■'I' DECISION OF THE SECR. OF THE INTERIOR ON THE N. PACIFIC RAILROAD CO. WITH RESPECT TO ITS LAND GRANT. Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/decisionofsecretOOunitrich DEOISJON SECRETARY OF. THE INTERIOR ON THE STATUS OF THE NORTHERN PACIFIC EAILROAD COMPANY WriH RESPECT TO ITS LAND GEANT. JUNE 11, 1879. i;\i \;N<; I'osi Steam Pr ;.,>:, E;^, lo^y Bkoadwav, ccr. V\ AH The Northern Pacific Railroad Company on the 13th of May, 1879, presented to the Secretary of the Interior, for approval, a map of an amended Hne of the Branch Road in Washington Territory, and at the same time presented for liling and record in the De- partment, the Mortgage on the Missouri Division of the Main Line, extending from the Missouri River, in Dakota, to the Yellowstone River, in Montana. In accordance with the practice of the Department, tlie Secretary referred the matter of change of line to the Commissioner of the General Land Office, for an expression of his views as to w^hether any reason ex- isted why the request of the Company should not be granted. The Secretary of the Interior asked and obtained the advice of the Attorney General on the questions raised by the Commissioner, and the result was the following decision. Department of the Interior, Washington, June nth, 1879. Sir : — I have received your letter of the 2 ist ultii^o, returning the letter of George Gray, Esq., Attorne^^ of the Northern Pacific Railroad Company, dated New York the loth ultimo, presenting a map of amended location of the general route of the branch line of said railroad, in Washington Territory, and requesting that it be accepted and approved by this Department. The letter of Mr. Gray was referred to you for i expression of your views as to whether any reaso . existed why his request should not be granted. In returning the letter, and map accompanying ii you call my attention to two questions, which I under stand you deem material in determining whether said company has the right now to file this map, and have the same approved, viz. : " I. Has the grant to the company lapsed by reasc >n of the failure of the company to perform certain acts within the time specified in the granting statutes ? ''2. If it has so lapsed, can the Department recoi^^-- nize any acts by the company looking to the initiation of new rights, or the enlargement of old ones ?" You further state : " Aside from those possible ob- jections no new reasons are known why the map should not be accepted and the previous instructions by the Department carried into effect. On the con- trary, I am of opinion that the best interest of the public requires that the desired change should be allowed. At present a very large body of land is with- held from settlement and entry, which by the amended line would be released and restored to the govern- ment, whilst the tract that would be required to be withdrawn is not so large by some four millions acres." The previous Instructions referred to are those given by my predecessor, dated November 24th, 1876, in approving the map of amended location in Wash- ington Territory, then presented by said company. The first question suggested by you requires an examination of the Act of Congress making the grant to said company, and the acts supplementary thereof. By the 8th section of the Act of July 2, 1864 (13 Statutes, 370), it is provided : '' Sec. 8. ^nd be it further enacted, That each and every grant, right and privilege herein are so made and given to, and accepted by, said Northern Pacific Railroad Company, upon and subject to the following conditions, namely : That the said company shall commence the work on said road within two years from the approval of this Act by the President, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish and complete the whole road by the fourth day of July, Anno Domini, eighteen hundred and seventy-six." '' Sec. 9. And be it further enacted, That the Uni- ted States make the several conditional grants herein, and that the said Northern Pacific Railroad Company accept the same, upon the further condition that if the said company make any breach of the conditions hereof, and allow the same to continue for upwards of one year, then, in such case, at any time hereafter, the United States, by its Congress, may do any and all acts and things which may be needful and neces- sary to insure a speedy completion of the said road." By section 2 of a joint resolution, approved May 7, 1866 (14 Statutes, 355), entitled ''A resolution ex- tending the time for the completion of the Union Pacific Railway, Eastern Division " it is provided : '' Sec. 2. ^nd be it further resolved ^ That the time for commencing and completing the Northern Pacific Railroad, and all its several sections, is extended for the term of two years." By a joint resolution, approved July i, 1868 (i5 Statutes, 255), entitled, ''Joint Resolution extending the time for the completion of the Northern Pacific Railroad,'' it is provided : " (3^ it resolved by the Senate and House of ^epre= sentatives of the United States of America, in Congress assembled J That section eight of an Act entitled ' An Act granting lands to aid in the construction of a rail- road and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast,' is hereby so amended as to read as follows : * That each and every grant, right, and privilege herein, are so made and given to and accepted by said Northern Pacific Railroad Company upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from and after the second day of July, eighteen hundred and sixty-eight, and shall complete not less than one hundred miles per year, after the second year thereafter, and shall con- struct, equip, furnish and complete the whole road by the fourth day of July, Anno Domini, eighteen hun- dred and seventy-seven.' '' Did the 2d section of the joint resolution of 1866 extend the time originally provided for the commence- ment and completion of said road, or did it extend the time provided in sectijn 8 of said Act as amended by the joint resolution oi ,V;l'^8 ? It will be observed that the joint resolution of 1868 is entitled, ''Joint Resolution extending the time tor the completion of the Northern Pacific Railroad." If it be held that the Act of 1868 repealed the extension in the Act of 1 866, then Instead of extending the time, it shortened the time one year, for by the resolution of 1 866, the time for the completion of the road would have been July 4, 1878. Unless there is a clear repugnancy between statutes in pari materia, they are to be construed so as to give effect to each. It is also a well settled rule that statutes are not repealed by implication. Numerous cases might be cited in support of this rule. Can the Acts above cited be so interpreted as to give effect to each ? It will be noticed that the amendment of the Act of 1868 is an amendment so as to make the original Act read as follows : " That each and every grant, right and privilege herein, are so made and given to and accepted by said Northern Pacific Railway Com- pany,'' etc. In the case of The Missouri, Kansas and Texas Rail- way Company vs. The Kansas Pacific Railway Com- pany, decided at the last term of the Supreme Court, the court say, " It is true the Act of 1864, enlarged the grant of 1862, but this was done not by words of a new and additional grant, but by a change of words in the original Act, substituting for those there used words of larger import. This mode was evidently adopted that the grant might be treated as if thus made originally ; and therefore, as against the United States, the tide of the plaintiff to the enlarged quan- tity, with the exception stated, must be considered as taking effect equally with the title of the less quantity as of the date of the first Act." Applying the rule thus announced, it must be held that said company was to commence work on said road within two year's from the second day of July, 1 868, and to complete the same on or before the fourth day of July, 1877 ; and that such must be taken as the terms of the original charter to said company. With the terms of the charter thus fixed, the Joint Resolution of 1866, extends the time for the comple- tion of the road until July 4, 1879. It will be observed also that this Act, unlike most of the acts making grants to railroad companies, does not provide that at the expiration of the time fixed for the completion of the road the lands granted shall revert to the United States,, but does provide '' that if the said company make any breach of the conditions hereof, and allow the same to continue for upwards of one year, then, in such case, at any time hereafter, the United States, by its Congress, may do any and all acts and things which may be needful and neces- 1 sary to insure a speedy completion of said road." (see \ 9th Section). It will thus be seen that no proceed- l ings can be taken, even byo Congress, to declare a \ forfeiture of this grant, if breaches thereof have oc- \ curred, until one year after the t^me fixed for the \ completion of the road, viz : Jul}^ 4, 1880. ■ If this be not the true construction of the various provisions of the Acts of Congress in relation to this grant, still, under the rule announced by the Supreme Court in the case of Schulenberg vs. Harriman (21 Wallace;44), it must be held that until Congress does take some steps to declare a forfeiture of said grant, that the same is in full force and effect. In the case cited the court say : " At common law the sovereign could not make an entry in person, and therefore, an office found was necessary to determine the estate, but, as said by this court in a late case, ' the mode of asserting or of resuming the fcJi-feited grant, is sub- ject to the legislative authority of the Government. It may be after judicial investigation, or by taking possession directly under t^e authority of the Govern- ment without these prelrminary proceedings.' In the present case no action has been taken either by legislation or judicial proceedings to enforce a forfeiture of the estate granted by the Acts of i856 and 1864. The title remains, therefore, in the State, as completely as it existed on the day when the title by location of the route of the railroad acquired pre- cision and became attached to the adjoining alternate sections." I am not advised that any proceedings have been taken to declare a forfeiture of the grant to this com- pany, and if my views of the law above expressed are correct, the time has not yet arrived when Con- gress could take any proceedings to declare such a forfeiture ; but in either event, the grant to-day must be held to be the same as it existed on the day when it was made and accepted by the company. Your second question being predicated upon the first, and involved therein, is unnecessary to answer.' The grant being held to be in full force and effect to-day, I can perceive of no reason why the amended map should not be filed. The map of the general route originally filed, and the withdrawal made there- on, was for the protection of the company, in reserving the tracts of land included therein for it, if the road was built on that line. It was not a map of definite" location of the road, and hence the grant did not at- tach to specific tracts of land. The right of the company under its grant only at- taches to specific tracts upon the definite location of its road. 8 The company, by its attorney, has filed with me, and the same is herewith transn.itted, a relinquish- ment of all its right anr* Interest in any of the lands first withdrawn on the l-. ««&v-:jiJ