occupancy of such settlers, their heirs or assigns, from such date of definite location until the eighth day of February, eighteen hundred and eighty-seven, then it shall be held and decided that such lands did not pass to said railroad company or to any successor in interest under its original grant made by act approved March third, eighteen hundred and seventy-one, or under any amendment thereof, because such lands were never subject to said grant; and such lands shall be thereupon deemed to be public lands of the United States, open to acquisition and to disposition under all appropriate public-land laws of the United States. any general statutes or acts of limitation notwithstanding. SEC. 2. That it having been expressly provided by section two of said act of February eighth, eighteen hundred and eighty-seven, that lands such as are above described should be held and deemed excepted from the operation of said grant, if it shall be found by the Secretary of the Interior that any such lands were so occupied at and between the date of definite location of said line and the eighth day of February, eighteen hundred and eighty-seven, then it shall be further held and considered that any patent or patents or approvals of lists of selections made by said company or its successors in interest and intended to have the general effect of a patent, which may have been issued or approved, including such lands, were absolutely void as to such lands; and it shall be further held and considered that no title to such lands passed to said railroad company, its successors in interest, or their assignees or grantees under or by virtue of such patents or approvals.

SEC. 3. That in order that titles to the lands lying within the limits of said grant may be finally settled, all persons claiming any lands lying within the limits of said grant and asserting title thereto adversely to said railroad company or its successors in interest, assignees, or grantees shall, within two years from this enactment, file with the United States land office for the district within which said lands lie a notice of his claim to such land, together with an application to make entry thereof under the provisions of the publicland laws of the United States, and shall state under cath, corroborated by the oath of at least one other person, the facts upon which he relies to show that the lands in question were excepted from said grant. All papers so filed shall be forthwith transmitted by such local land office to the Commissioner of the General Land Office, who shall pass upon the sufficiency thereof; and upon a sufficient showing being made, the Commissioner of the General Land Office shall direct that a hearing be ordered by such local land office to determine the facts of the case, to which hearing the New Orleans Pacific Railroad Company, as successor in interest to said New Orleans, Baton Rouge and Vicksburg Railroad Company, shall be made a party, and any person claiming under said railroad companies shall be permitted to intervene at such hearing upon disclosing under oath the nature of his interest or claim in the lands involved.

SEC. 4. That if it shall be proven in any proceeding hereunder that any such lands were in fact occupied by any settler at and between the date of definite location of the said railroad and February eighth, eighteen hundred and eighty-seven, it shall be presumed in the absence of proof to the contrary that such settler was qualified to make entry of such lands under the publicland laws of the United States in quantity not in excess of that permitted by the homestead laws; but if it shall be shown and found that such settler was not in fact so qualified, then it shall be held that such occupancy was insufficient to except such lands from the operation of said grant.

SEC. 5. That in the event it shall be finally decided and held by the Commissioner of the General Land Office or by the Secretary of the Interior that any such lands were in law and in fact reserved and excepted from the operation of said grant, then a notation of such decision shall be made upon the public-land records in the General Land Office and in the United States land office for the district wherein such lands lie, and shall be deemed to be and to constitute notice of such decision to all persons.

SEC. 6. That the Secretary of the Interior may prescribe all proper and necessary regulations for the administration of this act, including the prescribing of the manner of giving reasonable notice of any hearing which may be ordered hereunder, either by publication of notice or otherwise.

SEC. 7. That this act shall be deemed and considered a local act, applicable solely to the lands hereinabove described, lying within the State of Louisiana. The decision of the Secretary of the Interior as to the fact of occupancy at and between the date of definite location of the line of said railroad and

February eighth, eighteen hundred and eightly-seven, shall be final and conclusive.

SEC. 8. That all claims to any of the lands hereinabove described, adverse to said railroad company or its successors in interest, which shall not be asserted within the period of two years from this enactment, shall be deemed and considered forever barred, and no claim or proceeding adverse to said railroad company or its successors in interest shall be thereafter accepted or entertained by the Land Department of the United States: Provided, however, That the provisions of this act limiting the time for presentation of claims adverse to said railroad grant shall not apply to claims to lands involved in that certain suit commenced in the Circuit Court of the United States for the Western District of Louisiana on or about February twenty-seventh, nineteen hundred and one, entitled "The United States of America, complainant, against The New Orleans Pacific Railway Company and others, defendants," being equity cause numbered sixteen in said court; but claims to lands included in said suit, now pending, may be asserted in accordance with the terms of this act at any time within two years after the termination of said suit: Provided further, however, That the pendency of said suit shall not preclude the assertion of claims to any lands included in said suit, and this enactment shall not work a dismissal or discontinuance of said suit.

The CHAIRMAN. Gentlemen of the committee, and I also desire to say this to the gentlemen not members of the committee, it is the practice of this committee to refer every bill introduced and referred to this committee-to refer such bills to the department affected, so that the department may give us not only a statement of the facts but their version of the law, and their version of the feasibility of the proposed legislation, favorable or unfavorable.

Mr. Raker, a member of the committee and the chairman of the subcommittee to which this bill was referred, will now present the report from the department so that you will have that before you for your information and consideration.

Mr. RAKER. The report is in the form of a letter, under date of December 23, 1913, which reads as follows:

Hon. SCOTT FERRIS,

DEPARTMENT OF THE INTERIOR,
Washington, December 23, 1913.

Chairman Committee on the Public Lands,

House of Representatives.

MY DEAR MR. FERRIS: In response to your request therefore, I have the honor to report on H. R. 5890, as follows:

The title of this bill is "For the relief of settlers within the limits of the grant to the New Orleans, Baton Rouge & Vicksburg Railroad Co." This grant was made by section 22 of the act of March 3, 1871 (16 Stat., 573, 579), to aid in the construction of the New Orleans, Baton Rouge & Vicksburg Railroad from New Orleans to Shreveport.

By deed executed January 5, 1881, the said company conveyed to the New Orleans Pacific Railway Co. all its right, title, and interest in said grant. By the act of February 8, 1887 (24 Stat., 391), Congress declared a forfeiture of the grant made by the act of March 3, 1871, as to all the portions thereof lying east of the Mississippi River and all that portion lying west of the said river and between New Orleans and the town of White Castle, and by section 2 of said act granted and confirmed to the New Orleans Pacific Railway Co., assignee as aforesaid, the remainder of the grant. The said section 2 reads as follows:

"SEC. 2. That the title of the United States and of the original grantee to the lands granted by said act of Congress of March third, eighteen hundred and seventy-one, to said grantee, the New Orleans, Baton Rouge and Vicksburg Railroad Company, not herein declared forfeited, is relinquished, granted, conveyed, and confirmed to the New Orleans Pacific Railroad Company, as the assignee of the New Orleans, Baton Rouge and Vicksburg Railroad Company, said lands to be located in accordance with the map filed by said New Orleans Pacific Railway Company in the Department of the Interior October twenty

seventh, eighteen hundred and eighty-one, and November seventeenth, eighteen hundred and eighty-two, which indicate [sic] the definite location of said road: Provided, 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 the same act made the following provision:

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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 all their rights under the said sections of this act."

On June 6, 1887 (5 L. D., 686), the Commissioner of the General Land Office, with the approval of this department, issued instructions to the registers and receivers of the New Orleans and Natchitoches land offices for carrying into effect the provisions of the act of February 8, 1887, and on June 27, 1887, furnished each of said offices 300 copies of the instructions for distribution in their respective districts for the information of all parties concerned. A large amount of lands having been previously patented under the grant, it was distinctly stated in the instructions that the provisions of said section 2 were applicable to lands which may have been so patented, as well as to those which remained unpatented, the instructions on this point being fully authorized by the provisions of section 6 of the granting act.

When applications were presented by claimants adverse to the railway company, they were considered by the Land Department and decisions rendered thereon, and in cases where the decisions were favorable to the adverse claimants, and the lands had been patented under the railroad grant, the company was called upon to reconvey them. It did so in cases where it still retained the title, and in cases where it had disposed of the land and was unable to reconvey it so advised this office, and suit thereupon for the recovery of title was instituted.

This practice continued until the expiration of the period prescribed by the act of March 2, 1896 (29 Stat., 42), within which suit might be brought by the United States to vacate a railroad or wagon-road patent. Thereafter a number of applications, alleging conditions which, if proven, would have brought the cases within the provisions of section 2 of the act of 1887 if presented prior to the expiration of said period, were filed, but rejected under the holding of the department, which has since been followed, that the Government, even if the allegations should be proven, would be unable to extend relief, having no jurisdiction while the patent was outstanding and no authority to institute suit to vacate the patent.

This ruling as to want of jurisdiction to pursue the further adjustment of the grant where adverse right was set up as against patented land, and the subsequent adherence of the department thereto, has given rise to a condition that is sought to be remedied by the present bill, to the end that all of those settlers who are now held to be debarred from asserting any rights as against patented lands shall have such limitation removed.

The bill now under consideration embraces eight sections:

Section 1 provides that the Department of the Interior and all courts of the United States shall give full force and effect to the terms and provisions of section 2 of the act of February 8, 1887, repeating, in substance, the provisions of said section, so far as intended to protect the rights of settlers.

Section 2 directs that if the Secretary of the Interior shall find that any lands are within the class excepted from the grant, it shall then be held and considered that any patent or patents, or approvals of lists of selections made by said company, or its successors in interest, and intended to have the general effect of a patent which may have been issued or approved including such lands, are absolutely void, and further provides that no plea of innocent purchaser set up by any assignee or grantee of said company shall be sustained either by the Secretary of the Interior or by any court, except on behalf of one holding in good faith by conveyance under such patent by the railroad company, and actually residing upon the land in question at the date of the approval of the proposed act.'

Section 3 contains a provision that all persons claiming title adverse to said company shall, within two years from the passage of the act, make due assertion of their rights before the proper local land office.

Sections 4, 5, and 6 are practically devoted to providing for the execution of the previous provisions of the proposed act.

Section 7 declares the act to be local in character and applicable only to the land described in the act, and provides that the decision of the Secretary of the Interior, as to the fact of occupancy at and between the date of definite location of the line of said railroad and February 8, 1887, shall be final and conclusive.

Section 8 declares that all claims adverse to the railroad company not asserted within a period of two years from the date of the passage of the act shall be thereafter forever barred, making ceratin exceptions in favor of cases that may be pending in the Circuit Court of the United States for the Western District of Louisiana in the case known as equity cause No. 16.

It will be observed at the outset that the relief proposed by this bill is sought through a statutory construction of the provisions of the granting act applicable not only to the Interior Department but also to the courts; that it apparently contemplates confinement of all legal questions in the department or the courts to the terms of the granting act, and thus exclude from those tribunals all consideration of any limitation that may have been placed on the adjustment of the grant by the act of March 2, 1896. It is true that no mention of said act or its applicability to the adjustment of this grant is made in the bill, but, none the less, knowing the cause that has led to its introduction, and the end to be atttained thereby, it is apparent that it is now proposed to settle the applicability of said act to the adjustment of this grant by statutory construction.

If I am correct in the assumption that the purpose of the bill is to deny to this class of cases the operative effect of the act of March 2, 1896 (if the lastnamed act ever in fact had any application as against the rights of the bona fide settler-claimants here involved), there is serious doubt that such legislation will be sustained by the courts. In the case of United States v. ChandlerDunbar Water Power Co. (209 U. S., 447), it was urged that the patent there involved was void and that the limitation in the act of March 3, 1891 (26 Stat.. 1099), upon actions to vacate such a patent did not apply; but the court pointed out that the statute presupposes an instrument that might be declared void. At page 450 it was said:

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'In form the statute only bars suits to annul the patent. But statutes of limitation, with regard to land at least, which can not escape from the jurisdiction, generally are held to affect the right, even if in terms only directed against the remedy. (Leffingwell v. Warren, 2 Black, 599, 605; Sharon v. Tucker, 144 U. S., 533; Davis v. Mills, 194 U. S., 451, 457.) This statute must be taken to mean that the patent is to be held good and is to have the same effect against the United States that it would have had if it had been valid in the first place. (See United States v. Winona & St. Peter R. R. Co.. 165 U. S., 463, 476.)"

If this be true, and it must be accepted as the last word upon the subject, and if the act of March 2. 1896, is now applicable to the situation, further legislation could not affect the rights which may have already vested.

As to the main purpose of the bill as I understand it, viz, to afford to bona fide settlers (and their heirs), intended to be protected by the act of 1887, the full measure of protection originally designed by that act, I am in hearty sympathy. If the question now presented by the present bill were before the department for the first time, it might very well be that such a conclusion would be reached as would render unnecessary any additional legislation. But a very grave embarrassment arises by reason of the fact that for the past 13 years this department has continued to hold that it was foreclosed of further right to proceed with the adjustment under the law of 1887, wherever there were outstanding patents. The department is unaware, and in the nature of things can not know in advance, what equities may have arisen during this long interval in reliance upon such ruling by my predecessors. For these reasons it is doubtful whether the department would be justified in reversing its former holdings in the absence of affirmative legislation requiring it to take up anew the matter of adjusting this grant, under the terms and conditions imposed by the act of 1887. If patents were issued for lands prior to the passage of said act that were subject to defeasance by reason of adverse rights, titles thereunder have not improved in quality, if the act of 1896 had no confirmatory effect thereon; and present holders thereunder are bound to take notice of the protection extended to adverse settlers as against such patents.

I would be glad to see such bill passed, but suggest that it be so amended as to remove any question of attempting to destroy any rights now fully vested. Respectfully,

A. A. JONES, First Assistant Secretary

The CHAIRMAN. Now, Mr. Aswell, we have heard the reading of the bill and the reading of the report. Have you gentlement agreed among yourselves with reference to the time you probably will consume in discussing the bill?

Mr. ASWELL. It has been agreed, Mr. Chairman, that Col. Hunter will make the opening argument for the proponents.

The CHAIRMAN. That is, in favor of the bill, I understand?
Mr. ASWELL. Yes; in favor of the bill.

The CHAIRMAN. How much time will the proponents of the bill require?

Mr. ASWELL. It has been discussed and decided that we shall bé able to present the case in two hours on a side, or four hours altogether. If there are many interruptions by members of the committee, it may take a little longer than that.

The gentlemen who are interested in the bill very heartily appreciate the courtesy shown us by the whole committee, and we have been trying to fix it so that we shall not take any more of your time than necessary. We have tried to limit the time as much as possible. The CHAIRMAN. Who speaks for the opposition?

Mr. ASWELL. I wish to make a statement before Col. Hunter speaks. I do not know who is to speak against the bill; Mr. Hudson and Mr. Norris, I believe, represent the opponents of the bill.

The CHAIRMAN. Before you make a general statement will it be out of place to ask if those who are opposed to the bill have come to any agreement among themselves? Who will speak for the opposition, and how many there are in opposition to the bill?

Mr. BERNSTEIN. The opposition will be represented before the committee by Mr. Hudson, of Louisiana, and Mr. Norris, of Grand Rapids, Mich.

The CHAIRMAN. Are they both present this morning?

Mr. BERNSTEIN. They are both present this morning.

The CHAIRMAN. They will speak for the opposition-for the combined opposition?

Mr. BERNSTEIN. They will speak for the combined opposition-for the combined interests which are opposed to the bill.

The CHAIRMAN. Will you give their whole names?

Mr. BERNSTEIN. Mr. F. G. Hudson, jr., of Monroe, La., and Mr. Mark Norris, of Grand Rapids, Mich.

The CHAIRMAN. What have you to say in regard to the amount of time you expect to consume?

Mr. NORRIS. About two hours, Mr. Chairman. We certainly ought to be able to cover our side in two hours.

The CHAIRMAN. Then it is the thought, in the beginning at least, that the proponents will use about two hours and the opponents about two hours?

Mr. HUNTER. I think that two hours will be sufficient for those favoring the bill.

The CHAIRMAN. Will you give your full name and the names of the other gentlemen who will represent the proponents?