HEARINGS BEFORE THE COMMITTEE ON THE PUBLIC LANDS HOUSE OF REPRESENTATIVES SIXTY-FOURTH CONGRESS FIRST SESSION ON H. J. RES. 58, H. R. 9814, 10058, and 12116 TO ALTER AND AMEND AN ACT ENTITLED “AN ACT GRANTING PACIFIC RAILROAD IN CALIFORNIA TO PORTLAND, IN OREGON” THURSDAY, FEBRUARY 24, 1916 PART IV WASHINGTON GOVERNMENT PRINTING OFFICE OREGON AND CALIFORNIA LAND GRANTS. COMMITTEE ON PUBLIC LANDS, HOUSE OF REPRESENTATIVES, Thursday, February 24, 1916. The committee met at 10 o'clock a. m., Hon. Scott Ferris (chairman) presiding. The CHAIRMAN. Gentlemen of the committee, at our last meeting it was suggested that Mr. Smyth, representing the Department of Justice, had to leave the city to-night, I believe, and it was the sense of the committee at that time, as you recall, that we invite Mr. Blair, the general counsel of the Southern Pacific Railroad Co., who desires to be heard on the legal phases of this matter, to appear here. Following the suggestion of the committee we took the matter up with Mr. Hoehling, the local representative of the company here, and Mr. Hoehling very kindly communicated with Mr. Blair. Mr. Blair is here and announces that he is ready to be heard at this time, and therefore I take it it will be the will of the committee to proceed now with Mr. Blair. Mr. RAKER. Mr. Chairman, I have to leave shortly to attend another committee meeting, and I would like to ask Mr. Smyth one or two questions, if I may? The CHAIRMAN. Certainly. ADDITIONAL STATEMENT OF MR. C. J. SMYTH, REPRESENTING THE DEPARTMENT OF JUSTICE. Mr. RAKER. Mr. Smyth, under the act of August 20, 1912, I think it is the second paragraph, there is a provision that the land shall not be subject to entry or even to occupancy until there is a law passed disposing of it. It would therefore require no further action of Congress to keep everybody off the land; in other words, that is a declaration that stands until repealed, is it not? Mr. SMYTH. The purpose of that act was to reserve the land for disposition by Congress under a new act if the lower court decreed a forfeiture. Mr. RAKER. In other words, entry or taking possession of the land by anyone would be unlawful. They would have no right there of any kind until Congress makes some disposition of it. Mr. SMYTH. That act had for its purpose the reserving of the lands for the future action of Congress in the event a forfeiture was declared by the court. If the Supreme Court had affirmed the decision of the lower court declaring a forfeiture of the lands, they would then be public lands of the United States, and it was feared that the contention would be made that they would be open to settlement under the then existing public land laws. Therefore this act was passed for the purpose of preventing any settlement of them until Congress had taken action. But since the decree of forfeiture has been set aside, I think that provision of the act of 1912 has no application to them. The title is in the railroad company. Nobody can acquire any right in those lands as they stand without the consent of the railroad company, and it is prohibited from giving consent until Congress shall have acted. Mr. RAKER. Would not that provision apply so far as any interest might appear in the United States as well? Mr. SMYTH. I am not prepared to answer that question. Mr. RAKER. Will you look that up before you leave and drop a letter to the chairman that it may go into the record, stating the real purport and effect of section 2 of that act? Mr. SMYTH. Yes. After reading the statute I think I am ready to answer your question. Section 2 says that None of the lands reverting to the United States by virtue of any right of forfeiture thereto as aforesaid shall be or become subject to entry under any of the public-land laws of the United States or to the initiation of any right whatever under any of the public-land laws of the United States. This, you notice, applies only where the lands reverted to the United States "by virtue of any right of forfeiture thereto as aforesaid." The right referred to is the one described in section 1, and the forfeiture mentioned is one which would result from suits "or other judicial proceedings instituted by the Attorney General pursuant to the joint resolution of Congress approved April 30, 1908." The Supreme Court has denied that right and set aside the forfeiture decreed by the lower court in pursuance of it. Consequently if the title to these lands becomes revested in the United States it will not be "by virtue of any right of forfeiture thereto as aforesaid," but by virtue of a new act of Congress. In the latter circumstance I would say that section 2 has no application. It might be well be said that if the title to these lands was resumed by the United States without any provision for their future disposition they would become subject to the public-land laws now in existence. In fact, I do not see at this moment how that conclusion could be escaped. If, therefore, Congress concludes to revest the title in the United States, it ought at the same time to provide for some disposition of the lands. Mr. SINNOTT. I would like to ask Mr. Smyth a question. I notice the decision states that Congress extended the timber and stone act to the reserved lands. I wish you would explain that. Mr. SMYTH. That refers to the lands which were not included in the grant. Mr. SINNOTT. The Government land; the alternate sections. Mr. SMYTH. Yes; the alternate sections; and it was said, I think, by the Supreme Court, in connection with the argument that the lands were not susceptible of cultivation. The fact Congress thought it necessary to extend the timber and stone act to the alternate sections was urged as some evidence that Congress did not regard them as susceptible of cultivation. While I am on my feet, if you will permit me, there is an additional reason which has occurred to me upon which the power of Congress to dispose of these lands might be justified. As the Supreme Court has said in its decision, the original grants had two purposes. The building of the railroad and the settlement of the country. These purposes were public ones. The road has been built. The settlement of the country has not taken place as Congress contemplated. That is due to the failure of the railroad company to carry out its part of the agreement. Since Congress has the power to take land from a private individual for a public purpose, paying to him its reasonable value or the value of his interest in it, would not Congress have the power on the same principle to take this land upon paying or securing to the railroad company the value of its interests? Mr. KENT. Do you claim Congress can take land from a private individual for any public purpose or simply for a specific public purpose? Mr. SMYTH. The purpose would have to be known. Here it is: The reclamation of these forest lands and the settlement of the country. Mr. SINNOTT. Do you think Congress itself has the right to determine the compensation? Mr. SMYTH. No; I do not think so, but in this case you do not have to do that, because that question has already been determined. The value of the railroad company's interest in this land is fixed. Mr. LENROOT. Do you think, Mr. Smyth, Congress would have the right to take land in private ownership for the purpose of disposing of it to others, the only purpose being to promote a better settlement of the country; is that a public purpose? Mr. SMYTH. Yes; I think it is a public purpose. Certainly, the purpose of making these grants was a public one, and it is with the view of carrying out that purpose that Congress would now take these lands. But whether it is or not a public purpose is a judicial question, and the Supreme Court has settled that by referring the matter to Congress and thereby holding that Congress has the power to take the lands if in its judgment that is the best way to solve the problem. A discussion of the subject, I think, may be found in the case of United States v. Great Falls Manufacturing Co. (112 U. S., 645), and in Cole v. United States (91 U. S., 367-375). Mr. TILLMAN. What tribuna! would determine the value of the lands? Mr. SMYTH. The Supreme Court has settled that by saying the value is fixed by the granting acts at a sum not to exceed $2.50 an acre, and if you recognize $2.50 an acre as the value, which is the maximum amount, you would give the railroad all it could possibly claim. Mr. TILLMAN. In this particular case that is true, but, generally speaking, what forum would determine the value? Mr. SMYTH. Of course, generally, a tribunal created by Congress to determine the question, or a court of competent jurisdiction. Mr. SINNOTT. In that connection would you care to make any observations, or do you consider it material, with reference to the continuing obligation of the railroad company to furnish transportation to troops? Mr. SMYTH. The railroad company is bound to do that under its original contract. Mr. KENT. Does it not vitiate the railroad's obligations when you take the land away from them? Is not the covenant with the United States practically broken? |