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About The Oregon daily journal. (Portland, Or.) 1902-1972 | View Entire Issue (April 30, 1917)
THE OREGON DAILY JOURNAL, PO RTLAND, MONDAY, APRIL 30, 1917. ; SUPREM E COURTOPENS WAY TO DISTRIBUTION OF O.-C. LAND ACREAGE government for past violations dt the ; granting acts and recognised that new ; dispositions were necessary to secure . the rights that had accrued to the goy- eminent. We said that, owing to the j "conditions now existing, incident, it I may be, to the prolonged disregard of i the covenants by the railroad company, : the lands invite now more to specula tion than to settlement, and we thing. i therefore, that the railroad company : should not only be enjoined from sales i in violation of the covenants, but en Joined from any disposition of them i whatever or of the timber thereon and ' 1 from cutting end removing any of the I , - ; timber thereon, until congress shall Settlement iVast Areas in j vide by i?sution' fothedfgpsmon t , , . I In accordance with such policy as It r p. 1 in acturaance wiin sucn policy us iv TnP StaiP fit Orfinn IS be-i my deem fitting under the circum- ine oiaie ut uic&uii is uc stanceB and at thjj (tame tlme Becure to I!-. I r"!ll.. D CiY-li4 i the defendantM nil the value the srrant- lieVCU filially lU DC III OI&III jng acts conferred upon the railroads." jS. P. RAILROAD BALKED il Opinion in Litigation Over Rights of Domain Sets X7p Bala That Bars Railroad. Washington, April 30. (WASHING TON BUREAU OF THE JOURNAL.) , The supreme court opinion In ,the Ore gon & California land grant case is believed to put an end to efforts by th Southern. Pacific company to ob struct the disposition of the lands under th Chamberlain-Ferris act, which, the court says, isthe "execu tlprt of its Judgment." - j Taxes can now be paid, the classifi catibn of the lands completed, and set- Utimcnt of the agricultural tracts Koeeded up. The opinion was written by Justice M-Kentia, the California member of ' th court, who also penned the first ' decralon of the court. All the justices Joiueu in the opinion except Justice McReynolds, who did not sit . in the case because he was attorney general drring part of the time the case was pending. Interveners Disposed Of. ; The cross-complainants and inter . venors, the settlers and applicants to . du; chose, are disposed of in a foot - note which says: j "There were cross-complainants and interveners, the fwst asserting that the , provisos created trusts in favor of act ual cettlorj, and the second that the trust had the scope of including all persons who desired to make actual settlement upon the lands. The de cree of the district court and the de- cisions here, were adverse to both con r tention and this case has no further , concern with them or with those who . made them.' The firat part of th opinion con sists of a .statement of the case, a repetition of familiar history. The ' court discusses its former judgment, and. points out the essential features of District. Judge W'olverton's decree. The opinion from that point forward, em- bracing all of the decision proper, is as follcws: ' We rejected the contention of the 5 governrntnt; we rejected in part the contention of the railroad company, ; saying: ? "Our conclusions, then, on the con tentions of the government and the railroad company me that the provisos are not conditions subsequent; that they are covenants and enforcable." j sniorceaoie covenants. The design of this and its adequacy would seem to need no comment. It was Intended to be a guide to the dis trict court Indeed, a direction of the decree of the court. The decree com plied with the direction. (See South ern Oregon Co. vs. V. S., Circuit Court of Appeals, Ninth Circuit, decided Feb. 13, 1917). , Congress Taxes Action. Congress, in execution of the policy it deemed fitting under the circum stances, as expressed in our opinion, enacted what is called the Chamberlain-Ferris act. The validity of the act is challenged, and both sides invite a determination of the challenge. The validity of the law may be said not to be involved. The appeal is from the decree, and that being determined to be right, the appeal, it may be urged, is satisfied, the questions it presents decided. It, however, may be considered imtiortant in the execution of the decree, for we have seen that the triantmcr acts were laws, subject to amendment if the right ot amendment existed or accrued. There was a reservation in them of the right of amendment or repeal, and If it could not be exerted to take back what had been granted and had vested, it could be exerted to accomplish the remedy which' the court adjudged to the government for the violation by the railroad company of the provisions of the grants. It is no answer to the exertion of the power and remedy to say that the acts ot congress werfc initially complete and absolute grants. It is to be borne in mind that they carried with them cove nants to be performed and necessarily an obligation to perform them, with remedies for breaches of performance. Such was our iudtcment. as we have seen, and the Judgment was adapted to the conditions created by the breaches, and for this legislation was deemed necessary. Kailroad Brts on Vested Bights. But the railroad company says the legislation directed was to have its con sent, and that such consent "was es sential to the valid assumption or al teration of its vested rights," and that this was what this court meant when it said "that any legislation, in the nremises bv coneress should 'secure to the defendants all the value the grant ing acts conferred upon the railroads. ' We have already answered the con tentions. The railroad company by pushing to view the rights eonrerred Dy tne grant ing acts and putting out of view the wrongs committed by It, can easily build an argument upon and invoke the inviolability of vested rights; and to say that its consent was necessary to legislation is to say that it could dic tate the remedy for its wrongs, pre clude or embarrass the policy of the government. The interest that the granting acts conferred upon the railroad company was $2.50 an acre. That secured to it "all the value the granting acts con ferred" upon it was secured. It is true it had the right of sale, se lection of time and settler. If these wprA riehts. thev were also aids to the ! duty or transmuting tne tanas 10 set 0 i But how enforcable? And what wan the remedy for breaches? and breaches ' there were manv. cross and determined 1Lwf" certainly not intended to be de-',Uers: an(j the duty having been violat- elded that these breaches, with air of C(1 they became unsuited to the condi- their consequences, were to be put out . tlo'na resulting and obstructions to the ' v Tien auu lug 1ljiiuxu uuinttllj guiy enjoined against future breaches. Vet tW. in (effect, is the contention, and It Is attempted to be supported by certain language in the opinion. Before i quoting it. we may say in general that much that is cited from it must be con sidered in reierence to the controver relief which had accrued to the gov ernment. . In other words, by the conduct of the mllrnarl oomnanv the Dollcv of the gi anting acts had become impracticable of performance, and the new conditions. the land inviting more io siwuisuuu granting acts and their, provisos were l''u4Vcts This - rhfrS,triiL0nBtrUea " 0i the time of Itton and T diction df Action under them and th hrMchsii of thetn came afterward, and a consid eration of the remedies. to which the government was entitled. Keeping this comment in mind, we can more easily understand the language of the opinion In description of the grant and in re gard to the relief that was awarded the government. As to the grant, this was said and .It is much insisted on "There was a complete and absolute grant to the rail road company with power to sell, lim ited 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, 60, or 100 acres, ar any amount not exceeding 160 acres.'" "ssL limitations on B&ilroad. And we added. "It might choose the 'time of sale or its use of the grant as a means of credit, subject ultimately to the restrictions imposed"; and we may say. "restrictions imposed" to reject the contention of the railroad company that an implication of the power to mortgage the lands carried a right to sell on foreclosure, divested of the ob ligations oi ine provisos. : r? reierence io tne controver- tnan to settlement, demanded other VnJw?lc'L,J? rf .,p.re?.?n.ted' an? tbat the 1 Provision than that prescribed by the was tne aeciara our Judgment, and the Charnberlain-iPerris act is tne ex ecution of it. As Begards Union Trust Co. The Union Trust company was one of the defendants in the suit and is one of the parties here. It was heard by its own counsel at tne oar ana through brief. In the main Its argu ment is the same as that of the rail road company, vcried Bomewhat in de tail and asserts that it has not only the' rights of the railroad, but "in addition and especially, that even if it be possible for the government now to take away rights once conveyed to the railroad, it cannot take them except subject to the lien of the mortgage." So far as the rights of the trust company coincide with those of the railroad company we have considered them, and they cannot be greater than those of that company. The railroad company, it is true, could use the lands as a basis of credit, but only to the extent of its interest in them, subject to the performance of Its obligations and the power of the government to exact their performance. We were careful to observe this subordination.- We expressed the extent of the Interest that the railroad com This declares the meaning of the ' Pny received and that "it might Words Of the acta taken bv thmlv It points out the power of the railroad company and that It was "limited only as prescribed "It does not pouia out the remedy, of the government if the limit prescribed was transcended. For that we must look to other parts of the opinion. We took pains to declare that the principles of the case were "not in great compass," that circumstances had Minns the time for selling or its use of the grant as a mans of credit," but, we" also said, "subject ultimately to the restrictions Imposed." AndU. further we said, "restrictions lmnoseri to- reject the contention that an application Of the power to mort gage the lands carried a right to sell on foreclosure, divested of the obiiga tions of the Drovisos." The case was responded to as it was given "perplexity and prolixity to dis- i presented and no phase or it was omit cusslon' but had not confused the slm- teJ m presentation or response that of coneress re- i couia lniiuence us juuineuu wi wui In r in the minda of counsel, determin and urging their contentions, of second to them as laws and the neces sity of obedience to them as such, the remission of, their obligation to be ob tained '.'through appeal to congress," and not by an evasion of them or a de fiance of them. Evasions Pointed Out. The evasions and defiance we showed and the extent to which they transcend ed the policy and purpose of the gov ernment expressed in the covenants. We contrasted the requirements of the grants of & sale to an actual settler of 160 acres (maximum amount) with sales of 1000. 2000 20,000 and 45,000 acres to single purchasers, and the use of the lands for homes with their use for immediate or speculative purposes. The "relief the government was en titled to, we said, was not satisfied by preserving its rights to the lands sold, and we further said that "an injunc tion slmpl against future violations of .the covenants, or to put it another way, simply mandatory of their require ments, will not afford the measure of relief to which the facts of the" case en. title the government." Disregard of Covenants Alleged. The reason was expressed. The gov ernment alleged that more than 1000 . persons had applied to purchase lands Pie words of the acts of garded either as grants or as laws, and friar tflPV wrA hn h onH os. KAH . conferred rights quite de'finite and im- 1 what was in the mind ofthe court In pesed obligations as much so the first response iu ine "iei.uunS, . "f"' having the means of acquisition: the ,0 leaves io doubt, and that after the fullest consideration ot an mat was involved of rights and remedies the judgment was pronounced. TTse and Sale of Timber. A distinction la now attempted to be made between sale of the lands and use of them, including in the use of them the right to cut the timber upon tnem and extract minerals from them. Su-ch use, It is asserted, is a necessary incident to ownership and that such use was not intended to be taken away nor could It have been taken away by our Judgment. To answer the contentions would be mere repetition. The distinction now made between the lands and their use is but the contention uged on the first appeal and rejected that the firovlsos only applied to lands Tsusceptl ilo of actual settlement and not to tirr.ber lands. The. distinction then was between hrt lands, now between their consti tut.ng elements, and for the same rea son: To give to the railroad company and the trust company what the grant ing acts old not give, or, rather, gave fo- the purpose of transmission to act- .' settlers. Thi3 transmission becom- ng impmcticable, other disposition of the lands, including ail mat is signt from th railroad r.mr.r.i, 4 JL. i fiftd bv the word, was adjudged. mitywlth the covenants. The roml The trust company also attacks the pany. replying, said the applications 1DyaJn ,e,rr,S K 1 ,s, were not made in good faith for settle- ' stated irf the attack by a "friend of the ment. but for speculation, the lands be- I fourt." The attacks have the same lng valuable only for their timber, and 1 hasis as that which we have noticed. not peirtK in ior settlement, and fur- win. in. mr ther alleged that at no time had the lands fit for actual settlement exceed ed 300,000 acres, in widely separated tracts, and had been sold during the construction of the road, and prior to Its completion to actual settlers An the prescribed quantities and at the pre scribed price. We have seen that other sales were madejn excess of that prescribed by the statute, elhd not for settlement, at prices from $5 to $40 an acre, and that at the time the answer was filed there remained unsold over 2,000,000 acres, . the reasonable value of which was $30, 000,000. There was no Intimation that the lands did not Include the timber, and It was not only recognised, but as : serted, that the lands were more valu able for the -timber than for settlement, legislation Becommended. Our judgment took care of the sltua tlpm. It preserved the remedies of the pany are asserted to be vested and in vulatle. The contention gets a sem blance of strength from the ability of counsel. To yield to It would be in effect to declare that covenants violated are the same as covenants performed wrongs done the same as rights exer cised -and, by confounding these es sential distinctions, give to the trans gression of the law what its observ ance is alone entitled to. Cost Baling Overturned. The concluding paragraph of the opinion holds that the lower court erred in assessing $6,249.02 ' as costs against the railroad company. - The company was obliged to appeal, it says, and the usual rule'of taxing costs in favor or the' prevailing party does not hold gool when the United States is a party to the case. - Watch the windows they hold much that will inter est you ! L o ok for the Anniver sary Sale cards throughout the store! What crow ds! What enthusiasm and what buying! Portland has never before been invited to such a merchandise feast as this 67th Anniversary Sale oi the Lipman Wolfe stores and it is taking full advantage of it! Every Article Reduced Except shoes and certain contract lines, the prices of which are controlled by the manufacturers! J With the unprecedented conditions which exist today with the prices of everything soaring up up up- this event becomes more than a mere sale it takes rank with city and state propaganda" for the lessening of the high cost of living! Now to what this sale holds for you Tuesday! Every section of the store will have many new specials out Tuesday and in most cases they will be even more extra ordinary than those that caused such a furore today! On account of National Baby Week the . Ba hies ' store and the genera I price reductions we have taken there will be of intense interest to all mothers ... i r US'" s-Q IntheEconomyBasemehttherewillbefiftySTAR specials for Tuesday each one a wonder value! &x. Merit Only r if r 1 ' Ca-- Merchandise Of - - " 0 0 II I 01 .J - I 0