to lands required for the use of the company in connection with the operation of the road."

This resolution was widely published throughout the country and served as an inducement to many persons to settle upon and improve these lands in expectation of purchasing at the price stated. Under all the circumstances such a limitation is, it seems to me, but reasonable, fair, and just and should be applied to all the agricultural lands of the company west of the Missouri River with the exceptions specified, both in the original grant and the indemnity limits. At this price, by the course I shall suggest, the lands of the company will, without doubt, afford ample security for all indebtedness secured by mortgage thereon. It is also desirable that these lands should be sold only to our own citizens, or persons intending to become such-persons entitled to acquire lands under the public laws of the United States from the Government-and in small tracts. Neither should they be suffered, when earned-and I consider them earned when the coterminous road is built and accepted-to longer escape taxation, as they have in the past.

Another matter in this connection demands our consideration and appropriate relief. By its recently established tariff the company has been charging exorbitant and unjustly discriminating freights and fares on this road. To points in the eastern part of Washington Territory from the East, through rates to Portland, Oreg., several hundred miles beyond, and local rates back again, the extra carriage being a mere fiction, have been exacted, Loud protests are coming up from the people of this disfavored region against this gross injustice. This reprehensible practice should not be tolerated.

These are crying abuses, calling loudly for relief; but they do not call for the application of the remedy of the nihilist or the communist. The vested legal rights of the company, its bondholders and purchasers, must be regarded. Their equities must be respected. The speedy completion of the road must be secured. Fanaticism should be eschewed and conservatism, discrimination, and calm judgment bear sway. Care should be taken not to plunge the people into greater evils than those from which we seek to rescue them. No permanent good can come to the country from a sweeping forfeiture of these lands, the resultant bankruptcy of this company, the transfer of its road and franchises to the owners of a rival transcontinental road, and the strengthening of a more powerful and no less unscrupulous monopoly.

A remedy should be applied which is both appropriate and just—just to the company and just to the people. Because wrong has been done can not justify us in doing wrong. In homely phrase, "Two wrongs do not make one right,' and it is no less true that both the doer and receiver of a wrong suffer therefrom. As the best adapted and most effective cure for all existing ills compatible with the original purpose of the grant and of the legal and equitable rights of all concerned, and as a measure more likely to receive the favorable concurrent action of both Houses, and consequently giving better promise of needed relief, I recommend the passage of the appended bill instead of that reported by the committee.

THOMAS H. BRENTS.

A BILL To forfeit certain lands granted to the Northern Pacific Railroad Company, and to confirm the residue to said company on certain conditions

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all those certain lands granted to the Northern Pacific Railroad Company by act of Congress approved July second, eighteen hundred and sixty-four, and amendatory and supplementary acts and resolutions, lying coterminous with and adjacent to that part of the line of its proposed railroad between Wallula, in the Territory of Washington, and Portland, in the State of Oregon, are hereby declared forfeited to the United States and restored to the public domain, for breach of the conditions on which they were so granted.

SEC. 2. That all the rest and residue of the lands so granted to said company are hereby confirmed to it, its successors and assigns, on the express condition that it and they shall fully and in all respects conform to and comply with all and singular the provisions and requirements of this act and the provisions and requirements of the acts and resolutions aforesaid so far as they are not modified by or inconsistent with the provisions of this act.

SEC. 3. That said company shall henceforth construct not less than 100 miles of its railroad each year, and shall fully construct, equip, furnish, and complete

the whole of said road by July fourth, eighteen hundred and eighty-six, save and except said portion between Wallula and Portland, from the construction of which it is hereby released.

SEC. 4. That all lands hereby confirmed to said company lying coterminous with and adjacent to the constructed portion of its road shall henceforth be, and all lands coterminous with and adjacent to the unconstructed portion thereof shall, as such construction proceeds, become subject to assessment and taxation by the State, Territory, county, or municipality wherein they are or may be situate as other lands therein.

SEC. 5. That all agricultural lands so confirmed to said company which were not earned by it by the construction of its road coterminous therewith before July fourth, eighteen hundred and seventy-nine, not sold before January first, eighteen hundred and eighty-four, shall be sold by said company only to citizens of the United States or persons who shall have declared their intention to become such in quantities not exceeding 160 acres to any one person, and at a price not exceeding $2.60 per acre, with such interest on deferred payments as the laws of the State or Territory wherein the same are may allow: Provided, That this section shall not apply to coal or iron lands, nor to lands chiefly valuable for timber, nor to lands required for town sites, nor, in regions where water is scarce, to lands containing springs or other natural supply of water, where it shall be for the interest of settlers at large that such water privileges shall not be exclusively held or controlled by any individuals; nor to lands required for use in the operation of the said railroad.

SEC. 6. That said company, its successors, or assigns, shall not charge or collect, or permit to be charged or collected, greater freights or fares for transportation of property or passengers of the same class, over a shorter than over a longer portion or the whole, of its road; nor discriminate or suffer discrimination between its patrons in its charges for similar services; nor enter into or suffer to be entered into any contract, combination, or understanding, directly or indirectly, with any owner or controller of any competitive line of transportation relative to such charges, or for the pooling or sharing between them, in any manner, of any of the earnings or profits of the same, or either of them, or whereby any benefit or advantage may accrue to them or either of them, either directly or indirectly connected therewith.

SEC. 7. That the compensation chargeable for carriage of persons and property, or either, over said road, and each and every portion thereof, shall always be reasonable, and subject to regulation by Congress, in so far as such regulation may not conflict with paramount State legislation; and that until so otherwise provided, the maximum rates of such compensation shall be such as the commissioner of railroads may, under the direction of the Secretary of the Interior, from time to time, prescribe for the various classes of freights and passages, a plainly printed schedule of which shall be kept conspicuously posted in all the offices and stations of said road.

SEC. 8. That if said company, its successors or assigns, shall be guilty of a breach of the foregoing condition in respect of any of the requirements aforesaid, all lands hereby confirmed to it and remaining unsold by said company at the time of declaration of forfeiture thereof by Congress, including such as may have been sold or contracted to be sold in violation of section 5 of this act, shall thereupon revert to the United States.

SEC. 9. That any citizen of the United States, or person having declared his intention to become such, who, prior to the passage of this act, shall have settled upon or improved any of the lands mentioned in the first section of this act, with intent, in good faith, to purchase the same of said company when earned by it, shall have a prior right for three months thereafter to make a filing for the same, not exceeding 160 acres in extent, under the preemption or homestead laws of the United States, or in case he or she may not then possess such right to purchase the same of the United States, under such rules and regulations as the Secretary of the Interior may prescribe, for $1.25 an acre, and to receive a patent therefor.

SEC. 10. That Congress may, from time to time, having due regard for the rights of all persons acquired under the provisions of said acts and resolutions and of this act, add to, alter, amend, or repeal this act.

[House Report No. 1283, Forty-seventh Congress, first session]

The Committee on the Judiciary, to whom were referred sundry bills relating to land grants to railroads, have had the same under consideration, and report, as to the Northern Pacific Railroad, as follows:

The Northern Pacific Railroad Co. derives its chartered rights from the act of July 2, 1864 (13 Stat. 365). The road is to be constructed from a point on Lake Superior to Puget Sound, with a branch, via the valley of the Columbia, to a point at or near Portland, Oreg. Twenty alternate odd-numbered sections per mile on each side of the road in Territories and 10 in States were granted to the company, with a right under that and subsequent statutes to make up out of a 20-mile limit on either side all losses arising from prior disposal by the United States of lands the company would have otherwise been entitled to.

By the terms of the original act the road should have been completed July 4, 1876. By joint resolutions approved May 7, 1866 (14 Stat. 355), and July 1, 1868 (15 Stat. 255), such changes were made as to time of completion that the Secretary of the Interior, June 11, 1879, held that the effect of them was to require the completion of the road July 4, 1879. Whether this was the exact date or not, it is sufficient to say that the time for completion has now expired beyond question. Eleven hundred and eighty miles of the road have been completed. On the western side it is finished from Puget Sound to the western boundary of Montana, and on the eatern side from Lake Superior to the crossing of the Big Horn, in Montana. About 600 miles remain to be built. These figures we understand to refer to the main line.

Under the provisions of section 3 of the act of July 2, 1864, the land was granted; under those of sections 8 and 9 the conditions were imposed.

The important granting words of section 3 are as follows:

"SEC. 3. And be it further enacted, That there be, and hereby is, granted to the Northern Pacific Railroad Company * * * every alternate section of public land," etc.

The conditions are as follows, in full:

"SEC. 8. That each and every grant, right, and privilege herein are so made and given to and accepted by said Northern Pacific Railroad Company upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from the approval of this act by the President, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish, and complete the whole road by the 4th of July, Anno Domini 1876.

"SEC. 9. That the United States make the several conditioned grants herein, and that the said Northern Pacific Railroad Company accept the same, upon the further condition that if the said company make any breach of the conditions hereof and allow the same to continue for upwards of one year, then, in such case, at any time hereafter, the United States, by its Congress, may do any and all acts and things which may be needful and necessary to insure a speedy completion of the said road."

Upon this state of facts your committee are called upon to state their opinion as to the legal rights of the United States, and to advise what legislative action if any, ought to be taken.

The legal effect of the sections as quoted above is to make a present grant to the company of the lands in question, subject to the provisions and conditions stated in sections 8 and 9. The sections taken together vest in the company an estate upon condition subsequent. If section 9 had not been enacted, it would be quite clear that the estate of the company would have been determinable at the pleasure of the United States, on the happening of any one of three things: First, a failure to begin the road in two years; second, a failure in any one year to build 50 miles; and, third, a failure in 10 years to build, equip, and complete the whole road. To secure this right of forfeiture it was not necessary to mention it in the act. The words "upon condition" were the only words needed. They are as potent as if the words had been added, "and if these conditions are not fulfilled the land shall revert to the United States." But the severity of the words in section 8 Congress had a perfect right to modify. It had a right to say just what should be the effect of a breach of the conditions of the grant. It could rest its reserved rights on the words "upon condition," and then the legal effect would be to retain the right of revertiter, or it could claim that right in so many words, as was done in all the railroad grants made to States. Instead of either of these things, Congress enacted section 9, limiting and defining the effect of a breach of the conditions named in section 8. By that limitation, the sole right which remains in the United States as the present time is the right, "by its Congress, to do any and all aets which may be needful and necessary to insure the speedy completion of the road." Of course this still leaves to Congress a wide range of power, but its power is necessarily subordinate to the speedy completion of the road. If Congress deems the forfeiture of the lands needed for the speedy completion of the road, it would have a right so to forfeit the lands.

It

might give them to another company, sell them, and apply the proceeds, provided it adjudged such a course "needful and necessary to secure the speedy completion of the road."

The purposes and intention of Congress in passing the act of July 2, 1864, appear throughout all the act to be the speedy completion of the road. Every provision has that in view. All the limitations and conditions are to that end, and the limitations of time had that purpose only. Even the right to amend and repeal is subject to the same controlling desire.

Section 20 reads as follows:

SEC. 20. And be it further enacted, That the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may, at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this act.

The United States did not want back its lands. It wanted a great public thoroughfare across the continent, and it took every precaution to insure its completion.

The remaining question, therefore, for us to consider is "what is needful and necessary to insure the speedy completion of the road?"

As has already been stated, 1,180 miles of the road have been completed; 600 or less remain. Work is going on at both interior termini and on the tunnels in the heart of Montana. It appears that 150 miles were approved by President Hayes in 1880 and 325 miles by President Arthur last year. The company assert that by September, 1883, they will finish the road; that they are progressing as fast as can possibly be done. No testimony or suggestion to the contrary has been made by anyone. Your committee do not see how the transfer of the lands to another company could hasten the completion of the road, nor would it be regarded as advisable for the Government to complete the road by its own direct action. Congress would hardly regard either course as needful and necessary to insure the speedy completion of the road.

We can conceive of no legislation which would hasten the completion of the road, and therefore recommend none.

[House Report No. 1283, part 2, Forty-seventh Congress, first session]

VIEWS OF THE MINORITY

Unable to agree with the majority of the committee in its conclusions as to the legal rights of the United States as to the land grant in aid of this railroad, we submit our views.

Two questions are presented under the bill before us.

1. Is there the right of forfeiture as to all unpatented lands within the limits of the grant to this road, so that the United States may revest itself with the title thereto, as in its former estate, by declaration of forfeiture? And

2. If the right of such forfeiture is found to exist, is it policy to exercise it? Of course, the first question is purely a legal one, and, if determined in the negative, renders absolutely unnecessary any inquiry as to the second.

The eminent counsel for the railroad company have, in the elaborate brief filed with the committee, as well as in their oral arguments before it, assumed that by the acts of Congress making the land grant and the acts amendatory thereto the title to all these lands was absolute in the company; that because no power was reserved to Congress in express terms to declare a forfeiture for breach of the condition as to the time of the completion of the road, therefore no such power exists; and they also insist that, in any event, by the provisions of the ninth section of the act of July 2, 1864, the grant is irrevocably pledged to the construction of this particular road, and that by that section of the act of Congress has restricted its right and power to this: That the land or its proceeds must be appropriated to the completion of the road, irrespective of the time required for its completion.

This latter view the majority of the committee adopt, and, while not assenting to the views of the company as to the necessity of an express reservation in the granting act of the right to declare a forfeiture, vet hold that

"By that limitation (sec. 9) the sole right which remains in the United States at the present time is the right by its Congress to do any and all acts which may

be needful and necessary to insure the speedy completion of the road. All the limitations and conditions are to that end."

And conclude:

"We can conceive of no legislation which would hasten the completion of the road and therefore recommend none."

The minority do not agree with these views; we assert that the power to declare an absolute forfeiture of this land grant is in Congress and that the question of the policy of action to that end should be considered and be decided after a careful examination of existing conditions as well as past transactions, and with a broad and liberal view of what has been done under the disadvantageous surroundings of the promoting, constructing, and equipping a railroad through the unimproved section of the country traversed by this road.

The questions are important, involving the title to upward of 39,900,000 acres of land, estimated by the company to be worth $2.50 per acre, or $99,750,000. (Report of Commissioner of Railroads, 1881, p. 185.)

The legislation necessary to be noticed is as follows:

The act incorporating the company and making the grant was passed July 2, 1864 (13 Stat. 365), sections 3, 8, 9, and 20 being the only ones deemed essential to be noticed in this inquiry, and they are as follows:

"SEC. 3. And be it further enacted, That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors, and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway every alternate section of public lands, not mineral, designated by odd numbers to the amount of 20 alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and 10 alternate sections of land per mile on each side of said railroad whenever it passes through any State.

* * *

"SEC. 8. That each and every grant, right, and privilege herein are so made and given to and accepted by said Northern Pacific Railroad Company upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from the approval of this act by the President, and shall complete not less than 50 miles per year, and shall construct, equip, furnish, and complete the whole road by the 4th day of July, 1876.

"SEC. 9. That the United States make the several conditioned grants herein, and that the said Northern Pacific Railroad Company accept the same, upon the further condition that if the said company make any breach of condition hereof and allow the same to continue for upward of one year, then in such case, at any time hereafter, the United States by its Congress may do any and all acts and things which may be needful and necessary to insure a speedy completion of the said road."

"SEC. 20. And be it further enacted, That the better to accomplish the objects of this act, namely to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes. Congress may at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this act."

By joint resolutions of May 7, 1866, and July 1, 1868 (as ruled by the department), the time of the completion of the road was extended to July 1, 1879; so that absolute default has occurred so far as time is concerned.

It is perfectly clear, under the authorities, that the interest acquired by the company by the act of 1864 to the lands in question was an estate in presenti, with the conditions subsequent created by the eighth and ninth sections of the act. (R. R. Co. v. Smith, 9 Wall. 95; Schulenberg v. Harriman, 21 Wall. 60; Leavenworth, etc., R. R. Co. v. U. S., 92 W. S. 741.)

By the eighth section of the act it was distinctly asserted-

"That each and every grant, right, and privilege herein are so made and given to and accepted by said Northern Pacific Railroad Company upon and subject to the following conditions, namely: (1) That the said company shall commence the work on said road within two years from the approval of this act by the President; and (2) shall complete not less than 50 miles per year; and (3) shall construct, equip, furnish, and complete the whole road by the 4th day of July, 1876."

These are the conditions of the eighth section of the act. Nothing could be clearer than that upon a default in the performance of either of these conditions