The following is a continuation of section 11:

A separate account shall be kept in the General Land Office of the sales of land and timber within each county in which any of said lands are situated, and after deducting from the amount of the proceeds arising from each county a sum equal to that applied to pay the accrued taxes and a sum equal to $2.50 per acre for each acre of such land therein, title to which is revested in the United States under this act, 40 per cent of the remainder shall be paid to the treasurer of the county for the construction of roads, highways, and bridges, and for such other purposes as the county authorities may direct; 40 per cent shall be paid to the State in which the county is located for the establishment and support of common schools; and the balance remaining in said Oregon-California land-grant fund shall be deposited to the credit of the United States. The payments herein authorized shall be made to the treasurers of the States and counties, respectively, by the Treasurer of the United States, upon the order of the Commissioner of the General Land Office, as soon as may be after the close of each fiscal year during which moneys were received.

NOTE. In view of the fact that the value of the land and timber in the different counties differs widely-some counties having much and others little the amount of the proceeds distributed to each county should differ accordingly.

Under this amendment the States and counties will receive the same amounts as under the original bill, but if the court should charge the railroad company with the amount already received by it over and above $2.50 an acre for the lands heretofore disposed of, the sum to be deposited to the credit of the United States will be increased to that extent.

About 200 acres of the unsold land are in the State of Washington.

Page 11: Following the word "affidavit," in line 10, insert the words "or proceeding."

Section 8 should be section 12.

H. J. RES. 58, INTRODUCED BY MR. RAKER.

To carry out this resolution there would have to be an appropriation of about $5,750,000 to pay the railroad company, some $2,493,000 more than it is entitled to, in my judgment, and, in addition, about $1,300,000 if the accrued taxes are to be discharged.

S. J. RES. 21, INTRODUCED BY SENATOR M'CUMBER.

Under this any person who made application after the district court had entered its decree of forfeiture would be given a preferential right, as well as those who applied before. In many instances the applicant would receive a quarter section, worth from $5,000 to $20,000 for $400. Applications were made by land locators for about 10,000 persons. The method pursued was something like the following: The locator would tender to the railroad company a written application, accompanied by $400. It would be refused promptly. Thereupon he would offer another application with the same $400, and so on to the end. In some instances as many as 100 applications were made for the same quarter section. Among those who would benefit by this resolution are the cross petitioners and interveners, who, according to the Supreme Court, have no rights in the land (supra, pp. 4-6), and of course the other applicants have no better standing. True some of them, but not all, were duped by locators, many of whom have been prosecuted by this department and are now being punished. However, neither the Government nor the railroad company is responsible for the deceit practiced upon them,

and in consequence they have no claim for special consideration on that or any other score.

There may be other plans for the disposition of the lands, but I am not cognizant of them.

I shall take the liberty of submitting copies of this communication to the Secretaries of the Interior and Agriculture. It is possible that they may favor me with their criticisms and suggestions, in which event I may take occasion to communicate with you again. Respectfully,

T. W. GREGORY,

Attorney General.

(It was moved and seconded that the reports of the case of The Oregon & California Railroad v. The United States (238 U.S.,393, et seq.), be printed at length as a part of this record. The question being taken, the motion was agreed to, and the same will be found appended to this hearing.)

Mr. LENROOT. This bill of Senator Chamberlain proposes to revest in the Government all of the titles of those lands. The greater portion of that should be covered in the grant of 1866, but a portion of it under the grant of 1870. In the report of the Attorney General upon this bill he bases first the power to revest the title upon the power to alter, amend, or repeal, but he also seems to uphold the power of the Congress to revest in the Government the title upon other grounds as well; that is, the lands granted under the act of 1870.

I want to say that I have no doubt at all as to our right to revest title to the lands granted under the act of 1866, under the power to alter, amend, or repeal; but I should like to hear you, if you have anything to say, upon our power under the act of 1870.

Mr. WILLIAMS. In the first place, I think that the power of Congress to amend the act of 1866 would probably exist without that provision, but that provision was probably put in out of abundant caution. The United States Supreme Court made no distinction between the land grants of 1866 and 1870. The Supreme Court said, it must be remembered and I think it said it no less than three or four times in its decision that this land grant is a law as well as a grant, and as a law it can be amended or changed by Congress, and Congress can pass any law it sees fit, within its limitation, taking private property, provided only it secures to the individual the full value that he had before.

Mr. LENROOT. That is the point that I had in mind. As a general proposition has Congress the power to take private property by legislative act, even though it compensates, unless there be a public

purpose.

Mr. WILLIAMS. That opens up a very wide question.

Mr. LENROOT. I know it does.

Mr. WILLIAMS. The department has entertained no doubt in this particular case. Whether the officials thought that the grant of 1870 was the same as that of 1866, and did not give the subject much. attention, I do not know, but the Supreme Court has said that Congress may dispose of the lands, provided it secures to the railroad company the full value conferred by the granting acts. The railroad did not get a grant of land unlimited or unrestricted. If this were such a grant I am not sure that Congress could take back the land,

because the railroad might say, "I want to do something else with this land"; but in this case it has only $2.50 an acre in the land. If the railroad company has violated the terms under which that grant was made

Mr. TAYLOR. But Congress has not made any condition.

Mr. LENROOT. The Supreme Court held that it was not a condition. Mr. WILLIAMS. It said that it was a covenant that could be enforced.

Mr. LENROOT. Could be enforced.

Mr. WILLIAMS. But at the same time the Supreme Court remanded the case in order that Congress might have an opportunity to make such disposition of the lands as it deemed fitting.

Mr. LENROOT. Now, this may be entirely secondary, but whether Congress could revest the title except under this reserved power of the act of 1866 might be questionable. It might order such disposition as it saw fit in enforcing the covenant. That might be unquestioned. That is, we might have the power to compel the railroad company to do the very thing we propose to do; but after attempting to divest itself of the title and have the title run through the railroad company, might it not raise serious question if we undertook to do a thing that we had no power to do in reaching a certain result?

Mr. WILLIAMS. I think Congress has just as much power to take over title to the lands and sell them in a certain manner as it would have to compel the railroad company to sell them in a manner contrary to the original act. I do not see any distinction at all. If Congress has power to compel the railroad company to do something else with its land than it was to do in the first instance, I do not see why the Congress can not compel the railroad company to return the land and to do that thing itself.

Mr. LENROOT. You think, then, the power of Congress to compel the railroad company to covenant to do anything carries with it the power to do it for the company?

Mr. WILLIAMS. I would not like to make a broad statement like that without giving it thought, but I think in this case

Mr. MAYS. Do you think the Government would be limited to $2.50 an acre?

Mr. WILLIAMS. No, sir; I think the Government should sell the land for what it can get for it.

The CHAIRMAN. It is your opinion that under this decision the Federal Government must make the railroad whole on the $2.50 an acre or the equivalent? Is that your opinion under this decision?

Mr. WILLIAMS. Provided the Government takes over the land as a whole and pays for it, because the railroad might say, "If you give us reasonable time we might get $2.50 an acre for it." I do not believe it could within a reasonable time, but possibly it could, and therefore I say, to be absolutely sure to be fair, the Government should guarantee the railroad company $2.50 an acre, and if it did the railroad would have no reason to complain, because that is the absolute maximum.

Mr. DILL. How about these settlers?

Mr. WILLIAMS. The Supreme Court has said that the man who had applied to purchase acquired no rights, and that the man who was an actual settler on the land without the consent of the railroad company had no rights.

Mr. DILL. No; with the land went a provision that they should sell at $2.50 an acre to actual settlers.

Mr. WILLIAMS. Yes.

Mr. DILL. The question I had in mind was this: Was there also an implication in the grant that this country would be settled up by people who would furnish traffic for the railroad?

Mr. WILI IAMS. That is exactly what I meant when I said that I thought Congress in paying the railroad company for the land and giving them the maximum value should also provide for the disposition of the land so that it could be developed.

Mr. CRAMTON. May I ask you there to what extent has the land that the railroad company itself has disposed of, sometimes as much as 2,000 acres or 20,000 acres in a tract at one sale, gone into actual settlement so as to provide that kind of a result?

Mr. WILLIAMS. I do not know that I know enough about the situation to tell you.

Mr. CRAMTON. Are you urging that it is necessary for the Government to be more generous to the company in producing business than it has been to itself?

Mr. WILLIAMS. I said that if the Government did that the railroad would have no possible ground of complaint.

Mr. CRAMTON. But you have not any suggestion as to the actual proportion of the lands which the railroad sold that went into actual settlement?

Mr. WILLIAMS. The country is not thickly settled at all, anywhere. Mr. SINNOTT. Could you supply the committee with any interpretation by the courts of similar clauses as are in the act of 1866 relating to the right to alter, amend, or repeal? I should like to have some authority, myself, and I think the committee would, upon the scope of those words and what can be done under such a reservation. Mr. WILLIAMS. I think, if you will allow me, that perhaps the Attorney General's report to the Senate committee, to which Mr. Ferris referred, would give you that.

Mr. SINNOTT. That makes no citation of authorities.

Mr. LENROOT. There are a number of them.

Mr. SINNOTT. I know there are.

Mr. LENROOT. There are a multitude of decisions on that.

Mr. SINNOTT. I should like to have some, if convenient. - I asked the reference library for a citation of authorities, and failed to secure them.

Then, in that connection, do you attach any consequence to the fact that the Supreme Court in its decisions does not refer to that reservation clause relating to the right to alter, amend, or repeal? And it does not even refer to it when the railroad company attacks the act of 1869, contending that that act was invalid, that act amending the act of 1866, but bases the validity of the act of 1869 on the fact that the railroad company had accepted the amendatory act: and the Supreme Court does not base the validity of the act of 1869 upon the reservation clause in the act of 1866. It seemed to me peculiar that the Supreme Court in no place in the decision referred to that reservation clause. I wondered if you had that in mind.

Mr. WILLIAMS. No; nothing further than this, that the court did not base its decision upon that section of the act of 1866, and I think that section was put there out of abundance of precaution, and I

draw the inference, from the repeated statements of the court, that the grant was a law and could be enforced-that it was a law of Congress, and could be enforced or amended.

Mr. SINNOTT. And I wanted to call your attention to the last paragraph of that decision. The Supreme Court uses the word 'disposition" three times in ten or twelve lines. It is used in the first place and the third place evidently, judging from the context, as synonymous with "sale" or "alienation"; and then in the middle of that paragraph Congress is given authority to provide by legislation for the disposition of the lands. I was wondering whether or not the Supreme Court used the word "disposition" in the middle of that paragraph in the same sense in which it is used in the first part of the paragraph and the last part of the paragraph. I was pondering over the meaning the Supreme Court attaches to the word "disposition," and whether "disposition" embraces a reservation of reinvestment of title in the Government.

Mr. WILLIAMS. I supposed that meant the disposition after it had reinvested the title.

Mr. SINNOTT. What is that?

Mr. WILLIAMS. The Government, to dispose of the land, would first have to reinvest the title in itself.

Mr. SINNOTT. It might be argued, and I have heard it argued, that the word "disposition"-the right of Congress to provide for the disposition of the land-means a sale of the land and not a reservation by the Government. Have you thought of that?

I

Mr. WILLIAMS. Not particularly, and not in that connection. thought that the Supreme Court meant that the Congress might possibly enact legislation providing for the sale, alienation, or, in other words, disposition, of these lands.

Mr. SINNOTT. It struck me as singular that the Supreme Court in that last paragraph should use the word "disposition" three times, and it may also be contended that it is singular that the Supreme Court should give a broader meaning to that word "disposition" in one sentence of the paragraph than it gives in two other sentences of the same paragraph.

Mr. WILLIAMS. It is a strong argument that it meant the same thing wherever it was used, particularly when in the same sentence or paragraph.

Mr. SINNOTT. I will read that paragraph, this part of it:

We think, therefore, that the railroad company should not only be enjoined from sales in violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon, until Congress shall have a reasonable opportunity to provide by legislation for their disposition

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*

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Now, does that second "disposition" mean the same as the first "disposition"

In accordance with such policy as it may deem fitting under the circumstances, and at the same time secure to the defendants all the value the granting acts conferred upon the railroads.

If Congress does not make such provision, the defendants may apply to the district court within a reasonable time-not less than six months-from the entry of the decree herein for a modification of so much of the injunction herein ordered as enjoins any disposition of the lands and timber until Congress shall act, and the court in its discretion may modify the decree accordingly.

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