Page images
PDF
EPUB

Hut, olen mlject to settlement and pre-emption like other lands, at a price not exceedshi mpango ware; in other words, that said lands shall revert to the publie domain ** 23**** and disposal for said company under the pre-emption laws of the United States.

.1 best het it be considered that said lands are public lands in a general or special ****nnot, in my opinion, affect the jurisdiction of your office in making sale and fumuse of the same.

At the time this grant was made the provisions of the pre-emption law were well burhayafiwwl, and in so far as said act provided that the lands granted shall be subjeet Artpleinent and pre-emption like other lands, it must be considered that Congress rotended that the same rules and regulations should be adopted in relation to the disDove and sale of waid lands as are adopted by your office in the sale of public lands wwley the pre-emption law. While it may be true that further legislation in relation My the enle of said lands might have been advisable, still I do not think it to have been miniutely necessary, except to provide for the manner in which the proceeds which slnll arise from the sale of said lands shall be paid to said company.

(trinsel for the company suggests that these lands are covered by a mortgage, exeAntall ly said company, to secure moneys borrowed in the construction of its road. If this le true, I am unable to perceive that said mortgage is any obstacle to the dispawan oo naid lands in accordance with the provisions of the granting act.

The company mortgaged such interest in the lands as it possessed, and the mortgagees w t be considered to have taken the mortgage with full knowledge of the right of the company to make the same. Aside from these considerations, however, the proVimion in the mortgage which authorizes the company to sell and dispose of the lands

Pantell, and make conveyance thereof to purchasers, which conveyance shall release the right of the mortgageey to the particular tract, will in the same manner protect Ihres pre-emptor who purchases of the government, which has authority to sell the lands ind pay the proceeds arising from such sales to the company.

The local officers of each of the land districts in which lands inuring to said company by virtue of said grant are situated, should be instructed to receive filings conditionally for said lands in tracts not exceeding one quarter section, by qualified prekuptors, and on receipt of such declaratory statements to call upon the company for a statement showing whether the lands applied for have been sold by it; and if not sold, Then the declaratory statements should be allowed subject to the applicant's showing full compliance with the pre-emption law.

If the company neglects or refuses to furnish such statement to the local officer within thirty (30) days after service of said notice, in that case they should be instructed to order a hearing, if so requested by the applicant, to determine whether much tract or tracts are subject to such filing, giving notice of the time and place when and where such hearing will be held, in some newspaper published and circulated in the county where the lands are situated, notifying said company, and any and all persona, if such there be, claiming title to said tracts under it, to appear at the lume and place mentioned to show cause why said declaratory statements should no:

Al sich hearing the applicant should be required to show that he is an actual setTin mi the land applied for, a qualified pre-emptor, and that the records of the county wie derdhm and conveyances are recorded do not show that said tracts had been solo: apelle ihm dale of the Aling of his declaratory statement, and the company or its grantee 1 Rbrw whether maid tracts applied for have been sold by it.

Ilibu ranjany or its grantee fail or refuse to appear and offer any testimony, tha Brodoge ali lw allowed under the rule that “where the subject-matter of a negativ. hapo *** les peculiarly within the knowledge of the other party, the averment i

*** me tue, unless disproved by that party.” (1 Greenleaf on Evidence, paragraph

Ito Waling returns of the moneys arising from the sale of said lands, the local officer. mely * Wheructed to keep a separate account of the lands sold and the moneys re Avaakt on secount of said company, in order that the same may be passed ta plak ..

Who was , inasmuch as it does not satisfactorily appear whether the lands ar Prodam homem sold by the company at the time Mr. Dudymott filed his declara Bandy And all den nat, you will instruct the local officers to call upon said company for 4* sal wil at det end det tuwing whether said lands had been sold by it at that time, and if it refuse A And had a tunnish such statement within thirty (30) days after the service of sai.

, As y order a hearing to determine that fact, under the rule above st's

Bodin

A vill that Ika etated your decision is reversed, and the papers transmitted wit! ju med HII Juary 22, 1078, are herewith returned. YAAN İkapetfully,

C. SCHURZ,

Secretary. 1.8MIR OF THE GENERAL LAND OFFICE.

goes to the company. The lands which the act of Congress declares shall be open to pre-emption and sale are withdrawn from pre-emption and sale by a tax-title and possession under it, and it is no answer to say that the company which might have paid the taxes gets the price paid by the settler."

In a subsequent decision (Railway Company vs. McShane, 22 Wallace, p. 461), the Supreme Court, while holding that the grounds above set forth were untenable and not sufficient reasons on which to deny the right of the State to tax the land, if the company had, in other respects, fully complied with the law (and in that respect overruling its decision in the case above cited), said:

“The road was completed and accepted by the President in May, 1869, and those lands have been subject to such pre-emption since three years from that date, if this right can be exercised by the settler without further legislation by Congress or action by the Interior Department.

“ We do not now propose to decide whether any such legislation or action is necessary, or whether any one, having the proper qualification, has the right to settle on these lands, and tendering to the company the dollar and a quarter per acre, enforce his demand for a title. It is not known that any such attempt has been made or ever will be, or that Congress or the department has taken or intends to take any steps to invite or aid the exercise of this right. It would seem that, if it exists, it would not be defeated by the issue of the patent to the company, and it may, therefore, remain the undefined and uncertain right, vested in no particular person or persons, which it now is, for an indefinite period of time."

While it is true that neither of said decisions clearly and distinctly defines the right of the government in the disposal of said lands, still they clearly indicate the opinion of the court that such a right exists, and whether it be considered that the estate granted is a conditional estate, or an estate with a conditional limitation, in either case I am of the opinion that it must be held that the condition runs with the grant, and is in effect a reservation of a power of sale in the government of the lands granted to the company which remained unsold by it at the expiration of three years after the entire road was completed under the provisions of the pre-emption law. It is manifest, I think, that Congress did not intend to grant to said company so large a quantity of land to be held and sold by it at speculative prices; but, desiring to give it aid and assistance in its undertaking, at the same time provided that the actual settler who was willing to pay the price stipulated should have the right to settle and make a home upon any of the lands so granted ; and in order to secure this right to the settler, and at the same time secure to the company an adequate consideration for the lands, reserved the right of sale thereof after the road had been completed for three years.

This view is not inconsistent with the object to be attained in making the grant. That object was to aid a corporation in the construction of a work of national importance, which contemplated an expenditure of money beyond the resources of private individuals, and whether that aid should be given in lands which might be sold by the company to reimburse it for expenditures made or to be made, or whether the government should sell the lands at a stipulated price and pay the proceeds arising therefrom to said company, was considered immaterial both by the government and the company that accepted the grant with the condition.

The fact that said company so understood this grant is made evident by a circular issued by its land commissioner, dated May 12, 1873, inviting purchases of its lands, in which he says:

“ The road was accepted by the government as complete about six months ago. In three years from that time the unsold lands will be subject, we suppose, to the preemption laws, but we hope and expect to have all our lands sold before that time arrives. All railroad lands sold by this company are sold clear of taxes, with assurance of perfect title when paid for.”

More than three years having elapsed since the completion of said road and its acceptance by the President, at the time Mr. Dudymott filed his declaratory statement for the tracts in question, I am of the opinion that his application should have been received by the local officers, subject, however, to the condition that it be made to appear, before final certificate issue to him, that at the time his declaratory statement was filed for said tracts said company had not sold or disposed of the same.

In your decision it is held “that the matter of the disposition of lands in the condidition of the tracts involved in the application in hand is not within the jurisdiction or control of this office.” If the views I have expressed in relation to the sale and disposal of said lands are correct, and I see no reason to doubt their correctness, the sale and disposal of lands in the condition of those applied for, if unsold at that time by said company, is clearly within the jurisdiction of your office, “like other lands."

By the terms of the grant by which said lands, or the proceeds which shall arise from the sale thereof, inured to said company, it is provided that lands remaining unsold at the expiration of three years from the time when the entire road was completed, shall be subject to settlement and pre-emption like other lands, at a price not exceeding $1.25 per acre; in other words, that said lands shall revert to the public domain for sale and disposal for said company under the pre-emption laws of the United States. And whether it be considered that said lands are public lands in a general or special sense cannot, in my opinion, affect the jurisdiction of your office in making sale and disposal of the same.

At the time this grant was made the provisions of the pre-emption law were well understood, and in so far as said act provided that the lands granted shall be subject to settlement and pre-emption like other lands, it must be considered that Congress intended that the same rules and regulations should be adopted in relation to the disposal and sale of said lands as are adopted by your office in the sale of public lands under the pre-emption law. While it may be true that further legislation in relation to the sale of said lands might have been advisable, still I do not think it to have been absolutely necessary, except to provide for the manner in which the proceeds which shall arise from the sale of said lands shall be paid to said company.

Counsel for the company suggests that these lands are covered by a mortgage, executed by said company, to secure moneys borrowed in the construction of its road. If this be true, I am unable to perceive that said mortgage is any obstacle to the disposal of said lands in accordance with the provisions of the granting act.

The company mortgaged such interest in the lands as it possessed, and the mortgagees must be considered to have taken the mortgage with full knowledge of the right of the company to make the same. Aside from these considerations, however, the provision in the mortgage which authorizes the company to sell and dispose of the lands granted, and make conveyance thereof to purchasers, which conveyance shall release the right of the mortgagees to the particular tract, will in the same manner protect the pre-emptor who purchases of the government, which has authority to sell the lands and pay the proceeds arising from such sales to the company.

The local otticers of each of the land districts in which lands inuring to said company by virtue of said grant are situated, should be instructed to receive filings conditionally for said lands in tracts not exceeding one quarter section, by qualified preemptors, and on receipt of such declaratory statements to call upon the company for a statement showing whether the lands applied for have been sold by it; and if not sold, then the declaratory statements should be allowed subject to the applicant's showing full compliance with the pre-emption law

If the company neglects or refuses to furnish such statement to the local officers within thirty (30) days after service of said notice, in that case they should be instructed to order a hearing, if so requested by the applicant, to determine whether snch tract or tracts are subject to such filing, giving notice of the time and place when and where such hearing will be held, in some newspaper published and circulated in the county where the lands are situated, notifying said company, and any and all persons, if such there be, claiming title to said tracts under it, to appear at the time and place mentioned to show cause why said declaratory statements should not be received

At such hearing the applicant should be required to show that he is an actual settler on the land applied for, a qualified pre-emptor, and that the records of the county where deeds and conveyances are recorded do not show that said tracts had been sold at the date of the filing of his declaratory statement, and the company or its grantee to show whether said tracts applied for have been sold by it.

If the company or its grantee fail or refuse to appear and offer any testimony, the filing should be allowed under the rule that “where the subject-matter of a negative arerment lies pernliarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party." i1 Greenleaf on Evidence, paragraph

In making returns of the moners arising from the sale of said lands, the local officers shonld be instructed to keep a separate account of the lands sold and the moneys received therefor on account of said company, in onder that the same may be passed to

In this case, inasmuch as it does not satisfactorily appear whether the lands applied for had been sold by the company at the tinne Mr. Ladymott filed his declaratory statement, you will instruct the local others to call apon said company for a statement showing whether said lands had been sok hr it at that time, and if it refuse or neglect to tarnish sach statement within thirty (30 days after the service of said notice that they order a hearing to determine that fact, under the rule above set forth.

For the mason stated pour decision is mi l, and the parens transmitted with your letter of January iss are here with warned.

C. SCHTRZ,

Secretary.

CONMISSIONER OF THE GENERAT LAND DETE.

Application for a review of the foregoing decision having been made to the honorable Secretary of the Interior, the whole subject was still further examined by him, and the previous opinion was affirmed by his decision of 3d September, 1878, hereto appended, and the instructions were ordered to issue accordingly.

DEPARTMENT OF THE INTERIOR,

Washington, September 3, 1878. SIR: I have considered the application of the Kansas Pacific Railroad Company for a suspension and reconsideration of my decision of July 23, 1878, in the matter of the application of Nelson Dudymott to file a declaratory statement on the N. I N.E. I lot No. 7, and the S.W. ¢ of N.E. of section 7, township 11 S., range 5 E., in the State of Kansas, which tracts fall within the granted limits of said company, made by the act of July 1, 1862, as amended by the act of July 2, 1864. (12 Stat., p. 489, sec. 13; and 13 Stat., p. 356, sec. 4.)

Owing to the importance of the questions involved in this case, I have considered a like application made by the Union Pacific Railroad Company, filed by its attorneys, as said company will be affected in like manner as the Kansas Pacific Railroad Compary, although not a party to the record in this case.

In my decision of July 23, 1878, it was held

First. That the grant to said company was made, subject to all the conditions named in the granting act, one of which is, that all the lands so granted “which shall not be sold or disposed of by said company within three years after the entire road shall have been completed shall be subject to settlement and pre-emption like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company."

Second. That more than three years having elapsed since the entire road was completed, all of the lands inuring to said company, by virtue of its grant, not sold, are subject to settlement and pre-emption, like other public lands, at one dollar and twenty-five cents per acre.

The applications for a suspension and reconsideration of said decision are based upon the following grounds:

First. That the grant to said companies was a grant in presenti and vested in them, and them only, the right to sell all of the lands granted.

Second. That the execution and delivery of a mortgage by the companies is a disposition of such lands within the meaning of the words “or disposed of,” occurring in the last clause of the third section of the granting act.

Third. That if an actual sale of the lands, and an actual sale only, was authorized, the companies, by the execution and delivery of certain mortgages to the persons therein named, have “gold and disposed of” and conveyed the title to all the lands inuring to them by virtue of the granting acts. In my decision of July 23, 1878, it was held that the conditions contained in the last clause of the third section of the granting act “is in effect a reservation of a power of sale in the government of the lands granted to the company which remain unsold by it at the expiration of three years after the entire road was completed, under the provisions of the pre-emption law." This conclusion was reached after mature deliberation, and I see no good reason to doubt its correctness.

Even if it be true that the grant to the companies was a grant in presenti, it was nevertheless subject to the conditions therein mentioned, and vested in the companies for a time only, the exclusive right to sell their lands at such rates and for such prices as they might be able to obtain therefor. The time, however, in which the companies might exercise this right was limited in the act, and the companies by the performance of the conditions precedent, therein named, have terminated that right and rendered the lands unsold subject to sale by the government.

The fact that the Kansas Pacific Railroad Company, at least, understood that its right to sell and dispose of the lands inuring to it under its grant would cease at a certain time, was clearly shown in my decision in this case. It is not now denied by said company that such construction was given to the act by its officers when the circular of its land commissioner, dated May 12, 1873, was issued. If that construction was correct then, it is correct now, and I am unable to perceive any reason why the law should not be administered in accordance with its plain terms, and the clear understanding by both parties in interest to the contract and stipulations therein contained.

In support of the second proposition counsel have cited authorities showing the construction placed by the Supreme Court and the honorable Attorney General on the words “dispose of,” as they occur in the third section of article four of the Constitution of the United States, which reads as follows: “Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States."

In the authorities cited it is held that the words “ dispose of” authorize not only the sale of lands and other property by the government, but also the leasing of the same. It is urged by counsel, therefore, that inasmuch as the Supreme Court has given a larger and more comprehensive meaning to the word dispose than to the word sell, that the words “ or disposed of," in the clause under consideration, should be construed to include not only a sale, but any other disposition which the companies may have made of the lands granted to them.

The word dispose undoubtedly is more comprehensive in its meaning than the word sell, and may be properly used not only to convey the idea of a sale of lands, but also some other or different disposition of the same. It may be used, and, in fact, often is used in the same sense and to convey the same idea as the word sell. The question now nnder consideration, however, is not the meaning which may be given to the words " or disposed of," but the meaning which Congress intended should be given to those words as they occur in said clause.

“It is an established rule in the exposition of statutes, that the intention of the law-giver is to be deduced from a view of the whole and every part of a statute taken and compared together. When the words of the statute are not explicit, the intention is to be collected from the context-from the occasion and necessity of the law, from the mischief felt-and the object and remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion." (Potter's Dwarris, p. 194, note 13.)

“ The framers of laws do not weigh only the force of single words, as philologigts and critics, but of whole clauses and designated objects, as statesmen and practical reasoners. In common language the same word has often various meanings. The peculiar sense in which a word is used in any section is to be determined by the context.” (Ibid., pp. 195, 196.)

In relation to the proper construction to be given to words, the Supreme Court in the case of Maillard vs. Lawrence (16 Howard, 261) laid down the following rule: “The popular or received import of words furnishes the general rule for the interpretation of public laws as well as of private and social transactions, and wherever the legislature adopts such language in order to define and promulge their actions, or their will, the just conclusion from such a course must be that they not only themselves comprehended the meaning of the language they have selected, but have chosen it with reference to the known apprehension of those to whom the legislative language is addressed, and for whom it is designed to constitute a rule of conduct, viz, the community at large."

By the third section of the granting act, the section which contains the clause now under consideration, a grant of many millions of acres of land was made to said companies for the purpose of aiding in the construction of the roads therein mentioned. * By the fifth section of said act it is provided that the Secretary of the Treasury shall, upon the proof therein mentioned being presented to him, issue to said companies the bonds of the United States to the amount of $16,000 for each mile of said road as constructed, in sections of forty miles each, and that the issuance and delivery of said bonds to the companies “shall ipso facto constitute a first mortgage on the whole line of the railroad and telegraph line, together with the rolling stock, fixtures, and property of every kind and description."

If it be true, therefore, that Congress intended that the execution and delivery of a mortgage by either of said companies should be a disposal of the lands granted within the meaning of the words “ or disposed of," the same act which provided that unless said lands were “sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption like other lands," provided in terms that no sales should be made by settlement and pre-emption of the lands granted to the company which accepted the bonds provided for in the fifth section of the act.

The act must be so construed, if possible, as to give each and every part of it force and effect.

What force and effect, however, can be given to this clause if the execution and delivery of a mortgage be held to be the sale or disposal intended by Congress ?

If by the execution and delivery of such mortgages all of said lands were “sold or disposed of," how could they thereafter be sold under the pre-emption law, and the moneys arising from such sales be paid to the companies ? Manifestly, this was not the meaning given by Congress to the words “or disposed of," and hence such a meaning should not now be imparted to them. In the case of the Railway Company rs. Prescott (16 Wallace, 609), the Supreme Court in referring to this clause used the following language : “ Looking to this policy, and to the very large quantity of lands granted by this statute to a single corporation, Congress declared that if the company did not sell those lands within a time limited by the act, they should then, without further action of the company or of Congress, be open to the actual settler under the same laws which govern the right of pre-emption on government lands, and at the same price.” The court in that case evidently understood this clause to mean an actual sale of the lands, and so construed the words “sold or disposed of," in effect holding that " or disposed of” is simply interpretative of "sold," "This, I think, is

« PreviousContinue »