any illegal or unauthorized acts or contracts of the company not specially referred to in them.

The basic proposition of law as expressed by Mr. Cary is applicable to the question of waiver. It is obvious that none of these acts was intended to or did go beyond the scope of the act as expressed on its face. Each one of the acts had full and complete operation in its own field. Mr. Kerr's construction of these acts, constituting a waiver of the right of the United States to declare a forfeiture by reason of the breach of the condition subsequent on the grant of the Northern Pacific Railway Co., to wit, the obligation to construct and complete its line by July 4, 1879, is, it is submitted, without merit. The forfeiture may be declared by Congress if in the light of the circumstances it decides that a forfeiture would be right and proper.

Northern Pacific selections in indemnity limits of Oregon and California grant

When the Northern Pacific was before the Supreme Court in 256 U. S. 51, it argued that the United States was without authority to withdraw lands in the indemnity limits of its grant for nationalforest purposes if these lands were needed to satisfy a deficiency in the place limits of the grant. The court accepted this proposition of law. The court did not accept the figures that were before it, but in effect remanded the case for further adjustment.

The position of the Northern Pacific in this matter was diametrically opposed to what it had done in the indemnity limits of the Oregon & California grant. It is a fact that long prior to the arguments in the case, which resulted in the decision of the Supreme Court 256 U. S. 51, that the Northern Pacific had made selections within the indemnity limits of the Oregon & California grant under the same proposition of law of which it complained when the United States withdrew indemnity lands for national-forest purposes in the Northern Pacific grant. In other words, it was complaining with one hand in the forest withdrawal case that the United States was depleting the acreage of its indemnity limits, while, with the other hand, it was doing precisely the same thing by making selections in the indemnity limits of the Oregon & California grant. It is probable that if this situation had been fully explained to the Supreme Court in the forest withdrawal case (256 U. S. 51), that much of the force of the contention made by the Northern Pacific in that case would have been lost, because of the fact that the Northern Pacific had been doing in the limits of the Oregon & California grant precisely what it complained of in connection with the action of the Federal Government in withdrawing indemnity lands of its grant. It must be true that if the Federal Government could not withdraw for its own use the indemnity lands within the Northern Pacific limits that it could not give to the Northern Pacific a right to make indemnity selections in the Oregon & California_grant and thereby deplete the acreage of the indemnity lands of the Oregon & California grant.

At page 4243 I read from the decision of Judge Wolverton, of the Federal district court in Oregon, handed down in the fall of 1925 in connection with the accounting case of the O. & C. grant,

wherein he specifically mentioned the lieu selections made by the Northern Pacific in the O. & C. grant and held that under the authority of 256 U. S. 51 the Northern Pacific was not entitled to make these selections as if the United States could not withdraw for national-forest purposes lands within the indemnity limits of the Northern Pacific grant needed to satisfy the acreage of that grant, neither could it authorize a corporation to do that which it could not do itself (p. 4244). Judge Wolverton states that there were 32,158.75 acres of indemnity selections made by the Northern Pacific in the limits of the O. & C. grant and allowed the Oregon & California compensation for these lands that had been taken from its indemnity limits by the Northern Pacific.

The Northern Pacific indemnity selections in the limits of the O. & C. grant were made under the acts of March 2, 1899, and July 1, 1898. On the basis of the figures given by Mr. Kerr at p. 425, these selections in the Oregon & California grant have been (p. 4245) to the Northern Pacific $296,956.26. All of these moneys have been illegally received by the Northern Pacific and they should be taken into consideration in the instant case.

The cost of constructing the Northern Pacific Railroad and the values received from the land grant by the Northern Pacific Railroad and its successor the Northern Pacific Railway Co.

At page 2021 of the record appears a tabulation with explanatory footnotes, which shows that the total cost of constructing the railroad of the Northern Pacific Railroad Co. and upon which the land grant attached, was $67,271,251.78.

Mr. Donnelly (p. 543) states there is a certain basis for my figures, but that they do not show the cost of the equipment. Ten million dollars, which would be high. could be added to the cost of the railroad and the figures then would be approximately $77,000,000. His statement that the United States would not have been satisfied with the railroad constructed as it was, is without merit, as the commissioners did in fact accept the railroad as having been of a quality sufficient to meet the requirements of the statute. Mr. Donnelly states that the main line has cost something in excess of $300,000,000. These are expenditures up to the present time and should not be confused with the cost of the railroad as of the time the land grant inured to it. My figures (p. 2021) as to the original cost of the construction of the Northern Pacific have never been disputed in these hearings. I know they are accurate because they were taken by me from the official reports of the Northern Pacific Railroad.

I stated (p. 15) that the gross receipts, actual and estimated, of the Northern Pacific for its land grant amounted to $136,118,533.14. Mr. Hughes (p. 1607) states that when I used these figures I was talking loosely. I observed again (p. 3589) that the cost of constructing the road was about $67,000,000. At page 3592 I gave the figures and sources thereof, showing that the Northern Pacific land grant has been worth to the company $277,000,000, and the figures were not inclusive of the value of the Forsythe coal fields.

The report of the Geological Survey, which I offered at page 4247, shows that in the Forsythe field there are 369,964,000 tons of coal recoverable by strip mining, the present method that is being

used by the Northwestern Improvement Co. operating for the Northern Pacific Railway Co.; that the known reserves from which there is recoverable coal by underground mining contain 4,636,000,000 tons. In the estimated reserves there are 6,599,770,000 tons, with possible additions of 5,519,848,000 tons. The Northern Pacific Railway Co., or its subsidiary, the Northwestern Improvement Co., own one-half of this coal field, which was obtained under the land grant. The remainder of the field is owned by the United States Government, and the Northern Pacific is working a certain quantity of these Government lands on a royalty basis in conjunction with its steam-shovel strip mining on its own lands. The Forsythe coal field is an exceedingly valuable property of the Northern Pacific Railway Co. that was obtained from the United States under the act of July 2, 1864. How much these billions of tons of coal are worth, no one knows.

The Northern Pacific has received these tremendous values from the land grant, yet it was not entitled to receive all of these values for the reason that if the lands of the grant had been disposed of in accordance with the requirements of the statute at the time of the 1875 or the 1896 reorganization instead of being sold at private sale subsequent thereto by the Northern Pacific, the receipts of the company from the sale of the lands of the grant would have been very much less.

SURVEYS

When Mr. Britton was before the House Committee, he stated that the Northern Pacific had received only approximately 4,000,000 acres of land available to the Northern Pacific at the time of the 1896 reorganization (p. 267). I showed the committee that he was wrong (p. 317) in this by reading from the official reports of the Commissioner of the General Land Office, which showed that up to June 30, 1896, there had been issued patents or there had been certified to the Northern Pacific 20,889,772.12 acres of land. The Northern Pacific had sold over 7,000,000 acres of the grant by June 30, 1889 (p. 2064). I then called to the attention of the committee the holding of the Supreme Court in the Mingus case (p. 2080) in which it was stated:"

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 construction 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. Mr. Donnelly (p. 457) stated that the United States was obligated to survey the grant and (p. 458) that the Government did not comply with this provision. He said (p. 464) that the surveys were never completed and as a consequence the indemnity belts became depleted. (But see 5276.)

Mr. Driver (p. 468) asked Mr. Donnelly to examine the act of July 15, 1870, which required the Northern Pacific to pay the cost of surveying the lands of its grant. Mr. Donnelly stated that the

Supreme Court of Minnesota had ruled that the Northern Pacific was not required to pay the cost of these surveys, but that this decision was overruled by the Supreme Court of the United States in 1882. In this he was in error; the Supreme Court decision was in 1885 and was in the case of Northern Pacific v. Traill County (115 U. S. 600). The Supreme Court in that case held that the Northern Pacific was obligated to pay the cost of surveying the lands of the grant. Mr. Donnelly says that since 1882 the company has been pressing the Government for surveys and has been on hand with money to pay for them; that up to 1899 the Northern Pacific was unsuccessful in getting any considerable amount of the lands surveyed. In this he was in error, as the records of the General Land Office show (p. 317) that in 1896, which was three years prior to 1899, there had been patented or certified to the Northern Pacific 20,899,777.12 acres. Mr. Donnelly (p. 492) said that he was not contending that the failure to survey interfered with the credit of the Northern Pacific Railroad Co. Such a contention was made by the railroad company in the Mingus case (p. 317), and the Supreme Court said (p. 318) that the failure to do this (survey) 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.

Mr. Donnelly observed (p. 496), in response to Mr. Raker's ques tion, that the Government can not be held responsible to make a survey for which the company was obligated to pay but declined to pay.

Mr. Kerr in his brief makes the following observation (p. 446) in connection with surveys:

*

There were many good reasons why Congress accepted the road, though not finished in time, and excused the company from its apparent default. One of these reasons is that the United States was always in default in respect to its obligations to the company. This was a covenant of great importance to the company, for surveys as fast as the road was built would have given the company clear legal title and to that extent would greatly have sustained its credit and would have tended to support its construction.

These statements of Mr. Kerr's are all at variance with the facts: (1) Congress itself never did accept the road and it never has excused the company from its default; (2) the United States was not always in default with respect to these obligations as to surveys; (3) failure to survey did not affect one jot or tittle the credit of the Northern Pacific, as is evidenced by the fact that the company placed seven separate and distinct mortgages against the land grant while much of the land of the grant was, as the Northern Pacific wanted it, unsurveyed.

Mr. Kerr (p. 448) states:

It would, indeed, be a graceless act if the United States, after having imposed on the company, years after its contract was made, the cost of surveys, should charge the company with results of the Government's failure to make surveys.

The act of July 15, 1870, which imposed upon the company the cost of the surveys, was passed before the Northern Pacific earned a foot of its grant. Furthermore, I will show later the Northern Pacific was the party in default in connection with the surveys and not the United States.

Opposite page 448 Mr. Kerr includes a tabulation covering the money deposited by the Northern Pacific from 1899 to 1921 in connection with the surveys. Mr. Kerr (p. 1231) states that the lands of the grant could not be sold while unsurveyed and he further states that they could not be sold while surveyed if the survey costs had not been paid by the Northern Pacific. Mr. Kerr's observations here are at variance with what was actually done under the 1875 and 1896 reorganization proceedings. The survey costs had not been paid upon the 838.852 acres sold by Cass, the receiver, to Billings for the bondholders' committee under the 1875 reorganization, which lands were immediately redeeded to the Northern Pacific Railroad Co., nor upon the 708,737.57 acres of land sold by the Northern Pacific prior to September 29, 1875. (Pp. 2661, 2663.) In the fake sales of the land grant under the 1896 reorganization proceedings whereby the Northern Pacific Railway Co. obtained the land grant of the Northern Pacific Railroad Co. millions of acres of land of varying status, to wit, unsurveyed, surveyed but unpatented, and otherwise, were disposed of.

Mr. Sinnott (p. 1381) observed that he was not clear as to the loss to the company due to the failure to survey in time, and he asked if that loss was confined to the indemnity belts or if there was a loss in the place lands due to failure to survey. Mr. Kerr stated that in the place limits if anyone would open the lands after the filing of the map of definite location he did so at his own peril.

I observed (p. 2059) that the Traill County case, requiring the Northern Pacific to pay the cost of surveying the lands of its grant was decided in 1885. I said (p. 2079) that Mr. Donnelly's observation that there was an inconsiderable quantity of the grant surveyed in 1882 was incorrect, as a check made showed that in 1879 there were actually surveyed in the limits of the Northern Pacific grant 13, 849,920 acres of land, or approximately 33% per cent of the grant had been surveyed at that time. Prior to 1885 the costs of surveying the lands of the grant had all been paid by the United States (p. 2061), and although the obligation to reimburse the United States for these costs was on the Northern Pacific from the act of July 15, 1870, but little money had been paid to the United States by the Northern Pacific (p. 3693).

I showed (p. 2063) that up to June 30, 1886, the company had received approximately 11,500,000 acres by certification or patent from the Government; that up to December 31, 1886, approximately 13,850,000 acres; (p. 2064) that up to June 30, 1889, approximately 21,227,000 acres. I observed (p. 2861) that under the decisions of the Interior Department the Northern Pacific had full power to sell the lands of the grant regardless of whether they were surveyed or unsurveyed, and it is a fact that the Northern Pacific has sold hundreds of thousands of acres of the lands of its grant while they were yet unsurveyed.

I observed (p. 2994) that the Traill County case, under which the Supreme Court said that the Northern Pacific was required to pay the costs of surveying the grant, was decided in December, 1885. The tabulation furnished by Mr. Kerr opposite page 448 shows that from 1889 to 1921 the Northern Pacific made deposits for surveys to the amount of $936,395.31. The records of the Commissioner of the General Land Office (p. 3693) show that from 1872 to 1898