
promote the public interest and welfare by the eon'
struotion of said railroad and telegraph line, and
keeping the same in working order, and to secure to
the Government at all times (but particularly in time
of war) the use and benefits of the same for postal,
Military and other purposes, Congress may at any
time, having due regard for the rights of said North'
era Pacific Railroad Company, add to, alter, amend
or repeal this act'"
This charter is a contract between the United
States and the railroad company, and is to be
treated and construed by the same rules that gov
ern contracts between private persons, except
only that with respect to the subject-matter of the
jrant that is to say, in ascertaining what is
granted and what ii excepted it will be con
atrucd in favor of the Government and against the
company.
: The grant to the Northern Pacific Railroad
Company was an absolute grant in free$tnti.
The supreme-power of disposing of the public
lands vests solely in Congress, and its grants con
vey the highest title. In such cases the title docs
not depend on and is not conveyed by a patent
though for convenience in the axA Office and as
A matter of record evidence a patent is usually
provided for and issued.
That the language of this act operated at a
present grant is no new doctrine, as some imagine.
It was held by the Supreme Court of the United
States in 1817, in the case of Rutherford against
Green's heirs, in the unanimous decision of the
court, delivered by Chief-Justice Marshall, and it
has ever since been adhered to by that high tribu
nal lit numerous cases and without any excep
tions. ' In a case decided in 187$ (92 United States
Supreme Court Reports, page 741) the court
says: " 'There be and is hereby granted' are
words of absolute donation, and import a grant
in fraaeHti, This Court has held that they can
have no other meaning, and the land department,
on this interpretation of them, has uniformly ad
ministered every previous similar grant." The
Court was unanimous on this point; for, in the
dissenting opinion (on another branch of the case)
the non-concurring Judges say: "These words
were sufficiently comprehensive to pass whatever
interest the United Slates possessed in the lands."
It does not, in the slightest degree, militate
against the force of the law that the same Court
held in other cases that grants containing such
language did not operate as present grants, lo
calise in those grants Congress expressly enacted
that the title should not vest until the perform
ance of certain conditions.
It is now a matter of no importance what was
the time specified by Congress in various amend
menu of the charter for the construction and com
pletion of the Northern Pacific Railroad, for it is
admitted that that time has now expired. Hut it
is important to consider what are the consequences
oi failure to complete the road within the time
It follows from what has already ken said,
namely that the grant was a grant in fnrseni
(and to the-name effect are the decisions of the
Supreme Court), that the construction and com1
pletion of the road are conditions subsequent.
And, notwithstanding a failure to perform the
conditions within the time specified, the title to
the lands remain unimpaired in the grantee until
Congress sees fit to enforce a forfeiture on that
ground. (21 Wallace, United States Supreme
Court Reports, page 61.) Until then the right,
title or estate granted remains in the grantee as
completely as it ever existed before breach of the
condition, without any impairment of lis original
qualities or incidents.
But in the grant ,to the Northern Pnctlic Kail
road Company there is (not only mi provision fur
a reversion to the United Slates, but there In) a
clear declaration by Congress llul the lands
granted are absolutely appropriated to the com
pletion of the toad. Sections 9 and 20 of the
charter, above quoted, show an express intention
of Congress to make an irrevocable grant of the
lands embraced within its limits for the purpose
of the construction and completion of the road
and to pledge the good fnilh of the United Slates
that the road shall be computed. It is well
established principle of law that when the grantor
manifests, in the grant, an intention not to enforce
his right of entry uHn condition broken, the
lands do not revert. Nevertheless, Congre did
not leave itself without remedy, for if the grantee
prove faithless or incompetent, "the United Slates,
by its Congress, may do any and nil acts and
things which may be necessary to insure a sieedy
completion of the road," but cannot divert the
granted lands to any other purpose.
CONGRMMONAl. AND KXKCH jlVB ACW,
liy the joint resolutions of Congress appiovcd
M,iy 7, 1866, and July I, 1868, the road was lo
be completed by the 41b of July, 1879, and
year was then to elapse before the company could
be held in default. For the purpose of giving
assurances to capitalists and others who might nut
have knowledge of llie terms of the giant, the
company applied to the last two Congresses for
an extension of the time specified lor the comple
tion of the road. The committees of each house
reported favorably, and the bills passed the Sen
ate, but for want of time were not reached on the
calender of the House of Representatives, the
rules of that body requiring a two-thirds vote to
take up the bill out of regular order, Hut In
every instance wiien liie attempt was made it Imii
a majority in Us favor.
In May, 1870. the company filed in the De
partment of the Interior a map of the amended
me of eenernl route ol the branch in Washington
Territory. This was refened by the Secretary,
Mr. Helium, to the Commissioner of the General
Land Office for his views as to whether any rea
son existed against the proed change. The
Commissioner, Gen. Williamson, replied that the
liext interests of the public would lie served ty
the change, but suggested the questions! First,
Had the trrant to the company lapsed by reason
of the failure of the company to perform certain
acts within the time specilied t and, second, 11 ll
has so lapsed, can the department recognise any
acts by the company looking to the Initiation of
new rignts or tne enlargement 01 oni onesr
these questions were considered liy tne secre
tory and the then Assistant Attorney-General for
the department, who were alxiul to decide both
questions against the company, when the com
pany, insisting on its legal rigms, requested
that the (mentions should lie submitted to the
Attorney-General. This was done, and Gen
eral Devens, now on the bench of the Supreme
Court of Massachusetts, decided that the time
specilied for the completion of the road would
not expire until July 4th, 10791 ami, luiihcr, mat
If such were not the true construction of the vari
ous provisions of the acts of Congress, it must lie
held that until Congress takes steps to declare a
forfeiture of the grant it remains in full force and
effect ( anil that in either event the grant to-day
must lie held lo be the same as it existed dn the day
when it was made and accepted by the company.
Mad it not been for the adverse views of Secretary
Schurt and Assistant Attorney-General Marble,
the. mailer would not have been urged by the
company to be submitted to the Attorney-General.
A similar question to tne last was atterwarii con
sidered by Gen, Devens in the case of the Atlantic
and I'nrihc Railroad Company on its application lo
the Secretary of the Interior for I he appointment
nf Commissioners by the President to examine
completed section 01 its road, In that case Sec
retary SchtiK seems 10 have of his own motion
requested the opinion ol the Altorney-i,cncrai at
to the power (ltd duty of the F.xecutiva in the
premises. The Attorney-General held, in his
opinion rendered Oct. 26, 1880, (list the grant
was a present grant that the conditions were con
ditions subsequent; that the grant had not been
forfeited by failure lo build the road within the
time siccilied, no action by reason of such failure
having been taken by authority of Congress, and
that even If it be treated as one liable to forfeiture,
the company has still a right to proceed to con
struct the load, ami It is the duly of the Execu
tive Department to give it the benefit of the grant.
(Opinions of Attorney-General, vol, 16, p. 0).
The grant lo the Atlantic and Pacific is almost
identical in terms with lhal to the Northern Paci
fic Company, These decisions arc not only in
run for inlly lo the common law, but are striclly in
accordance with I he unbroken series of decisions
of I he Supreme Court.
In the years 1H7J and 1874, President Grant
approved 5J0 miles of the Northern Pacific Kail
road. In 1K80. President Hayes approved 150
miles, and In November and December, 1881,
President Arthur approved 325 mile. Before ap
proving the rcHjrt of the Commissioners who ex
amined loo miles of the road In Dakota ami Mon
tana Teitiloiics, President Arthur submitted the
matter lo the Acting Attorney-General, Mr. Phil
lips, who, on the 17th of 'November last, recom
mended the approval by (lie President ol the re
jxitt of the Commissioners and the Issue of patents
lo the Company for the granted land co-terinlnu
with the completed sections of the road.
GF.OKGK GKAV.
No. J NatMU Street, New York.