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the right to alter, amend, or repeal the act and to alter or amend the joint resolution, having due regard for the rights of the Northern Pacific and other parties. I stated repeatedly through the hearings that the rights of the Northern Pacific could not be in excess of what their fulfillment of their legislative contract with the United States had been. Undoubtedly under the Sinking Fund cases (99 U. S. 708) (p. 1488) there is a limit to the power of Congress to alter or amend, and an unjust alteration or amendment would be rejected. Manifestly, the Northern Pacific can not demand a full 100 per cent performance from the United States when the performance by the Northern Pacific has fallen far short of 100 per cent under its side of the legislative contract. In A. & P. Railroad Co. v. Mingus (165 U. S. 413) the Supreme Court said the company was not in a position to demand of the Government a strict and literal performance of its obligations when it so completely failed to meet its own. No court has ever construed the reserved right to alter or amend to the effect it may not be invoked by Congress to recover from the railroad any and all lands received by it from the United States over and above what it was entitled to receive. This reserved right to alter, amend, or repeal is of direct application to the excess acreage of the grant through Washington, the erroneous selection in the second indemnity limits by reason of the Crow Indian Reservation, the fraudulent mineral classification under the act of February 26, 1895, the Wallula overlap, and all other credits the Northern Pacific has received for acreage it was not entitled to, and otherwise.

The position of the Northern Pacific that for the lands of its grant to which it has received full and complete title that the United States may not effectuate a recovery of these lands, is unsound. In the Oregon & California cases many thousands of acres of land were in the possession of the railroad company under full and complete title, subject to enforceable covenants. Title to all of these lands was revested in the United States by act of Congress.

Any unsatisfied shortage in the acreage of the Northern Pacific land grant will contain approximately 2,400,000 acres of mineral base resulting from the classification of the lands of the grant under the act of February 26, 1895. Classifications made under this act were not made in conformity with the provisions of the law. The mineral commissioners were dominated by the Northern Pacific, and under their classifications the valuable lands of the grant passed to the company irrespective of their mineral or nonmineral content, and the valueless land turned back to the Government. The classification work was fraudulent, and the Northern Pacific was a party to the fraud, as is clearly demonstrated by the testimony of Mr. W. W. McElroy, a former employee of the Northern Pacific in connection with the classification of the lands in Idaho (p. 5150). The United States upon well-established grounds may protect itself against this fraud.

The foregoing remedies of the United States arise under the legislative contract itself and are more than ample to protect the interests of the Government if Congress wishes to invoke them. In addition thereto is the right of eminent domain, which Congress may invoke if necessary.

INDEX

Act of July 2, 1864, containing original land grant to Northern Pacific
Railroad Co., providing for the formation of the Northern Pacific under

a Federal charter and providing for first indemnity limits-----
Act of May 7, 1866, extending the time for completing the Northern
Pacific Railroad

Act of July 1, 1868, extending the time for completing the Northern
Pacific Railroad

Act of March 1, 1869, authorizing the Northern Pacific to issue bonds_-
Act of April 10, 1869, granting right of way to the Northern Pacific from
Portland, Oreg., to Puget Sound__.

Adjustment of Northern Pacific land grant under the decision of the
Supreme Court (256 U. S. 51)_.

Adjustment of second indemnity limits by Secretary of Interior thereby
excluding over 1,000,000 acres of national forest lands from con-
troversy---

Attorneys General Harmon and Moody, opinions of..

Page

5099

5100

5100

5100

5100

5103

5107, 5109
5248

Boyd cases covering 1896, reorganization of Northern Pacific_.
Branch line, Wallula to Tacoma, constructed under resolution of May 31,
1870

5178

5115

Choate, Joseph, attorney for Villard, statement that issuance of common
stock without consideration was fraud against Northern Pacific and
the United States____.

Cooke Jay, becomes member of original interests, also fiscal agent
Northern Pacific____

Cooke, Jay, has passed resolution May 31, 1870_.

5255

5187

4282, 5188

Cost of constructing the Northern Pacific Railroad and the values that
have been received from the land grant by the Northern Pacific Rail-
road Co. and its successor the Northern Pacific Railway Co----
Crow Indian Reservation and the erroneous indemnity selections that
have been made in connection therewith__
Deficiency, alleged, in the acreage of the Northern Pacific grant and the
deductions made in the said deficiency since the decision of the Su-
preme Court in 256 U. S. 51----

5268

5104, 5166

Donnelly, Charles, president of the Northern Pacific Railway Co., ref-
erence to his pamphlet entitled "The Facts About the Northern Pacific
Land Grant

5106

5179

Errors in land grant at Portland terminal, Ainsworth terminal, and in
primary limits through Montana and Idaho corrected__.
Error, lands patented to Northern Pacific in, and the values received
therefor

5112

5172

Forester's letter of January 12, 1924, in which 22 points are raised in
connection with the adjustment of the Northern Pacific land grant
Gray, H. A., financial history of the Northern Pacific Railroad Co---
Hill, James J., life of; proposed 1894 reorganization of the Northern
Pacific Railroad Co---

5104
5178

5178

History of the Northern Pacific Railroad Co., by W. F. Bailey-

5177

History, legislative, of the Northern Pacific Railroad Co------ 5185, 5220, 5279
History, financial, of the Northern Pacific Railroad Co----

5178

Heath case....

5175

Hearings before House Committee on the Public Lands

5097

Hearings before Senate Committee on Public Lands and Surveys__
Indemnity lands:

5097

Withdrawals of for national-forest purposes.

5101

Withdrawals of for Northern Pacific against settlers held in-
valid___.

5101, 5277

Indemnity lands-Continued.

Withrawal of for Gallatin National Forest and erroneous issuance
of patent to the Northern Pacific Railway Co. resulting in the de-
cision of the Supreme Court (256 U. S. 51)___.
Withdrawals of, Supreme Court decision (256 U. S. 51) defining
measure of grant and holding that indemnity lands may not be
withdrawn for governmental purposes if needed to satisfy a de-
ficiency and remanding case for further adjustment by Interior De-
partment--
Second nidemnity limits, right of Northern Pacific to make indem-
nity selections therein and adjustment by Secretary of the
Interior excluding over 1,000,000 acres of forest land from con-
troversy--

Page

5102

5103, 5105

5107, 5109

Indemnity selections made by the Northern Pacific within the in-
demnity limits of the Oregon and California grant___
Indemnity selections, failure of Northern Pacific to make indemnity
selections while lands were available---

Indemnity selections made by Northern Pacific within limits of
grant which could have been made outside of grant and deduc-
tions made therefor by the Interior Department---
Mineral indemnity selections may be made only for agricultural
lands-indemnity lands in national forests not agricultural‒‒‒‒‒‒
Vesting of title.

Kalama terminal, error at, no deduction_.

Lands of the grant owned by the Northern Pacific Railway Co. and the
Northwestern Improvement Co. and unsold as of June 30, 1925----
Mortgages:

Right of the Northern Pacific to place but one under the resolution
of May 31. 1870-----

5267

5276

5129

5142

5101

5113

5279

5222

5099, 5182

Right to mortgage specifically denied in act of July 2, 1864_.
Unauthorized mortgages placed by Northern Pacific against land
grant between 1875 and 1896__.

Jay Cooke mortgage and six additional mortgages placed by
Northern Pacific against land grant____.

Prior-lien and general-lien mortgages of the Northern Pacific
Railway Co. placed after the 1896 alleged sale of the land grant,
and to which the land grant was subjected----

5220

5179

Foreclosure of, failure of Northern Pacific to conduct bona fide sales
of land grant upon.

5235

5214, 5231

Mineral classification fraudulent and illegal in the Northern Pacific
land grant under the act of February 26, 1895, in the Coeur d'Alene,
Idaho, and Helena, Missoula, and Bozeman, Mont., land districts__
Mingus case....

National forest lands involved..

5136

5180, 5269,

5226, 5274
5098

Northern Pacific Railroad Co. and Northern Pacific Railway Co---- 5098, 5181,

5247

Northern Pacific Railroad Co. from July 2, 1864, to the reorganiza-
zation of 1875

5182

Original subscriptions to 20,075 shares of stock by Perham and
associates not bona fide___

5184

Issuance by Perham and associates of $600,000 stock apparently
without consideration___

5184

Perham sells out to J. Gregory Smith and associates__.

5185

Smith and associates attempt to obtain further legislation from
Congress

5185

Smith and associates sign the original interests agreements_-- 5183, 5186
While Smith and his associates, the original interests, acquired
nothing from Perham, they treated the stock of the Northern
Pacific all as their own__.

The original interests reimbursed themselves for the moneys ex-
pended through the Perham purchase_-_

5189, 5252

5253

Jay Cooke engaged as financial agent and the 12 original interests
increased to 18, then to 24, with 12 interests going to Cooke----
$80,000,000 of Northern Pacific stock to be issued to these 24 original
interests as fully paid-up stock.......

5253

5253

Northern Pacific Railroad Co. from July 2, 1864, to the reorganization
of 1875-Continued.

Choate characterizes original interest plan as fraud against
Northern Pacific and against the United States__

Page

5255

Cooke before becoming financial agent of the Northern Pacific de-
sires further authority from Congress to mortgage land grant and
he proceeds to get it---.

Joint resolution of May 31, 1870, passed through the efforts of Cooke
and Smith and the Northern Pacific_.
Resolution as originally introduced did not provide for restrictions
upon the sale of the lands of the grant.
Senatorial debates---

Resolution of May 31, 1870, which authorized the Northern Pacific
to mortgage the land grant; provided for the construction of the
main line into Puget Sound via the valley of the Columbia River;
provided for the construction of the branch line over the Cascade
Mountains; provided for second indemnity limits under the grant
of July 2, 1864, as well as under the resolution of May 31, 1870;
required that the granted lands not sold or disposed of, or which
remained subject to the mortgage authorized, five years after
completion of the road be opened to settlement and preemption
at a price to be paid the company not to exceed $2.50 per acre;
required that upon the foreclosure of the mortgage authorized
the land be sold at public sale in the States and territories where
situate after not less than 60 days' notice in single sections and
subdivisions thereof to the highest and best bidder.

(a) The applicability of the resolution of May 31, 1870 to the
granted lands, as construed prior to the present congres-
sional inquiry----

5187

5190

5200

5200

5100

5190

Position of Mr. Kerr, of the Northern Pacific__

5193

Position of Mr. Britton, of the Northern Pacific___

5193

Position of Northern Pacific before the Supreme Court in
152 U. S. 284_.

5194

Position of Mr. Gray, of the Northern Pacific.

5195

Position of Federal court in 1875 reorganization proceedings.
Position of Attorney General Moody--
Requirement in the Missouri division, Pend Oreille division,
general first, general second, and general third, and con-
solidated mortgages in connection with the sales of the
lands in the event of foreclosure..

[blocks in formation]

Mr. Britton's statement that the 1896 sales were made in
strict compliance with the resolution of 1870_.
(b) Senatorial debates in connection with the joint resolution__
Senator Howell's remarks showing resolution applicable to
entire grant----

5199
5200

5201

Senatorial debates digested__.

5202

The 1875 reorganization of the Northern Pacific and the illegal sale
of the land grant thereunder___.

5208

The $100,000,000 of stock divided into $51,000,000 of preferred
and $49,000,000 of common stock_

5210

Preferred stock used to retire Jay Cooke bonds___

5210

Preferred stock, illegal conversion into lands of grant east of
Missouri River___

5221, 5236

Common stock traded in on share-for-share basis_.

5210

Common stock, report on, by committee of Northern Pacific,
May 16, 1877__.

5210

Sale by Northern Pacific to reorganize Northern Pacific, of
838,852 acres of lands in violation of provisions of resolution
of 1870____

5211

Sham pleadings of Northern Pacific.

5212

Survey costs on land not paid----

5212

838,852 acres immediately redeeded by Billings to reorganize
Northern Pacific Railroad Co.---.

5214

838,852 acres paid for with old Northern Pacific bonds that have
been converted for preferred stock.

5216

Total of 3,308,899.48 acres disposed of in violation of provisions
of resolution of 1870 under 1875 reorganization_-_-

5218

Page

Northern Pacific Railroad Co. from the reorganization of 1875 to the
reorganization of 1896:

1875 plan of reorganization contemplated that Federal plan franchise
would pass, but it did not..

5219

Receiver states that original Northern Pacific Railroad Co. has
ceased to act or to be---

5219

Reorganized Northern Pacific regarded itself as different and dis-
tinct from original Northern Pacific__

5219

Congress does not recognize reorganized Northern Pacific.

5220

1875 reorganization plan whereby lands of grant converted to pre-
ferred stock illegal

5220

Division mortgages illegal.

5221

Redeed of 1882, when Northern Pacific as reorganized attempts to
get back to Federal franchise_.

5219, 5229

Stock of Northern Pacific as reorganized in 1875 not the stock of
Northern Pacific, the Federal corporation_-_-

5221

Right of Northern Pacific to place but one mortgage under resolution
of May 31, 1870__

Resolution of May 31, 1870, and right of Northern Pacific to place
but one mortgage thereunder___

5222

5222, 5228

Unauthorized mortgages placed by the Northern Pacific between
1875 and 1896

5220, 5228

Resolution of May 31, 1870, requirement therein that granted
lands be disposed of under settlement and preemption at $2.50
per acre five years after completion of road, and failure of
Northern Pacific to comply with this provision, which should
have become operative July 4, 1884---.

Northern Pacific reorganization of 1896 and the sale of the land grant
consisting of 35,000,000 acres of lands in violation of the provision of
the joint resolution of May 31, 1870__.

Hill reorganization of 1894 declared illegal in Pearsall case_.
Boyd v. Northern Pacific in connection with 1896 reorganization___
Plan of reorganization of March 16, 1896_-

J. P. Morgan & Co. reorganization managers and members of syndi-
cate__

5224

5231

5231

5231

5231

5231

5231

5231

5232

General second mortgage, general third mortgage, and consolidated
mortgage foreclosed, but Missouri division mortgage, Pend Oreille
division mortgage and general first mortgage not foreclosed_
Successor company contemplated under plan of March 16, 1896----
Britton states that lands were sold in strict conformity with require-
ments of resolution of May 31, 1870___
Name of Superior & St. Croix changed to Northern Pacific Railway
Co. and stock increased to $155,000,000 and intent to purchase land
grant and other properties of Northern Pacific Railroad Co------ 5233
Agreement of July 11, 1896, which was prior to sale of land grant,
between Morgan & Co. and Northern Pacific Railway Co. wherein
it was stated that it was the purpose of the Northern Pacific Rail-
way Co. to acquire land grant and other properties of Northern
Pacific Railroad Co--‒‒‒

5233

Prior lien bonds and general lien bonds of successor company to be
secured by land grant_.

5234

Land grant acquired by successor company, the Northern Pacific
Railway Co., and placed under its mortgages_.

5235

Land sales in 1896 sham, as they were not intended to pass lands into
hands of third persons_-

5235

Lands of grant in Dakota and Minnesota, east of the Missouri River,
not sold until later____

5235

Reorganization plan of 1875 for conversion of preferred stock into
lands of grant east of Missouri River declared illegal___
Northern Pacific Railway Co. as organized in 1896 paper company
with. no assets__

5236

5236

Land grant advertised for sale in 1896-

5237

Land grant purchased by Northern Pacific Railway Co. with old
bonds of Northern Pacific Railroad Co. which had been converted
by J. P. Morgan & Co.----

5237

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