t1. UNITED STATES
(CirC1J,i' Court, D. MinneBota;October 17,
Act Congo July 2, 1864, organizing the Northern Pacific Railroad Company, and granting to it a certain number of alternate sections of land on each side of Its line o[toad, provided that, whenever. prior to the definite location of its line, any of such sections should have been sold or pre·empted, other lands might be selected in lieu thereof, not more than,10 miles beyond the limits of said alternate sections. Resolution of May 31,1870, provided that in casethere should not be, in any state or territory, at the time of the final location of the road. "the amount of lands per mile granted by congress to said company, within the limits prescribed by its charter, "the company should be entitled to receive so many alternate sections of land "in such state or territory, within 10 miles on each lide of the said road belond the limits prescribed in said charter, ItS will make up such deficiency * * to the amount of the lands that have been granted." etc., "subsequent to the passage of the acto! July 2,1864." Held, that the resolution gave the company an additional 10· mile indemnity limit, and was 'not intended merely to restrict indemnity tl> 108ses occurring subsequent to the original act, and to lands situated in the state or territory in which such losses occurred.
PACIFIC GRANT-SECOND INDEMNITY: BELT.
Action by the Not-them Pacific'Railroad Company against the United States, Peter Johnson, Andrew Johilson, Thomas M. Libby, August Lindbloom, L. M. Fawsette, and D. Bush. James McNaught, and JQhn a. Bullitt, Jr., for complainant. Kerr Richard8oo, for defendants.
BREWER, J. The single, question in this case is whether the Joint olution of congress of May 31, 1870,. gave to the plaintiff an additional indemllity liDlit. In an opinion filed August 15, 1887, Mr. Secretary Lamar, then secretary of the interior, held that it did not. The recognized ability of the distinguished secretary, now ona of the justices of the supreme court, compels a careful consideration of his views and reasons. The Northern Pacific Railroad ,Company, complainant herein, was organized by an act of congress of July 2, 1864. Section 3 of that act provided for a grant of lands to aid in the construction of the road. So much of that section as is pertinent to the question reads as follows:
In Equity. On bill and demurrer.
"Sec. 3. And be it further enacted that there be, and hereby is, grantedtQ the Pacific Railroad Company/its successors and assigns, for tIle purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure safe and speedy transportation uf the mails, troops, munitions of war, and pUQUe stores over the route oli said railway. every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate:seetions per mile,on each side of said rail:road line, as said company may "dqpt. through the territories of the United States, and ten of land per JPil!! on each side of said railroad whenever it passes through allY state, and whenever, on the line thereof, the United States have fUll title,not resetved, sold, granted, or otherwise priated, and free from pre-emption, or othel' claims or rights at the time the
V. UNITED STATES.
line of said, .railroad is and a-plat ,thereoffile4 in the, office o.r the commissioner of the general land office; and to said time, any of said sections, or }lltrts of sections, shall have l)een, granted, Sold, reor served. occupied by homestead of, other lands shall be selected· by said company. i'llIieu" thereof. under the direction of the secretary of the interior. in alternate sections, and designated by odd numbers,not more than ten miles beyond the limits of said alternate sections." The first section of the joint resolution of May 31, 1870, is as follows: "Resolved, by the senate and house of representatives of the United States of America iIi congress assembled, that the Northern Pacific Railroad Com· pany be, and hereby is, authorized to issue its bonds to aid in the construction and equipment of its road. and to secure the same by mortgage on its property, and rights of property of all kinds and descriptions, real, personal, and mixed. including its franchise as a corporation; and. as proof and notice of its legal execution and effectual deli very, said mortgage shall be filed and recorded in the office of the secretary of the interior; and also to locate and construct under the provisions and with the priVileges, grants, and duties prOVided for in its act of incorporation, its main road to some point on Puget sound. via the valley of the Columbia river, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade mountains to Puget sound; and in the event of there not being in any state or territory in which said main line or branch may be located, at the time of the final locatiorithereof, the amount of lands per mile granted by congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the secretary of the interior, to receive so many sectHms of land belonging to the United States. and designated by odd numbers, in such state or territory, within ten miles on each side of the said road, beyond the limits prescribed in said charter, as will make upsilch deficiency on said main line or branch, except mineral or other lands as excepted in the charter of said company of eighteen hundred and sixty-four, to the amount of the lands that have been granted, sold, reserved·. occupied by homestead settlers, pre-empted or otherwise disposed of subsequent to the passage of the act of July 2, 1864; and that twenty-five miles of said main line between its western terminus and the city of Portland, in the state of Oregon, shall be completed by the 1st day of January, Anno Domini. eighteen hundred and seventy-two, anJ forty miles of the remaining portion thereof each year thereafter, until the whole shall be completed between said points: provided, that all the lands hereby granted to said company. which shall not be sold or disposed of, or remain SUbject to the mortgage by this act authorized, at the expiration of five years after the completion of the entire road, shall be subject to settlement and pre-emption like all other lands, at a price to be paid to said company. not exceeding two dollars and fifty cents per acre; and it' the mortgage hereby authorized shall at any time be enforced by foreclosure or other legal proceeding, or the mortgaged lands hereby granted, or any of them, be soid by the trustees to whom such mortgage may be executed, either at its maturity. or for any failure or default of said company nnder the terms thereof, such lands shall be sold at public sale. at places within the states and territories in which they shall be situate. after not less than sixty days' preVious notice, in single sections or sub-divisions thereof, to'th£J highest 'and best bidder: provided, further, that, in the construction of said railroad, American iron and steel only shall be used, the same to be manufactured from American ores exclusively." The reasoning of the learned secretary runs along this line; that all grants are to be construed strictly in favor of the grantor,
and against the grantee; that it is unreasonable to suppose that congress intended to establish two indemnity belts side by side; that the expression "lands granted," found in the resolution as ordinarily used, refers strictly to lands in place, and should therefore be construed as having that meaning here; and that it was the evident intention of congress to simply make definite and certain the place of the selection of indemnity lands, in view of the fact that, in the original act there was no express limitation to the state or territory in which any granted lands might be lost. I quote the language' of his opinion: "A careful consideration of the gnmting act and the joint resolution irro. sistibly forces mp. to the conclusion that congress did not establish another and second indemnity belt, but defined more clearly its purpose in relation to the indemnity provisions to said company, and in doing this repealed the first prOVision wherein it differs or conflicts with the last; the power to add to, alter, amend, or repeal the granting act being expressly reserved to congress in section 20, supra. Section 3 of the granting act shows that ino.emnity is allowed for lands lost' prior' to the time of fili ng the map of definite 10,cation. No limit of time is fixed within which the loss must have occurred, only it must ,have been' prior' to the definite location, and must have been from the enumerated causes. The joint resolution changed this, and prOVided that, if at the time of the definite location, any loss was ascertained, indemnity was to be obtained therefor, if it had occurred' subsequent to the passage of' the iranting act, and must be taken in state or territory where it occurred. If the contention of the company be correct, we would have the extraordinary .spectacle of congress establishing side by side two indemnity belts, in one of which selectiOJ\S could be made for losses sustained anywhere, at any time, prior to the definite location of the road; and in the other and furtherest one from the road a belt in which indemnity could be obtained forlosses sustained, in the particular state or territory, between the date of this grant and the defi.nite location of the The fact is that by its charter the company was prohibited from issuing bonds or mortgages, and was seeking to, and did,have such prohibition removed by the passage of the' joint resolution. ,congress had twice extended the time for cOlI)mencing and completIng the road, at that time no work had been done towards the actual building. It was .'simply a road upon paper. There was, then, no existing reason for an extE:\n.sion of its indemnity limits, and no knowledge that the former were insuffi'cient, but there was reason why, asking a right before denied, congress should then modify, restrict, and make more specific the indemnity provisions, which, .as is illustrated by the claim made, were framed in language not as specific as was desired. Hence, in passing the joint resolution, and thereby granting the right to issue bonds and mortgages, the granting powe\' restricted the indemnity to losses occurring between the date of the original act and the date .of the definite location, and specified what was before clearly implied, but not Sllid, that the indemnity selections should be restricted to the particular states or territories in which the losses might be sustained. The joint resolution ·says, if the company cannot get the amount ofland granted, within the limits · prescribed by its charter,' then it shall have lieu lands' within ten miles on each side of said road beyond the limits prescribed in its charter. I It is very clear to my mind that the limits here referred to are the granted limits prescribed by the charter,.so that the indemnity belt spoken of in the joint resa,lution covers the same lands as in the indemnity limits of the act of 1864. Hence, there is but one indemnity belt, and that for ten miles,just beyond the granted limits, as defined by the map of definite location." After a careful examination, I am constrained to differ with the learned secretary,and to hold that that resolution did create a second indem-
NORTHERN PAC. 11. CO· .,. UNITED STATES.
nity belt, and for these reasons: In the first place, the existence of a second indemnity belt was expressly recognized by the land department in the year after the passage of the resolution in response to an application from the complainant for a withdrawal of lands. Such recognition was unchallenged until the opinion filed in August, 1887, a period of more than 16 years. Lands had been selected and sold in reliance upon such action of'the department. The existence of such a belt was during that time accepted without question in the department, and was frequently spoken of in proceedings in congress as an undoubted fact, so that it may fairly be said that contemporary construction running throngh a period of many years, so far as it is potent, has determined that the resolution of 1870 did create such second indemnity belt. In the case of the U. S. v.Railway Co., 98 U. S. 341, the supreme court uses this language: "It was the intention of congress. both in the original and amendatoryact, to place the Union Pacitlc Company and all its branch companies upon the same footing .as to lands. privileges. and duties to the extent of their respective roads, except when it was otherwise specitlcally stated. Such has been the uniform construction given the acts by all departments of the government. Patents have been issued, bonds given, mortgages executed, and legislation had upon this construction. This uniform action is as potential and as conclusive of the soundness of the construction as if it had been declared by judicial decision. It cannot at this day be called into question." And in U. S. v. Philbrick, 120 U. S. 59, 7 Sup. Ct. Rep. 413, it also says: .. A contemporaneous construction by the officers upon whom was iI\lposed the duty of executing these statutes is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned." See, also, U. S. v. Graham, 110 U. S. 22] , 3 Sup. Ct. Rep. 582; Railroad 00. v. Railroad 00.,112 U. S 414, 5 Sup. Ct. Rep. 208, and The Laura, 881. 114 U. S. 416,5 Sup. Ct. To similar effect has been the frequent expression of the attorneys general of the United States in their official opinions. I shall not burden this opinion with a citation of these opinions or the various· instances in which in the department and in congress the existence of tbis belt was recognized. Whoever is interested therein will find in the carecollated. In the second fully prepared brief of counsel these place, when this resolution was pending in congress, it appears from the speeches of those who supported as well as those who opposed, that it was understood by them that the effect of the resolution was to create a second indemnity belt. Extracts from these speeches can also be found in the brief of counsel, but these extracts, like the illustrations above referred to, are too lengthy to be incorporated into any opinion or report. So that we have in support whatever weight may come from contemporary construction, and the express opinions of members of congress in the debate upon the passage of the resolution. But I do not care to rest my conclusion upon these matters. Independent of them it is apparent to my mind that the resolution did provide for such indemnity belt. Though the complainant was chartered in 1864.
up to the time ofthe passage oHhis'resolution no work hnd been done in theoonstructionof the road. Twice had the time been extended by congress. In tbis contingenoy the complainant applied to congress, by the introduction of a resolution for leave to mortgage its franchise and property,andfor the right to makeup any loss in the lands in place anywhere on the public lands. The outcome of this application was the resolution as amended and finally passed. While no one doubts the rule that government grants are construed strictly in favor ofthe grant.or, yet such rule does oot nullify other well-established rules of statutory construction. Among them is the familiar one that, in the absence of express words of repeal or limitation, a later statute does not repeal by implication an earlier unless there be an absolute inconsistency between them, or unless it be apparent that the legislature was intending a revision of the whole subject-matter. If, by any fair and reasonable construction, force can be given to each, both will stand. It being possible to reconcile two statutes, the one will not repeal the fJther.· Repeals by implication must be by necessary implication. Wood v. U. S., 16 Pet. 342. "If it is possible to reconcile two statutes, one will not be repealed by the other." McCool v. Smith, 1 Black, 459; U. S. v. Tynen, 11 Wall. 88. "The result of the autqorities cited is that, when an affirmative act contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier, and is clearly intended as a substitute for it; and the intention of the legislature to repeal must be clear and manifest." Red Rock v. Henry, 106 U. S. 601, 1 Sup. Ct. Rep. 434; Sedg. St. & Const. Law, (2d Ed.) 98. Now, the third clause in the resolution, the clause upon which the question depends, contains no express words of repeal or limitation 01' intention to amend the act of 1864. Therefore, if, with any fair and reasonable construction, force can be given to each, both must stand. Obviously thEJre was no intent to revise the whole subject-matter, for this clause contains no grant of lands, and even with the construction placed by the learned secretary only affects the minor matter of the place of selection of indemnity lands. Again, the lost lands to which the indemnity provision in the act of 1870 applies are not the same as those within the indemnity provision of the original act. That applied to lands disposed of prior to the date of the definite location of the line of the road. This applies to lands disposed of subsequent to the passage of the act of 1864; so that, although some lands might fall within the provisions of both the act and the resolution, yet the test of the right to indemnity lands was different in the two, and the intention of congress was in the resolution obviously directed to a different body of lands than those provided for in the act. Again, notice the opening words of this clause, "and in tha event of there not being, [the amount of lands per mile granted by congress to said company,] then said company shall be entitled * * * to receive so many sections," etc. Now, the very form of expression, the train of thought suggested thereby, indicate, not a modification, but an addition, as though something more was being
NORTHERN PAC. R. CO. 'V. UNITED STATES.
given rather than a limitation upon what had previously been granted. Furtllet, the Becon!'! clause in this resolution, which has reference to the location of the road, authorizes the company to "locate and construct under the provisions and with the privileges, grants, and duties provided for in its act of incorporation, its main road," etc. This seems to carry an affirmance of all the rights and grants made by the original act, and before any part of this .resolution should be held' to modify or restrict such rights and grants the language should be clear. Again, with reference to the suggestion that the expression" lands granted" ordinarily refer in land legislation to lands in place, the truth is, that the expression has a double meaning. Its narrower one is, of course, lands in place; but it is frequently used to include aU lands donated by the government, whether lands in place or indemnity lands. BaTrJ.ey v. Railroad Co., 24 Fed. Rep. 889; Railroad Co. v. Railroad Co., 112 U. S. 730, 5 Sup, Ot.Rep. 834. Indeed, in this very resolution, the words are used in the larger sense. Thus the proviso is" provided, that all lands hereby granted to said company which shall not be sold or disposed of * ,* * at the expiration of five years, after the compMtion of the entire foad, shall be subject to settlement and pre-emption, like all other lands," etc. Obviously this refers to all the lands which had passed to the company, in place or indenlOity.lands. Further, and in the same clause,appears the same word "granted" in manifest1ythe same sense, so that 10 the very resolution the words "granted lands" or "lands granted" are used iothe larger sense, and it naturally enforces the con. victionthat they were used in the same broad sense in this clause. 'Further, as defining the lands, is the expression, "within the limits prescribed by its charter," and as defining the location of the indemnity belt; this expression, "beyond the limits prescribed in such charter." Now, turning to the act of 1864, we find there are two limits provided for.-place limits and indemnity limits. The word "place" must be interpolated before the word "limits" in order to make it express the meaning claimed. Of course it is familiar learning that a word may beinterpolated or suppressed if it be necessary to make the language harmonize with the obvious intent of the law-maker. But I know of no rule of construction which permits us to beg the intent, and then interpolate or suppress a word to carry out such intent. Rather is it to be presumed that the very language was used which expresses the intent; and where the phrase is "beyond the limits prescribed in its charter," it is presumed to mean beyond all the limits so prescribed, and if any particular limit had been contemplated, that particular limit would have been named. For these reasbns Iconcludethatthe resolution of 1870 did provide for a second indemnity, belt. I am happy to add that Judge SLEEPER, judge of the district eourt of the Fifteenth judicial district of the state of Minnesota, has reached the same conclusion as shown by his opinion, in the case of MQ'(7'iBon v. BenBcm. A decree will be entered in favor of the complainant as prayed for. .
TRUST CO. "'. BANKERS'
Co. et ale
(Oz'reutt Oourt, S. D. New York. September 17, 1888.)
In order to effect an amalgamation of the two telegraph corporations, two agreements were entered into, by one of which the B. & M. Co. covenanted to construct and deliver to the R. Co. certain systems of telegraph lines, (among them one connecting Buffalo by a northerly route with Chicago,) and the R. Co. agreed to create its bonds for $3;000,000, to be secured by a mortgage of all its franchises and property. including the property to be thereafter acquired from the B. & M. Co. The other agreement was between the B. & M. Co. and one B., by which B. was to act as trustee for the B. & M. Co. to exchange the $3,000,000 of bonds, dollar for dollar. for the stock of the R. ·Co.; and deliver to the B. & M. Co. the stock receivecl. by him in exchange for the bonds as soon as 51per cent. of the whole stock of the R. Co. was received by him. The two agreements contemplated that the B. & M. Co. should obtain the property and control of the R. Co. by obtaininj:\' all or the majority of its stock, givinj:\' the stockholders of the R. Co. the option to transfer their shares for bonds secured by a mortgageoupon all the existing and to be acquired property of the R. Co. The scheme was carried out, and the B. & M. Co. acquired a majority ()f the stock of the R. Co., and while in control of the latter corporation reconstructed and rebuilt some of its telegraph lines, and acquired new rights ()f way in the name of the R. Co. to straighten the lines, and strung new and additional wires upon the poles. It also constructed one of the new lines which It had agreed to build, and connected the wires with the existing system ()f the R. Co., and operated them as part of the general system; and partially constructed some of the other new lines which it had agreed to build. It also strung additional wires upon other lines of the R. Co. pursuant to an · ment between the two companies by which each was to have the right to string wires on thepples of the other at a specified rental. Soon after the B. & M. Co. acquired co.ntrol of the R. Co. it created a J;Ilortgage of $10.000,000 upon all its eXisting property, which also conveyed all the property of the B. & M. Co. to be thereafter acquired. The new hne built by it was pai<l .for out of ilie proceeds of this mortgage; and it became insolvent before it had com, pleted the building of any of the other new lines. The $10,000,000 mortgage was foreclosed, and all the property of the B. & M. Co. was purchased by the U. L. Co. at the sale under the foreclosure decree. At the time of the pur, chase the U. L. ,00. had notice of the terms of the $3,000,000 mortgage. In a suit brought in aid of a suit to foreclose the $3,000,000 mortgage, to subject to the operation of the decree property claimed by the W. U. Co. as a purchaser at the foreclosure sale of the $10,000,000 mortgage, held. (a) There being no questions arising under the registry acts, and the U. L. Co. being a purchaser with notice of the terms of the $3,000,000 mortgage, the rights of the bondholders of the $3,000,000 mortgage were paramount to those of the U. L. Co.
SAME-PROPERTY SUBJECT TO.
(b) That the reconstructed lines were subject to the lien of the $3.000,000 mortgage, because the improvements UpOll the mortgaged property became part of the realty.
(e) That the strung wires did not become part of the realty by annexation, because the two companies had agreed in effect that they should remain personalty;and that it was competent for the two companies by such. an agreement to determine the character of the property annexed, as against an exist. lng mortgage.
(d) That the new line built by the B. &"M. Co. for the n. Co. under the agreement between the two companies in equity the property of the R. .Co. as soon as completed, witoout any transfer from the B. & M. Co·· and being described in the of the R. Co. as part of the after-acquired property included in it, inured to the security of thl; bondholders; and that the com-