I THE : OREGON, SUNDAY , JOURNAL, PORTLAND, . SUNDAY MORNING.: JUNE 27, 1915.
TEXT OF SUPREME COURT DECISION IN 0,C. LAND GRANT CASE
OPINION PLACES ISSUES
INVOLVED UP TO CONGRESS
CONTENTIONS OF NO ONE
PARTY ARE SUSTAINED
- Washington, June 26. (WASHING
TON BUREAU OF THE JOUTIXAL.)
lathe opinion written by Justice Mc
Kenna ana handed down by the United
States supreme court in the O. and C,
land - errant -.case, none of the parties
to tbe ult was sustained. The court
put It up! to congress to say .bow the
land shall be disposed of. ; ;
The courts: Jeld that the railroad
company ihas an Interest of 12.60 an
aero in the lands, anJ that' congress
should take some action to protect tbe
public's interest in the . value above
that " amount. It is left to congress
to say how this shall be done, whether
the - railroad company shall be paid
outright: for the lands or whether tbe
government shall sell them and give
the railroad company lt share of the
proceeds lor permit the company to
sell therof The only restriction placed
on congress la that it must see that
the railroad rets Its $2.50 an acre.
The government sought to have the
lends forfeited entirely, but lost In
that. The interv eners who had sought
to establish claim to portions. of the
land were given no recognition by the
court, and if they have any rights
they must seek recognition of ' them
! from congress.
From the timtf the government filed
Its suit to have the land forfeited, the
'case wasj one of unusual size and ex
traordinarily voluminous record. Tbe
opinion frrltten by Justice McKenna
Is no exception, as it was the longest
opinion handed down by the court dur
ing the liast term. Over 14,000 words
-were required to write the opinion.
Of thee jSOOO words are devoted to the
opinion proper and 500 to a statement
of the case. The disposition of the
2,300,000 acres of land remaining in
the grant is still unsettled as the
court put It up to congress to say what
should b done with the land.
- The full text of the opinion Is as
follows: I
A direct and simple description of
the easel would seem to be that It
presents for Judgment a few provis
ions in kwo acts of congress which
neither of themselves nor from the
context demand much efforts of in
terpretation or construction. But the
case - has never been considered as
having that simple directness. A- bill
which occupies. pages of the rec
ord -' (exclusive of exhibits), the al
legation; of which are iterated, and
reiterated by cross complainants and
Interveners and added to, and an an
swer thajt admitted or traversed their
averments with equal volume and cir
cumstance, constituted the case for
trial. Seventeen volumes of testimony,
each of many pages, were deemed nec
essary to sustain the case as made.
It is certain, therefore, that no aver
ment has been omitted from the plead
ings; no; fact from the testimony that
has any I bearing on the case; the in
dustry ef counsel has neglected no
statute Or citation, and their ability
no corarAent 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. . .
Yet, - with- alt of the research. It may
be- jon abcount of It, the contestants
have not preserved an exact align
ment ana have shown no preference as
td'the fompaiy In which contentions
are mad p. or opposed.
Contentions of Two Parties,
v -The - government contends '- that the
provisos! We so ' designate them and
haflili0 1 refer to them, though they
Uifferifi technical language, consti
tute conditions subsequent and that by
the- alleged breaches indicated the
lands bicame forfeited to the United
States. The railroad company and
fother defendants -contend that the pro
visos constitute restrictive and unen
forceable covenants. The cross-complaints
insist that a trust was created
for- actujaX settlers and the interveners
urge thfetj the trust has the broader
scope o 1 Including all persons who
desire te make actual settlement upon
the lands. ' -
- This furious situation Is presented :
The government joins with the rail
road in opposing the contentions of
tbe cross-complainants and interven
ers. Both of the -latter unite
with the government "in contest
ing th position of' tbe railroad,
but join with the railroad against
the government's assertion of forfeit
ure. The r crosa-camplainants attack
the claim of tbe interveners, and the
state of Oregon, through its attorney
general. without definitely ta-ing sides
in the controversies, declares it to be
to the Interest of the state and express
es, the hope that the lands now with
drawn by. the railroad shall be "sub
ject to I settlement ""and improvement
ae contemplated by the provisions of
the grant, in order not only that those
vast areas of the state may be im
proved, but also that the lands may
not be withdrawn from taxation, thus
depriving the state, and especially the
18 counties in which they are situated,
of -a la rye proportion of their resources
SEE THAT
jpURVE
Do You Go to
the Movies?
, Does the "flicker' af
fect your eyes?
.if'you wear glasses
. regularly, let us &ri nd
y ou r correction int o a
: paijr j of Crookes lenses.
The color, is not conspicu
ous and you will find th
.tint cuts out the bright
lights, both in and out of r
doors. r
THOMPSON
OPTICAL INSTITUTE
09-10-11 Corbett Bldg.
. Fifth and Morrison
1
from direct taxation." - The interest
and bope expressed seem like a prayer
against the government's contentions.
There is something more in these
opposing- contentions than a ' wrangle
or medley of interests, and we are
admonished that the word of tbe pro
visos, simple 1 and- direct as they are
themselves, take on, when, they come
to be applied, ambiguous and disrep
utable meaning. ; It may be said at
the outset that if ambiguity exists
there may be argument in it against
some of the contentions. . -. - --
- Tbe 'Act la Jtevlew.
1 However, without -anticipating, let
us consider the provisos, and we re
peat them to have them Immediately
under our eyes. The first is contained
in the act of April-10, ;18. That act
was expressed to be in amendment
of tbe act of 186$ and to relieve from
the effect of the expiration of the
time ; for f ilinsr assent to the act of
1864 and to give "such filing of as
sent, if done within one year from the
passage of the" amending act., tbe
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 1866. Then came this pro
viso, which was preceded by another
not necessary to quote: "And provided
further, that the lands granted by the
act aforesaid shall be sold to actual
settlers only,. In quantities not greater
than - one quarter section to one pur
chaser, and for a price not exceeding
two dollars and fifty -cents per acre.
The act of May 4, 1S70. making the
grant to the "West Side company, pro
vides in section 4 that the lands grant
ed, excepting only such as are neces
sary for depots and other needful us
ages ' in operating the road shall
be sold by the company to actual set
tlers, the quantities and the price be
ing designated as in the act of 1669.
These, then, are the provisos which
are submitted for construction. The
contention of the government is as we
have seen, and It lies at the founda
tion of its assertion of forfeiture of
the grant, that they constitute condi
tions . subsequent.
The argument to support the conten
tion is based first on the general con
siderations that experience has dem
onstrated to the country the evils of
unrestricted grants and that the boun
ty of congress had been perverted into
means of enriching "a few financial
adventurers." and that lands granted
for national .purposes "were disposed
of In larger blocks to speculators as
well as to development cv.i parties or
ganized by officers of the railroad
companies." Informed by such ex
perience, . in substance -Is the conten
tion, and solicited by petition and
moved by the reasoning of some of
its members, congress changed its pol
icy of unqualified bounty and. while
not refusing to contribute to the aid
of great enterprises, sought to pre
vent the perversion of such aid to
selfish and personal ends and to pro
mote the development of the country
by the disposition to actual settlers
of the lands granted. And, it is in
sisted, efficient means were adopted
to secure tbe purpose by making- the
Brovlsoe conditions subsequent, with
le sanction of forfeiture for viola
tion. Supplemental Considerations Presented
These general considerations are
supplemented by a special and techni
cal argument. The provisions and
their context, it is said, show the gen
eral characteristics of conditions, that
is, they make the estate granted and
its continuance to depend upon the do
ing of something by the grantee, and
that the proviso in 'the act of 1869 Is
expressed in apt and technical words,
by the use of which, it is further con
tended, it is established by authority
that an estate upon condition is neces
sarily created. Cases are cited and
the following is quoted from page 124
of Sheppard's Touchstone:- 'That for
tne most part conditions have condi
tional words In their frontispiece and
do begin therewith; and that amongst
these words are three words that are
most proper, which in and of their own
nature and efficacy, without any addi
tion of other words of reentry in the
conclusion of the condition, do make
the estate conditional, as proviso, ita
quod, and aub conditions. . . . -But
there are other words, as st. si
contingat, and the like, that will make
an estate conditional also, 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 shall reenter, or that then
tbe estate shall be void, or the like."
And words - of such determining . ef
fect, it is urged, introduce and give
meaning to the proviso in the amend
atory act of 1869.
But it will be observed there are no
such controlling words in the provision
lor the sale to actual settlers, in the
act of May 4. 1870, tbat is. In the gT&nt
to the West side company ; and tbe
government is confronted by the rule
which it quotes that in such cases
there must -be twords of reentry" or
a declaration Vthat then the estate
shall be void, or the like." The gov
ernment, therefore, varies and relaxes
the rule it Invokes and admits that the
sense of a law or terms of an instru
ment may be found In other words
than the quoted technical ones if the
intention Is made clear.
B u dimentary Principles Involved.
It Is not neecssary to review the
cases cited respectively to sustain and
oppose the contending arguments. The
principles announced in the cases are
rudimentary and may be assumed to
be known and the final test of their
application to be the intention of the
grantor. ' '
These principles will be kept in mind
in our .consideration, of the acts of
congress involved, and. besides, that
there may be a difference in rigor be
tween public and private grants and
that this court has especially said that
railroad land grants have the command
and necessarily, therefore, the effect
of law.
The . government reinforces its con
tention, as we have seen, with what.it
considers a change of policy in legisla
tion and in effect insists that restric
tions upon the disposition of the lands
granted became more dominant in pur
pose 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 inducement to conjoint Pur
poses.., Tn the first grants to railroads
there "were, no restrictions upon the
disposition ; of the lands. They were
given aa aids to enterprise of great
magnitude and uncertain success and
which might not have succeeded under
a restrictive or qualified aid. How
ever, a change of times and conditions
brought a cbange in policy, and while
there was a definite and distinct pur
pose to aid the building ef other rail
roads, there was also the purpose to
restrict the sale of the granted lands
to actual settlers. These purposes
should be kept in 1 mind and in their
proper relation and subordination -,- -
We shall be led into error if rwe
conclude - that because the railroad is
attained it was from the beginning an
assured success and' that it was a sec
ondary 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
tbe 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; Empire was givesr a path
westward and , prosperous i common
wealths took the place of a wiliernesa.
r But such i success had not been
achieved when the grant of , 1866 was
made nor in full -measure when - the
acts of 1889 and. 1870 were passed, ana
it - may be conceded that- they - were
intended to continue and complete such
national purpose, and that it was of
the first consideration, but -the second
ary 1 purpose- was regarded and pro
vlded for in the provisions under re
view. Both purposes must be consid
ered. It may be that ; it was not ex
pected, that actual settlers would
crowd i Into "the vast unpeopled terri
tory," but the ; existence -of sucia - set
tlers at- some time must have been
contemplated.. Both purposes, .we re
peat, were to be subserved, and how
'
lr t- t"
; V ' -XT
Justlces of the United States Supreme court who handed down their opinion in the Oregon and Calif brnia land grant ' case" last week.
Standing, left to right. Justices Pitney. Van Devanter, Itamar and McReynolds. Seated, left to right,-Justices Day, McKenna, who
prepared the opinion. White,
to be subserved is the problem of the
case. ,
forfeiture Involved nifficalties.
There is certainly a first Impression
against a forfeiture being tbe 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 post
poned or made impossible to any useful
extent by the - inaccessibility to the
lands. And forfeiture was, besides,
beset with many practical difficulties
as a remedy, when indeed would it be
lncured? The obligation of the pro
visos and the remedy for their breach
were, coincident. The refusal of the
demand of the first actual settler (if
there could be such without the con
sent of the railroad) or of the first ap
plicant for Settlement would subvert
the scheme of the acts of congress. It
cannot be that the grants wer 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 con
jecture of what might have occured.
but which did not, and yet to construe
a statute we must realize its Induce
ments and alms, solving disputes about
them by a consideration of what might
accomplish or defeat such aims. The
acts under review conferred rights as
well as imposed obligations, and it
could not have been intended that the
latter Should be so enforced as to de
feat the former. We have given an in
stance of how this might be done by
regarding the provisos as conditions
subsequent. Another instance may be
given. In its argument at bar the gov
ernment insisted that It was tbe duty
of the railroad company to have pro
vided the machinery for settlement,
and by "optional sales, guarded by pro
bations! occupation of the lands, to
demonstrate not --only initial, but the
continued good faith of settlers, and
that the omission to do so was of it
self a breach of the provisos and in
curred a forfeiture of the grants,: But
when did such obligation attach? Be
fore or after the construction of the
road construction in sections or com-
filetely? The contention encounters
he government's admission that there
was no obligation imposed upon-the
railroad to sell. And we have the curi
ous situation (which is made something-
of by crocs-complaints and inter
veners in opposition to the .govern
ment's contention) of the right of set
tlers to buy, but no obligation on the,
railroad to sell, and yet a duty of pro
viding for sales under an extreme and
drastic penalty. We may repeat the
question, Might not such consequences
have ended the enterprise, making It
and its great purpose subordinate to
local settlement? Indeed, might not
both have been defeated by the inver
sion of their purpose? , . , '
Bexnedies for Tiolatioa Considered.
The omission to institute a plan of
settlement and sale is not alleged in
the bill as a breach of the proviso. The
first breach alleged is the trust deed
to Stephen T. Gage, and the next the
trust deed to the Union - Trust Com
pany. But these deeds manifestly
were but forms of security, even if
they went too ur and were not Dinn
ing to the extent of their excess. The
government admits that the grants
were intended 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 Its attempt i to comply with all
the provisions of the act as well as
with the provisos. If it failed to com
plete the road within the time re
quired the granting act was to become
"null and void," upon, which we shall
Presently comment). If it made ef
orts 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 solu
tion Of perplexing; difficulties or the
conjecture of possible contingencies. It
will be- observed that there was an
explicit provision, in - the act of 188S
that upon the failure of the company
to file assent, to the act and to com
plete the road as and within the time
required, the act should "be null and
void" and the lands not patented at
the time - of such : failure " should . "re
vert to the United States." And it
was provided that- if the road should
not be "kept, in repair and fit for
use," congress by- legislation1 might
put tbe same in tbat condition and
repay its expenditures from the road's
income or fix pecuniary responsibility
upon the company-not exceeding the
value of the lands .granted, - ' - -
Congress, therefore, had under con
sideration remedies for violations of
the provisions of the act and adjusted
them according to what it considered
the exigency. As a penalty for not
completing the-; road .,- as prescribed
congress declared nly for a' rever
sion of the lands' not then patented:
for jiot maintaining it in repair and
use congress reserved the right tem
porarily to sequester the road; and yet
for a violation -of the provisions for
sale to settlers it is urged that con
gress condemned to forfeiture not only
the lands then unpatented, but those
patented. ; Maris the difference. Was
non-completion of - the ; road of less
consequence than settlement along its
line? not necessarily complete . set
tlement. but any-, settlement the re
fusal, it mignt -oe or. tne acceptance
of. a single offer.' of settlement, or
even. ' as it is contended, of making
provision ; " for - settlement, being - of
greater conseqtrence- and denounced
by more severe penalty : than the de
clared conditions, that Is, - assent ; to
the act, completion of the -road and
its maintenance. This is difficult, if
not impossible., to believe. - i t -.v.
Conditions Construed as Covenants.
It -appears. ; therefore, -that the acts
of congress have no such certainty as
to establish forfeiture of the grants
as their sanction, nor necessity -for it
tn', secure the accomplishment Of tbeir
purposes either of. the construction
of the road or sale to actual settlers
and fw 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 con
dition the courts wilt, incline against
the latter construction Indeed, always
construe clauses tn aeeas as covenants
chief justice. Holmes and Hughes.
PLAN WOULD
GIVE STATE SALE
OF LAND GRANT
Continued From Page One.)
in the lands over and above the $2.50
an acre value. The total value of the
lands is estimated at $40,000,000 ' to
860.000,000, while the equity of the
railroad company . is less than
$6,000,000. 1
State Should Buy Xtaads. I
Briefly. Mr. West recommends that
the state propose to congress that Ore
gon buy r the lands for a sum not great
er thap the difference between j the
amount the lands would bring at 82.50
an acre and the net profit the railroad
company has already received from
them; that the agricultural lands be
thrown open to .settlement at practi
cally no cost to actual settlers; that
the timber be sold' to the highest bid
der; the non-agricultural lands be held
for reforestation; that the proceeds
from the sale of land and timber go
into the common school fund.
It is estimated there are 70,000,000,
000 feet of timber on the lands, which
would bring to the -state over 835,
000,000. i -
. "As the court gave congerss only six
months in which to take action: for
the disposition of the lands, it means
that congress must take up the matter
early in the session." said Mr. West.
It also makes it urgent for Oregon.
if the state is to have any proposition
to present, to outline Its plan and let
the whole state get behind lt.n
He pointed out that whether Oregon
is ready with a definite proposition
when congress opens or not. It can be
depended tpon that those conservation
ists who would like to have the lands
thrown Into a reserve will be on hand
urging congress to take such action.
, Opposed to Beserve Plan.
"If Oregon is there with Its proposi
tion to buy the lands," he said, "the
worst that can .happen will be a com
promise. . But unless the state has a
proposition, backed up by the united
support' of the state, we will have to
compromise on the reservists' proposi
tion.- - ,- - . j
"It would not be necessary for- the
legislature to appropriate; any money
for the purpose now, but It should by
resolution or a bill give authority -for
the presentation of an official propo
sition from the state, carrying assur
ance that the state would back up the
proposition with; the necessary money
when needed." "--.- -I
He pointed out also that with such
a large amount as would accrue. to the
school fund, if the state -procured the
lands. It would be a splendid thing .to
place a portion of the money in-a re
volving fund for the development of Jr
rigation projects, in the state. ; "
rather than as conditions.- if it is pos
sible to do so. 2 Washburn on Real
Property, 4. And this because rtbey
are clauses of contingency on the happening-
of which the - estates granted
may be defeated." And it is a general
principle that court of equity is re
luctant to (tome authorities say never
will) lend Its aid to enforce a forfeit-;
ure. - ' .-- .
By this conclusion do we leave the
provisos meaningless and the govern
ment without-remedy for tbeir viola
tion? There is no argument in a nega
tive answer. .From, the defects! of a
provision we can deduce nothing nor on
account of them substitute one of
greater efficiency. - i ' ;
But must the answer be in the nega
tive, and by rejecting the contention of
the - government are we compelled to
accept tbat of the railroad company?
or we may say- those of the. railroad
company, for tbe contentions are many,
some of which preclude tbe application
of the provisos, some of which assert
their invalidity, and others lihlit; their
application."- ' . -v-s ' -
If not first in order, at least inl more
immediate connection with the conten
tion of the government is the conten
tion that the provisos are not : condi
tions subsequent but simple covenants.
and. it is said, restrictive and negative
only, and, therefore, not enforceable.
In support of the contention all of the
uncertainties or asserted uncertainties
of the provisos are marshaled and am
plified, we can omy enumerate inem.
There is uncertainty, it is asserted, in
the legal measure of duty, therefore of
its performance for whom .to be per
formed and when; nor is the time nor
condition of ' sattlement prescribed.
whether by the standard of the jAorae
stead or preemption laws; nor by what
test or by what tribunal contests be
tween applicants to purchase are to be
determined; no compulsion of stale at
any "time, to env person, in any quanti
ty; no mutuality in the covenant; ; no
assurance that settlers will apply, ana
no obligation assumed by them. And
the conclusion is deduced that the ac
tual settlers' clauses, viewed even as
covenants.- were either impossible of
performance or -repugnant to the
grants, and. therefore, void.. ,
Jurisdiction of Court-
The arraignment ' seems very for
midable, but is it not . entirely arti
ficial? It is stipulated that prior to
1887 more than iss.owo acres or tne
granted lands were sold, nearly all
of which were sold to actual settlers.
in small Quantities. ' If the " sale of
163.000 acres of land encountered no
obstacle in the enumerated uncertain
ties, we cannot be? impressed with their
power to obstruct the sale of the bal
ance of i the lands- The demonstra-'
tion of the example would - seem, to
need no addition. But passing the ex.Icepted the act of.ISKS and amendments
ample, as it may be contended to have I thereto and "all the benefits and emo-
. '
seme explanation in the character of
the lands so disposed of, the deduc
tion from the asserted.' uncertainties
in met and overcome bv the provisos
and their explicit direction. They are,
it is true, cast - in language of limita
tion and prohibition; the sales are to
be made only to certain persons and
not exceeding a specified maximum in
quantities and prices. If the language
may be said not ' to impose "an af
firmative obligation to people the
country" it certainly imposes an obli
gation not to violate the limitations
and prohibitions when sales were
made, and it is the concession of one
of the briefs that the obligation is
enforceable, and that, even regarding
the covenant as restrictive, the "Jur
isdiction of a court of equity, upon a
breach or threatened breach of tbe
covenant, to enforce by performance
by enjoining a violation of the cov
enant cannot be doubted." Opposite
cases are cited to sustain the admis
sion, and in answer to the conten
tion of the government that it could
recover no damages for the breach and
hence had no enforceable remedy but
forefiture, it- is said: "But the juris
diction of a court of equity in such
cases does not depend upon the show
ing of damage. Indeed, the very fact
that injury is of public character and
such that no damage could be calcu
lated, is an added reason, for the in
tervention of equity." And cases are
adduced. We concur In the reasoning
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 settlement, and assert that
the evidence established that not all
of the lahds, nor Indeed the greater
part of them, have such susceptibility.
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 grants and of the limitations
upon them is general. We cannot at
tach exceptions to .it. The evil of
an attempt is manifest. The grants
must be taken as they were given.
Assent to them was required and made,
and we cannot import a different
measure of the requirement and the
assent than the language of the act
expresses. It is to be remembered
the acts are laws & well as grants
and must be given the exactness of
laws.
Provisos axe Enfordhle h Covenants,
If the provisos werel ignorantiy
adopted as they are assetted to have
been: If the actual condlUons were un
known, as is asserted; if out little of
the land was arable, most of it cov
ered with timber and valuable only for
timber and not fit or the acquisition
of homes; if a great deal of it was
nnthintr hut 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 re
served . lands; if settlers neither
crowded before nor crowded after the
railroad, 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 ob
stacles ana, iniirmiues. iney were um.
promptings and reasons for an appeal
to congress to reiax me aw; ? iui
were neither cause nor jusuiicaiton lot
violating it. Besides, we may say mat
there is controversy about all of the
asserted facts and conclusions.
rtnr conciumons. men. on ?ine con
tentions nf the government and the
railroad company are that- the pro
visos are not conditions suuseqaeot,
that thev are covenants, and enforce
able; and we pass to the other conten
tions of, the company.
It is contended 1 1) that congress
was without lawful authority on April
19, 1869, to annex a new condition, by
amendment -or otherwise, to the grant
made by tbe act of 1866 as amended
by the act of June 25. 1868 (the latter
extended the time to complete the first
and subsequent sections of the road
and the completion of the whole
road). We do not think it necessary
to follow the involutions of the argu
ment by. which, the contention- is at
tempted to be supported It is as
serted that the California & Oregon
Railway company filed its assent with
in one year and completed the first
section of 20 miles withiji two years
after the passage of the act of July
25. 1866. and that the Oregon Central
Railroad company - ast jSide- com-
?any) was not in default on April 10,
869. The assertions came very late.
Had they been made at that early
time, questions would" have been pre
sented whose solution we need not con
jecture. The West Side company pre
ceded the East Side company and on
October 10. 1866, received the designa
tion from the Oregon legislature as the
road entitled - te receive the grant of
1866. The East Side company started
its existence on April 22. 1867, and in
1868 attacked the legality of the in
corporation of the other company and
procured . the revocation . of the desig
nation of that company and the desig
nation of itself by the legislature. The
controversy for; precedence and rights
continued. . It was carried to congress
and ' the act of j Anril 10, 1869, was
passed. - Subsequently came compro
mises and tbe act of May 4, 1870. By the
latter act and in -acceptance - of its
grant - and provisions, the West - Side
company took the west - side ? of tbe
Willamette river. The East Side com
pany took the east side of the -river
and on June . 1869. by resolution, ac
cepted - the provisions of the act - of
1866 "and of all acta amendatory there
of . and upon . conditions - therein 1 spe
cified, and do hereby give our assent
and the assent of such company there
to." It was not then thought, as it Is
now' asserted. that - the - act of 1869
annexed .-new and Invalid conditions,
nor was there such assertion - after
wards, 'The East Side company, -ion
March 29, 1870, assigned its rights un
der the set of 1866 and the acta
amendatory thereof and supplemental
thereto to the present company, the
Oresron & California Railroad company.
and then dissolved.- The Oregon &.
California Railroad company accepted
the transfer and - iy resolution ac-
;
jluments therein and thereof : granted.
una upon tne terms ana - conuiuona
therein specified," and authorized the
assent to be filed in the office of the
secretary of the anterior.
It is too late to declare such formal
and repeated-action to have been un
cecessary. , Every advantage was ob
tained, and while enjoying the benefit
or ltu-tne obligations - or it cannot oe
denied; -Had - there -been an assertion
of rights against-the act , of 1869 and
had there - been ,an immediate rejec
tion of its provisions and obligations.
the questions in the present case
would, not now be submitted for so
lution. It is possible to suppose that
no patents to lands would have been
issued, or at any rate the sovern
ment's attention would have been
challenged to the assertion of rights
which it might have contested from
a position or supreme advantage.
Contention Concerning- Bales.
(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 knowl
edge of the officers of the govern
ment are adduced indeed, the knowl
edge of congress - itself ; and reciting
what was done under the grants, coun
sel say: "It is a story of mortgages
and sales, executory contracts and
conveyances and a stream of govern
ment patents flowing , in between.
These things were known of all; they
were matters of common knowledge,
notoriety, of public record: the rail
road knew them, the people knew
them, the government knew them.'
And eases are cited which, it is co.r
tended, establish that such circun-
t Lances might work an estoppel even
against the government, which, when
it appears in court, it is contended, is
bound like other suitors, and certainly
establish that for more than 40 years
m the view of the executive officer
the provisos were not conditions sub
sequent. Granting their strength in
that regard, granting they have some
strength in every regard, they have
not- controlling force, considering the
provisos as simnle covenants. AM
they cannot be asserted 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, responsibility.' The recited con
duct bad explanation and notice in the
opinions in the department of . the in
terior. They are entirely consistent
with the belief expressed by Mr. Bel
linger, then commissioner, afterwards
secretary of the interior, that their en.
lorcement was a matter for the courts,
not- for executive or legislative ac
tion. ' . '. ,. : - ,;. ;
Mr. Ballinger, in a communication to
a member of the house of representa
tives, expressed the view that "as soon
as the title vested in the company (and
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it was his view that It had vested by
the construction of the railroad). Juris
diction over the lands passed from the
executive branch of - the government,
and the enforcement of the provision
the sale of lands to actual seiners
rests with the courts, through approp
riate action by either the settlers enti
tled to purchase or bv the sovern men t.
acting -through the department of jus
tice." And a oouDt was expresses oi
tbe power of congress to compel com
pliance with the provision. This -was
the position of the department in 1907.
It was not new or sudden. It was the
repetition of the declaration of a much
earlier time. - , -. :-
In an early day of the grant 1871
a communication was addressed by tbe
thpn attorney general to the commis
sioner of the land office, accompanied
by a lettsr from tbe president of the
Kuropean - a Oregon . Land company
(this company was made -a trustee of
tbe lands granted- under the - acts of
JS and 1869 to secure a bond issue of
the company), in which it - was stated
that the board of trustees Of the com
pany, in accordance with a legal opin
ion given-to it, had ordered that per
sons who had become actual settlers
between July . 26,, 1866., and April 10.
liti. should nave-the privilege of pur
chasing according to the proviso, "but
as to alt others the company was not
legally restricted from selling on lib
eral terms, for -cash or credit, at rea
sonable rates."- A request was made
for an approval or the construction,
and that the company be authorised 'to
sell on such terms as may be reason
able and just to all parties without
any - restrictions. This - letter was
submitted to tbe then secretary of tbe
interior, Mr. Delano, who replied ;that
the proviso means just what it says,'
" that the lands be sold to actual set
tlers only, "' In the designated prices;
that the legislative intention was plain
ly to prevent the lands being held for
speculative prices or disposed of to
others than actual settlers, and tbat to
construe the - proviso as requested
would in'hlv -Judgment entirely defeat
such Intention." . 4 ;
, - Advantage Zs Ignored. - .
, It being objected tbat tbe case was
not submitted for decision or opinion,
the -secretary replied tbat , it was . so
regarded and that the opinion could not
be formally- withdrawn. He. however,
expressed willingness at any time on
application to reopen the case and to
hear all arruments which the company
might desire to present, Tbe oppor
tunity was never taken advantage or.
but the company proceeded upon Its
awn pamtructlan of tbe nrovlso.
- 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 tne department l cannot ciaim
tn licv been deceived. The views of
the department were no doubt the
views of eona-ress. and Its action and
reluctance to prejudice are exhibited
In the resolution of April 30. 108. un
der which this suit was brought. It
refused, as we have seen, to determine
peremptorily tne rights or tne unuea
sita. or to anticipate ludlclal action.
We may observe again that the acts
of congress are laws as well as grants
and have-the constancy of laws as well
as their command, and are operative
nl nhllninrv until repealed. This
comment applies to and answers all the
other contentions of the railroad com
pany based on waiver, acquiescence ana
estoppel, and even to the defense of
laches and the statute of limitations.
The laws which are urged as giving
such defense, and as taking away or
modifvinjr the remedies under review
have no application. It would extend
this opinion too much to fenter upon
their discussion. - ; - -
A word of comment may be made
upon one of the acts adduced as consti
tuting a waiver of the breaches f cov
enants, that Is-upon the act passed
August 20. 1912 (37 Stat. 320). it being
supplemental to the joint resolution of
April 30, 1908, supra. It was passed
after this suit was commenced, and
brought forward -with the other acts
by an amendment to the answer. Coun
sel assert of it substantially as al
leged 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 innocent purchasers and
these defendants In. this court, are unfit-for
settlement, snd were so unfit
for settlement and could not be sold to
actual settlers at tne time iney werr
sold by the company to such pure nan
era." ' i. ,
We have answered the contention so
far as it depends upon tbe character of
the lands. The character of the lands
furnished 'no excuse.-. It might have
justified non-action, but it did not Jus
tify antagonistic action. Moreover, the
act. while It authorized compromises
SEE
MORRISON AT FOURTH
with purchasers from the company, ex-
plicltly excluded the application of the
provision to lanaa in tne present suit.
and declared that it should create no
'rights or privileges whatever in favor
of any of the defendants therein." ami
that nothing in the act should comiono
any of the breaches of the condition
or provisions or tne 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.
Case Involves - Coatianing Covenant.
With the. proviso as conditions sub
sequent out of the way, the suit re
mains one to enforce a continuing cov
enant. It Is not a suit to vacate and
annul patents. -
(31 mere is a special contention,
given the. pretension of a separate
brief, that the "sinking fund act of
Congress of Mar 7. 1878. ratified the
transfer of the California ta Oregon
Railroad and its land in California to
the Central Pacific company, and op
erated to abrogate the 'settlers clause'
contained in the acts of April 10. IS 6 9.
and May 4. 1870." The argument to
support the contention Is that the Cen
tral Pacific Railroad company became,
with the consent of congress, the own
er of the California Oregon Railroad
(to avoid contusion this company mint
be kept distinct from' the defendant
Oregon & California Railroad) in 18 70.
and that after such transfer and date
It became Impossible for the latter
company to sell the lands for the pre
scribed price, or for any other price,
or (o cettlera in any Quantities, "for
the reason that the company had parted
with its title to tne entire grant ani
this was recognised, approved snd
validated , hv th United Ktates." The
contention seems to be directed more
to the settlers clause vieweu as a
condition subsequent than to it con
sidered 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 Is
the dare of an extreme ingenuity
against the admissions and averments
of the answers and many assertions
which the record contains of owner
ship of and dominion over the lands
by the Oregon & California company
and of their disposition of It. InJeed.
it is opposed to the whole scheme of
the suit and the defenses to it and ; to
tbe stipulation of the parties. It there
appears that after the designated date
patents were applied for and I m suet
to the Oregon A California Rallroud
company, defendant herein, for 323.
078.68 acres of land, over 163,000 acre
of which were -old by that company
to actual settlers. Indeed, all of the
activities in the administration of the
grants were those of the Oregon &
California Railroad. It made con
tracts and executed deeds for par
ticular parcels; it made trust deeds for
the whole of them; it went Into re
ceivership and emerged from It to
resume Its activities, and made reports
to congress upon which It bases the
acquiescence of the government in the
breaches of the provisos.
It Is true that there appears in the
stipulation the confusion of a state
ment that there was an amalgamation
and. consolidation of the Central Pa
cific. Western Pacific and Oregon Cen
tral railroad companies Into the Cen
tral Paclfie company and that at th
time the article of amalgamation and
consolidation were filed (June 2...
1870) the California & Oregon Rail
road company "was the owner or -11
unsold lands in California" granted bv
the act of July 25, 1866: that froi.j
the dat of filing such articles of
amalgamation and consolidation tne
Central Pacific Railroad company re
mained owner of all the lands granted
by the act of 1866 and two other acts
which made grants to the latter com
pany until 180, when what remained
unsold of tbe lands were granted to
the Central Pacific railway. But Il
ls stipulated that the statements con
cerning the - ownership and convey
ance of the lands granted bv said ac
of congress are made subject to thn
terms and provisions of said acts or
congress respectively, and all right
of the United States thereunder the
title to said lands not being an liwua
In tho suit at bar." Why theae facts
were stipulated it Is hard to gues
but It Is certain they cannot be given
effect against all other facts tlP
lated. It will be observed the tlpuU
t.Ion is concerned only with the Can-
'ornla & Oregon rauroaa, not
iefendant Oregon A California rail
road. The explanation of the govern
ment is, therefore, correct that the
Oreaon part of the grant was by the
y?nitself treated as substantially
distinct from the California part ani
that the Oregon part has always been
(Concluded on Page Seven)
LEADING
CLOTHIER