enactment of this charter, would be conclusively determined; questions of law would not be conclusively determined.

Mr. WILLIAMS. Would those facts be thus determined by the Land Commissioner in such a way as to cut off the railway company from any right of appeal to or right to go into the courts to have the matters of fact determined?

Mr. KERR. Any question of fact decided by the Secretary of the Interior in a matter upon which he has jurisdiction is as binding in all courts as is the determination of questions of fact by a jury. Mr. WILLIAMS. But every one of these questions that would thus come before the commissioner involves considerations of law about that kind of situation, so far as questions of law are concerned, if they are incorrectly decided by the Interior Department they are subject to review by the courts.

The CHAIRMAN. Well, if there is a mingling of law and facts, and you get your case before the Supreme Court on the interpretation of the law, would the Supreme Court then review the facts?

Mr. KERR. That is a pretty hard question. If the law and the facts can be separated, the court will accept the determination of fact and will review the question of law.

The CHAIRMAN. What about the principle that when Supreme Court taking jurisdiction for one purpose they take it for all purposes?

Mr. KERR. I don't think that principle applies to such a situation as you suggest.

Senator KENDRICK. Now, Mr. Kerr, suppose that the decision of the Secretary of the Interior would be accepted as authoritative and final; suppose through the hearings of this committee and the conferences brought about between the committee and the officials of the railway and the Department of Agriculture an agreement could be reached as to the acreage still due the Northern Pacific Railway Co. and then, proceeding on that line, a tentative agreement was reached between the Northern Pacific Railway Co. and the Department of the Interior as to the actual value still due the Northern Pacific Railway Co., then could not the Congress proceed to authorize the Secretary of the Interior to settle this grant in full by joint resolution, the same as it passed in 1870?

Mr. KERR. That would be entirely practicable.

Senator KENDRICK. I can not understand why that would not be just as final as a decision in the Supreme Court of the United States.

Mr. KERR. It would be.

Mr. WILLIAMS. Of course, such a resolution of Congress would either have to be based upon a previous statement by the railway company or an acceptance thereof.

Mr. KERR. Yes.

Mr. WILLIAMS. Probably the latter.

Mr. KERR. Yes.

Senator KENDRICK. Well, Mr. Congressman, the officials of the road should be authorized to speak and act for their stockholders. Now this committee, in line with this plan, would make its recommendations to Congress, and then by resolution the settlement could be made between the Interior Department and the company.

Mr. WILLIAMS. I think you are quite right about that.

Mr. KERR. The orderly steps in such a proceeding as that suggested by Senator Kendrick, thinking as I stand here, would be these:

First, something in the nature of a tentative adjustment by the Secretary of the Interior, which is in fact called for by this joint resolution creating this committee;

Second, a consideration by this committee of the differences, if any, which exist with respect to that adjustment between the Interior Department and the railway company, and an agreement or an adjustment for the purpose of the final compromise that should be sought of those differences, resulting in a net credit to the railway company of so many acres;

Then when that point is reached, a recommendation by this committee to Congress for action which would result in confirming title in the United States to these lands in the Forest Reserve, and making due and proper compensation in money or in other lands to the railway company therefor.

Senator KENDRICK. And still this further step, it would require an appropriation to take care of this adjustment made by the Secretary of the Interior.

Mr. KERR. Precisely.

Senator KENDRICK. That brings us to it.

The CHAIRMAN. Mr. Kerr, could all the four corners of this case be taken up that is, the four corners as used by the Agricultural Department-in a case whereby Congress would declare a forfeiture of the lands, the 4,000 acres involved in this 256 case?

Mr. KERR. I think there is a legal objection to that. You will recall that I read from the decision of the Supreme Court in Davis e. Gray in 16 Wallace, concerning a grant made by the State of Texas to the Memphis, El Paso & Pacific Railroad Co., and in that case the Supreme Court considered the matter of conditions subsequent in a grant, waivers, entries, and forfeitures, and the court declared there that the same rule applied to the sovereign who was a grantor upon condition subsequent as applied to an individual who was a grantor upon condition subsequent, and, of course, it is familiar Hornbook law that if there is a condition subsequent there must either be a complete forfeiture or none at all; that an attempt to enter upon part of the land is ineffectual, and indeed confirms the title and waives the breach.

So that the only forfeiture which could be declared, I take it, under this grant or any other grant like it, would be an entry upon all of the property granted and a revestiture of the title to all of the property subject to forfeiture. In other words, there could not be a partial forfeiture.

The CHAIRMAN. We could not make a test case, then, out of 4,000 acres involved there?

Mr. KERR. No, I don't think so; and as I proceed with the argument, I think I am sure I will be able to satisfy this committee that if there ever did exist a right of forfeiture of the grant, that has long since been waived by act of Congress, by necessary implication. Mr. RAKER. Before you pass to that, Mr. Kerr, the suggestions made this morning by various members of the committee, bearing

upon this question and the suggestion of remedy by the railway company, the Northern Pacific Railway Co. now existing, and the Northern Pacific Railroad Co., as well as the alleged deeds of trust and mortgages-has not the Supreme Court definitely laid down the policy that Congress could follow and could forfeit all of the grant or any part of it, and not violate the Constitution, forfeiting for the purpose of making a complete adjustment, as was held in this Oregon-California Railway v. United States in 243, page 549, carrying out the act of Congress known as the Chamberlain-Ferris Act of June 3, 1916 (39 Stats. 318)?

Mr. KERR. That is a subject, Judge Raker, that I would like to address myself to at some length, and as I have arranged my argument it comes a little further along, if that is satisfactory.

Mr. RAKER. That is all right.

Mr. McGowAN. Mr. Kerr, might I ask for the citations on the cases which hold that forfeiture must be of all or none?

Mr. KERR. The decision of the Supreme Court was Davis v. Gray, in 16 Wallace, holding that the same rule applied in the case of a sovereign as is applied in the case of an individual, and I do not have any citations with me, but I did state that it was Hornbook law that there must be a complete forfeiture instead of a partial forfeiture. Davis v. Gray in 16 Wallace, 203.

Mr. McGOWAN. That is on what question?

Mr. KERR. That is on the question of the identity of the sovereign and individual with respect to matters of that kind.

The CHAIRMAN. There is a waiver as to the balance not forfeited? Mr. KERR. I think so; yes.

Mr. WILLIAMS. Would it be possible, Mr. Kerr, to authorize the commissioner or the Secretary of the Interior or some other representative of the Government to institute a plenary suit to thrash out all of the questions involved in this case and accompany that action of Congress by a declaration that in any such adjustment the lands heretofore appropriated to the forest reserve shall remain and be the property of the Government for that purpose, without declaring a forfeiture necessarily, but to provide that the equitable considerations shall be kept in mind in connection with any such adjustment through the courts? In other words, the Commissioner of the Land Office or the Secretary of the Interior at present, as we understand it, does not have the broad authority that I am speaking of in the matter of bringing into consideration of the case the equitable features, and would any such piece of legislation as that which I am suggesting in a rather intangible way be the method by which this whole matter of final adjustment could be approached?

Mr. KERR. If you will recall, at the opening of this discussion Mr. Donnelly requested Mr. McGowan, or the committee to request Mr. McGowan, to make a draft of a specific law which he would ask this committee to recommend to Congress for enactment, and at the same time, in response to a suggestion by the chairman, as I recall, the chairman inquired whether or not a suit could not be brought, or the present suit, which has been remanded to the District Court of the United States for Montana, could not be expanded so as to determine all of these questions which are raised by the Forestry Department, and the chairman asked me if I would undertake

to work out a plan for such enlargement of that suit, and I said I would, but almost immediately following that came my time to appear in this presentation before the committee, and I really have not had the opportunity, in view of the preparation that must precede and follow each one of these hearings, to work out anything tangible on that line.

The CHAIRMAN. I understood Mr. Donnelly to say that he would present a stipulation expanding and enlarging the suit.

Mr. KERR. Yes; we said we would try to work out something. Now, for example, as I have said to you informally, I think it is entirely possible to adjust that pending suit in such a way so that these various questions can be there presented, with the exception of the question of forfeiture, and also with the exception of the question arising with respect to the Crow Indian Reservation.

The point made by the Forestry Department in respect to the Crow Indian Reservation is that it was created prior to the act of July 2, 1864, and that the lands are lost, but that they were not lost between the date of the grant and the date of definite location, and that because of that fact they do not form the basis for the selection of lands in the second indemnity limits.

The CHAIRMAN. Is that a judicial question?

Mr. KERR. These lands involved in this suit now pending in the District Court of Montana are all lands in the first indemnity limits, and whichever way the Crow Indian Reservation case should be decided, if the previous decision of the Supreme Court of the United States should be overruled, would not affect in any way the status of the lands involved in this particular litigation in Montana, because if Mr. McGowan is right the deficiency so far as the first indemnity limits are concerned would be increased by more than 1,250,000 acres. Mr. RAKER. Mr. Kerr, so that what I asked yesterday and this morning may be intelligible, I wish to just put this question and then read an extract which would follow up the idea. In the OregonCalifornia land grant the Supreme Court by its decision stopped certain proceedings. This resolution, I am assuming, takes the same place as that Supreme Court decision. We proceeded in the OregonCalifornia land-grant case to pass legislation; we are proceeding now in this case to find the facts and the law and pass legislation if it becomes necessary.

Now, to carry out the suggestion that I made to Mr. Kerr for a full analysis and a full adjustment so far as the Government is concerned, and the railroad company, that the courts may pass upon the matter beyond all question and give the parties full opportunity to be heard, I just want to read this extract:

Congress in the execution of the policy, deemed fitting under the circumstances as expressed in our opinion, enacted what is called the ChamberlainFerris Act June 16, 1916 (ch. 137, 39 Stat. 218). The validity of the act is challenged and both sides invite a determination of the challenge. The validity of the law may be said not to be involved. The appeal is from the decree, and that being determined to be right, the appeal, it may be urged is satisfied, the question it presents decided. It, however, may be considered important in the execution of the decree, for we have seen that the granting acts were laws as well as grants, had the strength and operation of laws subject to amendment if the right of amendment existed or accrued-there was a reservation in them of the right of alteration or repeal, and if it could not be exerted to take back what had been granted and had vested, it could not be exerted to accomplish the remedy which the court adjudged to the Government for the

violation by the railroad company of the provisions of the grants. It is no answer to the exertion of the power and remedy to say that the acts of Congress were initial, complete and absolute grants. It is to be borne in mind that they carried with them covenants to be performed, and necessarily an obligation to perform them, with remedies for breaches of performance.

Such was our judgment, as we have seen, and the judgment was adopted in the decisions created by the breaches, and for which legislation was deemed

necessary.

Now, that carries the grant absolute, and I will put it the other way, inchoate, so as to bring the question to Mr. Kerr, which he says he will answer later, but it is applied to the questions I presented and I therefore call it to the attention of the counsel for both sides and to the committee.

Mr. KERR. I will refer merely to the two decisions of the Supreme Court which distinguished between the inchoate right of a preemptor who has not paid the Government price for the land, and the situation of a homestead entryman who has complied in full with the provisions of the homestead law.

The Yosemite Valley case (15 Wallace, 77), is the case which holds that an unaccepted offer by a preemptor does not confer property rights on the preemptor which can not be taken away by an act of Congress. And the case of Wirth v. Branson (98 U. S. 118), is the case of a homesteader who has made proof of full compliance; the court says in Wirth v. Branson:

The rule is well settled by a long course of decisions that when public lands have been surveyed and placed in the market, or otherwise opened for private acquisition, a person who complies with all the requisites necessary to entitle him to a patent to a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void unless the first location or entry be vacated or set aside.

And that is, I take it, the line of demarcation between the classes of cases which we were discussing yesterday, and I insist that the language in 256 U. S. with respect to the Northern Pacific indemnity lands, in view of the existing deficiency, brings those lands within the category defined in the case of Wirth v. Branson.

Mr. RAKER. That was a grant of land by the Government to a private individual?

Mr. KERR. Yes.

Mr. RAKER. And I remember a case-I will get it-in which the Supreme Court of California in construing these decisions-a case I happened to be in-where the man had proved up, paid his fee, but the officer did not make a return of the money and there was no record in the local land office or in the Commissioner of the General Land Office. The Government issued a new patent to a third party. We commenced an action for the first party and the court held that the Government, having allowed this man to proceed and he had performed all the acts, the failure of the officers to carry out and make a record of those acts did not permit the Government to sell the land to a third individual. But I want to go further and make this suggestion to you: If the Government could not dispose of it to a private individual, could it take it for some other governmental purpose? That is the distinction I am trying to make.

Mr. KERR. I think the status of the homestead entryman in Wirth against Branson was precisely the same as that of your client in