CARTER AND SHIVER.

Purchasers who induced the trespass to be required to pay the purchase price to the Government.

Secretary Teller to Commissioner McFarland, June 25, 1884.

I am in receipt of your letter of the 4th instant, with the documents therein enumerated, relative to alleged trespass by E. K. Carter and Oliver Shiver, both of Crystal River, Florida, în cutting from certain lands belonging to the United States, in said State, 600 cedar trees, producing an equal number of sticks, equivalent to about 1,500 cubic feet, board measure, of timber, which they sold at $1 per stick to one George H. Richards, agent of the Eagle Pencil Company (factory at 724 East Fourteenth street, New York).

In view of the facts set forth, particularly that Carter and Shiver are ignorant, impecunious men, and in such straits, under the necessity of providing for the support of their families, as led them to accept the inducements held out to them by the agents of the Eagle Pencil Company, I concur in your recommendation that said company be called upon to settle with the Government for the purchase of said timber, at the rate of $1 per stick, making a total of $600.

4. PROSECUTIONS.

Legal proceedings against alleged timber depredators not to be instituted unless directed by the United States Attorney-General, or until an agent of the Department of the Interior shall have investigated the facts reported thereon to that Department and received instructions therefrom.

Secretary Teller to Commissioner McFarland, June 16, 1884.

I have received your letter of the 7th instant, inclosing copy of communication from Thomas Mitchell, without date, but postmarked Tombstone, Ariz., in reference to the arrest of certain wood-choppers in that Territory. In accordance with your recommendation, I have transmitted a statement of the facts in the case to the Department of Justicecopy inclosed herewith. I invite your attention to my recommendation that the Attorney-General "instruct the several United States attorneys not to institute legal proceedings against alleged timber depredators unless directed by " him, "or until an agent of this Department shall have investigated the facts, reported upon the same to this Department, and received therefrom instructions what measures to take in the premises-except in certain cases of emergency, when such agents are directed to call upon the United States attorneys for advice and assistance (see page 17 of Circular Instructions)."

In this connection, however, I have to add that the arrest of parties for trivial offenses, or upon insufficient cause, I find to be by no means exclusively the result of injudicious action on the part of subordinates of the Department of Justice. I have before me your letter of March 12, 1884, transmitting report of Special Agent Prosser in the cases of W. A. Cassidy, J. R. Roberts, and W. H. Speahrs, of Washington Territory; also your letter of March 25, 1884, transmitting report of Special Agent Dodge in the case of John Drechler, of Minnesota; and other letters of earlier date, announcing the institution of legal proceedings upon complaint of special timber agents to United States commissioners or United States attorneys, without authority of your office, and without allegation by the agent of any necessity for immediate action. In the last-named case the alleged trespass was upon an odd-numbered section within the granted limits of the grant to the Saint Paul, Minneapolis and Manitoba Railway Company; and the suit instituted was upon complaint made directly contrary to my instructions of February 26, 1883 (in the case of Thomas Jenkins, of Oregon). In the cases in Washington Territory, Agent Prosser made complaint to the United States attorney, and secured the institution of criminal suit against men engaged in cutting ties for the construction of the Columbia and Puget Sound Railroad, on land adjacent to and within a short distance of its track, and on their inability (being poor men, transients, and without acquaintances in that vicinity) to give bail, had them taken first to the county jail, and afterwards to the territorial penitentiary, to await criminal trial for doing what the officials of the railroad company and others had assured them it was legal and proper for them to do. This was a case in which I never should have requested criminal suit to be brought; but suit having been commenced (the Department of Justice thereby acquiring jurisdiction) before report was made by the agent, the hands of this Department were tied by the unwarranted and unjustifiable course of one of its own employés. When it is not deemed proper policy for your office to request of the Department of Justice that suit should be commenced in any given case, but to refer the papers in such case to me for consideration and action, it seems exceedingly inconsistent that a subordinate of your office should be permitted to direct a subordinate of the Department of Justice to do so, without consent of or consultation with the heads of the two Departments.

If no direct and positive prohibition of such a course has hitherto been made, it has been simply because it could not be anticipated that any special agent would take upon himself to exercise at once the executive functions of Secretary of the Interior and Attorney-General-functions more important and responsible than those exercised in regard to the same matter by the Commissioner of the General Land Office, whose subordinate he is. You will therefore direct the attention of special timber agents to the fact that the whole tenor and purport of the instructions issued to them is to investigate alleged timber trespasses (see

Circular Instructions of June 1, 1883, page 13) "in order to be able to report the case" to your office; and that it is only (see page 17) "in case of emergency, where the offender is about to leave the country, or the property is being removed or concealed and the evidence of the trespass destroyed, so that immediate action is absolutely necessary to protect the interests of the Government," that such agent is authorized to apply to the United States attorney to institute legal proceedings.

BRAMWELL v. CENTRAL AND UNION PACIFIC RAILROAD COMPANIES.

One Thomas filed declaratory statement May 19, 1869, and relinquished March 29, 1871, on which day Bramwell made homestead entry of the tract. The companies claim, jointly, under the act of May 6, 1870. Held, that since no priority of estate between Thomas and Bramwell is shown, and since Bramwell's claim was initiated subsequently to the date of the grant, the case does not come within the intendment of the proviso in said act, protecting the rights of private persons. Acting Secretary Joslyn to Commissioner McFarland, September 12, 1883. SIR: I have considered the case of George Bramwell v. Central Pacific and Union Pacific Railroad Companies, involving the W. of NW. of 2 Sec. 26, T. 7 N., R. 2 W., Salt Lake City, Utah, on appeal by Bramwell from your decision of July 21, 1881.

The township plat was filed in the local office March 15, 1869.

May 19, 1869, one Elisha Thomas filed declaratory statement No. 574, for the NW. of said Sec. 26, but relinquished the same March 29, 1871.

It appears that under date of March 23, 1871, Bramwell made homestead entry No. 1072 of the tract, and made final proof December 22, 1877, whereupon final certificate No. 923 issued to him therefor.

The companies claim the tract jointly by virtue of the act of May 6, 1870 (16 Stat., 121), whereby said section was "granted to them iu equal shares, with the same rights, privileges, and obligations now by law provided with reference to other lands granted to said railroads," subject, however, to the proviso: "That no rights of private persons shall be affected by this act."

You held that as Bramwell's rights were initiated subsequently to the date of the approval of the act cited, his case is not protected by said provision.

I concur with you in this opinion; as it will be observed that the record fails to discover any privity of estate between Thomas and Bramwell, whereby the latter's rights could be made to antedate the grant, or to take effect by relation as of the date of Thomas's initiation of claim to the premises. Moreover, it should be observed that Thomas's right was merely inchoate, he having relinquished without perfecting the same, or doing anything to that end. Your decision is accordingly affirmed.

SAME (ON REVIEW).

Secretary Teller to Commissioner McFarland, October 27, 1883.

SIR: I have considered the motion of the attorneys of George Bramwell for a reconsideration of Departmental decision rendered under date of the 12th ultimo, in the case of Bramwell v. Central Pacific and

Union Pacific Railroad Companies, involving the W. of NW. of Sec. 26, T. 7 N., R. 2 W., Salt Lake City, Utah.

Said motion covers the identical points that were duly considered before the decision in question was rendered.

No new evidence is presented, nor is there even a pretense that any such evidence has been discovered; but the motion is based upon the bald assumption that the Department erred in its construction and application of the law governing the facts in the premises, the finding whereof is conceded to have been correct.

Rule 76 of Practice authorizes motions for review or consideration of the Secretary's decisions when "in accordance with legal principles applicable to motions for new trials at law." This motion is not in accordance with such principles, but practically assumes that the Department was either in error in its construction of the statute or derelict in not giving the same a sufficiently careful consideration.

In an appellate tribunal, when a case is decided involving purely questions of law, re-argument is never heard except when based upon the suggestion of some member of the court who concurred in the judg ment. Inasmuch as I am unable, even in the light of the persuasive assumption of counsel's argument, to discover error in the construction of the statute, I would decline to disturb the decision in question without further discussion; but independently of the foregoing consideration, it should be observed that said decision cited so much of the granting act as was deemed material in the premises.

Such citation, with its context, was as follows, to wit: "The companies claim the tract jointly by virtue of the act of May 6, 1870 (16 Stat., 121), whereby said section was 'granted to them in equal shares, with the same rights, privileges, and obligations now by law provided with reference to other lands granted to said railroads,' subject, however, to the proviso: That no rights of private persons shall be affected by this act." The act provides primarily

That the common terminus and point of junction of the Union Pacific Railroad Company and the Central Pacific Railroad Company shall be definitely fixed and established on the line of railroad as now located and constructed, northwest of the station at Ogden, and within the limits of the sections of land hereinafter mentioned, viz:

Section 26 in question (inter alia):

And said companies are hereby authorized to enter upon, use, and possess said sections, which are hereby granted to them in equal shares, with the same rights, privileges, and obligations now by law provided with reference to other lands granted to said railroads.

The primal question that arises for consideration is: What are the "rights, privileges and obligations now by law provided with reference to other lands granted to said railroads?"

Counsel cite numerous authorities in support of their theory of the case touching the proper construction of the granting act in connection with the granting acts referred to therein; but, after a careful examina