what our rights are, just what we can do and just what we can accomplish under these bills?

Mr. RAKER. Is it not the result of Senate bill No. 30 and of House joint resolution 58 to forfeit the lands and revest the title to the lands in the United States, and is not the only difference a difference as to the payment?

Mr. SMYTH. It does not forfeit the lands, strictly speaking.

Mr. RAKER. The result is to revest the title.

Mr. SMYTH. You mean pending legislation?

Mr. RAKER. I speak of these bills I have named.

Mr. SMYTH. The effect of certain of these bills, as I remember them, is to revest the title, but provides for the discharge of the railroad company's interest.

Mr. RAKER. And the only question is as to the matter of payment? Mr. SMYTH. There is also a question, if I remember it, as to other matters the rights of settlers, so called, etc.

Mr. RAKER. What I meant was as between the Government and the railroad company.

Mr. SMYTH. Yes; so far as the pending bills are concerned.

(At 12 o'clock m. the committee adjourned until to-morrow, Tuesday, February 22, 1916, at 10 o'clock a. m.)

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 LANDS TO AID IN THE CONSTRUCTION OF A RAILROAD

AND TELEGRAPH LINE FROM THE CENTRAL

PACIFIC RAILROAD IN CALIFORNIA

TO PORTLAND, IN OREGON "

TUESDAY, FEBRUARY 22, 1916

PART III

WASHINGTON

GOVERNMENT PRINTING OFFICE

OREGON AND CALIFORNIA LAND GRANTS.

COMMITTEE ON THE PUBLIC LANDS,
HOUSE OF REPRESENTATIVES,

Tuesday, February 22, 1916.

The committee met at 10 o'clock a. m., Hon. Edward T. Taylor presiding.

Mr. TAYLOR. The committee will come to order. Mr. Ferris has requested me to call the committee to order and ask them to proceed without him, if they will, for a little while. Mr. Smyth, are you ready to continue?

(Mr. Ferris came in later and resumed the chair.)

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

Resumed.

Mr. SMYTH. Before proceeding to deal with the different bills, Mr. Chairman, as you requested me yesterday to do, I should like to make a little further answer touching the power of Congress in the premises.

In the opinion in this case, on page 422 of volume 238, United States Reports, the court, quoting from one of the briefs, said:

But the jurisdiction of a court of equity in such cases does not depend upon the showing of damage. Indeed, the very fact that injury is of public character and such that no damage could be calculated, is an added reason for the intervention of equity.

Then added—

and cases are adduced. We concur in the reasoning and give it greater breadth in the case at bar than counsel do. They would confine it, or seem to do so, to the compulsion of sales of land susceptible of actual settlement, and assert that the evidence established that not all of the lands, nor indeed the greater part of them, have such susceptibility.

This is the answer of the court to the argument made that there was but one remedy open if the restrictive provisos were construed as covenants, namely, one in damages. But the court said, "No; even though we construe, as we do, the restrictive provisos as covenants, we are not confined to damages as the remedy. We can formulate, if you please, such remedies as we may think necessary in the premises in order to do justice between the parties," and this is in line with prior holdings of the Supreme Court.

In the case of Morgan v. Biloit (7 Wall., 619) we read:

Whenever there is a right which the common law from any imperfection can not enforce it is the duty and province of equity to supply the defect and furnish the remedy.

In the case before you evidently the Supreme Court felt that it was called upon to furnish the remedy and that in doing so it was acting within its powers as a court of equity.

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