ized (when organized under State or Territorial law), with certificate of the governor or secretary of the State or Territory, that the same is the existing law.

Third. When said law directs that the articles of association, or other papers connected with the organization, be filed with any State or Territorial officer, the certificate of such officer that the same have been filed according to law, with the date of the filing thereof.

Fourth. The official statement under seal of the proper officer that the organization has been completed; that the company is fully authorized to proceed with the construction of the road according to the existing law of the State or Territory; and that the copy of the articles filed with the Secretary of the Interior is true and correct.

Fifth. A true list, duly verified by the sworn statement of the president, under the seal of the company, showing the names and designation of its respective officers at the date of the presentation of the proofs at the department.

These may be transmitted directly to the Secretary of the Interior, or through this office, or they may be filed with the register of the land district in which the principal terminus of the road is to be located, who will forward them to this office.

II. Upon the location of any section of the line of route of its road, not exceeding twenty miles in length, the company must file with the register of the land district in which such section of the road, or the greater portion thereof, is located, a map for the approval of the Secretary of the Interior, showing the termini of such portion of the road, its length, and its route over the public lands according to the public surveys. The map must be filed within twelve months after the location of such portion of the road, if located upon surveyed lands, and, if upon unsurveyed lands, within twelve months of the survey thereof. It must bear

First. Affidavit of the chief engineer of the company (or person employed to make the survey if the company has no chief engineer) setting forth that the survey of the line of route of the company's road from to a distance of miles (giving termini and distance), was made by him (or under his direction) as chief engineer of the company (or as surveyor employed for the purpose, if such be the case), under authority of the company, on or between certain dates (giving the same), and that such survey is accurately represented on the map. If the affidavit is made by the chief engineer of the company, it must be signed by him officially.

Second. Official certificate of the president of the company attested by its secretary under its corporate seal, regarding the person signing the affidavit, either as to his being the chief engineer of the company or as to his employment by the company for the purpose of making such survey; that the survey was made under authority of the company; that the line of route so surveyed and represented by the map was adopted by the company, by resolution of its board of directors of a certain date (giving the date), as the definite location of the line of route of the company's road from a distance of miles (giving termini and distance), and that the map has been prepared to be filed for the approval of the Secretary of the Interior, in order that the company may obtain the benefits of the act of Congress approved March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States."

to

III. It will be observed that the requirements of the law regarding the filing of the proper papers and maps are conditions precedent to the obtainment of the right to construct a railroad over the public lands, or to take therefrom material, earth, stone, and timber for its construction, or to occupy them for station or other purposes. It is therefore imperative that proper steps, as pointed out in this circular, should be taken by a company, and the approval of the Secretary of the Interior obtained, prior to the construction of any part of its road or its occupancy of the public lands in any man

ner.

IV. Should the company desire to construct its road over lands prior to their survey, it may file, in manner as heretofore indicated, a map of its surveyed route, without waiting until the lands are surveyed, and, upon approval thereof, may proceed with construction, but, immediately on the survey of the lands over which the road passes, the company must also file a map showing the line of route of its road over such lands, in order that the proper notes and records for the protection of its rights may be made.

V. Upon construction of any section of the line of its road the company must file with the register of the proper land district, for transmission to this office, a map of such constructed portion of road, bearing

First. Affidavit of the chief engineer or person under whose supervision the portion of the road was constructed, that its construction was commenced on and finished on (giving dates); that the line of constructed road is accurately represented upon the map, and that it conforms to the line of located route which received the approval of the Secretary of the Interior on (giving date).

Second. Certificate of the president of the company, attested by the secretary under the corporate seal, that the portion of the road indicated by the map was actually constructed at the time as sworn to by the chief engineer of the company (or person

making the affidavit), and on the exact route shown on the map; that in its construction the road does not deviate from the line of route approved by the Secretary of the Interior, and that the company has in all respects complied with the requirements of the act of March 3, 1875, granting right of way through the public lands.

Any variation within the limits of one hundred feet from the central line of the road as located will not be considered a deviation from such line, but where, upon construction, it is found necessary to transgress the limits within which the company has right of way, the company must at once file proper map of amended route for approval.

VI. If the company desires to avail itself of the provision of the law which grants the use of "ground adjacent to the right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road," it must file for approval, in each separate instance, a plat showing, in connection with the public surveys, the surveyed limits and area of the ground desired. Such plat

must bear

First. Affidavit of the chief engineer or surveyor by whom or under whose supervision the survey was made, to the effect that the plat accurately represents the surveyed limits and area of the grounds required by the company for station or other purposes, under the law (stating the purposes), in (giving section, township, range, and State or Territory); that the company has occupied no other grounds for station or other similar purposes upon public lands within ten miles of the grounds designated on the plat, and that, in his belief, the grounds so represented are actually and to their entire extent required by the company for the necessary uses contemplated by law.

Second. Certificate of the president of the company, attested by the secretary under the corporate seal, that the survey of the tract represented on the plat was made under authority and by direction of the company by or under supervision of its chief engineer (or person making the survey), whose affidavit is attached; that such survey accurately represents the grounds actually and to their entire extent required by the company for station (or other) purposes in (giving section, township, range, State or Territory), allowed by the provisions of the act of Congress, approved March 3, 1875, granting to railroads the right of way through the public lands; that the company has no station or other grounds upon public lands within a distance of ten miles from the grounds represented on the plat; and that the company, by resolution of its board of directors of a certain date (giving the date), directed the proper officers to present the plat for the approval of the Secretary of the Interior in order that the company may obtain the use of the grounds under the law above referred to.

VII. Registers at the various land offices are directed to require that such papers and maps herein referred to as may be filed with them for transmission to this office shall conform to these regulations. Where differences of opinion may arise between themselves and the persons filing papers, respecting the proper construction of these requirements, the papers may be transmitted with letter stating the differing opinions.

They are also instructed, in any case where information is received by them of the construction of railroads within their districts, of the rights of which they have no official knowledge, to promptly advise this office of the facts in order that proper information or directions in the matter may be given them.

Approved.

MARCH 22, 1878.

J. A. WILLIAMSON.

Commissioner.

C. SCHURZ, Secretary of the Interior.

Payment for surveys of railroad lands.-The sundry civil appropriation act of July 31, 1876 (19 Stat., p. 121), contains the requirement

That before any land granted to any railroad company by the United States shall be conveyed to such company, or any persons entitled thereto under any of the acts incorporating or relating to said company, unless such company is exempted by law from the payment of such cost, there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same by the said company or persons in interest.

This enactment, buried in an appropriation bill, escaped notice, and was not brought to my attention until a short time ago, since which no patents for lands, liable to such costs, have issued.

The question of exemption from payment of such costs is now before the department for consideration and action.

Railroad grants lapsed by reason of non-completion of roads.-In my last report I submitted a list of railroad grants which had expired by

limitation, the roads for whose benefit they were made not having been constructed within the period prescribed by law, recommending that the attention of Congress be specially called to the subject, and that legislation be urged looking either to the enforcement of the forfeiture of the grants or extending the time for the completion of the roads. At the last session of Congress the effect of calling attention to the matter was shown by the introduction of various bills looking toward enforcement of the forfeiture, one (H. R. 3544) being reported by the House Committee on Public Lands as a substitute for others.

I have the honor to renew the recommendations on the subject, and earnestly hope that legislative action will speedily be taken, either for the relief of the corporations or the restoration of the lands to market. During the fiscal year just closed no grants have lapsed.

Proofs of the construction of the Alabama and Florida, and Alabama and Chattanooga Railroads, the grants for which were last year reported as lapsed because of the non-completion of the roads within the periods prescribed by law, have been furnished, and those grants are consequently omitted from the list. The Southern Minnesota Railroad grant, left out by oversight from last year's report, is now included. (List attached on page 184.)

The Little Rock and Fort Smith grant was also reported as lapsed, but it has been ascertained that maps of constructed road had been filed in the department, showing the completion of the road within the time, but not in the place and manner prescribed by law.

Clerical force.-In no part of the office is the want of adequate clerical force more felt than in this division. Including the chief of division, there are now only twelve persons assigned to duties at which twenty could be, and at times have been, profitably employed. Nearly a thousand ex parte cases alone have been received since the close of the fiscal year, all of which are unacted on, making over 1,900 such cases on hand and untouched save to docket them.

There are nearly 2,400 ex parte cases and over 1,000 contested cases yet remaining open, action on which is retarded by the want of clerical force to perform the work. When to this work are added the readjustment of grants under the Osage ceded lands decisions; the examinations, &c., necessary to give proper effect to the Newhall-Sanger decision, and the correspondence, already large, superinduced by the Dudymott decision, it must be apparent to all that the number of clerks is entirely insufficient to properly keep up even the current portion of it, to say nothing of bringing up arrears.

I submit in full the following decisions affecting railroad grants: The act of Congress approved April 21, 1876, is purely a remedial statute, and should therefore be liberally construed. The words "pre-emption and homestead entries" refer to settlements in good faith by qualified persons with a view to entering the lands under the provisions of the pre-emption and homestead laws as soon as they were surveyed and came regularly into market.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., October 12, 1877.

SIR: I have considered the case of M. C. Streeter vs. The Missouri, Kansas and Texas Railroad Company, involving lots 3, 4, and 5, section 7, township 35 south, range 23 east, Independence, Kans., on appeal from your decision of October 26, 1876, adverse to the railroad company.

The township plat was filed in the local land office June 15, 1869.

This land is within the ten-mile limits of the grant of July 26, 1866, to aid in the construction of said road, the right of which is held to have attached on the date of filing a map of its definite location January 7, 1868. The notice of the withdrawal of these lands for the benefit of said road was received at the local land office October 20, 1869. M. C. Streeter filed declaratory statement 3226 for said land January 20, 1870, alleging settlement October 25, 1868, and made final proof and offered to pay for the

same July 11, 1872, but his application was refused by the local officers because his settlement was made subsequent to the definite location of said road.

This decision of the local officers was affirmed by your predecessor, Commissioner Drummond, and subsequently became final in default of appeal.

On June 19, 1876, counsel for Streeter made application to have his entry reinstated and passed to patent under the provisions of the first section of an act of Congress approved April 21, 1876, entitled "An act to confirm pre-emption and homestead entries of public lands within the limits of railroad grants in cases where such entries have been made under the regulations of the Land Department." You decided that the defects in Mr. Streeter's claim were cured by the act above referred to, and held it for reinstatement, and the railroad company has appealed from your decision.

The section of this act relied upon to give validity to Mr. Streeter's entry is in the following language, viz: "That all pre-emption and homestead entries, or entries in compliance with any law of the United States of the public lands, made in good faith by actual settlers upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto."

From the facts before stated, it will be seen that Mr. Streeter made his settlement before this land was surveyed and before it was withdrawn for railroad purposes, and before the road was built, but after the right of the road attached; and as his right must depend upon the construction to be placed upon the section of the act above quoted, it is of primary importance that the reasons which induced Congress to pass the act should be inquired into in order to fix with certainty its character and determine what legal rules should govern its construction. An examination of the debates on this act while it was pending before the two houses of Congress discloses the fact that Senators and Representatives were fully advised that this department had decided, in the construction of many railroad grants, that the right of the roads by the terms of the grants had attached to the lands within the granted limits, immediately upon the filing of maps of definite location. They were informed by Senators and Representatives from the Western States and Territories, and by numerous petitions coming directly from the people, that thousands of hardy pioneers had settled upon and cultivated and improved these lands after the maps of definite location had been filed, but months before the withdrawal and before a survey had been made, by which they could distinguish the odd from the even sections; that their settlements were made in perfect good faith with a view to entering the lands under the provisions of the pre-emption and homestead laws, as soon as they came into market; that they were without notice of any railroad claim; and that they had been, or were about to be, deprived of their homes and the fruits of years of industry by the construction which had been placed upon the railroad grants.

It was this state of facts which induced Congress to pass the act now under consideration, which is a purely remedial statute, and must therefore receive a liberal construction, to the end that the remedy sought may be secured. "A remedial statute is a statute giving a party a remedy for a wrong where he has none, or a different one before." (Chitty's Bla., 87, note 25.) "Remedial statutes must be construed according to the spirit, for, in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go beyond even that which existed in the minds of those who framed the law.' (Id., p. 88, note 30, by Chitty.) In the case of Atcheson vs. Everitt (Cowper, 382), Lord Mansfield held that "in remedial cases the construction of statutes is extended to other cases within the reason and rule of them." (See, also, Coke Litt., 45, 3 Reports, 60; Dwarris, p. 665.)

That these rules of construction have received the uniform sanction of American courts and jurists is evidenced by the following authorities, namely: "Remedial statutes must be construed liberally, and where the meaning is doubtful they must be construed to extend the remedy." (White vs. Steam-Tug Mary Ann, 6 Cal., 462; Cullerton rs. Mead, 22 Cal., 95; Jackson vs. Warren, 32 Ill., 331.))

"In construing a remedial statute which has for its end the promotion of important and beneficial public objects, a large construction is to be given, when it can be done without doing actual violence to its terms." (Walcott vs. Pond, 19 Conn., 597; New Orleans vs. St. Romeo, 9 La., 573.)

"A remedial statute must be so construed as to correct the mischief at which it is aimed. Its policy, when evident, must be respected and enforced." (Fox vs. Sloo, 10 La., 11; Fox vs. New Orleans, 12 Id., 154.)

Remedial statutes are to be so construed, if possible, as to suppress the mischief and advance the remedy. (Davenport vs. Barnes, 2 N. J. L. (1 Penn.), 211; Wilber vs. Paine, 1 Ohio, 256; Pancost vs. Ruffin, Id., 385; Lessee vs. Burgett, Id., 481; McCor

mick vs. Alexander, 2 Id., 74; Franklin vs. Franklin, 1 Md. Ch., 342.) Mr. Streeter settled on said tract before the withdrawal, but did not file his declaratory statement until some months after that time, and the only point to be considered is, whether the words of the statute, viz, "that all pre-emption and homestead entries

to the time when notice of the withdrawal

office," can be held to include his claim.

*

*
*

*

prior

was received at the local land

There can be no doubt that it was the intention of Congress to afford relief to all persons who had settled on this class of lands after the filing of maps of definite location, but before notice of withdrawal was received at the local office. The words "public lands” presupposed that the lands are public for the purpose of the act; and the words "pre-emption and homestead entries," in the special sense in which they are used, refer to settlements made in good faith, by persons possessing the requisite legal qualification, with a view to entering the lands under the provisions of the pre-emption and homestead laws, whenever they were surveyed and came regularly into market.

But even if this were not the rational inference to be drawn from the intent of Congress and the language used, I should be constrained to reinstate Mr. Streeter's claim, because it comes within the reason of the rule which would require me, in the construction of doubtful language in a statute of this character, to suppress the mischief and advance the remedy by going even beyond "that which existed in the minds of those who framed the law."

It is no part of my duty to pass upon the constitutionality of this act, or to question its validity, as that is a matter coming exclusively within the jurisdiction of the courts; and so long as it remains a law upon the statute books it will be my duty as an executive officer to see that the letter and spirit of it are enforced.

I therefore hold that Mr. Streeter's claim is cured by the first section of the act above cited, and upon payment of the purchase money a certificate to that effect will issue in the usual manner without further proof of residence, improvement, or cultivation on the land than that made July 11, 1872.

Your decision is affirmed for the reasons herein stated, and the papers transmitted with your letter of February 7, 1877, are herewith returned.

Very respectfully,

C. SCHURZ, Secretary.

The act of April 21, 1876, forms an exception to the general rule announced in Stone vs. United States (2 Wall., 525), and commands the issuance of patents for lands falling within its provisions, notwithstanding the fact that patent may have previously issued to a railroad company for the same land.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., February 7, 1878.

SIR: I have considered the application of Messrs. Britton & Gray, attorneys for the Missouri, Kansas and Texas Railroad Company, for a reconsideration of my decision of October 12, 1877, allowing M. C. Streeter to enter lots 3, 4 and 5, section 7, township 35 south, range 23 east, Independence, Kans., under the pre-emption laws, pursuant to the provisions of the first section "of an act to confirm pre-emption and homestead entries of public lands within the limits of railroad grants, in cases where such entries have been made under the regulations of the Land Department," approved April 21, 1876. This application is based on the ground that as the land in question was patented to said company on August 17, 1876, the legal title thereto has become vested, and no other patent can issue until the one outstanding is annulled and avoided by a court of competent jurisdiction; that a patent issued to Mr. Streeter under such circumstances would pass no interest in the land, and its only effect would be to cloud the title of the company.

I am of opinion that counsel have correctly stated the general rule, that a second patent should not be issued for the same land until the first is judicially avoided. This rule has received the sanction of the Supreme Court of the United States (U. S. rs. Stone, 2 Wallace, p. 525), and should be adhered to as a general rule of practice. This rule, however, is subject to exceptions, and must give way in the presence of a statute imposing the specific duty of issuing a patent.

The first section of the act under consideration furnishes an unmistakable exception to the general rule. Its language is as follows, viz:

"That all pre-emption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patent for the same shall issue to the parties entitled thereto."

The words "and patent for the same shall issue" are plain and unambiguous, and command the issuance of a patent, without the exercise of discretionary power, pro