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About Morning Oregonian. (Portland, Or.) 1861-1937 | View This Issue
THE MORNING O REG O NI AN. TUESDAY, JUNE 22, 19151
0. a C. LAND GRANT
SALES ARE HALTED
TWO FEDERAL JUDGES AND TWO ATTORNEYS WHO FIGURE IN
PROGRESS OF LAND GRANT SUIT.
LAND GRANT CASE
ONE OF THE
Supreme Court Reverses For
feiture Decree, Sends
L Case to Congress.
Original Complaint Filed
Federal Court in Port
land 7 Years Ago.
THE. TALK OF THE TOWN
WILLIAM FOX SUPREME PHOTO-DRAMA
PRINCESS ROMANOFF I NANCE O'NEIL
6 MONTHS' DELAY ORDERED
2,300,000 ACRES INVOLVED
FOUGHT MANY YEARS
I ' " f -
f - r " , " " . -,' 1
I ' 'J At :
: v-viW J
C Original l'rovision. for Sale ol
i Lands Held to Be Enforceable
- Covenant Lands Xot to
i Kevert to Government.
(Cartlnued From First Page.)
- given opportunity to say how unsold
r lands shall be disposed of.
There is no restraint on Congress,
other than that it must guarantee the
railroad company $2.50 an acre for
- every acre sold hereafter. Congress
i can make appropriation to pay the
' railroad this amount and assume full
1- title to and do with the lands a3 it
" pleases; it can order the sale of the
lands under any terms and conditions
; it deems proper, or it can authorize
'1- the railroad company to dispose of
5 them in. any way it may prescribe,
just so long as the railroad company
i in the end gets its $2.50 an acre.
. Intervenors and cross-complainants;
those who have squatted on railroad
lands and those who have offered to
biiy, are held to have no standing In
this case, which the court recognizes.
Their relief. If any, must come from
x Cungress. Congress can give these so-
called settlers and these Intended pur-
chasers preference rights to buy. If it
bo elects, or It can disregard them al
" together. But until Congress gives
them a status, they have none, for the
t-upreme Court holds they have no prop-
cr place In the proceedings wnicn
ended with today's decision.
t if, within six months after the Dls
" trict Court at Portland renders its
2- amended decree, in conformity with the
Supreme Court decision of today, Con-
gress has not, by legislation, provided
for the disposition of the 2,300.000
acres of unsold land within the grant,
Z the railroad company may then apply
to the District Court at Portland for
permission to. sell its unsold lands in
strict conformity with the actual set-
tiers' clause, and the District Court
may in its discretion grant that au
- thorlty, which will run until such time
f as Congress does provide some other
means of disposing of the lands.
Other Suit Not Barred.
; Today's decision, it is pointed out by
the Supreme Court, does not bar the
;' Government from instituting other
'". suits aeainst the railroad company on
t tracts of more than 160 acres, and at
prices in excess of J2.50 per acre. Such
$ suits, if instituted, will not affect those
; Kales to innocent purchasers, which
6 have been settled in court, under the
; act of AugUEt 20, 1912.
.. "This suit was brought," Pays th
; Supreme Court, "to determine the rights
. and remedies as to unsold lands, and it
" is alleged that subsequently other suits
will be instituted as to sold lands,
r rights and remedies as to them being
in effect reserved. Therefore, the de--
cree in this suit shall be without preju-
dice to any other suits, rights or
w remedies which the Government may
f have by law or under the Joint resolu
,1 tion of April 30, 1908, or under the act
i? of August 20. 1912."
r Dual Purpose Is Seen. J
t In the body of Its decision the Su-
preme Court differs both from the Gov
t ernment and from the railroad counsel,
t and holds that the granting act had
? a two-fold purpose, to aid in the con
Btruction of the railroad and to encour-
- age settlement of the land "and both
; purposes were to be subserved." "The
granting" acts, It says, "conferred
J lights as well as imposed obligations,
, and It could not have been intended
that the latter should be so enforced
as to defeat the former." The court is
of the opinion that Congress did not
,. intend the srrant should be forfeited for
i breach of the actual settlers' clause,
'- although it did intend that clause
should be observed.
; "The language of grants and of lim-
- Itations upon them is general," says the
court. "We cannot attach exceptions
- to it. The grants must be taken as
-A they were given. Assent to them was
r required and made, and we cannot im-
port a different measure of the require
? ment and the aesent than the language
- of the act expresses. It is to be re
s jnembered the acts are laws as well as
grants, and must be given the exactness
Action 'ow Too Late.
f. "Our conclusions on the contentions
of the Government and the railroad
company," says the court, "are that the
provisos are not conditions subsequent;
i that they are covenants and enforce-
"It is now too late." adds the court,
;; "for the railroad company to assert
j that Congress was without authority
, in 1869 to amend the act of 1866, by
adding the settlers' clause, it having
I accepted those terms and conditions in
- 1870 in taking over the rights of the
4 Kast Side Company. The time to have
raised this protest was at the time of
the transfer." The court further holds
the Government is not estopped at this
late day from seeking to prevent fur-
ther violations of the granting acts, by
s reason of the fact that for 40 years it
i made no protest against illegal sales,
J although officially advised they were
' being made.
IVo Deception Seen.
I "The railroad company," says the
- court, "knew it was violating the
settlers clause. It was specifically ad
'. vised by Secretary of the Interior De
1 lano in 1872 that 'the proviso means
v- Just what it says," and that the lands
must be sold to actual settlers only in
tracts not exceeding 160 acres.
If 1 . J ; . ...
s defied the department, it cannot claim
to have been deceived.
"The views of the department no
I doubt were the views of Congress, and
- its action and reluctance to prejudge
are exhibited In a resolution of April
30, 1908, under which this suit was
; brought. It refused to determine per
j; emptorily the rights of the United
" States or to anticipate judicial action.
J "The acts of Congress are laws as
well as grants and have the constancy
J of laws as well as their command and
f are operative and obligatory until re
Timber Xo Excuse.
r "This comment applies to and an-
- swers all other contentions of the rail-'-
road company based on waiver, acqui
j escence and estoppel, and even to the
defenses of laches and the statute of
The fact that much of the land within
j the grant la heavily timbered and that
- it is contended by the railroad com-
pany to be not susceptible of cultiva-
tion furnishes no excuse for violating
- the terms of the grant, holds the court.
"It might have justified non-action,
; but it does not Justify antagonistic
t action," the court holds.
-;: "With the provisos as conditions eub-
sequent out the way," continues the
Court, "the suit remains one to enforce
Top (Left) Judge Charles 15. Wolverton, Who Rendered Forfeiture Decree In
Kederal District Court In Portland. (Right) Judge W. B. Gilbert, Who
Passed Case Thronieh Conrt of Appeals. Below (Lett) W. D. Kenton, Who
Conducted Case for Southern Pacific Company. (Right) B. D. Totvnsend,
Who Handled Case for Government. "
the continuing covenant. It is not a
suit to vacate and annul patents."
The court is not impressed with the
railroad's contention that the terms of
the settlers clause lapsed when the
Oregon & California was acquired by
the Central Pacific. This defense, the
court defines as "the dare of an ex
Grant Parts Separate.
The court further finds that "the
Oregon part of-tne grant was substan
tially distinct from the California part
and has always been claimed, used and
enjoyed by the defendant company and
never by the Central Pacific."
Taking up the contentions of the
cross-complainants and interveners and
setting forth their contentions, the
court asks, "How were actual settlers
to be ascertained, and by whom?" and
answering its question says:
"There could not be an absolute right
to settle or purchase unless there was
an absolute compulsion to sell. The acts
of Congress omit regulation. Their
language is not directive; it is restrict-"
ive only. With this. exception the grant
is unqualified. The lands were grant
ed to aid in constructing the road, and.
while it is a certain inference that dis
position of them was contemplated,
necessarily there was conferred a dis
cretion as to time. There was certainly
no limitation of it expressed. There is
plausibility in argument that If pro
visos be held to give railroad discre
tion of sale, choice of time and settlers,
this requirement is impotent, and, in
stead of securing settlement, would
prevent it. We feel the strength of this
argument, but cannot yield to it. There
are countervailing ones. Nothing can
be deduced from the imperfections of
the granting act. Indeed, the argument
of the cross-complainants, like a great
many other contentions in the case, get
their plausibility from abuses of the
granting acts, not their uses.
Grant Used for Credit.
"When granted lands were with
drawn from the public domain and
devoted to another purpose they
were committed to another power, to
be administered for such purpose, and
a discretion in the exercise of the pow
er, within the restriction Imposed, was
necessarily Inferred. Certainly the
words 'actual settlers' Indicate no par
ticular individuals. They describe the
acts of individuals without habitation
"There was a complete and absolute
grant to the railroad company with
power to sell, limited only as prescribed.
and we agree with the Government
that the company 'might choose the
actual settler; might sell for any price
not exceeeding $2.50 an acre; might sell
in quantities not exceeding 160 acres.'
And we add It might choose time for
selling or its use of the grant as a
means of credit subject, ultimately, to
the restrictions imposed; and we say,
'restrictions imposed' to inject conten
tion of the railroad company that an
implication of power to mortgage lands
carried the right to sell on foreclosure
divested of obligations of proviso.
"To use the grant for credit might
become in fact, did become a neces
sity. Construction of the road halted
for funds. They were raised by trust
deeds. Accomplishment of the purpose
of the grants determines against the
creation of a trust.
Discretion Is Inferred.
"In conclusion, we cannot refrain
from repeating that the case In its main
principles is not in great compass.
Judgment is determined by the simple
words of Congress, not only regarded
as grants, but as laws and accepted as
both; granting rights but imposing
obligations; rights quite definite, obli
gations as much so. The first had the
means of acquisition, the second of per
formance; and whatever the difficulties
of performance, relief could have been
applied for, and, it might be said, have
been secured through an appeal to Con
gress. Certainly, evasion of the laws
or defiance of them should not have
been resorted to. We can only enforce
the provisos as written, not relieve
"For the same reason we cannot, at
the Instance of the Government, give
greater sanction to them than Congress
intended, nor give to cross-complaints
and interveners a right which granting
acts did not confer upon them."
Injunction Not Knough.
"An Injunction simply against future
violations of the covenants, or, to put
It another way. sanply mandatory of
their requirements, will not afford the
measure of relief to which the facts of
the case entitle Government," says the
court in conclusion, emphasizing the
fact that the Government, in its alter
native plea, did not go as far as was
justified, and explaining its action in
sending the controversy back to Con
gress for final adjustment.
Justice McReynolds did not Join In the
opinion, because of his prior connection
with the case as Attorney-General. The
opinion, 14.000 words in all, is the long
est handed down by the Court this term.
The Solicitor-General, after the opin
ion was rendered, asked and was grant
ed leave to submit a motion for re
hearing if. after digesting the opinion.
the Department of Justico believes a
rehearing Is desirable..
OUTCOME -IS LED
Governor Withycombe Thinks
Decision Will Aid State.
LANE COUNTY BENEFITED
Taxes of $175,000 on Land Grant
Due and lTiiiaicl School Dis
tricts, Xot Knowing of Result,
Vote ' Special - Levies.
EUGENE, Or., June 21. (Special.)
The Oregon & California land - grant
case has been decided in the best way
possible for the people of the State of
Oregon and in accordance with the ex
pressed wishes of tne State Legislature,
according to James Withycombe, Gov
ernor of Oregon, who was in Eugene
today. He came here to meet the mem
bers of the National Congressional
committee on irrigation and to return
with them as far as Salem tonight.
"I think it is a good solution," 'he
said. "It will promote the best inter
ests of the state and will increase the
taxable property within the state. It
will also help settlement. Whoever
gets this land, we must see that they
are bona fide settlers. We must see
that conditions are rigidly observed."
The decision means much to Lane
County, for, bad the Government won.
the assessed valuation of the county
would have been reduced $3,357,000 or
nearly 10 per cent. Lane County con
tains one-seventh of all the land in
volved. Taxes amounting to more than
$175,000 are unpaid and due the county
and the penalties total some $20,000.
The amount of revenue the county
will receive from these lands, both
county, state and special taxes, will
amount to virtually one-half of the
total state tax paid by Lane County.
In several of the school districts of
the county where the annual school
meetings are being held today one-half
of the land embraced is O. & C. land.
In otherdistricts there is a large acre
age of this land and many of them
voted today levies which, if the out
come of the case before the Supreme
Court had been known, would not
have been necessary.
The decision holds that the Southern
Pacific Railroad shall not sell any land
until Congress acts. These grants pro
vide that-the lands should be sold to
actual settlers at a price not to ex
ceed $2.50 an acre. Most of this land
in Lane County is appraised as high as
$21 per acre and valued at much more.
Hundreds of filings have from time
to time been made at the office of the
Lane County Clerk. Many Lane County
residents have made such filing and
some of the tracts have been filed on
repeatedly. These filings represent a
tender of the price of $2.50 an acre to
the railroad company in an effort to
compel the railroad company to com
ply with the terms of the original
Seventy-five of these filings were
made in March and 75 more were made
in April, this year, by Adam McEwen
and B. A. D. Puter, of San Francisco,
acting as agents for various "appli
cants to purchase.", nearly all of them
residing in Canada.'
KANSAS RIVER SUBSIDING
All Danger of Flood in Kansas City
Said to Bo Vast.
KANSAS CITY, Mo.. June 21. ' The
crest of the Kansas River at Kansas
City was reached today, when the
stream mounted to 24. S feet, according
to announcement by Weather Observer
Unless further heavy rains prevail
today, all danger of a flood in the west
and east bottoms of Kansas City has
passed, Mr. Conner said.
An Award That Speaks Volumes.
Golden State Extra Dry Champagne
was awarded the "grand prix" at the
Panama-Pacific International Exposi
tion. This makes the fourth "grand
prix" for this famous champagne, pro
duced by the Italian Swiss Colony, Asti.
Use Santlseptic After Shaving.
Soothinff, cooling, rt-freshiiis. Leaves ott, Tel
ety fuubii. InsuintlT relieves and prevents irri
tation. Prevents infectinn. You'll like its
cteuili bealtby odor. Cue Ail tkussifits.
' , k -
Tracts Lile In 18 Counties of Oregon
and One In Washington Testl-'
inony Taken Fills 18 Large,
The Oregon & California land grant
case ha3 been in the courts since bep
tember 4. 1908. The original complaint
was filed in the United States District
Court in Portland on that date by B. D.
Townsend, special assistant to the Attorney-General.
The case was brought by the Govern
ment against the Oregon & California
Railroad Company, the Southern Pa
cific Company, Stephen T. Gage, trus
tee; the Union Trust Company, of New
York, and 65 other persons, woo were
In possession of certain tt its of land
in the grant, claiming these tracts as
actual settlers. The Government In its
suit asked to have canceled all the un
sold portions of the Oregon & California
grant, conferred by act of Congress,
July 25. 1866.
Involved in the action are 2,300,000
acres of unsold land.
This land is situated in Tillamook,
Washington, . Multnomah, Yamhill,
Clackamas, Polk, Marion, Lincoln. Ben
ton. Linn, Lane, Douglas, Coos, Curry,
Josephine, Jackson, Klamath and Co
lumbia counties, in Oregon, and a small
allotment is In Clarke County, Wash
ington. The heaviest portions of the
grant, however, lie in Lane, Douglas,
Josephine and Jackson counties.
Conditions Not Met.
The original grant conferred in 186C
gave the railroad as a subsidy for
construction alternate sections of land
extending for 10 miles on both sides
of the track. As a condition to the
grant, however, the act provided that
a certain mileage of track must be
completed within one year and that th
railroad company must also, within the
year, file its written assent to the pro
visions of the grant.
Neither of these conditions was met
by the Oregon & California Railroad
Company, and in 1869, when it applied
for an extension of one year, it was
stiH in default, though no forfeiture
was declared. Congress granted the
extension, but added the following
clause on which all subsequent legal
action for forfeiture of the lands has
"Provided that the lands hereby
granted shall be sold to actual settlers
only, in quantities not greater than 160
acres to each purchaser, and at a price
not to exceed $2.50 per acre."
From the time of the filing of the
complaint by Mr. Townsend in 1908, a
large number of persons Intervened in
the suit. No less than 5000 persons, it
was afterwards ascertained by count,
made the assertion that they had ten
dered the railroad company $2.50 an
acre for 160-acre tracts, and desired to
intervene for the purpose of requiring
the railroad company to sell to them.
Investors Rated Oat.
In 1911, three years after the suit was
first filed. Federal Judge Wolverton in
Portland overruled the demurrer of the
railroad company and Its successor, the
Southern' Pacific, to the Government's
bill of complaint. In his opinion, the
judge dismissed all bills of interven
This opinion overruling the defend
ants' demurrer was conceded by jurists
and attorneys who were following this
most interesting of cases to be one of
the ablest ever given in the United
States District Court. It covered the
ground exhaustively, both in overruling
the demurrer and in dismissing the
bills of intervenors. Its remarkable
diction, language and reasoning gained
for Judge Wolverton a .National repu
tation. The railroad then filed its answer.
An enormous amount of testimony was
taken, not only in Portland, but all over
the United States. In the office of
United States Attorney Reames in Port
land there is now one entire bookcase
of larger than ordinary size loaded
with volume after volume of printed
evidence and briefs in the case.
The testimony filled 18 printed vol
umes, each volume three or more
inches thick, and containing 600 to 800
pages. In fact, it has been frequently
declared, and not disputed, that more
testimony was taken than in any other
case ever tried in the history of the
United States. The briefs submitted
to the courts also made up many more
volumes. The decision of the District
Court itself took up hundreds of print
The principal point under contention
in the testimony was whether the lands
were suitable for cultivation, the rail
road holding that thousands of acres
were not, and could not be sold in 160
On July 9, 1913. lacking two months
of being five years from the filing of
the complaint by Mr. Townsend, Judge
Wolverton handed down a decree in
Portland forfeiting the grant to the
The railroad company at once ap
pealed to the United States Circuit
CHRONOLOGY Of OREGON &
CALIFORNIA LAM) tKAXT.
July 25, 1866 First grant made
August 10, 1869 Limitation
clause added to grant by Con
gress. 1870 Additional grant for
small tract, with same limitation,
made by Congress.
1907 Oregon Legislature In
Joint resolution requests Govern
ment to institute suit for for
feiture of land grant.
1908 Congress in Joint resolu
tion authorizes Attorney-General
to institute suit.
September 4, 1908 Suit for for
feiture of grant filed in United
States District Court at Portland,
by B. D. Townsend, special assist
ant to the Attorney-General.
April 10, 1911 Federal Judge
Wolverton overrules demurrer of
railroad, and dismisses bill of
intervenors. Taking of testimony
here and all over United States
continued for nearly a year after
ward. July 1, 1913 Federal Judge
Wolverton hands down decree
forfeiting land grant to Govern
ment. Appeal filed by defendants
within 30 days to United States
Court of Appeals at San Fran
cisco, which later certified the
entire court record to the United
States Supreme Court.
April 19, 1915 Case argued be
fore United States Supreme Court.
June 21, 1915 United States Su
preme Court decides lands shall
not be forfeited, but enjoins rail
road from selling lands until Con
gress shall provide legislation for
THOUSANDS OF PEOPLE WERE UNABLE TO
OUR SUGGESTION TO YOU COME
e v i n a it the:
BEST POLICY TO
Court of Appeals at San Francisco. The
Court of Appeals did not attempt to
pass on the caae, but certified the en
tire record to the United States Supreme
In the meantime, Mr. Townsend. who
had handled v the entire case for the
Government up to that time, retired
from the Government service. Constan
tino J. Smith, well known' in Portland
for his work here as special assistant
to the Attorney-General in the tele
phone cases, appeared for the Govern
ment when the case went to argument
before the Supreme Court April 19 of
this year. The Supreme Court yester
day handed down its decision within
two months of the argument.
$61,143 Tax Due Clackamas.
OREGON CITY, Or.. June 21. (Spe
cial.) The decision of the United
States Supreme Court against the Fed-
l M ti n .i -i t an1 fnr tVin Orftffon &
California Railroad Company will di
rectly result in tne payment or
143.86 into the treasury of Clackamas
County in taxes for the years 1914 and
1915, according: to figures prepared this
afternoon by County Assessor Jack.
GONViGTS RAGE AT MATE
DEMONSTRATION made at joliet
against suspected murderer.
Guards Have to Use Clubs to Quiet 13O0
Who Would Avenee Killing of
JOLIET.' 111.. June 21. In a demon
stration against "ChlcKen Joe" Camp
bell, the negro "trusty." suspeciea oi
slaying the wife of Warden Allen, of
the state penitentiary, here last night.
1300 convicts gathered in the main
dining-hall at the noon hour today,
rose to their feet and cried threats
One hundred guards, using clubs right
and left, were required to restore order.
"Lynch him! Lynch him! Let's tear
him apart!" were some of the cries that
arose from all parts of the hall.
Three hundred convicts resisted the
clubs of the guards and jumped up aa
fast as they were forced into their
seats, howling imprecations against the
man whose alleged crime had, in their
opinion, brought the honor system into
disrepute and threatened its discontinu
ance. At the Coroner's inquest over the
body of Mrs. Allen today nothing oc
curred to divert the finger of suspicion
from Campbell, a Chicago murderer de
tailed as a house servant for the war
den. A bloodstained collar recovered from
a linen closet across the hall from Mrs.
Allen's . bedroom figured in the testi
mony. Campbell admitted in his cell
that the collar was his, but said that
the bloodstain was due to & slip of his
CANADIAN PLOT CHARGED
BRIBE TO OPPOSITION LAID TO
GOVERNMENT AT WINNIPEG.
Royal Commission Is Asked to Permit
Submission ef Proof of Agree
ment to Pay $50,000.
WINNIPEG, June 21. A- sensation
developed with the opening of the
Royal Commission today, when C. P.
Kullerton, K. C. who said he repre
sented 14 private Conservative mem
bers of the Legislature, presented a re
quest that the scope of the commission
be widened to permit them to produce
proof that a "saw-off" had been ar
ranged in connection with the resigna
tion of the Roblln government.
Mr. Fullerton said it was charged
that several months ago an agreement
was entered into between the Roblin
government .and the opposition where
by the government was to pay to the
opposition $50,000 on the understand
ing that all election protests would be
It was part of the understanding
that the Royal Commission would be
dropped as far as the Roblin govern
ment was concerned.
Mr. Fullerton said It was alleged
that $25,000 of the $50,000 agreement
had already been paid over and that
the other 25.000 was to be paid at the
dissolution of the commission.
The Chief Justice said it would be
Impossible to do anything until the
powers of the commission were - ex
tended. This would have to come
through an order-in-councll and was
a matter for the government, he said.
ASTORIA MAN IS SUICIDE
Eric Erickson, Fisherman, Tires
Three Bullets Into His Body.
ASTORIA. Or., June 21. (Special.)
With two bullet holes in the forehead
and one near the heart, the body of
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A GREAT STORY OF MYSTERY AND ADVENTURE WITH
CONTINUOUS,. 11 A. M.
Eric Erickson was found today lying
on the bed in his scow at the foot of
Fifth street. The man had not been
seen for a couple of days. Coroner Gil
baugh thinks the man shot himself
with a ,22-caliber revolver, which was
found in his hand. No inquest will be
Erickson was a native of Finland,
60 years old. and left a widow and five
children. He was a fisherman and
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DR. A. P. DE KEYSER
Second Floor Columbia Hid nr..
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"Newspapers are unquestionably
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says the president of one of the big
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mediums or this company would
have found It out before it began
investing' hundreds of thousands of
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