5
MOVE FtR CONGRESS IN LAND GRANT CASE IS SUGGESTED
Senator C. V. Fulton Discusses Decision of Supreme Court and Problem of Disposition of Tract.
THE SUNDAY- OREGONIAN, PORTLAND, SEPTE3IBER J 9, 1915.
BT C. W. FULTON.
Address delivered at Oresron-Callfornia
Land Grant Conference, at Salem.)
BY the acts of July 25. 1866, and
May 4. 1870, and acta amendatory
thereof. Congress granted certain
lands within this state in aid of rail
road construction. The Oregon & Cal
ifornia Railroad Company succeeded
to the grants and may now bo desig
nated as the grantee. Each gi ant pro
vided that the lands should be sold only
to actual settlers at a price not ex
cepting $2.50 an acre. In jjjant'ties
not exceeding 160 acres to ar.y one
person.
Some of the lands were sold in con
formity to these provisions, but a
greater quantity was sold in violation
thereof. The grants comprised, in
the aggregate. 3,182,169.57 acres. Of
this amount, patents were issued for
2,874,040.81 acres, leaving unpatented
S07.764.76 acres. There remains unsold
of the patented lands 2,075,616.45 acres,
and of the unpatented lands 284,876.36
acres.
Government Sues for Title.
In 1903 the company withdrew from
Bale all of the unsold lands. Pursuant
to a resolution of Congress, the Gov
ernment instituted a suit to have for
feited to it all of the unsold lands and
Its title thereto quieted. Forfeiture
was sought on the ground that the
company had violated the provisions of
the grants restricting sales to actual
Bettlers in quantities not exceeding 160
acres to any one person and at a price
not exceeding $2.a0 an acre.
It was the Government's contention
that these restrictions constituted a
condition subsequent of the grant, a
violation of which authorized the
grantor to demand a forfeiture.
The railroad company admitted that
It had sold some of the lands to otheis
than actual settlers and fcr prices in
excess of $2.50 an acre, but contended
that the restrictions were, for several
reasons, void and not enforceable.
Situation Vital to State.
On June 21 last, the Supreme Court
of the United States rendered its de
cision in the case and it is with the
situation resulting therefom that we
have to deal.
That the people of this state are
profoundly interested in the question
touching what disposition shall be
made of these lands requires no argu
ment to prove. They constitute a very
considerable portion of our resources,
both for revenue and development.
We have assumed and believed, and
tstill believe, we were Justified in as
suming that,, by disposing of these
lands as by the granting acts it did,
the Government was forever precluded
from withdrawing them from private
ownership or by any means depriving
the state of their value as an indus
trial and commercial asset.
Withdrawn! Would Be Serious.
On this assumption public improve
ments have been undertaken and pub
lic obligations incurred: counties and
other public corporations established
and their boundaries fixed and defined.
We cannot, therefore, without the most
profound concern, contemplate the pos
sibility of this vast section of our state
being withdrawn as a present and fu
ture factor in oar commercial and in
dustrial activitit3 and development.
As I view the situation, two princi
pal questions aro presented, namely:
1. To what extent can Congress
rightfully legislate respecting the dis
posal of these lands? and
2. Assuming that Congress may pro
vide for disposing of them in a manner
different from that stipulated in the
granting acts, what policy will best
promote and serve the interests of this
state?
Precisely what the court did decide
the present status of the title to these
lands to be, I am compelled to confess
is not entirely clear to me. Not that
any language of the opinion is in itself
obscure or of a doubtful meaning. On
the contrary, the opinion is framed
in language of exceptional force and
terseness.
The difficulty I have experienced is
in reconciling some of the proposi
tions .enunciated with others, af
firmed, apparently, with equal con'
olusiveness.
Recommendation la Cited.
In the concluding part of its decision,
the court, referring to the contention
made by the company that only about
300. 000 acres of the lands granted were
suitable for settlement and that '"cn
gress had, by the act of August 20,
1912. withdrawn from entry nil lands
which might revert to the Govern
ment by reason of the suit, said:
This. then, belner the situation resulting
from conditions now existing, incident, it
may lie to trie prolonged disregard or tne
covenants by the railroad company, the
lands invite now more to speculation than
to settlement, and we think, therefore, that
the railroad company should not only be
enjoined from sales in violation of the cov
enants, but enjoined from any disposition of
them whatever or of the timber thereon,
and from cutting or authorizing the cutting
or removal of eny of the timber thereon,
tintil Congrress shall have a reasonable op
portunity to provide by legislation for their
disposition in accordance with such policy
as it may deem fitting under the circum
stance, and at the same time secure to the
defendants all the value the granting acts
conferred upon the railroads.
Powers Granted Conitrein Considered.
This language seems to imply that
it is yet within the competency of
Congress to treat and dispose of the
lands as if they were a part of the
public domain, subject only to paying
the railroad $2.50 an acre.
One inference is that if Congress
shall see fit to pay the company its
$2.50 it can make any disposition of
the lands it seees fit, which would, of
course, include the right and power
of incorporating them into a forest re
serve. The existence of such power, how
ever, is clearly in conflict with certain
other propositions announced by the
court, namely:
"There was," says the court, "a com
plete and absolute grant to the railroad
company, with power to sell, limited only
as prescribed, and we agree with tlKB Gov
ernment that the company might choose
the actual settler; might sell for any price
not exceeding S2.50 an acre; might sell in
quantltteB of 40. 60 or 100 acres or any
amount not exceeding 160 acres. And we
add It might choose the time for selling or
. Its use of the grants as a means of credit."
Government Views Not Upheld.
Previously, in its opinion, the court
Bald:
Our conclusions, therefore, on the con
tentions of the Government and the railroad
company are that the provisos are not con
ditions subsequent; that they are covenants
and enforceable.
Tt must be kept i mind that, as
above stated, the Government had con
tended that the provisos were condi
tions subsequent and that a violation
thereof or failure to comply therewith
authorised the grantor to re-enter and
repossess itself of its former estate.
In other words, that a violation of the
conditions of the grant worked a for
feiture thereof.
But, as we have seen, the court held
that the provisos constituted a cove
nant only which would be enforced at
the suit, of the grantor.
Violation Could IVot Forfeit.
Now the covenant was to sell the
land only to actual settlers, in quanti
ties not exceeding 160 acres to any one
person at not to exceed $2.50 per acre
Violation of this covenant, says the
court, did not operate and could not
be made to operate to forfeit the grant.
The irrant was complete and abso
lute." The covenant was enforceable
that is. the company would be re
strained from selling to others than
actual settlers, or to them for a price
exceeding $2.50 an acre, but the grant
was complete and absolute.
Presumably, also, the Government aa
grantor would have an action for
damages for breach of the covenant,
for such is the law, but with that we
have no concern.
I need not point out or comment at
length on the difference between a con
dition subsequent and a covenant in
an instrument of grant. The differ
ence is, for the purposes of the case
and our concern, sufficiently indicated
by the decision.
Title Passes From Government.
Violation of a condition subsequent
may, on. demand of the grantor, operate
to forfeit the grant, while a violation
of a covenant may be enjoined or dam
ages therefor recovered, or both, yet
the title remain undisturbed in the
grantee. The kernel of the decision,
then, is:
1. That the several acts of Con
gress constituted "a complete and ab
solute grant." That is, that the title
to the lands passed from the Govern
ment and vested unconditionally in
the railroad company.
2. Tho grant being absolute and un
conditional, it follows:
(a) That it is not subject to for
feiture, hence the Government cannot
re-enter or restore the ' land to the
public domain, and
(b) The company may choose the ac
tual settler to whom it will sell; may
.sell for any price not exceeding $2.50
an acre and may sell in any quantity
not exceeding 160 acres to any one
person.
Duty, of Congress in Doubt.
These propositions the court clearly
held. In view thereof I find it diffi
cult to understand what there la left
for Congress to do.
If, as the court held. ti grant was
"complete and absolute," and - the re
strictions regarding alienation were
mere covenants, violation or failure to
observe which will afford no ground
for forfeiture, I am at a loss to un
derstand how or on what principle or
sustained by what reasoning Congress
can do more than authorize proceed
ings to recover any damages sustained
by reason of a violation of the cove
nant and to have the covenant en
forced. We have seen, however, that In con
cluding its decision the court indi
cated that Congress "might, should it
act within a reasonable time, "Provide
by legislation for" the disposition of
these lands "in accordance with such
policy as it may deem fitting under
the circumstances and at the same
time secure" to the railroad company
"all the value the granting acts con
ferred upon it."
View of Next Step Given.
Is the court to "fie understood as say
ing, that although the grant was "com
plete and absolute," and could not be
cause of a violation of its covenants be
forfeited, and while the railroad com
pany could Choose the settler to whom
and determine the time when it would
sell, the grantor the Government
may do precisely as it pleases with the
land if it will only pay the company
$2.50 an acre for it?
I do not believe that is the law, nor
do I believe it is the logic of the de
cision viewed and considered as a
whole. My conviction is that the true
deduction to be made from this lan
guage of the decision is that Congress
should be and is allowed a reasonable
time within which to declare what will
be the further action of the Govern
ment respecting the enforcement of
the covenant.
Definition Is Expected.
Possibly the court also meant (and
it would not be necessarily inconsist
ent with its decision) that Congress
may define what shall constitute "an
actual settler" and within what period
the lands shall be held open to entry
and purchase by actual settlers, and,
failing to be disposed of within such
time, what the Government will con
cede, if anything, in the way of their
disposal otherwise.
It must be remembered that as
grantor and grantee, the Government
and the railroad company may, of
course, come together and compromise
their dispute, so long as they do not
infringe on the rights of others. For
instance, the Government having im
posed restrictions regarding alienation,
may waive such restrictions in whole
or in part.
Rights of State Discussed.
In this connection it is important to
inquire if the State of Oregon may
TRACKS ELEVATED TO '
HANDLE EXPRESS TRAINS
"Scenic Railway" Effect Produced When Cars Are Raised Above Locals
for Through Passengers Traffic Problem Believed Solved.
l ear ''xjr f
V.
'55,.
THE problem of "express" stations
on ttoe elevated road and the sub
way in New York is complicated.
Traffic conditions change and demands
arise for the stopping of express trains
at stations which have been equipped
for local trains only.
This has been met in some Instances
on the "L" by switching express trains
to the local tracks at certain stations
and then back to the express track
again. This method caused delays in
handling traffic.
Now a permanent Improvement is be
ing made on the Third avenue and
Ninth avenue "L" structures. The ex
press, track, which lies between tie
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lit- " ? JK
lawfully demand that the lands in ques
tion continue in private ownership.
When this state was admitted, cer
tain propositions were submitted to its
people and among others that:
The people of Oregon shall provide- by an
ordinance irrevocable without the consent of
the United State., that said state shall never
interfere with the primary disposal of the
soil -vithln the same by the United States,
or with any regulations Congress may find
necessary for securing the title in said soil
to bona fide purchasers thereof.
This stipulation was agreed to by the
people of Oregon as is evidenced by an
act of its Legislative Assembly. It may
be reasonably, and I think soundly, con
tended that in the absence of such
stipulation the state might lawfully
assert the right to be consulted touch
ing the uses to and the purposes for
which the public lands within her ter
ritorial limits should be devoted or ap
propriated. It will be observed that
she only surrendered her right to in
terfere with "the primary disposal of
the soil."
Violation Does Not Defeat Grant.
Now it is held by the court that the
granting acts under consideration con
stituted "a complete and absolute
grant," and, as we have seen, and as a
necessary corollary, that violation of
its provisos would not defeat the grant.
It follows that the primary disposal
of this soil was effectually accom
plished by the grants. The stipulation
above quoted, therefore, does not ap
ply, and the state is not only at liberty
but entitled to insist on being heard
in the matter of the further disposal
of these lands, and her consent thereto
ier necessary before their existing
status as taxable properties can be dis
turbed. This, it seems to me, is an important
and vital proposition. The subject is
one of profound interest and concern
to us. It is important that we may ap
pear as one asserting positive rights as
well as supportable equities. As above
stated, we have dealt with these lends
as being in private ownership; as be
ing a part of the taxable property of
the state. We have incurred obliga
tions and entered upon important pub
lic enterprises based on that assump
tion. Court Upholds View.
That we were rlgftt in such assump
tion is now confirmed by the court
when it holds that the jrrants were
"complete and absolute," and that the
provisos were covenants only, viola
tions of which would not operate to
forfeit the grant. In other words, that
the title had vested in the grantee, the
lands had become private instead of
public property, and the "primary dis
posal" thereof effected.
Such being the status of these lands,
is it within the power of the Govern
ment, without the consent of this state,
to restore them to the public domain?
They having become private property
and a part of the general mass . of
pioperty which constitutes the capital
and resources of the state upon which
it must depeid for revenue, can the
Government row change their status
from revenue-producing to non-taxable
and hence non-revenue-producing prop
erty? It is my conviction that the Govern
ment may not constitutionally bring
about such condition. After property
within a state has once ceased to be
c.othed with a public character, has
passed into private ownership, it is f-r
thti state to say whether or not it may
be withdrawn from and relieved of the
responsibilities aud charges which
that condition imposes.
Government's Powers Limiteil.
I am not oblivious of the fact that
the general Government Way acquire
property within a state for Govern-
mental purposes, end that property so
acquired will be thereby free-1 from
taxation by the state and her munici
palities, but in -3uch cases the property
must be acquired for the purpose t-f
exercising or as necessary to the exer
cise of some power specifically or im
pliedly committed or delegated to the
Federal Government by the Constitu
tion. v
We all understand that the General
Government is one of limited powers
and can exercise only such as are dele
gated to it or are necessary to the ex
eucution of a power specifically vested
in it by the Constitution. I know of no
provision of that instrument which
empowers the Federal Government to
acquire territory to hold as a part of
A Tt
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two local tracks. Is being raised at
certain stations, which are to be made
"express" stations.
The stations will be enlarged, a sec
ond story being added for the use of
express passengers who will be able
to transfer from express to local trains
to leave the road at express stations.
The work of raising the track has been
completed on the Ninth avenue line
but the new stations are not yet com
pleted.
The rearrangement gives passengers
much of the sensation of a "scenic rail
way," as it carries them up to the level
of the tops of the local trains and then
down again to tne level of tne local
i traefca,
1
life' ' - I
the public domain, other tban the war
and treaty-making powers, and, possi
bly the implied power arising irora
sovereignty invested in every Bovereign
to acquire territory from foreign na
tions. The states of the Union are, however,
not foreign nations in the relations to
the Federal Government. Hence, when
the General Government undertakes
to acquire property within the boun
daries of a state, it must show that the
use to which such property Is to be de
voted is a use necessary to the per
formance of some function committed
to it by the Constitution, as, for in
stance, the construction of & public
building, the erection of forts, etc.
Lands Lose Public Character.
In the case we are considering, the
title to the lands is vested in the rail
road company, and because of and con
sequent upon that fact have become
and are private property, taxable by
and revenue producing to the state.
They have lost their public character
and become subject to the laws of -the
state. This status may not be changed
without the state's consent. Thia. I
submit, must be true,, otherwise the
General Government might, by acquir
ing and withdrawing from taxation the
principal resources of a state, de
stroy it-
If the Government can restore to the
public domain and withdraw from tax
ation the 2,000,000 and odd acres unuer
consideration, after they have passed
to patent and for half a century been a
taxable asset of the state, it can ac-
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quire and thus retire and make a
reserve of the entire Willamette Valley,
or, for that matter, the entire state.
It follows that it is not within the
power of the Federal Government to
acquire lands within a state except in
the restricted way and for the limited
uses and purposes specified in the
Constitution, and the creation of re
serves is not one of them.
I am speaking, of course, of the ac
quisition of lands within the limits of
a state. I do not refer to territory ac
quired by discovery or acquired of for
eign nations in the exercise of the war
power or the treaty-making power.
There, very clearly, different principles
are involved. . .
Ultimate Settlement Required.
It is equally clear, however, that all
territory so acquired and held by the
United States Government and not ac
quired for or devoted to some specific
purpose or use authorized by the Con
stitution or attribute of sovereignty,
must be held for settlement and ulti
mate statehood. It would not be dif
ficult, I think, to prove this by the
history of our Constitution. I have not
the time, however, nor is this the place
to indulge at length in a discussion
of that question.
It does seem proper, however, if In
deed it is not necessary to refer brief
ly to the policy the Government has
adopted and is pursuing In the matter
of creating and maintaining forest re
serves. Before doing so, I would make
it clear that the power to withdraw and
permanently reserve public lands con
stitutionally acquired affords neither
precedent for nor argues authority in
tne Government to go into a state and
acquire lands held in private owner
ship and subject to taxation for the
purpose of withdrawing them from set
tlement and taxation. Lands so held
within a state can only be acquired by
the United States in the exercise of one
of its specific delegated powers or as
a necessary incident to the execution
of some such power.
Government's Position Assailed.
I have long held the view that the
General Government has far exceeded
its constitutional powers and juris-
aiction in the extent to which it has
carried the policy of permanent with
drawals of public lands and in the re
strictions imposed on the use of water
power sites within the boundaries of
states. No proposition is better set
tled in our constitutional history than
that every new state, that is, every
state admitted subsequent to the adop
tion of the Federal Constitution, was
admitted on an equal footing with the
original states, all of whom. ti course,
entered the Union on terms of perfect
equality.
All deeds of cession by which the
first public lands were acquired by the
Federal Government nrnvirieri tli.-it ihp
same should be settled and formed into
distinct republican states which should
have "the same rights of sovereignty.
freedom and independence as the other
states, and admitted" on an eval foot
ing with the original states in all re
spects. Government's Power Ceases.
In the early case of Pollard's Lessee
vs. Hogan. IS U.. S. 391, discussing the
title acquired by the United States
under these cessions, the court said:
The object of all the parties to these con
tracts of cession m-as, to convert the land
Into money, for th payment of the debt,
and to erect new states over the territory
thus ceded; and cs soon as these purposes
could be accomplished, the power of the
United states over thesj lands as property
was to cease.
Whenever the United States shall have
fully executed these trusts, the municipal
sovereignty of the new states will be com
plete, throughout their respective borders,
and ihey and the original states will be
upon an equal footing, in all respects what
soever. We. therefore, think the United
States hold the public lands within the new
states by force of thi deeds of cession, and
the statutes connected with them, and not
by any municipal sovereignty which it may
be supposed they possess, or have reserved
by compact with the new state, for that
partl-'ulur purpose. The provision of the
Constitution above refsrred to shows that
no such power can be exercised by the
United States within a state. Such a power
is not only repugnant to the Constitution,
but 1 is Inconsistent with the spirit and
intention of the deeds of cession. The argu
ment, so muoh relied on by the counsel for
the plaintiffs, that the agreement of the
people inhabiting the new states, "tat they
forever disclaim all right and title to the
waste or unappropriated lands lying within
the said territory; and that the same shall
be and remain at the sole and entire dls
postlon of the United States." cannot oper
ate as a contract between the parties, but
Is binding as a law, Full power is given
to Congress "to make all needful rules and
regulations respecting the territory or other
property of the United States." This author
ized the passage of all laws necessary to
secure the rights of the United States :o
the public lands, and to provide for their
sale, and to protect them irom taxation
The court also said;
And if an express stipulation had been
Inserted In the agreement, granting the
municipal risrht of sovereignty and eminent
domain to the United States, such stipu
lation would have teen void because the
, United taiea bave no constitutional can
5,' -XV
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'4 &
'6
pacity to exercise municipal Jurisdiction,
sovereignty or eminent domain within the
limits of & state or - elsewhere, except in
the cases in which it is' expressly granted.
Limitations Cited by President.
In this connection the language and
views of President Monroe, in trans
mitting a veto message to Congress.
May 4, 1822. are interesting and In
structive. Discussing the power of
the General Government to exercise
jurisdiction over lands within & state,
he said:
Thus the power of Congress over the
ceded territory was not only limited to
those special objects, but was also tem
porary. As Boon as ten. territory beoeme a
state, the jurisdiction over it as it had
before existed ceased. It extended after
wards only to the unsold lands,- and as soon
as tho whole were sold, it ceased in that
sense altogether. From - that moment the
United State3 have no Jurisdiction or power
in tho new states other than In the old,
nor can it be obtained except by an amend
ment to the Constitution.
It would be easy to multiply quota
tions from high authority sustaining
my contention that it was not origi
nally supposed to be within the power
of Congress to exercise the jurisdic
tion it is now assuming to exercise
over the public lands and water power
sites within the public land states. As
said by the Supreme Court of Califor
nia, in Desert. Water, Oil and Irriga
tion Co. vs. State, 138 Pac. 981:
If at the time of tho proposed cession of
its lands by Virginia, Congress had declared
its Intent to be that which it has actually
executed In the State of California, little
doubt can be entertained as to the answer
Virginia would have made. It is. indeed, a
departure from the accepted construction of
these constitutional provisions to have it
said that the United States may, as here,
withdraw from state use one-third of the
area of a sovereign state, forever deny to
the state the sovereign power of taxation
and control over these lands, and develop
and exploit then, under its own rules and
regulations.
All States Equal.
That the United States cannot exer
cise within a state any of the powers
commonly classed as police powers is
a proposition established as definitely
as any proposition in our constitution
al history is established. The same is
true of the proposition that the new
states come into the Union on an ab
solute equality in every respect with
the original states. It is easy to Im
agine what the consternation and
amazement of the people of any one
of the original states would have been
had Congress proposed to acquire and
permanently withdraw from settlement
or private ownership 40 per cent of its
territory or to say on what terms and
conditions Its water power might be
used or employed in developing its re
sources or in prosecuting its indus
tries. To a student of our constitu
tional history it must seem little less
than astounding that the General
Government should presume to take
possession of and assume to prescribe
the terms and conditions on which
may be employed in its industries 60
per cent of the water power of a state,
and should permanently withdraw
from taxation and private acquisition
one-third of its territory.
Police Power Infrlnsjed.
It must be conceded that regulation
of the appropriation and use of water
for power purposes is an exercise of
the police power. What warrant In the
Federal Constitution can be found for
the exercise by the Federal Govern
ment of such power within a state?
Can it be reasonably contended that a
state, one-third or more of whose ter
ritory is permanently withwrawn from
taxation and settlement and over which
the General Government exercises not
only v proprietorship, but. respecting
which it exercises municipal and po
lice powers, is on an equal footing
with those states which exercise abso
lute control over all lands and power
sites witnin tneir territorial limits,
both for taxation and police reErila-
tlon? As the Supreme Court of Cali
fornia further said, in the case last
above cited:
This is meant to convev no criticism of
true conservation of natural resources. But
it is a simple declaration of a manifest fact
tnat in a state sucn as i:aiiiornia, a large
part of whose territory and whose natural
resources are taken away from state con
trol, the denial of the right of taxation on
such lands, the erection of an imperium in
lmperio, are developments of governmental
ideas not dreamed of at the time of the
adoption of the Constitution, nor at the time
of the decision of Pollard's Lessee v. Hogan.
And In the State of California the cause ox
conservation would not suffer if intrusted to
the state itself.
Court Decisions Deemed Broad.
I am not unmindful, of course, of
the fact that the Supreme Court of the
United States has held in Canfield vs.
United States, 167 U. S. 524. and in
Light v. United States. 2 20 U. S. 523.
that Congress may lawfully withdraw
and place in reserves public lands with
PLAYGROUND FROLIC IS
NEW LABOR DAY IDEA
New York Leaders in Child Welfare Take Up Move to Replace Former
Tiring Parades.
vvt v
sfT3f -.yS" e S" Ti-
THE "new Idea" for Labor day cele
brations has "caught on" in New
York. Instead of lugging: children
out tc parade and picnic in meaningless
merriment a few of the leaders in child
welfare in the metropolis have taken
up the movement to have playground
dances on Labor day.
The idea found instant favor, and the
scenes at the Battery Park and other
open-air rendezvouses In New York this
year were in marked but favorable con
trast to former Labor day festivities.
The programmes had a meaning and
an attraction, it was found, not char
acterizing Labor day events of former
years. The children celebrated by dan
cing in the parks and at the public
playgrounds. The celebration in each
section of the city was made appro
priate to its surroundings. Thus the
children in the Fort Washington sec
tion daaced in colonial dress, while
those who danced in Battery Park. J
which faces the bay, were dressed as
sailor lads and lasses.
The idea will be carried out on a.
larger scale next year.
Gresliam High School Completed.
GRESHAM, Or., Sept. 18. (Special.)
The new Union high school building
here, built at a cost of $25,000, has
been completed and is being put in
readiness for the opening of school,
September 20. The building was open
to the public durins tba fair.
:' . s : " .'-,
in a state without its consent, and that
the same doctrine has the support of
other decisions of that court. I do not,
however, believe it to be entirely cer
tain that that court will adhere to the
doctrine as broadly as it has apparent
ly stated it when the question shall be
submitted to it by or in the interest of
a sovereign state. Certainly it has not
held, and it never will hold, that the
power of a state is not absolute and
supreme in the matter of regulating
the use, diversion and appropriation
of water for power purposes wholly
within its territory.
Determination of the extent of the
right or power of the General Govern
ment to create permanent reserves from
public lands is not, however, necessary
to any inquiry in which we are en
gaged. I refer thereto only to sug
gest how very far in that regard he
Government has gone in the assump
tion and exercise of powers undreamed
of in it at the time of the adoptiou of
the Constitution. But assuming, as
we must, that it Is within the powers
of the Federal Government for that
purpose permanently to withdraw front
private entry and sale any or all of its
public lands within a state without the
state's consent, it does not follow that
it has the power to acquire lands held
in private ownership within and sub
ject to taxation by a state and perma
nently or indefinitely withhold them
from taxation and state regulation and
control, without the state's consent.
Power Not Delegated.
Indeed, I affirm that it could not
do so by or with the consent of the
state, for it must look to the Consti
tution for its power to acquire and
hold land within a state, and it will
hardly be contended that the power to
acquire lands within a state for the
purpose of establishing a forest re
serve is delegated either specifically
or impliedly by that instrument.
The question, then, is, whether the
lands we are considering have be;" me
private property so unqualifiedly that
It is beyond the power of the Govern
ment to restore them to its public do
main. It is my conviction that they
have. It Is true, however, that the
court has referred this matter to
Congress, suggesting that that body
may desire to further legislate on the
subject- It may be. as stated, that the
purpose of such reference was to per
mit the Government (which can act
only through Congress) time and op
portunity to reach an adjustment with
the railroad company or to dete-mine
what steps it will take to enforce com
pliance with the terms of the grant.
We must, however, have in mind that
it may possibly be held that it is with
in the competency of Congress to pay
the railroad company its J2.50 an acre
and provide otherwise for the dis-osa!
of the lands. In such case, we v. Ill
have an active, ever-present and deep
interest in the policy "to be adopteJ We
must, therefore, determine upon, in or
der that we may advocate It the policy
which will best serve tie intereAa of
our state.
Plnn Has Obstacles.
It has been suggested that this state
should propose to pay the railroad
company its $2.50 an acre, take over
the lands, sell them and cover the sur
plus into the school fund. Were this
practicable and were it entirely cer
tain that we would realize a profit and
not a deficit, the scheme would be
quite attractive. There are, however,
too many serious obstacles to it. In
the first place, it would involve amend
ing our constitution, for as it is the
state could not, for this purpose, incur
an indebtedness in excess of $30,000.
It would require a much greater in
debtedness to handle the proposition.
It Is not, I think, entirely certain that
the voters would favor assuming such
a burden.
Then, we do not know and cannot,
without incurring great expense, as
certain, approximately even, what the
value of the lands is. It would re
quire a careful cruise and inspection
by experts to ascertain such value.
Some of the land, we know, is without
any value. Much of it is susceptible
of cultivation and therefore suitable
for homesteading, and the exercise of
that privilege should be afforded, as
nearly as practicable, without price.
We would, therefore; have to look
almost entirely td' the marketable
timbered lands for reimbursement.
What assurance have we or can we
have that these are sufficient in value
to reimburse us? Again it would seem
that the railroad company should be
made to account for the profits, it
any, it has realized by selling certain
of the lands for prices in excess of
$2.30 an acre, and the damages result-
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ing from "its sale to others than actual
settlers.
I do not believe the state should
purchase or seek the rijrht to enter
upon such litigation. The primary
and fundamental principle I would
urge is that the state should demand
that the covenants of the grant, so
far as practicable, shall be enforced.
That is, that the lands be sold to ac
tual settlers in quantities not exceed
ing 160 acres to any one person for a
price not exceeding $2.50. an acre.
I do not want any more of the soil
of this state withdrawn from its ac
tivities. I do not want any more dead
territory. We already have too much such
territory. We want home-builders
and every acre of public land suitable
for Homebuilding should be open to
settlement. Trees and forests are
well, but I prefer men and women, and v
when I can secure the one only at the
sacrifice of the other I shall not hesi
tate to employ all proper means to
provide for the latter. Hence, it
where trees are growing, men can
build homes and grow families. I
would afford them the opportunity to
do so, even at the expense of the trees.
I have heard it asserted that none, or
very little of the lands in question are
suitable for settlement. I know this
to be a mistake. Hundreds of thou
sands of these acres are capable of
cultivation and stockgrowing. I insist
that they shall be opened to those in
dustries. Many Go to Australia.
I am told that every six weeks an
Australian government-owned steam
ship sails from San Francisco loaded
with emigrants from the United States,
to settle on one of the great irriga
tion projects of- Australia, where tho
snttler gets 80 acres by paying $31 in
31 annual payments. Now I prefer to
export lumber rather than men and
women. I believe in providing, as far
as possible, cheap homes for our peo
ple. For many years I have felt and
contended that the policy observed by.
our Government respecting this matter
has been and is unduly and unneces
sarily severe and exacting asrainst' the)
settler. We have, by Irrigation, pre
pared for settlement thousands of
acres of arid lands.
Instead of throwing these open to
settlement and cultivation on terms
which will enable men who have yet
their fortunes to make to acquire
them, we have prescribed prices and
conditions which can be complied with
only by those who have no need of tho
lands. We seem to think that tha
Government must be directly compen
sated in dollars for Its expenditures
in these enterprises.
In a sense that is sound doctrine,
but It Is my conviction that when a
man goes upon -a tract of such land,
brings it to a state of cultivation ca
pable of supporting himself and his
family makes it an American home,
sustaining an American family, tho
Government has received its compen
sation and its investment has been
fully justified.
Lnndowners nianied.
I realize that as respects most of
the irrigation projects the. fault is not
so much with the Government in the
matter of prices as it is with private
landowners whose lands are within
and benefited by the projects. Tho
price demanded by the Government
for water, however, in the Umatilla
project, for instance, is from $30 to
$60 per acre. In addition to this tho
landowner demands from $125 to $200
an acre for the land. What chance has
a man, without means other than his
strong heart and earnest desire, to
build for himself and family a home
when handicapped by a burden such as
these prices impose?
The Government should reduce its
price for water, regardless of cost, and
the state should co-operate with It to
reduce to a reasonable sum the price
of the lands. But I am getting away
from the subject of the particular
lands we have under consideration.
My contention regarding them is that
we must insist on their being contin
ued in private ownership and bein?
sold, as far as possible, in accord with
the terms of the peants.
The position I have taken against
the power of the Government to re
store them to the public domain doe
not militate against its agreeing to
liberal terms for their disposal. Of
course the Government can withdraw
all restrictions respecting their alien
ation and it will surely be necessary to
modify them, because portions of the
grant are more suitable for one Indus
try than another. Some of it, while
not valuable or suitable for agricul
ture, is desirable and adaptable to
stockgrowing. but for that industry it
may be necessary for one to have
more than ISO acres. Provision should
be made therefor.
Provision for Mtnlnir Xeeded.
Much of the lands are mineral and
provision should be made for their
disposal in suitable quantities to jus
tify mining them. Other of these
lands are valuable only, or at least
chiefly, for the timber thereon, and
provision should be made for the dis
posal of such according to their value.
It therefore seems to me that wo
should Insist first and always that tho
lands must not and may not without
our consent be restored to the public
domain, but must" continue in private
ownership. Manifestly, however, all
these lands cannot and all probably,
ought not to be sold under the exist
ing provisions of the. granting acts.
I suggest that a careful classinca
tlon of the lands should be recommend
ed. Those suitable for agriculture)
and stockgrowing should be disposed
of only to actual settlers and to them
on the most favorable terms possible.
Those of a mineral character and val
uable for mining should, under proper
regulations, be disposed of for that
purpose, while such as are valuable)
chiefly for timber should be sold on
some plan designed to secure to the)
public their actual value. My personal
disposition would be to reduce tho
price of the lands suitable for actual
settlement and cultivation to the low
est possible price and advance the
price 'of such timbered lands to their
market value, making the one, so far
as possible,- supply the deficiency of
the other in the matter of paying the
railroad its $2.50 an acre.
In conclusion I earnestly urge that
we should at all times firmly and un
swervingly insist, as I believe we
rightfully may. that the Government
Is without power to alter the existing
status of these lands as taxable, revenue-producing
properties and avail
able assets in our industrial and com
mercial growth and render them non
producing, non-contributing territory,
swelling the already many times mul
tiplied millions of acres of valuable
lands now idling under the blighting
shadow of that banner of desuetude
and decay falsely termed "conserva
tion." ,
DIME TICKET WINS $3100
Boy of 2 Buys Jjucky Xuniber at
Orprtans' Picnic.
CAMBRIDGE. Ta.. Sept. 11. During
the orphans' picnic of Allegheny County,
held at Kennywood Park July 15 and
16, a ticket costing 10 cents and calling
for 10 shares of Bethlehem Steel Com
pany stock was won by Thomas Mc
Croy, a two-year-old boy. The stock
was given to the picnic by James J.
Mulvihill, a Pittsburg brewer.
A few days ago the stock certificate
was sold in this city to a banker for
$3100, at the rate of $310 a share. The
money was placed pa interest in t&e
boya name.