to say, these very questions covered were the subject of litigation, and were decided finally by the Supreme Court in April, 1921.

Mr. BRITTON. You misunderstood me, Mr. Colton. I meant that the decision of the court in 256 U. S. merely settled the proposition that the Government could not withdraw lands within the company's indemnity limits for forestry purposes which were needed by the company in satisfaction of its grant. Mr. COLTON. I did misunderstand you.

Mr. BRITTON. That in the adjustment of the grant following that decision these questions have been raised by the Forestry Bureau as a sort of backfire to protect the 3,000,000 acres which would otherwise go to the company under that decision, but not that the court considered all these questions at all.

Now, the proposition I am making here is that there is nothing in the resolution which the two Secretaries submit to you for passage which settles any questions or enacts any legislation. It is simply an order directing the Secretary of the Interior to suspend action, and by section 2 to advise Congress of the status of this grant and recommend such action as he believes right and proper for the further adjustment thereof.

Now, there is no objection to that. The company does not object to section 2 of the resolution.

Mr. ABERNETHY. Why does it object to the first?

Mr. BRITTON. It objects to the statutory congressional suspension of action when it is not necessary.

Mr. ABERNETHY. Has not the Secretary of the Interior asked for that?

Mr. BRITTON. He does not need it.

Mr. ABERNETHY. Has he not asked for it?

Mr. BRITTON. Judge Abernethy, you know as well as I do the difficulty of securing legislation. It is perfectly easy for Congress to tell a man not to do a thing, but before that man can do it afterwards Congress has to pass another bill. Mr. ABERNETHY. Let us meet the question as it is, not as we would like to

have it.

Mr. BRITTON. All right.

Mr. ABERNETHY. Has not the Secretary of the Interior by his action and his letter, and has not the Secretary of Agriculture, and has not the President put the whole matter up to Congress? If we do not act what is going to be done about it? Now, is it not up to Congress to act? How are we going to escape that? Mr. BRITTON. According to that, every time the President sends up a recommendation to Congress you legislate it.

Mr. ABERNETHY. No; I beg your pardon. But when the department that has the power to pass upon these things, according to your contention, says conditions have arisen that I do not care to pass upon it on account of complications or account of lack of law, or any other reason, and puts it back to Congress and recommends we act, why haven't we got to act?

Mr. BRITTON. He does not put it back to Congress; he puts it right back where

it is now.

Mr. ABERNETHY. They both recommend this resolution, and so does the President.

Mr. BRITTON. And the resolution simply recommends the Secretary of the Interior to advise Congress as to the status of this grant and recommend such action as he thinks proper.

Mr. ABERNETHY. That is the first proposition.

Mr. BRITTON. There is nothing in the first except to suspend action.

The CHAIRMAN. Your proposition is to have the Secretary withhold patents on applications people have on forestry reserve?

Mr. BRITTON. That is the idea. I think that is what the forestry service wants.

The CHAIRMAN. Of course, the two secretaries and the President go beyond that, and I take it you would have no objection to a congressional inquiry into all these matters involved in the grant provided the issuance of patents was not withheld.

Mr. BRITTON. I have no objection and the company has not any objection to the widest investigation either by this committee, the Secretary of the Interior or anyone else.

The CHAIRMAN. What would you consider would be a reasonable time to be expended by Congress and the Secretary in such an investigation?

Mr. BRITTON. Well, the Secretary of the Interior was practically in the way of reaching a dicision on all 10 points when he was interrupted. The CHAIRMAN. That is, on the strict legal rights?

39564-257-PT 1————— 21

Mr. BRITTON. Well, he has a right to pass on all these.

The CHAIRMAN. Well, apart from that, what would you think would be a reasonable time for Congress and the Secretary to occupy themselves in the investigation?

Mr. WILLIAMS. In the meantime holding up the forest reserve lands as suggested.

Mr. ABERNETHY. As I understand, that is agreed to and not a live issue now. Mr. BRITTON. I am not making any concession on that.

The CHAIRMAN. I want to get Mr. Britton's view.

Mr. WILLIAMS. I would like to ask this question

The CHAIRMAN (interposing). Well, I would like to have an answer to mine. Mr. BRITTON. About the length of time?

The CHAIRMAN. Yes.

Mr. BRITTON. If the inquiry is conducted by this committee?

The CHAIRMAN. By Congress.

Mr. BRITTON. By a joint committee of Congress?

The CHAIRMAN. Possibly by a joint committee. I do not know exactly what would be done.

Mr. BRITTON. I should say that the Secretary of Interior could thresh all of these questions out and reach a concrete recommendation to Congress on legislation to carry out his views in 12 months' time. If a committee of Congress itself is going into the matter to inquire into all these details by itself I should say it would take them two or three years.

The CHAIRMAN. You would have no objection to the withholding of the issuance of patents in the meantime?

Mr. BRITTON. No; not if a definite period of time is fixed. My objection is to an indefinite period.

The CHAIRMAN. Your alarm is that if we just direct him not to issue any more patents then you will have difficulty in getting legislation through directing him to go through with the grant, I assume?

Mr. BRITTON. This thing has happened before and will happen again. When you tie up a grant of this size it requires another act of Congress to release it, and in the interim while his hands are tied innumerable questions arise. Mr. Smith has got a very valuable piece of land he has bought there, so there is every reason in the world he wants to develop and improve it; he has not his title papers; everybody says he ought to have them, but he can not get them. A town site comes along and it is tied up. You can not tell how many questions come up in the course of a month in a large grant like this that you are simply suspending for an indefinite period, like a blanket over it. To do what? Why, to do something than can be done just as well without it. That is my idea. The CHAIRMAN. You would not have any objection if this were amended to read: "It is hereby directed to withhold for a period of three or five years the issuance of any further patents under this act."

Then at the end of that time the act would reassert itself.

Mr. BRITTON. I would not have any objection, Mr. Chairman, to the second section of this resolution, that the Secretary of the Interior is hereby directed to advise Congress of the status of the Northern Pacific land grants under the various acts, recommending such action as he feels right and proper, etc., and upon such report to suspend action.

Mr. ABERNETHY. Mr. Britton, are you substantially through with your statement, or are you through?

Mr. BRITTON. Yes, sir; unless you would like to hear from me further.

The CHAIRMAN. You have nothing further to offer?

Mr. BRITTON. I would like to put in as a part of my remarks the decision of the

court in this 256 U. S., and the opinion of the Attorney General.

Mr. ABERNETHY. I make the suggestion, Mr. Chairman, in fairness to Mr. Britton and the Government, if after putting in testimony they

The CHAIRMAN (interposing). I expect to recall Mr. McGowan.

Mr. ABERNETHY. You are not going to call him this morning, are you?

The CHAIRMAN. No, sir.

Mr. ABERNETHY. I think in justice to the railroad company that if they have any other facts they want to answer Mr. McGowan, that they might be permitted to do that. I think the committee wants to get the full contentions of all the parties.

The CHAIRMAN. You are through now, Mr. Britton?

Mr. BRITTON. Yes, Mr. Chairman. I would like to put in the record, in answer to the question you asked me about the sale of Mount Rainier lands-and I told you I did not have the information-I have a telegram here that says:

Those are rights under the act of March 2, 1899-"$6.95 per acre. Total receipts, $2,587,709.14. Have no information as to the value of land relinquished under that act, as they were never examined by us, but at the time were supposed to have great value for timber and coal. Total relinquishments under that act about 449,000 acres, of which between 90,000 and 100,000 were within Mount Rainier Park; and subsequently the Secretary took away about 20,000 acres because covered by glaciers."

The CHAIRMAN. Was that gross or net?

Mr. BRITTON. This price?

The CHAIRMAN. Yes.

Mr. BRITTON. I think that is the receipts of the company.

The CHAIRMAN. The gross or net receipts?

Mr. BRITTON. I do not think they have any selling commission on them. The CHAIRMAN. The committee will stand adjourned until to-morrow morning at 10.30, and we will hear further from Mr. McGowan.

(Whereupon the committee adjourned to Saturday, March 15, 1924, at 10.30 o'clock a. m.)

COMMITTEE ON THE PUBLIC LANDS,
HOUSE OF REPRESENTATIVES,
Saturday, March 15, 1924.

The committee met at 10.30 o'clock a. m., Hon. Nicholas J. Sinnott (chairman) presiding.

The CHAIRMAN. The committee will come to order. Mr. McGowan, we will be glad to hear from you this morning.

STATEMENT OF MR. D. McGOWAN, INSPECTOR OF LANDS, UNITED STATES FOREST SERVICE

Mr. MCGOWAN. In this morning's testimony I shall attempt to discuss one or two of the matters raised by Mr. Britton in his testimony. I understood him to say that at the time of the 1895 reorganization proceedings of the Northern Pacific Railroad Co. the company at that time had received only approximately 4,000,000 acres of patented land.

I desire to call the attention of the committee to the annual report of the Commissioner of the General Land Office for 1896, pages 248 and 249, in which it appears and this is an official record that on June 30, 1896, covering the year July 1, 1895, to June 30, 1896, there had been patented and certified to the Northern Pacific Railroad Co. at that time 20,889,772.12 acres of land.

We feel that such a great discrepancy in the figures between Mr. Britton's statement of approximately 4,000,000 acres and the facts as they appear in this official document of the Commissioner of the General Land Office—that is, 20,889,772.12-should be called to the attention of the committee.

Mr. BRITTON. That was in 1896?

Mr. McGOWAN. That was June 30, 1896.

Mr. BRITTON. My testimony referred to 1895.

Mr. McGowAN. The official records of the Interior Department show that on July 1, 1895, the railroad company had approximately 8,000,000 acres of patented or certified land, and in the fiscal year ending June 30, 1896, there were patented or certified to the railroad company 12,204,026.79 acres. statement you will find, as I said before, on pages 248 and 249 of the report of the Commissioner of the General Land Office for 1896.

That

Aside from the question of fact on that point, it perhaps would be well to call to the attention of the committee the statement of the Supreme Court in Atlantic and Pacific v. Mangus (165 U. S., 417-441), in connection with the contention made in that case pertaining to the failure of the Government to survey; the statement is as follows:

"It is finally contended that the Government failed to fulfill its obligation to survey the lands, and that this was a condition precedent to its right to declare a forfeiture. This obligation is contained in the sixth section in the following language: "The President of the United States shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construc

tion of the said railroad.' Evidently the failure to do this did not prevent the company from realizing the full value of the land granted by mortgaging its road, and it is open to doubt whether it could, under any circumstances, be insisted upon as a defense to the forfeiture."

First, then, we have the question of fact on which we differ with Mr. Britton, and then we have an expression by the Supreme Court on the proposition of law. Mr. Britton in his testimony also referred to the old case of Platt v. United States, 99 U. S., 48, a case which arose under the Union Pacific grant. It is our contention that as far as the $2.50 provision in the Northern Pacific case is concerned, the Platt case is in substance overruled by the Supreme Court decision in the Oregon and California case, 238 U. S. 393, and if you gentlemen see fit to read the Platt case, I would also respectfully ask that you likewise read the Oregon and California case at the same time.

The CHAIRMAN. On what point does latter case overrule the former?

Mr. McGowAN. The Platt case involved, as I recall it now, a question with reference to the requirement of the company to dispose of certain of its lands to settlers. The Supreme Court in that case held that the primary object of the grant was to furnish the money or the means by which the money could be raised through the land grant.

The CHAIRMAN. What land grant?

Mr. McGowAN. The Union Pacific; and that the provision with reference to the disposition of the land to the settler was secondary.

In the Oregon and California case, however, with reference to a somewhat similar provision in that grant, the Supreme Court said that the two provisionsthat is, the one with reference to the disposition of the lands to the settlers and the one making provision for the grant to the railroad company-were matters of like importance and must be so considered. In other words, that the provision for the disposition of the lands to the settler was not of secondary importance. And in the Oregon and California case it proceeded to act upon that theory. This is the vital difference in the two cases.

Mr. Britton also referred to the case of Heath v. United States, reported in 38 Land Decisions, which involves a construction of the Northern Pacific grant with reference to the $2.50 sales provision.

The Heath case was decided upon the theory that the $2.50 provision in the Northern Pacific grants was a condition subsequent, and that that being true, the Interior Department could not take any action with reference to the $2.50 provision in the absence of a specific act of Congress dealing with a forfeiture provision or an act of reentry. The Heath case, I think, quotes the Platt case.

The Heath case was decided prior to the decision in the Supreme Court in the Oregon and California case, and I believe that the decision of the Supreme Court in the Oregon and California case and the very specific holding therein that the clause of the grant was not a condition subsequent, but an enforceable covenant, would have the effect of overruling the Heath case.

The CHAIRMAN. Briefly, for the benefit of the record, what is a condition subsequent, and what would follow from such a condition?

Mr. McGowAN. May I answer that question, Judge, by reading from the Oregon and California case right on that point?

The CHAIRMAN. Well, is it a condition subsequent that would justify the courts in a forfeiture?

Mr. McGOWAN. The difference there is as to the peculiar wording of the provisions of the law and the inclusion or the omission of certain words from it. The CHAIRMAN. What I want to get before the committee is the effect of a condition subsequent.

Mr. McGowAN. The effect of a condition subsequent is a provision of the law, a breach of which necessitates an act of Congress before the lands would revert.

An enforceable covenant is a provision of law which stands upon its own feet and is nothing more than a provision which is enforceable under its own wording. Mr. COLTON. A covenant running with the land?

Mr. MCGOWAN. Yes; you might call it a covenant running with the land. The CHAIRMAN. Well, the Supreme Court in the Oregon and California case said those provisions were not conditions subsequent?

Mr. McGowAN. Yes, sir; the $2.50 sales provision in the Oregon and California case, was held to be an enforceable convenant-not a condition subsequent. Mr. BRITTON. And yet they required an act of Congress to enforce them. Mr. MCGOWAN. By reason of the changed conditions, as they said in their decision, I think, Mr. Britton.

The CHAIRMAN. Were you going to read that?

Mr. McGowAN. Do you want that from the Supreme Court?

Mr. VAILE. I would like to hear it.

Mr. MCGOWAN. This is the paragraph from the Supreme Court decision on that point:

"These general considerations are supplemented by a special and technical argument. The provisos and their context, it is said, show the general characteristics of conditions; that is, they make the estate granted and its constinuance to depend upon the doing 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 contended, it is established by authority that an estate upon condition is necessarily created. Cases are cited, and the following is quoted from page 121 of Sheppard's Touchstone: 'That for the most part conditions have conditional words in their frontispiece, and do begin therewith; and that amongst these words there are three words that are most proper, which in and of their own nature and efficacy, without any addition of other words of reentry in the conclusion of the condition, do make the estate conditional, as proviso, ita quod, and sub conditione. * * But there are other words, as si, 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 the estate shall be void, or the like.' And words of such determining effect, it is urged, introduce and give meaning to the proviso in the amendatory act of 1869."

*

That is the technical definition of the condition subsequent as defined in the Supreme Court decision. Under it, the Supreme Court held the $2.50 sales provision in the O. & C. case an enforceable covenant. The same must be true of the similar clause in the N. P. grant.

Judge Raker, when I was on the stand the other day, you made inquiry of me with reference to additional requests made by the railroad company for the extension of time for the completion of the railroad.

Referring now to the history of the Northern Pacific Railroad Co. by E. V. Smalley, who was a Northern Pacific man, I find that in February, 1876, there was a bill before Congress for an extension of time; in 1877 there was another bill before Congress for an extension of time, and in 1879 and 1880 there was still a third bill before Congress for an extension of time. So these make three specific and definite requests in the way of legislation for additional time for the completion of the road, which Congress did not see fit to pass.

The CHAIRMAN. You mean there were three requests that Congress did not heed?

Mr. McGowAN. They were three bills that were introduced-three separate bills for the extension of time, and not one of them passed.

The CHAIRMAN. What is the date of the last act granting extension?

Mr. MCGOWAN. The date of the last act granting extension of time, that is, with the exception of the time limit fixed against the road from Tacoma to Portland as contained in the joint resolution of 1870, was the act of July 1, 1868 (15 Stat. 255), which appears on pages 97 and 98 of volume 1, and under which it was held that the date fixed for the completion of the road was July 4, 1879. Mr. VINSON. That is the last act, but there was also one dated May 7, 1866, which granted an extension for two years.

Mr. MCGOWAN. Well, he asked me about the last one.

Mr. VINSON. I see.

Mr. MCGOWAN. Yes, sir; you are right.

So the construction of the road after July 4, 1879, was not, at least, with the approval of any specific act of Congress authorizing it.

Yesterday Mr. Britton discussed the foreclosure proceedings of 1875 and the sale of the 838,000 acres of land. I desire to call to the attention of the committee at this time, so that it will be absolutely clear, as far as lands within the primary limits of a railroad grant are concerned, the fact that the title of the road attaches as of the date of the definite location by the construction of the road, and that a patent is not necessary to pass the title, the Supreme Court having held in so far as these land grants are concerned that a patent is only an evidence of the title. So in 1875, at the time of the foreclosure proceedings and at the time of the purported sale of the 838,000 acres of land, the records will show that within the primary limits of the grant at that time there were approximately 6,000,000 acres of land which had been surveyed and which the railroad company had earned. Patents had not been issued to this land, with the exception of the 838,000 acres.