HEARINGS

BEFORE THE

COMMITTEE ON THE PUBLIC LANDS

HOUSE OF REPRESENTATIVES

SIXTY-FOURTH CONGRESS

FIRST SESSION

ON

H. J. RES. 58, H. R. 9814, and 10058

TO ALTER AND AMEND AN ACT ENTITLED "AN ACT GRANTING LANDS TO AID IN THE CONSTRUCTION OF A RAILROAD

AND TELEGRAPH LINE FROM THE CENTRAL

PACIFIC RAILROAD IN CALIFORNIA

TO PORTLAND, IN OREGON"

MONDAY, FEBRUARY 21, 1916

PART II

WASHINGTON

GOVERNMENT PRINTING OFFICE

OREGON AND CALIFORNIA LAND GRANTS.

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE PUBLIC LANDS, Monday, February 21, 1916.

The committee met at 10.30 o'clock a. m.. Hon. Edward T. Taylor (acting chairman) presiding.

Mr. TAYLOR. The committee will please come to order. I will say that the chairman of the committee, Mr. Ferris, is called away for a few minutes this morning. He requested me to call the committee to order and to proceed with the hearings on this Oregon-California railroad land-grant matter. The Attorney General has sent Mr. Smyth from the department to appear before the committee this morning. Mr. Smyth is here in response to our request at our last meeting to have some one from the Department of Justice come and advise the committee a little more definitely as to the legal aspects of this case, and also in response to some inquiries that were made by Mr. Lenroot the other day.

State your name, Mr. Smyth, and your official position.

STATEMENT OF MR. C. J. SMYTH, SPECIAL ASSISTANT TO THE ATTORNEY GENERAL.

Mr. SMYTH. My name is C. J. Smyth; special assistant to the Attorney General.

Mr. TAYLOR. How long have you been connected with the Department of Justice?

Mr. SMYTH. On and off, about three years.

Mr. TAYLOR. You had charge of the representation of the Government in this matter of the Oregon-California land-grant litigation, did you not?

Mr. SMYTH. In the circuit court of appeals and in the Supreme Court of the United States.

Mr. TAYLOR. The committee, in addition to the letter which the Attorney General has furnished Senator Myers, which we have printed here under date of January 27, desired to ask the Department of Justice a number of questions as to what the Attorney General deemed was the duty of Congress toward carrying out the opinion of the Supreme Court in that case, and also what is necessary in his judgment for the proper protection of the rights of the Government and the settlers as well as the public, including the railroad, in this matter. I would be pleased, and I know the committee would, for you to make any statement that you may desire, if you will, and then the committee will probably ask some questions.

Mr. SMYTH. Not being aware of what is bothering the committee, I am at a loss to know just what to talk about. I would be very glad to answer or attempt to answer any questions that the committee may put to me.

Mr. TAYLOR. Well, we will leave it to Mr. Lenroot to ask the questions.

Mr. LENROOT. The bill upon which the department made its report was the Chamberlain bill, which proposed to revest the Government with the title to these lands upon the payment to the railroad company of its $2.50 per acre. The legal proposition involved as to our power to take from this railroad company the title which the Supreme Court held did pass by the grant is the question that troubles some of us quite seriously.

Mr. SMYTH. I think that the Supreme Court has settled that question by its decision. It has referred the matter to Congress, to be disposed of as it may see fit-such, at least, is my construction— saving to the railroad company $2.50 per acre, which is the maximum amount that the railroad company is entitled to receive out of the grants, according to the decision. I think that this reference of the matter to Congress necessarily implies that Congress has the power to dispose of the matter in any way it pleases, provided it preserves to the railroad company $2.50 per acre.

Mr. LENROOT. Where, in your opinion, Mr. Smyth, does Congress get the power to revest in itself the legal title to lands which it has granted?

Mr. SMYTH. The power to dispose of the lands implies the power to do all things necessary to make a valid disposition. The revestment of the title is essential to such disposition; therefore, if Congress has the power to make disposition of the lands, it has the power to take back the title. The fact that the Supreme Court has referred the disposition of the lands to Congress necessarily implies, in my judgment, that, in the opinion of the Supreme Court, Congress has the power to dispose of them, and in such manner as it may see fit. The means are left to Congress.

Mr. LENROOT. Let me ask you this, then. The Supreme Court declined to hold that this provision that was in controversy was a condition subsequent, but held that it was an enforceable covenant. Now, is it your view that the Supreme Court by its decision passed title from the railroad company and put it in the hands of the Government?

Mr. SMYTH. No.

Mr. LENROOT. Then one other question. That being so, the Supreme Court's language is:

Until Congress shall have a reasonable opportunity to provide by legislation for their 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 act conferred upon the railroads.

Now, might it not well be that the legal title would remain in the hands of the railroad company and that Congress under this commission of authority would have the right to direct the railroad company as to the method and terms under which it would part with that legal title and compel its parting with the legal title?