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About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (June 27, 1915)
THE SUNDAY OR EG ONI AN, . PORTLAND, JUNE 37, 1915. ' LAND GRANT DECISION MAKES CONGRESS FINAL ARBITER 16 n UK G ONI AN NEWS BUREAU. Washington, June 2C. In again "putting it up to Congress" finally to settle the Oregon and Cal ifornia land grant controversy, and to determine exactly how the unsold lands shall be disposed of, the United States Supreme Court, through Justice McKenna, handed down the longest opinion rendered at the term which closed latt Monday. From beginning to end this has been a case of unusual volume. In bringing the case to the Supreme Court, a bound record of 17 printed volumes, embodying many thousands of pages of testimony, was unloaded on the court; elaborate briefs were filed by all interested counsel; unusual time was allotted for the ar K'Jment of the case, only to have Jus tice McKenna facetiously comment that the case "in its main principles Is not of great compass." However, the opinion of the court fills 35 printed pages, or something like 14.000 words, of which 6000 words is devoted to a detailed statement of the cane, and 9000 words to the opin ion proper. o Single Litigant Sustained. With so many contending parties in the case, the opinion of the court sus tains not a single party; the railroad's rifi-ht to $2.50 an acre lor all unsold land is established, but beyond that the railroad is assured nothing; the Government lost its prayer for a de cree for forfeiture, and the court then tell.s Government counsel that In their alternative plea they did not ask for enough; the interveners and cross complaints are thrown out of court, and told to to Congress for re lief, and finally, the railroad com pany is forbidden to sell any more of its lands until Congress says how those lands shall be disposed of. Therefore it is up to Congress to say whether the lands shall be sold by the Govern ment or by the railroad; at what price and under what terms they shall be f-old if a sale is authorized or whether some other disposition shall le made of them. There is just one restriction . placed upon Congress; it rnust, in some way, see that the rail road gets its 12.50 per acre; beyond that. It can dispose of the lands in any way that it may elect. Congress can protect the squatters and the claim ants or it can ignore them. But only t hrotierh Congress can those who nought to buy from the railroad, and "who failed, get title. They have no rights which the courts respect. The pinion. In full, reads as follows: A direct and simple description of the vase would seem to be that It presents for Jurtsment a few provision in two acts of "on press which neither of themselves nor from the context demand much efforts ot Interpretation or construction. But the case lias never been considered as having that simple directness. A bill which occupies 7 Shapes of the record (exclusive of exhibits , the allegations of which are iterated and re iterated lv cross-complainants and interven ers, and added to, and an answer that ad tfhitted or traversed their averments with equal volume and circumstance, constituted the case for trial. Seventeen volumes of tes timony, each of many pases, were deemed necessary to sustain the case as made. It Is certain, therefore, that no averment has been omitted from the pleadings; no fact from the testimony that has any bearing on the case; the industry of counsel has neg lected no statute or citation, and their Ability no comment or reason that can eluci date or persuade. As we proceed it will be seen that we have rejected some contentions. It is not the fault of counsel if we have misunderstood them. i Alignment Not Presented. Yet. with all the research, it may be on account of it, the contestants have not pre served an exact alignment and have shown no preference as to the company In which contentions are made or opposed. The Government contends that the pro visos, we so designate them and shall so refer to them, though they differ in tech nical language, constitute conditions subse quent and that by the alleged breaches indi cated the lands became forfeited to the Ifnited States. The railroad company and other defendants contend that the provisos i constitute restrictive and unenforceable cov- , en ants. The cross-complaints Insist that a trust was created for actual settlers and the , Interveners urge that the trust has the broader scope of Including all persons who desire to make actual settlement upon the lands. This curious situation 1s presented: The Government joints with the railroad in opposing the contentions of the cross-corn-plainants and interveners. Both of the lat- j ter unite with the Government in contesting j the position of the railroad, but join with j the railroad against the Government's as- sertion of forfeiture. The cross-complainants attack the claim of the interveners, and the , State of Oregon, through Its Attorney-Gen- i eral, without definitely taking sides in the i controversies, declaies It to be to the interest 1 of the state and expresses the hope that the lands now withdrawn by the railroad shall be "subject to settlement and improvement as contemplated by the provisions of the prant, in arder not only that those vast areas of the state may be improved, but alo that the lands may not be withdrawn from tax ation, thus depriving the state, and espe cially the IS counties in which they are sit uated, of a large proportion of their re sources from direct taxation." The interest and hope expressed seem like a prayer against the Government's contentions, lrovinions of Act Reviewed. There s something more in these oppos ing -contentions than a wrangle or medley of interests, and we are admonished that the words of the provisos, simple and direct as they are of themselves, take on, when they come to the applied, ambiguous and dis putable meaning. It may be said at the outset that if ambiguity exists there may be argument in it against some of the con tentions. However, without anticipating. let us con sider the provisos, and we repeat them to have them immediately under our eyes. The first Us contained in the act of April 10, lStii. That act was expressed to be an amend ment of the act of lb06 and to relieve from the effect of the expiration of the time foi filing assent to the act of 180ti and to give "such, filing of assent, if done within one year from the passage of the" amending act, the same force and effect to all Intents and purposes as if it had been filed within one year after the passage of the act of 1606. Then came this proviso, which was preceded by another not necessary to quote: 'And provided further, that the lands grant ed by the act aforesand shall be sold to ac tual settlers only, in quantities not greater than one quarter section to one purchaser, and for a price not exceeding two dollars aud fiftv cents ner acre." The act of May 4, 1HT0, making the grant to the West Side Company, provides in sec tion 4 that the lands granted, excepting only such as are necessary for depots and other j needful usages in operating the road, "shall i be sold bv the company to actual settlers," the quantities and the price being desig xiated as in the act of 186U. These, then, are the provisos which are submitted for construction. The contention of the Government Ls as we have seen, and It lies at the foundation of its assertion of forfeiture of the giant, that they constitute conditions subsequent. Experience in Land Grants Cited. The argument to support the contention is based lira on the general considerations that experience had demonstrated to the country the evils of unrestricted grants mid that the bounty of Congress had been per verted into means of enriching -a lew financial adventurers," and that lands grant ed for National purposes "were disposed of In large biucks to speculators as well as to development companies organized by offi cers of the railroad companies." Informed by such experience, in substance is the con tention, and solicited by petition and moved by the reasoning of some of its members, t.onyrt-ss chui-se. J Its policy of unqualified bounty and, while not refusing to contribute to the aid of great enterprises, sought to prevent the perversion of such aid to selfish and personal ends and to promote the development of the country by the dis position to actual settlers of the lands granted. And. it Is insisted, efficient means were adopted to secure the purpose by mak ing the provisos conditions subsequent, with the sanction of forfeiture for violation. Th.ise general considerations are supple mented by a special and technical argu ment. The provisos and their context, it Is sal-J. snow the general characteristics of conditions, that is, they make the estate K'anted and its continuance to depend upon the doing of something by the grantee, and that ?he proviso In the act of Ifctii is ex pressed In apt and technical words, by the ue of which, it is further contended. It ls established Ly authority that an estate upon condition is necessarily created. Cases are cited and the following is quoted from page 124 of Sheppard's Touchstone: "That for the most part conditions have condi tional words In their frontispiece and do begin therewith ; and that amongst these words there are three words that are most proper, which In and of their own nature and efficacy, withoat any addition of othei words of re-entry in the conclusion of the condition, do make the estate conditional, as proviso, ita quod, and sub conditlone Hut there are other words, as si, si contlngat, and the like, that will make an estate conditional aleo, but then they must have other words joined with them and added to them in the close of the condition, as that then the grantor shell re-enter, or that then the estate shall be void, or the II ise." And words of such determining ef fect. It Is urged, introduce and give mean ing to the proviso in the amendatory act of 30?. Underlying; PrinciiIe Rudimentary. But it will be observed there are no such controlling words In the provision for the a!e to actual settlers in the act of May 4. 3870, that is. In the grant to the West Side Company; and the Government Is confront ed by the rule which it quotes that in such cases there must be "words of re-entry" or a declaration "that then the estate shall be void, or the like." The Government, therefore, varies and relaxes the rule it in vokes and admits that the sense of a law or terms of an instrument may be found In other words than the quoted technical ones if the intention Is made clear. It Is not necessary to review the cases cited respectively to sustain and oppose the contending arguments. The principies an nounced In the cases are rudimentary and may be assumed to be known and the final test of their application to be the inten tion of the grantor. These principles will be kept in mind In our consideration of the acts of Cougress in volved, and. besides, that there may be a difference In rigor between public and pri vate grants and that this court has especial ly said that railroad land grants have the command and necessarily, therefore, the effect of law. The Government reinforces its contention, as we have seen, with what it considers a change of policy in legislation and in effect insists that restrictions upon the disposition of the lands granted became more domi nant in purpose than the building of the roads, to aid which it was admitted the lands were necessary. The argument is hard to handle, as indeed are all arguments which attempt to- assign the exact or relative in ducements to conjoint purposes. In the first grants to railroads there were no" re strictions upon the disposition of the lands. They were given as aids to enterprises of great magnitude and uncertain success and which might not have succeeded under a restrictive or qualified aid. However, a change of times and conditions brought a change in policy, and while there was a detinite and distinct purpose to aid the building of other railroads, there was also the purpose to restrict the sale of the granted lands to actual settlers. These purposes should be kept In mind and in their proper relation and subordination. Success Not Certain at First. "We shall be led Into error if we conclude that because the railroad ls attained It was from the beginning an assured success and that it was a secondary and not a primary purpose of the acts of Congress. There is much in the argument of the defendants that the aid to the company was part of the National purpose which thi court has said Induced the grants to the transcontinental railroads. And we may say that the policy was justified by success. Empire was given a path westward and prosperous common wealths took the place of a wilderness. But such success had not been achieved when the crant of ISUd was made nor in full measure when the acts of 1SG1 and ISTo were passesd, and it may be conceded that they were intended to continue and com plete such National purpose, and that It was of the tirjat consideration, but the secondary purpose was regarded and provided for in the provisos under review. Both purposes must be considered It may be that it was not expected that actual settlers would crowd into "the vast unpeopled territory," but the existence of such settlers at some time must have been contemplated. Both purposes, we repeat, were to be subserved, and how to be subserved is the problem of the case. There Is certatnlv a first (m nrpwlnn against a forfeiture being the solution of the. problem or that there was necessity for it. ' A forfeiture of the grant might have been the destruction of the enterprise, and settlement postponed or nvde Impossible to any useful extent by the inaccessibility of the lands. And forfeiture was besides beset with many practical difficulties as a remedy. When, indeed, would it be incurred ? The obligation of the provisos and the remedy for their breach were coincident. The re fusal ot the demand of the first actual set tler (If there could be such without the con sent of the railroad) or of the first appli cant for settlement would subvert the scheme of the acts of Congress, it cannot be that the grants were intended to be so dependent and precarious and the enterprises so menaced with peril and, it might be, brought to disaster. Are the contingencies fanciful? Such character may be asserted of any conjec ture of what might have occurred but which did not, and yet to construe a statute we must realize its inducements and aims, solv ing disputes about them by a consideration of what might accomplish or defeat such alms. The acts under review conferred rights as well as imposed obligations, and it could not nave been intended that the latter should be so enforced as to defeat the former. We have given an instance of how this might be done by regarding the provisos as conditions subsequent. Another Instance may be given. In its argument- at bar the Government insisted that it was the duty of the railroad company to have pro vided the machinery for settlement and. by optional sales, guarded by probational occu pation of the lands, to demonstrate not only initial, but the continued good faith of set tiers, and that the omission to do so was of itself a breach of the provisos and In curred a forfeiture of the grants. But when did such obligation attach ? Before or after the construction of the road construction in sections or completely ? The contention encounters the Government's admission that there was no obligation imposed upon the railroad to sell. And we have the curious situation (which is made something of by cross-complainants aud interveners In op position to tne government s contention) or the right of settlers to buy, but no obliga tion on the railroad to sell, aud yet a duty of providing for sales under an extreme and drastic penalty. We may repeat the ques tion. Might not such consequences have end ed tne enterprise, making it and its great purpose subordinate to local settlement? In deed, might not both have been defeated by the inversion of their purposes? Grants Meant as Credit BaMs. The omission to institute a plan of settle ment and sale is not alleged In the bill as a breach of the provisos. The first breach alleged ls the trust deed to Stephen T. Gage, and the next the trust deed to the Union Trust Company. But these deeds manifestly were but forma of security, even if they went too far and were not binding to the extent of their excess. The Gov ernment admits that the grants were in tended to be used as a basis of credit; and we have argument again against a forfeiture by the dilemma to which the railroad might be brought in ita attempt to comply with all the provisions of the act as well as with the provisos. If it failed to complete the road within the time required the granting act was to become "null and void," (upon which we shall presently comment) . If it made efforts to complete the road by using the grants as a means of credit it might forfeit them. But there is a better argument than what may be deduced from the solution of per plexing difficulties or the conjecture of possioie. ocntiugencies. it win ne ooserveu that there was an explicit provision in the act of 1866 that upon the failure of the com panies to file assent to the act and to com plete the road as and within the time re quired, the act should "be null and void" and the lands not patented at the time of such failure should "revert to the United States." And It was provided that if the road should not be "kept in repair and fit for use," Congress by legislation might put the same in that condition and repay its expenditures from the road's income or fix pecuniary responsibility upon the company not exceeding the value of the lauds granted. Congress, therefore, had ( under consider ation remedies for violations of the pro visions of tne act and adjusted them accord ing to what it considered the exigency. As a penalty for not completing the road as prescribed Congress declared only for a re version of the lands not then patented ; for not maintaining it in repair and use Con gress reserved the right temporarily to requester the road : and yet for a violation of the provision for sale to settlers it ls urged that Congress condemned to forfeiture not only the lands then unpatented, but those patented. Mark the difference. Was non-completion of the road of less conse quence than settlement along Its line? not necessarily complete settlement, but any settlement the refusal, it might be. of the acceptance of a, single offer of settlement or even, a.s It is contended, of making: pro vision for settlement, being of greater con sequence and denounced by more severe penalty than the declared conditions, that Ik, assent to the act, completion of the road and ita maintenance. This Is difficult, if not Impossible, to believe. Condition n Construed an Covenant. It appears, therefore, that the acts ot Congress have no such certainty as to estab lish forfeiture of the grants as their sanction, nor necessity for it to secure the accom plishment of their purposes either of the construction of the road or sale to actual settler and we think the principle must govern that conditions subsequent are not favorable but are always strictly construed, and where there are doubts whether a clause be a covenant or condition the courts will Incline against the latter construction; Indeed, always construa clauses i deeds as covenants rather than as conditions. If It is possible to do so. 'J Washburn on Real Property, 4. And this because "they are clauses of contingency on the happening of which the estates granted may be defeated." And it is a general principle that a court of equity ls reluctant to (some authorities say PERTINENT EXTRACTS FROM LAND GRANT CASE. A direct and simpl description of the case would seem to be that it presents for Judgment a few pro visions in two acts of Congress which neither of themselves nor from the context demand much efforts of interpretation or construction. But the case has never been considered as having that simple directness. This curious situation is presented: The Government joins with the railroad in opposing the conten tions of the cross-complainants and interveners. Both of the latter unite with the Government in contest ing the position of the railroad, but Join with the railroad against the Government's assertion of for feiture. The cross-complainants attack the claim1 of the interveners, and the State of Oregon, through its Attornel-Gencral, without definitely taking sides in the controversies, declares it to be to the interest of the state and expresses the hope that the lands now withdrawn by the railroad shall be "subject to settlement and Improvement as contemplated by the provisions of the grant, in order not only that those vast areas of the state may be improved, but also that the lands may not bo withdrawn from taxation, thus depriving the state, and especially the 18 counties In which they are situated, of a large proportion of their re sources from direct taxation." The interest and hope expressed seem like a prayer against the Govern ment's contentions. In the first grants to railroads there were no restrictions upon the disposition of the lands. They were given as aids to enterprises of great magnitude and uncertain success and which miglit not have succeeded under a restrictive or Qualified aid. However, a change of times and conditions brought a change in pol icy, and while there was a definite and distinct purpose to aid the building of other railroads, there was also the purpose to restrict the sale of the granted lands to actual settlers. These purposes should be kept in mind and in their proper relation and subordination. We shall be led into error if we conclude that because the railroad is attained it was from the begin ning an assured success and that It was a secondary and not a primary purpose of the acts of Congress. There is much in the argument of the defendants that the aid to the company was part of the National purpose, which this court has said induced the grants to the transcontinental railroads. And we may say that the policy was justified by success. ISmpire was given a path westward and prosperous, commonwealths took the place of a wilderness. If the provisos were Ignorantly adopted as they arc asserted to have been; if the actual conditions were unknown, as is asserted; if but little of the land was arable, most of it covered with timber and val uable only for timber and not fit for the acquisition of homes; if a great deal of it was nothing but a wilderness of mountain and rock and forest; if its character was given evidence by the application of the timber and stone act to the reserved lands; if settlers neither crowded before nor crowded after the rail road, nor could do so; if the grants were not as valuable for sale or credit as they were supposed to have been and difficulties beset both uses, the remedy was obvious. Granting the obstacles and infirmities, they were but promptings and reasons for an appeal to Congress to rela the law; they were neither cause nor justification for violating it. We have seen that one company failed under the burdens which it assumed. The other company took it up and struggled for years under it and its own burden. It may. Indeed, have finally succeeded by a disregard of the provisos. It might, however, have succeeded by a strict observance of them. We are not required to decide between the suppositions. We can only enforce the provisos as written, not relieve from them. For the same reason we cannot at the instance of the Government give a greater sanction to them than Congress intended, nor give to cross-complainants and interveners a right which the granting acts did not confer upon them. Rejecting, then, the contention of the Government and the contentions of the cross-complainants and interveners and regarding the settlers clauses as enforceable covenant, what shall be the Judgment? A re versal of the decree of the District Court, of course, and clearly an injunction against further violations of the covenants. In view of such disregard of the covenants, and gain of illegal emolument, and in view of the Govern ment's interest in the exact observance of them, it might seem that restriction upon the future conduct of the railroad company and its various agencies is imperfect relief; but the Government has not asked for more. However, an injunction simply against future violations of the covenants, or, to put it another way, simply mandatory of their requirements, will not afford the measure of relief to which the facts of the case entitle the Government. This, then, being the situation resulting from conditions now existing1, incident, it may be, to the pro longed disregard of the covenants by the railroad company, the land8 invite now more to speculation than to settlement, and we think, therefore, that the railroad company should not only be enjoined from sales Jn violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon and from cutting or authorizing the cutting or removal of any of the timber thereon until Con gress shall have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy as it may deem fitting under the circumstances and at the same time secure to the defend ants all the value the granting acts conferred upon the railroads. If Congress does not make such provision the defendants may apply to the District Court within a reasonable time, not less than six months, from the entry of the decree herein, for a modification of so much of the injunction herein ordered as enjoins any disposition of the lands and timber until Congress shall act, and the court in its discretion may modify the decree accordingly. never will) lend its aid to enforce a for feiture. By this conclusion do we leave the provisos meaningless and the Government without remedy for their violation? There is no ar gument in a negative answer. From the de fects of a provision we can deduce nothing nor on account of them substitute one ot greater efficiency. But must the answer be In the negative, and by rejecting the contention of the Government are we compelled to accept tha of the railroad company ? or we may say those of the railroad company, for the con tentions are many. jome of which preclude the application of the provisos, some ot which assert their invalidity and others limit their application. If not first in order, at least in more im mediate connection with the contention of the Government is the contention that the provisos are not conditions subsequent but simple covenants, and, it ls said, restrictive and negative only, and, therefore, not en forceable. In support of the contention all of the uncertainties or asserted uncertain ties of the provisos are marshaled and am plified. We can only enumerate them. There is uncertainty, it is asserted, in the legal measure of uuty, theretore of its perform ance -for whom to be performed and when; nor is the time or condition of settlement prescribed, whether by the standard of the homestead or pre-emption laws; nor by what test or by what tribunal contests between applicants to purchase are to be determined; no compulsion of sale at any time, to any person, in any quantity; no mutuality ir. the covenant; no assurance that settlers will apply, and no obligation assumed by them. And the conclusion is deduced that the ac tual settlers clauses, viewed even as cove nants, were either impossible of perform ance or repugnant to the grants, and, there fore, void. Court's Jurisdiction Undoubted. The arraignment .bee in 3 very iormidable, but is it not entirely artificial? It is stipu lated that prior to 18S7 more than 103.000 acres of the granted lands were sold, nearly all of which were sold to actual settlers, in small quantities. If the sale of 103,000 acres of land encountered no oostacie in tne enu merated uncertainties, we cannot be im pressed with their power to obstruct the saie of the balance of the lands. The demonstra tion of the example would seem to need no addition. But passing the example, as it may be contended to have some explanation in the character of the lands so disposed of, the deduction from the asserted uncertain ties is met and overcome by the provisos and their explicit direction. They are. it is true, cast in language of limitation and prohi bition; the sales are to be made only to certain persons and not exceeding a specified maximum in quantities and prices. If the language mav be said not to Impose 'an affirmative obligation to people the coun try" it certainly imposes an obligation nt to violate the limitations and prohibitions when sales were made, and it Is the concession ot one of the briefs that the obligation is en forceable, and that, even regarding the covenant as restrictive, the "Jurisdiction of a. court of equity, upon a breach or threatened breach of the covenant, to enforce by per formance by enjoining a violation of the covenant cannot be doubted." Apposite cases are cited to sustain the admission, and in answer to the contention of the Govern ment that it could recover no damages for the breach and hence had no enforceable remedy but forfeiture. It Is said: "But the jurisdiction of a court of equity in such cases does not depend upon the showing of damage. Indeed, the very fact that in jury is of public character and such that no damage could be calculated, U an added reason for the Intervention of equity." And cases are adduced. We concur In the reas oning and give it greater breadth in the case at bar than counsel do. They would confine It or seem to do so, to the compulsion of sales of land susceptible of actual settle ment and assert that the evidence estab lished that not all of the lands, nor indeed the greater part of them have such sus ceptibility. But neither the provisos nor the other parts of the granting acts make a distinction between the lands and we are unable to do so. The language of the Brants and of the limitations upon them Is gen eral We cannot attach exceptions to It. Tne evil of an attempt is manifest. Tht grants must be taken as they were given. Assent to them was required and made, and we can not Import a different measure of the re S rement and the assent than the language of the act expresses It is to be remem bered the acts' are laws as well as grant, and must be given the exactness ( of laws. imn.imrat. ot Violation, Remedy. If the provisos were Ignorantly adopted as they are asserted to have been; if the actual conditions were unknown, as Is asserted- if but little of the land was arable, most of "it covered with timber and valuable only for timber and not fit for the acquisition of homes; if a great deal of It was nothing but a wilderness of mountain and rock and forest- if ita character was given evidence by the application of the timber and stone act to the reserved lands; if settlers neither crowded before nor crowded after the rail -road, nor could do so; ir the grants were not as valuable for sale or credit as they were supposed to have been and difficulties beset both ue"a, the remedy was obvious. Granting the obstacles and Infirmities, thev were but promptings and reasons for an ap peal to Congress to relax the law; they were neither cause nor Justification for violating it. Besides, we may say that there is con troversy about ail of the asserted facta and conclusions. Our conclusions, hen. on the contentions of the Government and the railroad com pany are that the provisos are not condi tions subsequent; that they are covenants, and enforceable; and we pass to the other contentions of the company. It Is contended 1 that Congress was without lawful authority on April 10, 1SUD, I otherwise, to the grant made by the act of 1806 as amended by the act of June 25, ISfiS (the latter extended the time to complete the first end sebsjquent sections of the road nnd the completion of the whole road ). We do not think it necessary to to low the In volutions of he argument by which the con tention is attempted to be supported. It Is asserted that the California & Oregon Rail road Company filed Its assent within one year and completed the first section of 0 miles within two years after the passasre of the act of July -o, 1S06, and that the Oregon OPINION BY SUPREME COURT Central Railroad Company (Bast Side Com pany) was not in default on April 10. IS til. The assertions come very late. Blad they been made at that early time, questions would have been presented whose solution we need not conjecture. The West Side Company preceded the East Side Company and on October lo, 1SO0. received the desig nation from the Oregon Legislature as the road entitled to receive the grunt of 3 SO 6. The East Hide Company started Its existence on April 22, 1S07, and In 1S6S attacked the legality of the incorporation of the other company and procured the revocation of the designation of that company and the desig nation of itself by the Legislature. The controversy for precedence and rights con tinued. It was carried to Congress and the act of April 10 18GO, was passed. Sub seqiuutiy cai'i2 compromises and the act of May 4. 1S70. By the latter act and in ac ceptance of its grant and provisions, the Wtit Side Company took the west side of the Willamette River. The East Side Com puny took the east side of the river and on Ju.v lssJi, ly resolution, accepted the pro visions of the act of 1806 "and of ail acts amendatory , thereof, and upon conditions therein specified, and do hereby give our as sent .and the ascent of such company there to." It wis not then thought, us it is now apcerted. that the act of 1800 annexed new and invalii conditions, nor was there such assertion atte.'waruj-. The East Side Com ?an, on Mar:h 1ST0, assigned Us rights under the act of 1866 and the acts amenda tory thereof and supplemental thereto to the present company, the Oregon A; Califor nia Railroad Company, and then dissolved. The Oregon uc California Railroad Company accepted the transfer and by resolution ac cepted the act of 1806 and amendments thereto and "all the benefits and emolu ments therein and thereof granted, and upon the terms and conditions therein specified," and authorized the assent to be filed In the office of the Secretary of the Interior. Obligation Cannot Bn Denied ' It is too late to declare such formal and repeated action ;o have been unnecessary. Every advantage was obtained, and whiie enjoying the benetlt of It the obligations of it, cannot be denied. Had there been an assertion of rights against the act of 1800 and had there been an Immediate rejection of its provisions and obligations, the ques tions In the present case would not now be submitted for solution. It la possible to suppose that no patents to lands would have been issued, or at any rate the Govern ment's attention would have been challenged to the assertion -of rights which it might have contested from a position of supreme advantage. 2) It Is contended that If sales were made under the limitations of the provisos the breaches were acquiesced In, and for this the action and knowledge of the officers of the Government are adduced indeed, the knowledge of Congress itself; and reciting what, was done under the grants, counsel say: "It Is a story of mortgages and sales, executory contracts and conveyances and a stream of Government patents flowing in be tween. These things were known of all ; they were matters of common knowledge, notoriety, of public record; the railroad knew them, the people knew them, the Gov ernment knew them." And cases are cited which, it Is contended, establish that such circumstances might work an estoppel even against . the Government, which, when it appears In court, it ls contended. Is bound like other suitors, and certainly establish that for more than 4u years in the view of the executive officers the provisos were not conditions subreq.uent. Granting their strengi h in t hat regard, granting they have some strenstb In every regard, they have not controlling force, considering the provisos as simple coveiiantc And they cannot be as serted as an estoppel. No one was deceived, at least no one should have been deceived; no action was or should have been induced by them that could plead ignorance of the provisions and Immunity from their respon sibility. The recited conduct had explana tion and notice in the opinions of the De partment of the Interior. They are en tirely consistent with the belief expressed by Mr. Sulltnger, then Commissioner, after wards Secretary of the Interior, that their enforcement was a matter for the courts, not for executive or legislative action. Mr. Balllnger. In a communication to a member of the House of Representatives, ex pressed the view that "as soon as the title vested in the company (and it was his view that it had vested by the construction of the ruilroad). jurisdiction over the lands passed from the executive branch of the Government, and the enforcement of the provision 'the sale ot lands to actual set tlers) rests with the courts, through ap propriate action by either the settlers enti tled to purchase or by the Government, act ing through the Department of Justice." And a doubt was expreesesd of the power of Con gress to compel compliance with the pro vision. Thl was the position of the de partment in 1907. It was not new or sud den. It was the repetition of the declara tion of a much earlier time. In an early day of the grant 1 872 a communication was addressed by the then Attorney-General to the Commissioner of the Land Of floe, accompanied by a letter from the president of the European & Ore gon Land Company (this company was made a trustee of the lands granted under the acts of 1S66 and 1890 to secure a bond is sue of the company). In which it was stated that the board of trustees of the company, in accordance with a lepal opinion given to It, had ordered that persons who had be come actual settlers between July 2,", 18G, and April 10, 1809, should have the priv ilege of purchasing: according to the pro viso, "but as to all others the company was not legally restricted from selling on lib eral terms, for cash or credit, at reason able rates." A request was made for an ap proval off the construction, and that the company he authorized "to sell on such terms as may be reasonable and just to all parties without any restrictions." This let ter was submitted to the then Secretary of the Interior Mr. Delano, who replied "that the proviso mean Just what it says. that the- lands be sold to- actual settlers only. ' In the designated quantities and for the designated prices; that the legislative in tention was pJfainly to prevent the lands be ing held for speculative prices or disposed of to others than actual settlers, and that to construe the proviso as requested would IN OREGON & ' CALIFORNIA In his "judgment entirely defeat such In tention." It being objected that the case was not submitted for decision or opinion, the Sec retary replied that It was so regarded and that the opinion could not be formally withdrawn. He, however, expressed his willingness at any time on application to reopen the case and to hear all arguments which the company might desir to present. The opportunity was never taiten advan tage ot, but the company proceeded upon its own construction of the proviso. These views explain the attitude of the department and give different color and meaning to its action than those assigned to it by the railroad company, and if the company disagreed with or defied the de partment it cannot claim to have been de ceived. The views of the department were no doubt the views ot Congress, and its action and reluctance to prejudge are ex h lb ted in the resolution of April 30, 1008, under which this suit was brought. It re fused, as we have seen, to determine peremp torily the rights of the United States or to anticipate J udicial action. Law Obligatory Until Repealed. We may observe again that the acts of Congress are laws as well as grants and huve the constancy of laws as well as their command and are operative and obligatory until repealed. This comment applies to and answers all the other contentions of the railroad company based on waiver, acquies cence and estoppel and even to the defense of laches and the statute of limitations. The laws which are urged as giving such de fense and as takiuu a way or modi tying the remedies under review have no application. It would extend this opiniou toq much, to en ter upon tiieir discussion. A word of comment may be made upon one of the acts adduced as constituting a waiver of the breaches of the covenants, that is upon the act passed August 2U. (37 Stat. 3110, it being supplemen tal to the joint resolution of April 30, 1008, supra. It was passed after this suit was commenced and brought forward with the other acts by an amendment to the answer. Counsel assert of it substantially as alleged in the answer that it "'is a recog nition of the non-settlement character of the lands involved, and that such lands, at the time they were sold to the so-called in nocent purchasers described in 4j suits brought by the United States against said purchasers and these defendants in this court, are unfit for settlement and were so unfit for sett lenient and could uot be sold to actual settlers at the time they were sold by t he company to such purchasers." We have answered the contention so far as it depends upon the character of the lands. The character of the lands furnished no excuse. It might have justified non action, but it did not justify antagonistic action: Moreover, the act. while it author ized compromises with purchasers from the company, explicitly excluded the applica tion of the provision to lands in the pres ent suit and declared that it should create no "rights or privileges whatever In favor of any of the defendants therein" and that nothing in the act should condone any of the breaches of the conditions or provisions of the granting acts nor be a waiver of any cause of action or remedy of the United States on account of any such breach or breaches or of any right or remedy existing in favor of the United States. With the provisos Vis conditions subsequent out of the way, the suit remains one to enforce a continuing covenant. It la not a suit to vacate and annul patents. Contention Made Tardily. (3) There is a special contention, given the pretension of a separate brief, that the "sinking fund act of Cougress of May 7, 1878. ratified the transfer of the California & Oregon Railroad and its land in Cali fornia to the Central Pacific Company, and operated to abrogate the 'settlers clause contained in the acta of April 10. lStf'J. and May 4. 1870." The argument to support the contention is that the Central Pacific Rail road Company became, with the consent of Congress, the owner of the California & Oregon Railroad (.to avoid confusion this company must be kept distinct from the defendant Oregon & California Railroad in 1870. and that after such transfer and date It became Impossible for the latter company to sell the lands for the prescribed price, or for any other price, or to settlers in any quantities, "for the reason th?t the company had parted with its title to the entire grant and this was recognized, approved and alidated by the United States." The con tention seems to be directed more to the settlers' clause viewed as a condition sub sequent than to it considered as a covenant, it is however, said that the clause "has been entirely abrogated by said legislation and the acts of the Government." We are not Impressed by the contention. It seems to be a tardy claim In the case and ls the dare of an extreme Ingenuity against the admissions and averments of the answers and many assertions which the record con tains of ownership of and dominion over the lands by the Oregon & California Company and of their disposition of it. Indeed, it Is opposed to the whole scheme of the suit and the defenses to it and to the stipulation of the parties. It there appears that after the designated date patents were applied for and issued to the Oregon & California Rail road Company, defendant herein, for 323, 078.63 acres of land, over 163.000 acres of which were sold by that company to actual settlers. Indeed, all of the activities in the aiiminlatration of the grants were those ot the Oregon & California Railroad. It made contracts and executed deeds for particular parcels; it made trust deeds for the whole of them; it went into receivership and emerged from it to resume its activities, and made reports to C ongress upon which It bases the acquiescence of the Government In the breaches of the provisos. Intervenors Rights Considered. It is true that there appears in the stipu lation the confusion of a statement that there was an amalgamation and consolida tion of the Central Paoific, Western Pacific and Oregon Central Railroad Companies into the Central Pacific Company and that at the time the articles of amalgamation and consolidation were filed (June 23, ISTO) the California & Oregon Railroad Company "was the owner of all unsold lands in California' granted by the act of July -'5. istitf; that from the date of filing such articles ot amalgamation and consolidation the Central pacific Railroad Company remained owner of all the lands granted by the act of 1806 and two other acts which made grants to the latter company until 1S90, when what remained uusold of the lands were granted to the Central Pacific Railway. But It is stipulated that the statements "concerning the ownership and conveyance of the lands granted by said acts of Congress are made subject to the terms and provisions of said acts of Congress respectively, and all rights of the United States thereunder the title to said lands not being an issue in the suit at bar." Why these facts were stipulated it Ls hard to guess, but it is certain they can not be given effect against all other facts stipulated. It will be observed the stipula tion is concerned only with the California & Oregon Railroad, not with the defendant Oregon & California Railroad. The expla nation of the Government Is. therefore, cor rect that the Oregon part of the grant was by the grant itself treated as substantially distinct from the California part and that the Oregon part has always been claimed, used and enjoyed by defendant, the Oregon & California Railrcad Company or its pre decessors In title, and never by the Central Pacific. The provisos of the acts having been thus established as covenants, not conditions sub sequent, between the Government and the defendants, and their continuing obligation determined, we are brought to the consider ation of the rights of the cross-complainants and interveners thereunder. It may be said that in some of the as pects of our discussion there was implication against - their contentions, but It also may be said there is implication for them. Un doubtedly the provisos expressed the policy of the settlement of the lands and a sale to settlers, but the cross-complainants and in terveners assert a right more definite a trust, indeed, and personal of compulsory obligation upon the railroad company, to be enforced in individual suits. Karly Plaintiffs Parties to Suit. Snyder and 03 others, alleging themselves to bf actual settlers UDon soeclf led lands. J brought suits nearly a year before the pres ent suit was commenced. They were brougnt into this suit and are now here as cross romplalnanti. They pray that the grants be declared to be grants in trust and ask for protection, "whatever form of decree may be entered." They further ask "that receivers or trustees be appointed, whose duty shall be to formulate, with the approval of the District Court, suitable rule- and reg ulations for the sale of all the lands here Involved, in accordance with the acts ot Congress making tne grants." a hey aeny having anvthing In common with the inter veners, and. as we have seen, vigorously attack the claim of the Government of a for feiture of the grants. The Interveners concur with the cross complalnants that the acts created a truBt, but assert that they have a broader extent. In other words, and as their counsel express it, the intention of Congress was to create a trust in the granted lands for the benefit of those who might desire to acquire title thereto, that is, not actual settlement was the condition of purchase, but an Intention to settle, with the qualilication to do so. "Actual Settlers" Contemplated. Here then, is a conflict between the as serted beneliciaries of the asserted trust whether actual settlers, as cross-complainants contend, or applicants for settlement, as tho interveners Insist. The distinction would seem to be real and cannot be con founded. The word "actual" expresses a settlement completed, not simply contem plated or possible. Upon the express words of the provisos it would seem that inter veners' claims to be beneticiaries of the trust. If there is a trust, must be refuted. The cross complainants present argu ments of more difficulty, supported by ap pealing considerations. "Actual settlers" are the words of the provisos, and we may assume actual settlers were contemplated and sales of the lands were restricted to them: but how were actual settlers to be as certained and by whom? And was there a compulsion or option as to sales? There coi-ld not be an absolute right to settle or purchase unless there was an absoltue com pulsion to sell. The acts of Congress omit regulation. Their language is not directive; It Is restrictive only. With this exception the grant is unqualliled. The lands were grant ed to aid in the construction of the road und while It is a certain Inference that dis position of them was contemplated, neces sarily there was conferred a discretion as to time. There was certainly no umrtuun of it expressed. Tho contending considerations we have al ready stated and their respective weights, and decision must necessarily turn upon a judgment of the purposes of the granting acts and In what manner tney were intend ed to be accomplished, not of the provisos alone. There is plausibility In the argu ment which represents that If the provisos be held to give to tne rauroau a discretion of sale, the choice of time and settlors, their requirement Is Impotent, and instead of securing settlement would prevent it; in stead of devoting the lands to development, retain them In monopoly and a kind of mortmain. We feel the strength of the argument but cannot vield to It. There are countervailing ones. Wo have already indicated that nothing can be deduced from the imperfec tions of the crantine acts. Indeed, the ar gument of cross-complainants, like a great many other contentions In the case, get tneir nlauslbilitv from the abuses of the grant inir acts, not their uses. We have seen that In the ea-Iy days of the grants set tlements were normally made and the rail road, in the exercise of Its discretion, re sponded to such settlement by sales to set tiers. Delay Alone Not Conclusive. There was no embarrassment then In the selection of settlers and no question by any body that there was a discretion of sale on the part of the railroad company. A denial came Inter and the assertion of a peremp tory i ight against the company of settle ment and purchase, both to be acquired by an intrusion upon the company's possession. If It can be said to have had possession. Of course the delay In the assertion of a right Is not conclusive nyainst its existence. There is, however, argument in it ana n it ma k- nld that settlers were not In such num bers and urgency as to bring their rights to attention and assertion, a conjecture may be engendered that some otner purpose man the acquisition of homes has led to a denial of rights which no one theretofore had questioned. It is asserted that not a desire of settlement but the rise in the price of lumber has created an eager demand for the lends. There are, however, further considerations. Ttv th jirts of 1806 and 1870 It is provided that upon the survey and location of the roads the Government snail witnuraw irom h eranted lands and the provision would seem to withdraw the lands from the specific operation or the land laws ana cer tainly from a complete analogy to them. The public land laws had test of the quali fication of cettlers under them; they had also the machinery of proof and precaution. W'hen the granted lands were withdrawn from those laws and primarily devoted to another purpose they were committed to an other power, to be administered for such purpose, and a discretion in the exercise of the power, within the restriction imposed, was necessarily conferred. This purpose we have sufficiently estimated. Nor need we pause to consider the differences between charitable trusts and other trusts, the class, not individual interest, which the former must have, as it is contended, and the cer tainty in the beneticiaries which the cases have assigned to the latter. And certainly the words "ictual settlers" Indicate no par ticular Individuals. They describe a class or body of Individuals without habitation or name As Judge Wolverton. In his opinion in the District Court (180 Fed. 801, 910, said: "There could be no actual settler until an actual habitation was established upiut some specific parcel of this land. Logically no one Is a cestui que trust under the the ory unti! and unless he becomes such a set tler. This Is a palpable demonstration ot the uncertainty as to the beneficiary, for who, of the vast r 'ncourse of humanity, is going to come and claim the right and privi lege of settling upon the land?" We cannot construe the grants as confined or Incum bered by rights so Indefinite. Restrictions Continue Binding. 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 exceeding $2.50 an acre; might sell in quantities of 40. 0O or 1 K acres or any amount not exceeding 160 acres." And we add. It might noose the time for selling or Its use of the grants as a means of credit, subject ultimately to the restrictions im posed; and we say "restrictions Imposed" to reject the contention of the railroad com pany that an implication of the power to mortgage the lands carried a right to sell on foreclosure divested of the obligations of the provisions. To use the grant for credit might become. Indeed did become, a necessity. The con struction of the road halted for funds. They were raised by trust deeds, as we have seen. The accomplishment of the purpose ot the grants determines, we repeat, against the creation of a trust. In conclusion we cannot refrain from re peating that the case in its main principles Is not in great compass. It has been given pretension and complexion by the happen ing of the unforeseen, the lapse of lime, change of conditions and the contests of in terests. These, how ever, are but accident, giving perplexity and prolixity to discussion. Judgment is independent of them. It is determined by the simple words of the acts of Congress, not only regarded as grants but ajs laws and accepted as both : granting rights but imposing obligations rights quite definite, obligations as much so. The first had the means of acquisition; the second, ot performance; and, as we have pointed out. whatever the difficulties of performance, re lief could have been applied for and. It misht be, have been secured through an ap peal to Congress. Certainly evasion of the laws or the defiance of them should not have been resorted to. Nor can their obligation be magnified by looking backwards, by the results achieved rather than when they were only hoped for, by conditions of which there was not even phophecy. We have seen that one company failed under the burdens which It assumed. The other company took It up and struggled fr years under It and its own burden, it mav. indeed, have finally succeeded by a disregard of the provisos. It might, however, have succeeded by a strict observance of them. We are not required to decide between the suppositions. We can only enforce the pro visos an written, not reiieve from them. Kor the same reason we cannot at the in stance of the Government give a greater sanction to them than Congress intended, nor give to cross-complainants and inter veners a right which the granting acts did not confer upon them. Kurt her Violations Prohibited. Rejecting, then, the contention of tne Government and the con tent lotus of the cross complainants and Interveners and regarding the settlers clauses as enforceable covenants, what shall be the Judgment? A reversal of the decree of the District Court, of course, and clearly an injunction against further violations of the covenant. There cer tainly should be no repetition of them. What they were the record exhibits. We need not comment on them or point out how opposed they were to the covenants, how antagonistic to the policy and purpose of the Government expressed In tho cove nants. The contrast of a sale to a single purchaser of 160 acres (the maximum amount with a sale of 10O0. uoo, 2.ooo ami 4.".uU0 acres to a single purchaser needs no emphasis; nor the contrast of a nse of tho lauds to establish homes with their use for Immediate or speculative enterprises. In view of such disregard of the cove nants, and gain of illegal emolument, and in view of the Government's interest In tlie exact observance of them. It miht eeetu that restriction upon the future conduct ot the railroad company and its various agencies ls imperfect relief; but the Govern ment lias not asked for more. In Us bill it has distinguished between the sold and unsold lands and between the re spective rights and interest, vested, contin gent or expectant. In them ; and while it is asserted that all have become forfeited, only the unsold lauds and the rights and interest In them are Included In this suit. And the reason ls given tiiat the purchasers were many, the names and places of resi dence of only a few of them are known and the names of the others could not have been ascertained In time to make them parties to the suit. .Besides, that such purchases and interests were made and acquired under greatly varying circumstances and that it would be inequitable to make a few pur chasers representatives of all, and to malto all parties would postpone and might ulti mately defeat the public interests. That, therefore, this suit was brought. It is al leged, to Oetermine the rights and remedies as to the unsold lands and that subsequently other Eults will be instituted as to tho sold lands, rights and remedies as to them being in effect reserved. Decree Is Without Prejudice. Therefore, the decree in this suit shall be without prejudice to any other suits, rights or remedies which the Government may have by law or under the joint resolution of April 30, jOOS, or under the act of Congress passed August ,1!0, 1011!. However, an Injunction simply against fu ture violations of the covenants, or, to put It another way, simply mandatory of t heir requirements, will not afford the measure of relief to which the facts of the case entitle the Government. The Government alleged In Its bill that more than 10OO persons had made applica tion to purchase from the railroad company in conformity to the covenants. In answer ing the defendants averred that uch ap plications were made by persons w ho de sired to obtain title on account of the tim ber and not otherwise, and for the purpose of speculation only and not in good faith as actual settlers. And It was averred that the lands were chiefly and In most Instances solely of value because of the timber there on and were not fit for actual settlement. And, further, that the lands capable ot ac tual settlement and the establishment ot homes thereon at no time "exceeded (ap proximately) 300.000 acres. consisting ot small and widely-separated tracts, all or which were sold to actual settlers or persona claiming to be such during construction and prior to completion, respectively, of saia railroads, in quantities of 100 acres or less to a single purchaser, at prices not exceeding $-.5l per acre." A great deal of testimony was introduced, consisting not only of that of witnesses, but of maps, photographs, reports and publi cations, which tended to establish the as serted character of the lands. And there was evidence in rebuttal. We cannot pause to determine the relative probative force of the opposing testimonies. it is, however, clear, even from the Government's summary of the evidence, that lands which may be fit for cultivation have a greater value on account of the timber which is upon them. Besides, for our present purpose we may accept the assertion of defendants; and we have seen that Congress extended the tim ber and stone act to the reserved lands, and, by the act of August -0. 1012. supra, it has withdrawn from entry or the Initiation or any right whatever under any of the public land laws of the United States trie lands which might revert to the United States by reason of this suit. Action of Congxe&H Awaited. This, then, being tne situation resulting from conditions now existing, incident, it may be. to the prolonged disregard of the covenants bv the railroad company, the lands invite now more to speculation than to set tlement, and we think, therefore, that me railroad company should not only be en Joined from sales in violation of the cove nants but enjoined from any disposition ot them whatever or of the timber thereon and from cutting or authorizing tlte cutting or removal of any of the timber thereon until Congress shall have a reasonable opportunity to provide by legislation, tor their dispo sition In accordance with such policy as u mav deem fitting under the circumstances and at the same time secure to the defend ants all the value the granting acta con ferred upon the railroads. If Congress does not make such provision the defendants may apply to the District Court within a reasonable time, not less than six months, from the entry of the d!ct' herein for a modification of so much of tne Injunction herein ordered as enjoins any disposition of the lands and timber until Congress shall act. and the court Hi Its dis cretion may modify the decree accordingly. Decree reversed and cause remanded to the District Court for further proceedings in accordunoe with this opinion. MAIM AT THROTTLE CRAZY 111 Knglneer Finally Kun Over Af ter Operuting Locomotive Months. DKNV10R. June 20. Startling devel opments' followed the death recently of George M. Lewis, a former Denver Ai Kio Grand engineer, who was run down and killed while the police were searchincr for him, when it was learned that the dead engineer had been suffer ing from mental disorder for the last six months and during that time had been regularly running a train. Despite bin affliction. which was diagnosed as paresis, Lewis had ap peared for work and made his usual runs out of Alamosa. His work as engineer was as efficient as ever, but he developed eccentricities in other ways, one of them being to draw large checks on the company. About two weeks ago Lewis was dis charged and he was brought here for treatment. While his wife was taking him back to their home in Alamosa Lewis broke away in the station, made his way out on the tracks and a switch engine killed him. Fall Kills Aged Wingville Woman. BAKER. Or.. June 26. (Special.) As the result of a fall in the home of her daughter. Mrs. Kate Speelman. Mrs. John Fosnot is dead at the Speelman home in Wingville. Mrs. Konot was 83 years old and the shock caused by the fall resulted in death. Mrs. Fosnot had lived In this vicinity 35 years and was one of the best-known women of Baker County. She is survived by many relatives. Tenlno Man Badly Hurt. CENTRAL! A. Wash.. June 26. (Spe cial.) With freightful injuries sus tained Thursday when a huge cranu broke at the new quarry of the Her cules Sandstone Company, north of Te nino. Ed Betts, an employe of the stone company, and a son-in-law of Jeff Cannon. Tenino postmaster, is eonlined in a local hospital. Both of Betta' less were broken and his body badly crushed. It is expected that he will die. He ls about 40 years old.