The Sunday Oregonian., March 22, 1908, SECTION THREE, Page 9, Image 33

THE SUXDAY OREGOXIAN, PORTLAND, MARCH 22, 1908.
9
BONAPARTE SETS
FORTH THE CASE
Speaks Before House Public
Lands Committee on Ful
ton Resolution.
ANXIOUS FOR IT TO PASS
Department of Justice Has Conduct
ed Thorough Investigation Into
Orrgon and California Grant
and Methods of Violation.
OREGONIAN XEWS BUREAU. Wash
ington, March 21. The Government's
attitude toward tie Oregon & Califor
nia land grant was fuUy set forth by
Attorney-General Bonaparte in his re
rent hearing before the Houso com
mittee on public lands. The Attorney
General, while not entering Into detail,
discussed the case In Its general as
pects, and his utterances are of un
usual Importance. The following ex
tracts from the testimony before the
committee give a comprehensive idea
of the contentions of General Bonaparte:-
...
We found that there were substan
tially three stages In the course which
the railroad company had taken with
regard to those lands. You will see
that at no time did they pay any at
tention at all to the restrictions con
tained In the grant, so far as I can
find out; and I do not mean that every
sale was tn violation of the grant, but
the railroad company at no time seems
to have attempted to comply with the
law of the National Legislature. In
the earlier years they sold in variable
quantities, not generally, for a price
In excess of $2.50, because the land
was worth then not more than $2.50,
but with no special regard to whether
the amount was 160 acres or more or
less. Presumably, however, during that
time, for the greater part, they did sell
to actual settlers for the purpose of
settlement.
The Chairman They then probably
sold the lands to be settled upon that
were agricultural in character, or, at
least, wore In demand for that purpose.
Sold Later for Speculation.
Mr. Bonaparte That were In demand
for that purpose. The demand was
slack, to tell the truth, during the
early years, and they sold pretty much
what they could sell. Then came a
time when these lands became a sub
ject of speculation, and they then sold,
or agreed to sell, and made contracts
to sell in large tracts, and at prices
largely in excess. In many cases, of
the $2.50. Then there came a time,
which corresponded with the acquisi
tion of the road by what is generally
known as the Harrlman Interests, after
which they refused to sell at all and
that is the present attitude of the' rail
road company today, as I understand it.
It denies that it Is under any obliga
tion to anybody, and refuses to do so,
and If Is said that this Is a very seri
ous impediment to the development of
the country for various reasons.
Now the Department of Justice, deeming
It Its duty as far as possible to carry out
the policy laid down by Congress, had de
termined that in these three classes of
transactions three different methods of
dealing would be needful: That in cases
where the evident purpose -of the Gov
ernment had been substantially complied
with, and where It was reasonable to be
supposed that the land had been sold for
purposes of settlement, the compliance
with the requirements that the exact
amount of land should not be exceeded
might be with advantage overlooked: that
in those cases where it was evident that
the sale had been made in flagrant dis
regard of the purpose of the act, to spec
ulators in timber and in large tracts and
precisely for the purposes which Congress
did not want it sold for. in those cases
such action should be taken as would
most appropriately enforce the prohibi
tions contained In the original act of Con
gress; and that in the third class of cases,
where the railroad company was hold
ing on to this land and refused to do
anything about it, such proceedings
should be taken as would enforce a com
pliance with the evident Intention of the
law, which was that the land should be
sold, because of course at the time that
act was passed It did not probably occur
to anybody that the railroad company
would not sell the land, but that they
would sell it as rapidly as they could,
and while the language was negative in
form, we understood it Implied a positive
duty on the part of the railroad company
to sell; and It was found that for all of
these purposes it was very important to
be in a position to assert, in case we
deemed It inadvisable, that these lands,
wholly or In part, had been as a matter
of strict law forfeited to the United
States by failure on the part of the rail
road company to comply with these sub
sequent contracts, all of which, of course,
were conditions that could not have
waived by thetssulng of the patents be
cause they were thincs that were to be
dotre after the patent had been Issued.
The Government could not possibly, by
issuing a patent, waive the fact that
after It got title to it the railroad com
pany should sell It In larger tracts or
for a higher price and to a different class
of persons. That being the situation of
affairs, there was Introduced In the Sen
ate a resolution calling for Information
as to this subject-matter, and also di
recting that some action should be taken
for the purpose of enforcing the rights
of the Government In the premises, and
that resolution having been referred to a
Senate committee, and the information
having been furnished, the resolution was
amended at the suggestion of the De
partment so as to come before you In
Its present form.
Protect All Rights.
Now, with respect to this amendment. I
want to suggest to the committee that
there is no purpose in this resolution, and
this resolution would be altogether Inef
fective to carry out the purposes if it
were Intended there is no purpose of de
priving anybody of any legal or equitable
defense which he may have to the claim
of the Government If the land is for
feited. If anybody, these constituents of
Mr. Fordney or anybody else, shows that
he has a legal or equitable defense to
suit for a forfeiture, he will have Just
as much right after the passage of this
resolution as he would have before, ex
cept so far as action by Consrws may
be necessary to Justify any application for
a forfeiture when it depends upon a viola
tion of the terms of the Congressional
grant.
The Chairman Right there, Mr. Bona
parte. If you will allow m. Tinder this
resolution as drawn by your department
could the court take into consideration
the equitable rights of purchasers for
value and In rood faith. If there be such,
v hose purchases were, as a matter of
lut. luunad the limitation Ct Ul9 lfl
acres, or could you under this resolution
protect such purchasers even though
strong equities were found to exist?
Mr. Bonaparte The courts would, un
questionably. There is no doubt that the
courts, if they have any equities those
equities are not affected by the terms of
this resolution; but there is some con
fusion on that point, in fact. As you are
aware, a forfeiture may be declared by
an act of Congress, and If It Is declared
by an act of Congress then that wipes
out all the equities,- defenses or modifi
cations made to the proceeding In the
court. This i3 not Intended to do" that.
This is intended to enable the courts to
pass upon the question of the forfeiture,
and they would do it Just as freely if
this resolution were not passed, except
that it removes the question which has
been Tailed as to whether or not there
.is any authority on the part of the
executive department of the Government
to claim a forfeiture without Congres
sional action.
The Chairman My thought was this:
If, when a proceeding is undertaken
under the resolution, it should clearly
develop that certain sales had been in
excess of the 160 acres to" an individual
or corporation, and therefore in violation
of the statute, could a court of equity,
after determining those facts, then pro
tect the holder of such title or protect
the equitable rights of any such pur
chaser? Would the court not be com
pelled to either forfeit or requise specific
performance? A forfeiture, of course, de
prives such purchasers of all rights and
values. The requirement of specific per
formance depriving them equally by
reason of the fact that they could not get
in as against other claimants, and assert
the right to take up perhaps 2000 or 3000
acres of land In 160 tracts.
Courts to Protect Equities.
Mr. Bonaparte If they had any equities
the court would protect them. The answer
to that is that they have not got any
equities. They have right before them
a matter of law. limiting the right of
this corporation to make conveyances.
Now, if there is anything in what has
been said as to estoppel or laches or any
thing of that sort, the courts can protect
them; but If there is not. then, of course,
the courts cannot do that. But I was
going to make a suggestion, Mr. Chair
man, which I think will perhaps relieve
the difficulty which you suggest, vis., if
Congress at this time sees fit to ratify
a transaction of this character, of course
it can do it, but it ought to do it with a
knowledge of what the facts are In the
cases in which it ratines it.
Now, after these suits have been
brought, and it ought not to be deter
mined in a day by any means, and after
you, or perhaps a subsequent Congress
finds out Just what are the merits of
these contentions, then If you see fit,
not as a matter of right, but as a mat
ter of generosity or public policy, and
I am not prepared to argue there Is not
a ground for that, then if you see fit
to give or ratify these irregular pur
chases of public lands, and in faut they
were actually more than Irregular, they
were Illegal, that would be entirely with
in your rights of course. But I submit
that that is something which should be
done after you know what you are deal
ing with, and that a resolution which
merely gives the authority to the Attorney-General,
or instruction to ascertain
the rights practically of the United
States in the premises, should not be em
barrassed by anything which refers to
the real actions that should be taken
by Congress afterwards.
Suppose, for example, this land is for
feited and title revested in the United
States. It then becomes perfectly com
petent for you to direct that in view of
the peculiar circumstances of the case
such people as have acquired title to It
in good faith, as they say, who really,
from failure to go back to the original
source of their title, that is to -say, to
tUe law under whjch this was granted,
that such people as have done that
should not suffer from, the consequences
of their mistake.- If you will allow me,
I will also say It seems to me that there
Is a considerable difference in a case like
this,' between a purchase made by an
actual settler tor the purposes of settle
ment which perhaps was 200 or 250. acres
Instead of 160 acres, or where he pays
perhaps 12.75 or $3 instead of $2.50, and a
purchase made by a man who buys
thousands of acres and pays Ave or six
times as much as the price mentioned by
Congress, because in the first Instance
there is evidence of compliance in the
beginning with the essential purpose
which Congress had in imposing this re
striction, while in the other there is a
plain, open disregard.
The Chairman However, the equities
would hardly be diminished, would they,
by reason of the larger payment made,
that is, the equity of the man who paid
$2.50 would hardly be greater under the
same conditions than those of the man
who paid $10 or $12?
Mr. Bonaparte Well, of course the equi
ties, if you mean by that as they would
appear to a court of equity, they would
be the same, but as it appears to the Na
tional Legislature as a matter of public
policy, the case of the acquisition of land
by persons who comply with purposes of
the proviso stands- on a different footing;
although they might exceed its terms, it
stands on a different footing from acqui
sitions of land by persons who are In no
manner ' complying with the purpose
which Congress had In view in imposing
that condition.
The Chairman The chairman is ask
ing these questions as a layman; there--fore.
they may not tie very intelligible to
a lawyer, but for my own information I
was leslrous of getting this information
as to the effect that might be had under
this resolution, and as to whether or not
a court could do anything else than either
declare a forfeiture or require specidc
performance.
Three Lines of Procedure Open.
Mr. Bonaparte There are three lines
of action which the Department has con
sidered in this connection. One was the
forfeiture of the land. The other was the
enforcement in some form, forfeiture
itself Is the most convenient form, oil
the performance of the contract. What
I mean is, forfeiture is the most con
venient form, because the United States
could then sell the land Itself just as It
Intended .the railroad company to do.
The third one was regarding the rail
road company as the trustee to the Gov
ernment for the excess of purchase money
which it had received, and obliging it to
account to the Government for the
amount.
Mr. Hall In that connection, if you
see fit to advise the committee, and I
would like to have yeur views upon it,
whether it is the desire of the Depart
ment to treat this as a proceeding for
speciflc performance, or in the nature of
a forfeiture. In the first place, there are
two elementary propositions involved.
First The question of whether the rail
road company complied with the con
ditions on Its part, so that the Govern
ment was justirted In making the trans
fer of the land to the railroad company,
and second, the question of the right of
the railroad company to sell this land
without regard to these limitations con
tained in the act of April 10. Now Is
it the purpose of 'the Department of Jus
tice to treat the transaction as though
the railroad company had complied with
the conditions, so as to Justify the con
veyance and then require it to specifically
perform these conditions contained in
this statute, whic would comprise a part
of the contract, by compelling them to
sell the remainder to actual settlers at
i.V per acre, and in quantities not to
exceed lfln acres, and to a settler, or Is
it the policy of the Department to treat
the entire transaction as nugatory, or In
other words. In the nature of a rescis
sion, and seek to accomplish an entire
forfeiture?
Mr. Bonaparte Well, the matter has
been very carefully considered, and it
was oufexpectation to assert an alterna
tive ground of relief first, to submit to
tb court tbo gueeUca clwisthfc (Uua
land was forfeited: second, if it was for
feited, could we enforce a sale of what
was left of it? Of course we cannot force
a sale of what the railroad company has
parted with, but as to what they have not
parted with, can we make them account
for it?
Mr. Hall That of course is upon the
theory of specific performance.
Mr. Bonaparte On a theory something
like specific performance. It Is not, of
course, technically speaking, specific per
formance. The question which you re
fer to, as to whether or not the railroad
company had so far complied with the
conditions as to authorize the Issuance
of the patents to them, would really not
enter into the transaction, because the
matters - of which complaint was made
were conditions subsequent. These were
precedent to the railroad company ac
quiring the title, since the railroad com- .
pany had to have the title, of course,
in these circumstances, to be able to
sell the land to bona fide settlers In
quantities not exceeding 160 acres.
Mr. Hall That Is the proposition that
I referred to first that there had been
a substantial compliance by the rail
road company so far as the construction
of its line is concerned and not the sec
ond, this subsequent condition which you
mention.
Other Railroads Involved.
Mr. Bonaparte That is not the point;
that is not the difficulty in regard to the
construction of the line at all.. The
patents were Issued. "Whether they
were 'n .correct form or 'not is another
question, and I do not think .it is very
material, but the patents were issued
under the terms of the act, when the
railroad company had qualified Itself to
receive them and had selected the land.
But the things of which complaint is
made in regard to the railroad company
were things that' happened subsequently'
to Its acquiring the title entirely, and
which, in the nature of 'things, must
have so happened, because It could not
sell the lands until it had got title to
them.
It was suggested to me and it is not
apart from the -matter we have under
discussion it has been suggested to me
that there are other railroads In the
same condition as this one, and that it
might be advisable to amend the reso
lution so as to make it .more general In
its terms. I respectfully state to the
committee that I think that is inadvisa
ble. This particular matter has been
the subject of a very careful inquiry by
the Department of Justice We think
we are very Bure about the facts, and
we have no doubt that in this case Con
gress ought to take substantial action
in the line of this resolution. It is true
that some complaints have been made as
to certain other railroads, but we think
if those are to be dealt with It would
be advisable to have them dealt with in
a separate resolution, so that there may
be no room for possible complaint as to
matters which have been so fully in
vestigated as this one.
Mr. Hammond Do you have in mind
the Northern Pacific Railroad Company?
Mr. Bonaparte That was the one im
mediately called to my attentibn. I re
ceived a communication, and I think
soma of the members of the committer
have also, from ,some gentleman whf
"omplained of the Northern Pacific Com
pany likewise, and there are somesothet
companies that are In more or less the
same position. i
Mr. Hammond- If I understood you,
you stated that your department bad
made an Investigation, ana you now aa
vlse us that you do not deem it well to
Incorporate such an amendment In this
resolution.
Mr. Bonaparte You mean I do not ad
vise that you put In any other railroad
In this resolution?
Mr. Hammond I understood you to say
that there had been some examinations
of the conditions attending the' other
railroads and that. . . . .
Mr.' Bonaparte No; I 3id not mean to
say that. The Department is not ad
vised as fully on that point as it ought
to be before it makes any such recom
mendation. .
Mr Towusend This Oregon and
California business we have very thor
oughly investigated, but the other
matters we have not. While we have
had some general information on the
subject, it has not been the subject
of - any Investigation.
Mr. Reynolds You oppose such an
amendment as is suggested by Mr.
Fordnoy?
Mr. Bonaparte I think it would be
inadvisable. I think it might inter
fere more or less seriously with the
action taken, not only in regard to this
particular matter which is referred to,
but to the entire scope of the action
contemplated by the Department. But,
as I have said, there will be an ample
opportunity later, after the facts are
understood, for Congress to grant re
lief in those transactions, either as a
"matter of generosity or public liber
ality or public policy, if there is any
reason to grant relief to the persons
involved.
Proper Method of Forfeiture.
The Chairman Some question was
raised as to the sufficiency of this au
thorized forfeiture, whether the Con
gress can delegate its power to the
Department of Justice to declare a for
feiture, or -whether the forfeiture
should be mads by direct legal action
to be legal.
Mr. Bonaparte The precedents are a
little unsatisfactory on the. subject.
There Is some docrbt on the subject.
Tou are no doubt aware a forfeiture
ought to be the result either of legis
lative action, or a particular kind of
judicial action, the exact nature of
which Is not very satisfactorily de
fined. The idea of the resolution Is to
authorize the courts to declare a for
feiture if they find that the element of
a forfeiture exists Congress says by
this action, if these lands ought to be
forfeited, then we forfeit them.
The Chairman Would not that in
volve me idea of legislative discretion?
Would not that be an attempt to take a
legislative discretion to the courts?
Mr. Bonaparte 1 think not. I think
it is a legislative act. I think the au
thorities are to the effect that upon the
legislation authorizing It the courts
can then. declare it. However, if the
committee thinks there is doubt upon
that, the resolution" could be strength
ened. It really has been from consid
eration for these very equitable rights
that have referred to that we have
tried to give them for their full day in
court, so as to save everything,
Mr. Hall It would be Improper for
the legislative body to attempt to de
clare a forfeiture if there were ques
tions of fact to be considered; In other
words, if there were questions of fact
to be adjudicated, then he must have
his day In court or he would be de
prived of his property without due
process of law, and it would not in
volve the delegation of legislative
power to give the courts the right to
examine into these questions. On the
other hand, the only case where it
would be proper for a legislative body
to declare a forfeiture would be where
there would bo no -question of fact.
The Chairman My impression is that
our own state held in one or two in
stances that unless there was a legis
lative forfeiture the courts could not
act.
Mr. Pnrdy I should say It would be
safe to provide that all lands disposed
contrary of the grant, and not in com
pliance with the grant, are hereby for
feited. Mr. Bonaparte There might be a
qualification of saving any equitable
right. Such a forfeiture as that stated
in the terms Mr. Purdy suggests would
unquestionably strengthen the form of
the resolution, but we were anxious to
avoid the very question which has been
suggested by another gentleman of the
committee, a question not simply a
question of law but also of fact, as
you might say. and w wanted to glva
M
Mm
TIM
The secret of success in. the real estate
line is, get in the other fellow's way. When
you buy, get the title to a piece of earth that
some fellow is going to need and need
badly in his business some day and it be
comes a matter of, not am I going to, but
rather, HOW MUCH AM I GOING TO
WIN?"
I was talking to a man last week who in
vested $20,000 in farm land twenty years
ago. His land is now worth twice the orig
inal price and has paid him moderately in .
rent, but as he said himself, "What a barrel
of money I could have made had I placed
that money, or. 25 per cent , of it, in the
path" of this fast expanding metropolis."
While this man did passably well with
his money, the incident only goes to show
what he could have done with wise invest
ment The value of his land raised no more
quickly than that of millions of other acres
of similar quality elsewhere. The trouble
simply, was, he didn't own what somebody
had to have to carry out. an idea HE
WASN'T IN THE OTHER FELLOW'S
WAY.
And right here dawns the wisdom of
buying now. in McKenna Junction Townsite,
on the very threshold of a site where an
. item of four million dollars is being put into
. a single enterprise.
TANTSAL and G
The Swift-Armour plant is by no means
the only industrial enterprise assured for
this locality; though this alone far more than
warrants the price at which we are now of
fering McKenna Junction Lots. One indus
try with it's shipping and other facilities
always draws another; this is history over
and over a thousand times, and one dollar
will grow another for those who become
owners before the substantial increases be
gin to occur.
Investment in -an industrial vicinity has
since time immemorial proved itself to be
the safest and most rapid, in the world.
Nearby ground for expansion, residences,
smaller, plants, and . one hundred and one
other purposes becomes a matter of dire ne
cessity, not of fickle choice. A gigantic
packing plant such as changed the maps of
Kansas City and Chicago, and the fortunes
of thousands of farmers and ranchers for
miles and miles: around, is what Portland
and Oregon have been crying for for year,s.
The growth of the business here is going
to be rapid and extensive, as was the case
in their earlier developed centers the Swift
people have already , inaugurated a cam
paign to educate rural Oregonians into rais
ing more hogs, sheep, cattle and fowl. These
facts seem foreign, but we cite them to show
the earnestness with which this colossal un
dertaking is being gone about, which in turn
justifies our opinion that prices in McKenna
Junction townsite are going to advance rap
idly and money invested there will be safer
than in a bank.
Get on a St. John car and ride out to
McKenna Junction today, when you can
look over the property at your leisure. The
scenes of activity on all sides are a splendid
assurance of the great future for Peninsula
property. The more familiar you are with
the real estate situation surrounding the
whole city the more pleased you will be, for
I confidently believe this district to be the
best investment proposition on the entire
Coast, and particularly for people of limited
means.
TO AD VANG
AP'ID
LT
This map will show you how necessary
McKenna Junction townsite is to the indus
trial situation on the Peninsula. McKenna
Junction is on Columbia boulevard, at the
approach to the tunnel, which 'is to be built
through Dana street, under University
Park, where the O. R. & N. crosses Harri
man's trunk line to Puget Sound. A large
-tract of land has been reserved for railroad
' yards tracks to the Swift , site are being
put down now.
Not a moment's time is being wasted by
either the transportation or plant people in
their efforts to carry everything to the earli
est possible completion another fact which
makes rapid results certain and places Mc
Kenna Junction lots among the very best
real estate opportunities ever offered in
Portland.
Get off the car at Goddard Station and
you will find my office. The prices and
terms will remain as before till April 1st.
LOTS $275 AND UP
10 CASH AND 10 QUARTERLY
FOR PLATS, CALL ON OR ADDRESS
T
Mo
rrn a Torn
ji .miL
Offices Goddard Station on St. John Line, 510 Commercial Building. Phone Main 6009
everybody a chance to establish -anything
they could against it and that is
the reason why we have put this for
feiture in this present form.
Mr. Thompson May I ask one ques
tion? I would like to get the view of
the Attorney-General as to what the
scope and purpose of the present bill
Is. I do not understand it
Mr. Bonaparte It is a bill to authorize
the enforcement of a forfeiture by the
courts that is the way I would express
it providing the facts exist. That is
the theory of the resolution; or any other
appropriate remedy, should the necessity
tor it arise, from the possibility that we
may be up against the fact that we
have no other remedy than that of for
feiture. "We would have thereby authority
to go ahead. I personally think that we
have the right to go ahead even without
congressional action, even as to forfeit
ure, bat there is room for a question
upon that point, and we deemed it
very advisable, when this resolution" was
introduced in the Senate, to have It so
framed that it would cover this question.
BLOCKS SALE OF TIMES
Sir Edward Tennant Keeps It From
Freetraders.
LOXDOJ. March 14. Sir Edward
Tennant, M. P.. is the man - who de
feated Cyril Archer Pearson's plan to
buy the Times.- Sir Edward is a
wealthy manufacturer of chemical fer
tilisers, but this does not explain his
hankering after newspapers. He owns,
next to the Walter family, the largest
Individual snare In "the Thunderer,"
and ho owns the Academy. He is a
great free trader.
Pearson Is ' vice-president of the
Tariff Reform League and vice-president
of the . tariff commissldn and
when, through him, the free traders
tried to get possession of the Times,
Sir Edward Tennant opposed them
from the first. ,.
It happened that the consent of the
judge in chancery is necessary to the
sale of the Times stock. The judge
agreed with Sir Edward Tennant and
Pearson found himself unhorsed.
MORE
MTTSIO
FtfR
PARIS
Scheme to Vse Historic Theater In
Versailles for Opera.
PARIS. March 21. (Special.) Coun
tess Greffulhe, chairwoman of the So
clete des Grandes Auditions de France,
which has done much for music-lovers
here, having, for instance, arranged
the only performances given in Paris of
'Die Goetterdaemmerung" and Dr.
Strauss' "Salome," has approached the
Senate with an Interesting scheme.
This Is to use the historic theater In
the Palace of Versailles, built in 1770,
forspecial operatic performances.
Famous ipreHentatlons were given
there under Touis XV and XVI. Since
1S70, It has been the property of the.
Senate, which sat there during the first
years of the Third Republic. Coun
tess Greffu'.he's Idea would be to make
the Versailles theater a "French Bay
reuth." which docs not, however, mean
that it would be devoted exclusively to
Wagner. Classic operas, which neither
the Grand Opera nor the Opera Com-lqu-manage
to revive, and new works
would be performed in the French Bay-reuth.
Eye Glasses 11.00 at Uctzger'a,