It is to be carefully noted that among the burdens assented to by the company is that contained in section 6 of the act, reading as follows:

SEC. 6. That the 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 said lands that have been so patented, and to protect any and all settlers on said lands in their rights under the said sections of this act."

The next act following this one was that of March 3, 1887 (24 Stats., 556-558), general in its scope, and designed to afford a plan of adjusting rail- · way land grants in general.

Aside from the rule that a special or particular act is not to be deemed repealed by a later general act, in absence of express language evidencing such intent; and aside from the cognate principle that if a special act and a general act are passed at the sme session of the legislative body the above rule has even greater force, the New Orleans Pacific Co. showed by its own act, taken the month following this general act of March 3, 1887, that it did not rely at all upon the latter act, but accepted the terms of the act of February 8, 1887. As a matter of fact any rights the New Orleans Pacific Co. may have had or acquired depended upon the confirmatory provisions of the act of February 8, 1887, so the company could not depend at all on the later act of March 3, 1887. If it did so, it would perhaps secure nothing whatever.

It is therefore obvious that neither the company nor the Government considered that the earlier, special act, of February 8, 1887, was in any manner affected by the later general act of March 3, 1887. Hence the act of March 3, 1887, has nothing whatever to do with the present matter, and may be henceforth disregarded.

The next statute requiring consideration is that of March 2, 1896 (29 Stats., 42), fixing in general terms the time within which suits might be brought to vacate land patents issued under railroad or wagon road grants, and to individual patentees under the public-land laws.

The question which must be here considered and decided is this: Does the act of March 2, 1896, affect the rights of the Government to protect settlers, under the terms of the act of February 8, 1887?

It is contended by the proponents of the pending bill that this question must be answered in the negative, and that all the provisions of said act of Februry 8, 1887, are still in full force and effect, exactly as they would have been had the act of March 2, 1896, never been enacted.

There are two principal reasons assigned for this contention, as follows: First. The relationship existing under the act of February 8, 1887, between the Government on the one hand (as trustee for the settlers) and the company on the other hand was one of express and most solemn contract, which contract is to be construed as remaining in full force unless in express and unmistakable terms abrogated by act of Congress in such manner as not to deprive the company of rights acquired thereunder.

Second. If the theory of the contractual nature of said act of February 8, 1887, and of the subsequent acceptance of its terms by the company be disregarded and the act be viewed merely as a statute, then the general rule of construction of statutes applies substantially as follows:

When the legislative body has enacted a special, particular statute dealing with a certain particular thing or local condition the latter enactment of a general law of wider scope will not be held to repeal the earlier law in absence of such clear intent on part of the legislative body and shown by the language of the later general act.

As to the first contention, the facts speak for themselves.

Had Congress attempted to repeal the act of February 8, 1887, in such a manner as would have taken any rights from the company the company would have been quick to suggest the contractual nature of the transaction and would have relied thereon undoubtedly.

The act of February 8, 1887, was passed, however, just as much for the purpose of protecting the settlers, their heirs, and assigns as it was to aid the company, and the one object is to be just as carefully considered and guarded as the other.

It is believed that this contention is absolutely sound and that, regarded as a contract, the act of February 8, 1887, is now just as effective and in as full force as it ever was; and that the Secretary of the Interior has full power at

the present time to proceed under the terms of that act in considering the claims of settlers based thereon.

However, the Interior Department has for some years held otherwise, and, as shown by its report on the pending bill, feels that it should not take up these settlers' claims for consideration and decision without further legislative authority from Congress.

Such authority would be given by the pending bill, and that is practically its only function.

As to the rule of construction of statutes.

So far as may be material to the contention that the act of February 8, 1887, was not affected by the act of March 3, 1887, attention is called to the general statement of principle in Sutherland on Statutory Construction, section 268. The great number of citations are omitted from the quotation, although many of them have been verified.

"Section 268. Acts passed at same session-provisions in same act. "The presumption is stronger against implied repeals where provisions supposed to conflict are in the same act or were passed at nearly the same time. In the first case it would manifestly be an inadvertence, for it is not supposable that the legislature would deliberately pass an act with conflicting intentions; in the other case the presumption rests on the improbability of a change of intention, or, if such change had occurred, that the legislature would express in it a different act without an express repeal of the first.

"'Statutes enatced at the same session of the legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.' (White v. Meadville, 177 Pa. St., 643.)

"The presumption is that different acts passed at the same session of the legislature are imbued by the same spirit and actuated by the same policy, and that one was not intended to repeal or destroy another, unless so expressed." So far as the acts of February 8, 1887, and of March 3, 1887, are concerned, it is obvious that they were enacted within less than a month of each other during the second session of the Forty-ninth Congress.

Now, as to the rule that a special statute will not be held repealed by a general statute in absence of strong reason for so doing.

Sutherland, in section 274, says:

"As a general rule laws will not impliedly repeal those which are local or special.

"A general law prescribing a rule universal as to a subject properly includes that entire subject and operates over every part of the State. The common law adapts itself to varying conditions by its flexible principles; but statutes are made to apply to given conditions by classifications, provisos, exceptions, and limitations. A general law may thus be prevented from operating on every subject and from taking effect in every place. The purpose of a general act relative to a given subject may harmonize with a different purpose on that subject in a particular locality, or under special conditions, or as it affects a particular interest or a particular person or class; it may harmonize in the sense that both purposes may be effectuated. The purpose of the general law may be carried out except as to the particulars in which a different intention is manifested. It is a principle that a general statute without negative words will not repeal by implication from their repugnancy the provisions of a former one which is special, local, or particular, or which is limited in its application, unless there is something in the general law or in the course of legislation upon the subject matter that makes it manifest that the legislature contemplates and intended a repeal. It is the established rule of construction that the law does not favor a repeal by implication, but that where there are two or more provisions relating to the same subject matter they must, if possible, be construed so as to maintain the integrity of both.

"It is also a rule that where two statutes treat the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, although later in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject matter as far as coming within its particular provisions.

"A special statute providing for a particular place, or applicable to a particular locality, is not repealed by a statute general in its terms and application,

unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would, taken strictly and but for the special law, in clude the case or cases provided for by it.

"When the legislature frames a statute in general terms or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation to the details of which he had previously given his attention, applicable only to a part of the same subject, unless the general act shows a plain intention to do so." (Citing many cases.)

Summing up under this phase of the matter it is plain :

1. The special act of February 8, 1887, together with the action of the New Orleans Pacific Co. in formally accepting its terms, made a contract under which the company secured certain benefits with certain conditions attached, and the company had to formally assent to all these conditions before the granting part of the act took effect.

2. One of the provisions was, in effect, that the Secretary of the Interior was vested with full authority to consider and pass upon the claims of those who were settlers occupying these lands at date of filing map of definite location, and until February 8, 1887, their heirs or assigns, and with incidental power and authority to issue patents under the terms of the public-land laws to such settlers, their heirs or assigns, notwithstanding possible issuance of a patent to the company covering the same lands, and this without limitation as to time.

3. In the act of March 2, 1896, there is found no language evidencing or tending to show any intention on part of Congress to annul or rescind the contract made in 1887 with this company, which therefore remains in full force and effect, unaffected by said act of March 2, 1896.

4. If said act of February 8, 1887, be not regarded (when taken in connection with acceptance of its terms by the company) as constituting in law a contract, then it should be regarded as a special statute, relating to a particular grant, passed under very peculiar circumstances and with special reference to protecting the rights of settlers, and is therefore not to be held repealed by later general statute in absence of express language of repeal.

5. That while the Secretary of the Interior practically says in his report that he believes he has authority to consider claims of settlers and to allow entry to be made under the public-land laws, yet as the Interior Department has held otherwise for some years he does not feel inclined to change the practice of his department in absence of express congressional sanction for so doing.

6. Enactment of the pending bill will confer the desired authority upon the Secretary of the Interior, to the end that all claims asserted by settlers, their heirs or assigns, coming within the protecting terms of section 2 of the act of February 8, 1887, may be considered upon their merits and disposed of in accordance with the facts of every case presented. (See U. S. v. Nix, 189 U. S., 199-205. Ex parte Crow Dog, 109 U. S., 556-572, cited on p. 37 House hearings.) The CHAIRMAN. Mr. Bernstein, you stated that you desired to present an application for a continuance?

STATEMENT OF MR. HENRY BERNSTEIN, OF MONROE, LA., REPRESENTING THE HEIRS OF THE GOULDS.

Mr. BERNSTEIN. Yes, sir, Mr. Chairman. There are quite a number of features in this mater concerning which we are not prepared to proceed and to present to the committee at this time. I may present just a few of them for the consideration of the committee.

In the first place, we do not consider that we have ever had a hearing on this bill as presented to the Senate committee before the House. The Aswell bill, that this is the successor of-I do not know it as more than an offspring-was an entirely different bill in many features-most essential and important features. We went before the House committee to represent the interests which myself and others represent on the Aswell bill as originally presented to the House. A

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hearing was had upon that bill, and after a full and complete hearing on the bill as then presented, the committee then, as I understand the matter, referred the subject matter back to the Interior Department with specific instructions not general instructions to draft a bill covering the situation, but with specific instructions-to draft and return to them a bill containing certain distinctive features which you will find in the report of the hearings. The Interior Department, attempting to comply with the request of the committee, drafted a bill along the lines suggested by the request from the chairman of the Public Lands Committee of the House, but did not embrace all of the different features the committee had requested be put in the bill. They designated that, in order to differentiate it from another bill, as bill No. 1. They then, for reasons given in the letter returning the bills to the committee, also transmitted a second bill which the department designated as bill No. 2, and gave their preference and recommendation to bill No. 2 instead of bill No. 1. The committee of the House, however, reported bill No. 1, and not the choice of the department, which was bill No. 2.

Now, they come before you gentlemen and say that this bill as presented to you has all the indorsement of the Interior Department, when the letter transmitting it shows that the Interior Department were but complying with the request of the committee in framing the bill in the manner that this bill is framed, and at the same time they transmitted a second bill which they did indorse and they gave it a preference over this bill, with the suggestion that in their opinion it is preferable.

The CHAIRMAN. Is that second bill which you say was prepared by the department embraced in the House hearing?

Mr. BERNSTEIN. No, sir. These matters all transpired after the House hearings.

Mr. HUDSON. It is in the report of the House committee, Mr. Chairman.

Mr. BERNSTEIN. I was going to state that after the matter assumed that phase we requested of the chairman of the House committee a right to be heard on the bill as it went back to the committee as a substitute, and to be heard as to whether the committee would adopt bill No. 1 or bill No. 2 with amendments as we might suggest to them, and we were not given an opportunity. We were refused an opportunity to go before the House committee on this bill that came back from the Interior Department and is now before this committee as having passed the House. Now, we think that we should have a full and complete hearing on this new bill, because it is a new bill. It has very distinctive features and differences from the Aswell bill.

The CHAIRMAN. I do not see any objection to your presenting fully your views on the matter and your preference as to the two bills. What length of time will it require you to do that?

Mr. BERNSTEIN. Well, that would depend, Mr. Chairman, on a good many contingencies. There are a number of gentlemen who are vitally interested in this matter that are very anxious to appear before the committee and present the views of the parties they represent. For instance, Judge Moore, of Texarkana, who represents the Buchanan interests, that own a very large acreage of this grant, is anxious to be present, and it will be impossible for him to appear before the committee for some little time, as I understand.

The CHAIRMAN. In that connection, I have received letters and telegrams from a good many people in different parts of the United States requesting additional time for these hearings, and I think I am authorized to state for the committee that we are willing and anxious that reasonable time be accorded, and that that will be done, but nothing has come to my notice as yet which shows any necessity for any great delay. There seems to be but little dispute as to the facts involved in the matter.

Mr. BERNSTEIN. Well, there is considerable dispute as to the facts, Mr. Chairman.

The CHAIRMAN. It does not seem to have developed as yet.

Mr. BERNSTEIN. I was going to call your attention to this matter. For instance, it has been publicly stated, not only before the committee of the House, but also before this committee, that there are but about 450 of these settlers or persons interested in this proposed legislation. Now, as a matter of fact, during the hearing before the House committee request was made that a list of these so-called settlers be furnished the House committee and that copies be given to us so that we would have opportunity of investigating just who these so-called parties in interest are that are appearing before you by representatives with tears in their eyes and a feeling of a great wrong that has been done, so that we could come before the committee with something besides the mere assertion and demonstrate to you the character, if any at all, of the interests of these so-called settlers. We are claiming, on the other hand, instead of there being 450 persons interested only, that there are over 10,000 people that have presented applications for homesteads to the land department attempting to homestead on these lands.

Mr. ASWELL. Have any of those applications been made within the last year?

Mr. BERNSTEIN. Within the last year? My information is that there are.

Mr. ASWELL. I would like to find out if there are.

Mr. BERNSTEIN. But there have been over 9,000 of them made. within the last three years.

The CHAIRMAN. If I understand it correctly, neither of these bills, neither No. 1, which is the one reported by the House committee, which passed the House, nor No. 2, which is the one you say is preferred by the department, contemplates that any claims shall be recognized by the department in the proposed adjustment except those which were fixed by actual occupancy of the land by the claimant or his ancestor or grantor

Mr. BERNSTEIN. That is just the trouble, Mr. Chairman.

The CHAIRMAN. Prior to the time of the definite location of the road.

Mr. BERNSTEIN. That is just the trouble, Mr. Chairman; that "assigns." That leaves the whole matter open and will cause us to have to appear, or the interests that we represent to appear, and defend the claims of more than 9,000 people claiming under that very thing. Mr. HUNTER. I want to state that there is no such thing. I state here on my veracity that there are not over 450.

Mr. BERNSTEIN. Why have you not furnished this list?

Mr. HUNTER. We have made application, and we can not get them from the Land Office. There are not 9,000. There are not nearly