Mr. HUNTER. What I wanted to say was not that I wanted to limit the hearing, but I want the right to close the discussion.

The CHAIRMAN. I think there will be no objection to that.

Mr. HUNTER. Mr. Consaul will speak on the same side, and I think some of the other gentlemen can speak now and let him reply.

The CHAIRMAN. I think it would be better to have you gentlemen present your side of it now.

STATEMENT OF MR. CHARLES F. CONSAUL, OF WASHINGTON, D. C.

Mr. CONSAUL. Mr. Chairman and Senators, I shall not attempt to deal at all in this discussion with what may be termed the local facts. My connection with this bill has been one that has brought me in connection with it simply from a legal standpoint. I was called into conference by Representative Aswell when he was attempting to determine for himself whether there were any legal rights which could be examined by the Government, whether there were any rights which were subject to protection, and I shall deal simply with the law matters.

Col. Hunter has briefly recounted to the committee the history of this grant. In the early eighties there was evidently a very serious question indeed as to whether the New Orleans Pacific Co. had any rights at all under the attempted transfer of rights by the original company grantee. That may more forcibly appear, perhaps, when I call your attention to the fact that the State Legislature of Louisiana passed a legislative act declaring forfeited the charter of the original company grantee. That attempted legislation was later 'held unconstitutional by the State supreme court, however, but I mention that in passing simply to show that the very existence of the original company was seriously questioned in law, and the rights. of the New Orleans Pacific Co., as grantee of the original company, were exceedingly dubious and shady.

Therefore, when this act of February 8, 1887, was passed it is very evident that the New Orleans Pacific Co. was glad to effect any such sort of a settlement-for such it is termed-with the Government as would give it with certainty something, perhaps, out of the original grant. That was a very peculiar statute in that it was not merely a statute, but it was, in its plain legal effect, a tender by the United States Government, speaking through Congress, of a contract with the New Orleans Pacific Co. whereby the Government held out to the grantee certain rights under the confirmatory portion of the statute, whereby it coupled those proffered rights with certain conditions which were in themselves unusual, and then said that this act shall not take effect unless and until the stockholders of the New Orleans Pacific Co. shall have accepted all the terms of this act and shall have so advised the Secretary of the Interior. In other words, it was an act with a string to it, and was in effect nothing but a proffer of a contract to the railroad company, and became effective upon the acceptance by the company of all the burdens and conditions contained in the act.

Senator STERLING. Did it require an acceptance by the stockholders of the company?

Mr. CONSAUL. It did, Senator. I refer to pages 28 and 29 of the House hearings, where the resolution of the stockholders is set forth

in full. That was on April 14, 1887. A duly certified copy is on file in the Interior Department.

Now, as suggested briefly by Col. Hunter, that act of February 8, 1887, was a peculiar act in several particulars. It will be found on pages 21 and 22 of the House hearings and section 2, reading on page 22, provides:

That all said lands occupied by actual settlers at the date of the definite location of said road and still remaining in their possession or in possession of their heirs or assigns, shall be held and deemed excepted from said grant and shall be subject to entry under the public-land laws of the United States.

Section 6 of that act provides:

That patents for the lands conveyed herein that have already been issued to said company be, and the same are hereby confirmed; but, the Secretary of the Interior is hereby fully authorized and instructed to apply the provisions of the second, third, fourth, and fifth sections of this act to any of such lands that have been so patented and to protect any and all settlers on said lands in all their rights under the said sections of this act.

As the members of the subcommittee are doubtless aware, as a general proposition, the issuance of a patent by the Land Department absolutely terminates all jurisdiction of that department over all land patented, and so far as I am advised-and I have been dealing more or less with land law for 20 years-this is the only statute that attaches a condition to a patent after it has been issued, that authorizes the Land Department to still adjust or adjudicate rights between a patentee or a person claiming under a patent and persons claiming under the general land law.

It is a very peculiar statute.

The CHAIRMAN. Let me ask you right there: When these patents were issued to the railroad company, did they contain on their face any exceptions?

Mr. HUNTER. Yes, sir.

The CHAIRMAN. They excepted the lands occupied by actual settlers?

Mr. HUNTER. Yes, sir. I forgot to mention that.

The CHAIRMAN. They did not, I assume, specify the lands themselves; they simply reserved the rights to settlers?

Mr. HUNTER. Yes.

The CHAIRMAN. Is there a copy of those patents in the record? Mr. CONSAUL. At page 193 of the House hearings, Mr. Chairman, you will find such a copy.

The CHAIRMAN. Very well. Go ahead. I only wanted to get that fact clear in my mind.

Mr. NORRIS. Counsel are a little in error in that regard. I do not think that the patents contain any such statement.

Mr. HUNTER. The last ones do not, but the ones we are concerned with do contain that express reservation.

Mr. NORRIS. I think the first patent, issued in 1885, contains an exception of lands occupied, but I do not know of a single patent that was issued after the passage of the act of 1887 which contains that language.

The CHAIRMAN. Well, we will reach that later.

Mr. NORRIS. I may be mistaken, but I do not think they do.
Mr. HUNTER. Well, we will offer one in the La Salle Parish.
Senator RANSDELL. Do you wish this to go in the record?

Mr. HUNTER. I do; yes.

The CHAIRMAN. Then let be inserted as a part of the remarks of Mr. Hunter this patent under date of the 12th day of September,

1900.

(The paper referred to is as follows:)

[Patent No. 48. New Orleans Pacific Railway Co. lands act, April 14, 1896.]

To all to whom these presents shall come, greeting:

Whereas by the act of Congress approved March 3, 1871, entitled "An act to incorporate the Texas Pacific Railway Co., and to aid in the construction of its road, and for other purposes," there was granted to the said Texas Pacific Railway Co. for the purpose of aiding in the construction of its railroad and telegraph lines every alternate section of public lands, not mineral, designated by odd numbers to the amount of 20 alternate sections per mile on each side said railroad line, as such line may be adopted by said company, through the territories of the United States, and 10 alternate sections per mile on each side of said railroad in California, where the same shall have not been sold, reserved, or otherwise disposed of by the United States and to which a preemption or homestead claim may not have attached at the time of the said railroad is definitely fixed; and

Whereas by section 22 of said act there was granted to the New Orleans, Baton Rouge & Vicksburg Railroad Co., chartered by the State of Louisiana, its successors and assigns, in aid of the construction of the railroad from New Orleans to Baton Rouge, thence by the way of Alexandria in said State to connect with the said Texas & Pacific Railroad at its eastern terminus, the same number of alternate sections per mile in the State of Louisiana as were by said act granted in the State of California to the said Texas & Pacific Railway Co., to be selected upon same terms and in the same manner as was provided for and was required from said Texas Pacific Railroad Co. within said State of California; and

Whereas said New Orleans, Baton Rouge & Vickeburg Railway Co. did, on the 5th day of January, 1881, assign and convey all its rights, title, and interest in or to the grant of land aforesaid to the New Orleans Pacific Railway Co., chartered by the State of Louisiana, as shown by the original deed of assignment filed in the General Land Office, February 21, 1881; and

Whereas on March 19, 1883, the Secretary of the Interior transmitted to the General Land Office an official statement showing that the New Orleans Pacific Railway Co. had constructed and equipped in the manner required by said act of March 3, 1871, a railroad from White Castle, in the State of Louisiana, to a connection with the Texas Pacific Railway in the city of Shreveport. in said State, a distance of 260 miles, and that pursuant to the report of the commissioners appointed under the provisions of section 18 of said act, said railroad had been accepted by the President in conformity to said act; and Whereas Congress, by act approved February 8, 1887, entitled "An act to declare the forfeiture of the lands granted to the New Orleans. Baton Rouge & Vicksburg Railroad Co. to confirm titles to said land, and for other purposes,” relinquished and confirmed the title of the United States and of the original grantee to the lands granted by act of March 3, 1871, aforesaid, and not therein declared forfeited to the New Orleans Pacific Railroad Co.; and

Whereas by the act of Congress approved April 14, 1896. is provided that authority be and is hereby given the New Orleans Pacific Railroad Co. to relinquish any lands within the indemnity limits of its grant which, by decision - of the land department of the Government has been awarded it, in favor of any settler entitled to the right of entry under the laws of the United States who has been allowed to make entry thereof or who has resided upon and improved the same for five years, and to select in lieu thereof an equal quantity of other lands from any of the public lands not mineral and within the limits of its grant and not otherwise appropriated at the date of selection to which it shall have received title though originally granted; and

Whereas certain designated tracts of land designated in odd-numbered sections within the indemnity limits of the grant of the New Orleans Pacific Railway Co., and by decision of the Land Department have been awarded to, have been found to be in possession of actual settlers who have resided upon and cultivated the lands for five years, and whose lands were initiated under the

preemption or homestead law subsequent to the time at which the right of the road is held by the Lad Office to have attached such lands; and

Whereas the said New Orleans Pacific Railway Co. has duly relinquished under the provisions of said act of April 14, 1896, all its rights, title, and interest in and to said tracts of land; and

Whereas certain tracts of land have been selected by the duly authorized agent of the said New Orleans Pacific Railroad Co. in lieu of those relinquished as aforesaid as shown by his original list of selections approved by the local land office and now on file in this office; and

Whereas the said tract of land is opposite to the contracted line of said road and particularly described as follows, to wit:

North of base line and east of Louisiana meridian, State of Louisiana, former district north of Red River, township 8, range 2: The south half of northeast quarter and the south half of the northwest quarter of section 26, containing one hundred and sixty acres and ninety-six one-hundredths of an

acre.

Township 8, range 3: Northeast quarter of the northwest quarter and the north half of the northeast qarter of section 18, containing one hundred and eighteen acres and sixty-five one-hundredths of an acre. The lot numbered 2 of section 36, containing eighty-eight acres and nineteen one-hundredths of an acre.

North of base line and west of Louisiana meridian, township 6, range 8: The north half of section 28, containing three hundred and nineteen acres and forty hundredths of an acre.

The said tract of lands as described in the foregoing make the aggregate area of six hundred and eighty-seven acres and twenty hundredths of an acre (687.20 acres).

Now know ye, that the United States of America, in consideration of the premises and in pursuant to the said act of Congress, has given and granted and do by these presents, give and grant unto the said New Orlans Pacific Railway Co., and unto its successors and assigns forever, the tracts of land described in the foregoing, yet excluding and excepting, however, all mineral lands, should any such be found on the tracts aforesaid, but this exclusion and exception according to terms of the statute shall not be held to include iron or coal.

To have and to hold the same with the appurtenances unto the said New Orleans Pacific Railway Co., and unto its successors and assigns forever.

In testimony whereof, I, William McKinley, President of the United States of America, have caused these letters to be made patent and the seal of the General Land Office to be hereunto affixed.

Given under my hand at the city of Washington, this 12th day of September, in the year of our Lord one thousand nine hundred, and of the Independence of the United States the one hundred and twenty-fifth.

By the President: [SEAL.]

STATE OF LOUISIANA, Parish of La Salle:

WILLIAM MCKINLEY.

F. H. MCKEAN, Secretary.
C. H. BUSH,

Recorder of the General Land Office.

OFFICE OF CLERK AND RECORDER.

I hereby certify that the above and foregoing 4 pages contain a true and correct copy of the original patent now of record in this office in Book No. 2, folio 17, of the records of La Salle Parish.

Given under my official seal and signature this the 3d day of June, 1914. {SEAL.]

J. H. BRADFORD, Clerk and Ex-officio Recorder.

The CHAIRMAN. Now, Mr. Consaul, go ahead.

Mr. CONSAUL. Referring again to the fact that this was a peculiar statute, this act of February 8, 1887, I will call the Senators' attention again to the last part of section 2, which provides that in order that the settler or his heir or assign shall be within the protection of that act, not only must he prove that he was in possession of the land in question at the date of the definite location of the road but that

he remained in possession down to the date of that act. That was an unusual burden to place upon the homesteaders. As a general proposition of railroad-grant law, if the land was occupied at the date of the definite location by a qualified homesteader that fact in itself excepted the land from the operation of the grant.

I call the attention of the committee to the peculiar burden laid upon the settlers to show that this was not a one-sided act at all. It laid burdens upon both the settlers and the company. Within a month, and, in fact, less than a month, after this act of February 8, 1887, was enacted there came along the act of March 3, 1887, which was the general railroad-grant act that is quoted in full on pages 23 and 24 of the House hearings. The fact that in the month following-in April, 1887-the company formally accepted the terms of the act of February 8, 1887, showed that the company was placing no reliance and basing no claim whatever upon the general railroadgrant act of March 3, 1887. If they had relied upon the general railroad-grant act, there would have been no necessity, of course, for their accepting the terms of the special act.

Senator STERLING. This act of March 3, 1887, is a general railroadgrant act?

Mr. CONSAUL. It is, Senator Sterling.

Mr. NORRIS. A general act for the adjustment of railroad grants. Mr. CONSAUL. Yes; for the adjustment of railroad grants.

But I wish to impress as strongly as possible upon the minds of the Senators of the committee that the company obviously based no rights or claims under that general adjustment act, but it was relying upon that special act which gave it a new lease of life.

The next act which becomes material is the act of March 2, 1896, quoted in full at pages 24 and 25 of the House hearings, the first section of which was read to the committee by Judge Proudfit, placing a limitation upon the period within which a land patent could be attacked by the Government. It has been contended, as I understand, in the courts, and, I know, before the House Public Lands Committee, by the opponents of this bill that this act of 1896 is conclusive of all the rights of settlers in this matter; that where patents have been outstanding more than five years it is impossible for the Land Department to now attempt to look behind the patent to see whether it was properly issued and to see whether it was issued in derogation of the rights of settlers, and I will address myself first to that contention.

The idea of the proponents was stated very briefly by Col. Hunter; that is, that the act of February 8, 1887, confirming the forfeited grant in question was a special act dealing with what may be termed a local condition, and the fact that that act was formally accepted by the company gave it the legal effect of a contract. As Col. Hunter suggested, as a general proposition in the construction of statutes, a general act is not held to repeal or amend or annul a special act. If that proposition is correct, as it undoubtedly is, and if that principle is applied to this case, it is very plain, it seems to me, as a proposition of law, that the act of 1896 has absolutely nothing to do with the case; and that fact has been fully recognized during the progress of this legislation by the Interior Department after careful consideration.