no such charge preferred, and had there been, there existed certain circumstances which may have lead Mr. Taylor to believe that he had authorized the use of his name, which would have been difficult to have cleared up and brought out on direct examination, but were so brought out on cross-examination when the defendant placed him on the stand at the trial.

Leaving Mr. Taylor out of what follows, the Government was thus confronted with the alternative of placing witnesses whose truth and veracity it vouched for on the stand, with fair warning that they would disown affidavits given at a time when they had no reason to depart from the truth, and were more liable to tell the truth-before controversy had arisen, and tell a story false in its main import and in most particulars, or abandon the charge as to the dummy character of the two Juhans. Considerable consideration was given to this, but after the witnesses were subpoenaed, it was realized that to so do would place this office in a stultifying position, and encourage rank perjury. Thurman was living in Pueblo and could not be subpoenaed but the others were not placed on the stand. The decision was made after long and deliberate consideration, and is not yet regretted.

When the defendants placed them on the stand they denied material portions of their statements, and Mr. Taylor testified to facts which stamped him as an unconscious dummy locator. The explanations given by the witnesses for departing from their statements were not even ingenious, were not logical and in my judgment did not even require Mr. Bradshaw's presence on the stand in rebuttal. In fact I will go further and state that, except as to some immaterial minor contradictions, and from a strict interpretation of the rules of evidence, I doubt if Mr. Bradshaw's testimony in rebuttal would have been competent and material. I am-and did then-assuming that their testimony would be subjected to the acid test of analysis, and with such a test, do not fear but that the department will see the falsity of their testimony.

To illustrate the character of the witnesses, one and possibly two, denied upon cross-examination that they had been interviewed by defense counsel prior to going on the stand, but as that stultified counsel, upon redirect they speedily had these statements changed to conform to the truth.

In setting these facts out in such detail I am more interested in advising you of the difficulties under which the field force operate than in exonerating my own actions, and particularily, the difficulties under which we operate in any matters in which this firm is retained. The judgment made by me which arouses their criticism, was deliberately formed, and after mature consideration. Some of their minor criticisms are directed to matters in which judgment is formed in the heat of controversy, and as to matters of which your office and this narrator are solely concerned. Their criticism is that I suppressed facts and was not interested in bringing out facts. I said in the hearing and I still say that their direct examinations were more remarkable for what they failed to bring out than for what they brought out. One who places a witness on the stand vouches for that witness, but however, suspicious he may be of the witness and however reckless in assuming this responsibility, he is nevertheless bound by the witness' testimony. I refused to vouch for a witness who told an impartial investigator under oath one statement of facts and then indicated a determination to testify to another, and I refused to assume the burden of being bound by testimony which I had good reason to expect would be perjurious. If by so doing, I suppressed the facts (which means the facts as defense would like to present them), of the two alternatives confronting me, I chose the most honorable as a lawyer and that which was best calculated to protect the interests of the United States. In the trial I did examine as to detail, whereas counsel for the defendant outlined a very meager skeleton clothed with much hearsay and incompetent conclusions. And counsel for defense brought out many alleged facts contradicted by the witness himself, and other facts shown later to be false.

Mr. Bellis, for instance, first testified on direct of a knowledge of the illegal contract of March 30, 1918, as of June, 1918; after some three or four pages of testimony, he recalled that he participated in the formation of this contract and was present in Glenwood Springs the day it was drawn up. Later testimony, taken in rebuttal, proved conclusively that he was in Chicago, Ill., when the contract was drawn up. Had he been present as he alleged, he would have imparted this information to Roberts, who would have laid his foundation on this and not an inspection of some months later. To clinch his knowledge of 46780-31-16

the claims, he alleged and profusely testified twice to having been employed by Thurmond in the fall of 1920 to do assessment work on the claims so as to force a compromise with Sibbald, even quoting the exact conversation with Thurmond some 10 years later. He did a few days work and then found out that the act authorizing the extension of annual labor to July 1, 1921, had been passed and came down to Glenwood Springs to force the compromise. He overlooked that the act was passed December 31, 1920, and the compromise occurred November 26 and 29, 1920, some thirty and more days previously. Later he either recalled this (or had his memory privately refreshed) and then stated that the Union Oil Co. hired him to do this work, quoting the exact wording of the telegram. It was during the course of the cross-examination on this when I was endeavoring to get the names of the men, etc., for the purpose of having investigation made with a view of perjury proceedings, that Roberts employed Bellis as a client and instructed him (as his counsel) to refuse to answer the question upon the objection that it was a fishing expedition in the assessment work not involved in the charge. I did not have the charge involving assessment work in consideration when the questions were propounded, but possibly the objection would have some weight had not it been waived by their act in bringing out this matter of assessment work on direct examination. In other words, their position is that it was proper for them to bring out, but after he had so mangled the facts they brought out, it was highly improper for me to cross-examine upon it. The statement of the proposition shows the weakness of their position; the repetition of the charge to you shows conclusively their bad faith, and that they will stop at no means, honest or otherwise and principally otherwise, to punish an official performing his duty, and that not solely to put the fear of God in him and gratify their malice, but for the purpose of demoralizing the field force so that no member of this staff will dare to oppose them in their presentation of illegal claims and of false testimony.

From a standpoint of wealth and power they are successful; from the standpoint of the recognized ethics of the legal profession, the known record facts, such as their actions in the Krushnic case, and their connection with Blackmere and the Midwest Co. in a matter where the interests of one client conflicted with that of the other, fully acquit them of being actuated in their practice by high ethical and moral standards. Their remuneration in one case frequently equals the salary paid to any member of this staff during a period of four or five years. They naturally look down upon the district law officer, whom, they know, presented them for official misconduct, and whose scalp they are determined to hang on the wall of their wigwam in one of the upper stories of the First National Bank Building, but which, owing to the scarcity of hair, would not be a thing of beauty and joy, and to which this narrator is somewhat attached both physically and sentimentally and is determined to keep.

There is only one way to satisfy this firm, and that is to accord them proper reverence and deference, to pass their cases without investigation, and ignoring known facts indicating or proving the illegality of some of their claims, to do which would be dishonorable and contrary to law, and which the Department of Interior does not request nor desire. To do so would be to participate in their fraudulent and unprofessional practices. These practices are mainly limited to this firm, so far as shale cases are involved, or at least, with some minor exceptions, the exposures of such practices is limited to this firm; resultantly the complaints made to the Washington office against the personnel of this office proceed from this firm, and the refusals to cooperate in the furnishing of information which might accelerate both investigation and adjudication of applications are mainly limited to this firm. It has been pointed out hereinbefore that the facts they now are willing to furnish in re the Bridges Gulch No. 2 claim demonstrate, not that they anticipated an unfair use of such information previously refused but they knew that under the then prevailing interpretation of the law, the claims were not legally maintained and their object was to conceal information of which the Government was entitled to be advised.

They are now offering to relinquish certain 20-acre tracts located in the names of dummies. It is idle to assume that this is an eleventh hour conversion of the firm which engineered that putrid pool of corruption at Midwest, Wyo., which culminated in the passage of section 18 of the leasing act; many angles, of diversion of funds contributed to construct a railroad to developing an oil field, driving off settlers, which sometimes included maiming and killing, undermining and double-crossing of the original claimants of the land, organiza

tion of the Midwest Oil Co., and its strangulation by the organization of the Midwest Refining Co. and the production contract then entered into, etc., are known to the department officially, and much more known and surmised by any person acquainted with the history of oil development. It is far more probable that they realize that the exposures in the Alturas and French cases are bringing knowledge of their corrupt practices too close to them for comfort. Some reference has been made to the interviewing of attorneys for the purpose of ascertaining if the conduct of the undersigned in his work as trial lawyer is satisfactory to the oil shale claimants. I submit that this is inadequate and fundamentally unsound to obtain the result desired. At the expense of laying myself open to a charge of egoism, I can state it to be a fact that this office maintains a high percentage of cases won, due to the careful investigation made in the field and, at least in some more or less minor degree, to the presentation of the evidence obtained. Some of the cases won are cases in which the evidence obtained showed the invalidity of the claim, but as most witnesses who volunteer their services to the Government are biased, and thus unreliable, and fortunately small in number, and many witnesses who upon interview swear to one statement of facts upon careful examination, later appear on the stand and swear to a colored statement of facts, and in most cases few witnesses either volunteer or are secured, the Government is frequently limited to barely making out a prima facie case, and its ultimate victory depends upon the careful and detailed examination of the opponents' witnesses. Frequently the department has clearly stated that end to be sought is to fully bring out the facts. Facts from an adverse or unwilling witness are difficult to obtain, and much more difficult to obtain in their proper light. For even assuming the honesty of the witness, long before modernistic psychologists added the suffix "analysis" to the "psyche" and styled their many varying products a science, it was recognized in the legal profession that the testimony of honest witnesses is more often colored than otherwise by their prejudices, connections, physical and mental development, with other factors too numerous to mention herein, but accessible in any library. Add to this the smaller but rapidly increasing number of witnesses in oil shale matters who are not honest, the difficulties of the trial lawyer is readily seen. To accomplish anything he has to crossexamine in detail and frequently so conduct his direct examination-and theoretically having nothing to lose, the department has always encouraged Getailed examinations by its attorneys with the view to bring out the true facts. Sometimes this detail shows the justice of the claimant's case, but frequently it shows the contrary. In the latter cases-and it may be assumed as a general proposition in the case of the average attorney-the defendants' attorneys resent the loss of their cases. With one or two exceptions in which the attorneys are men of high character, the attorneys with whom cases have been tried, may be divided into two classes, those who have won their cases and those who have not. The former naturally bear but little grudge against the trial officer, but are fairly few; the latter resent the loss of their cases. The former may or may not speak well of the trial officer; the latter will not. There are a few attorneys whose reaction toward this relator is recognized to be favorable, but to each the cause is recognizable, and usually lies in the fact that some time or other his interests were similar. Such a feeling is not "fixed" by no means, as is well illustrated in an oil case once tried in which a Grand Junction attorney represented the plaintiff and the Government appeared as an intervenor. No attorney could speak so laudatory of a governmental representative at the conclusion of the case than this man, but a year or so elapsed, and, at the suggestion of the register of the local office, it became the task of this trial officer to move to strike out an appeal and brief from the register's decision in favor of the Government in a petty homestead case submitted upon stipulation, because the attorney departed from the stipulated facts and insinuated that the Government should have never agreed to submitting the case upon stipulation. The metamorphosis of this attorney was complete, and his anger at both local office and the trial attorney was manifested by his rancor in every line of his reply, which was disregarded by the reviewing officers.

The conclusions are (a) that the reaction of the average attorney is against the Government representative, excepting in the case of a very few of hign class men; (b) that where it is favorable in a small percentage of the cases, it is due to some happy and fortuitous result obtained, such as w nning the case, or assistance officially given to cancel a claim under attack both by the Government and by the attorneys' clients; (c) that in most cases the public

land conscience of the West resents inquiry by the Government into the various claims arising, and fixes this resentment upon the investigator and trial attor ney, who loom up most prominently in their horizon. Even our legislators are not exempt from this classification, as is well known to your office.

The attempt to ascertain the fitness of the district law officer from interviews had with shale men is also open to the objection that the number of actual trials in shale cases when considered in the light of the total number of cases tried is extremely limited, and limited to cases where the value in volved was large, and feelings developed correspondingly more acute. But, as pointed out, if extended to attorneys in the other cases, it would still be open to the same objections above outlined.

This relator was employed as agent in charge of hearings for many years in Montana, and from 1914 to 1923 appeared as special attorney in many cases before the United States Federal District Court, District of Montana, and is in possession of sundry letters from district attorneys, assistants, a judge of the Supreme Court of Montana, and others, and has copies of laudatory letters officially issued in this service in recognition of past service; in Colorado he has had charge of the hearings work for over seven years, and your office has in its files hundreds of transcripts of cases tried by him.

It is respectfully submitted that these transcripts afford a more accurate and just means of evaluation than statements of attorneys whose favorable or adverse recommendations are based upon foundations of sands, shifting in each wind, and so intrinsically bound up with private interest as to be utterly worthless.

I would suggest that even such transcripts are open to the objection that they are dry, pertain to dead things and correspondingly inclined to create a weariness. of mind and body. And also, when reviewed by one comfortably seated at a desk, wreathed in the smoke exuding from his pipe, and to whom the conflict of battle is a stranger, the record does not always show the motives which actuate certain lines of examination apparently immaterial, but which were justified because of the wrong use of a word by attorney or witness, or misinterpretation of such, of chance remarks overheard by attorney or investigator, open remarks made prior to the hearing, and anticipated defenses not relied upon, as well as defenses raised but abandoned through impossibility or unfeasibility in the development of such defenses. Then too, in the heat of battle things are done and said by the most skilled of counsel best left undone or unsaid. It is easy to pick flaws in a cold record, but extremely difficult to avoid all of the hastily-formed errors of judgment which make for an extended record.

However the records are superior to the judgment of interested attorneys, and in the many hundred of cases handled only one case recalled contained any criticism of the trial officer's conduct, and that was a homestead case in which the criticism was made that the Government's examination of the defendant and his witnesses was too limited as to the facts of residence. The truth is (and it does not show fully on the record for manifest reasons) that the alleged homesteader was a bootlegger maintaining his wife as an article of trade catering to the bestial passions, with a constant residence in the disreputable section of Pueblo, Colo., during all of the period of residence; the Government's testimony showed the utter lack of residential facts; the defendant and his witnesses perjured themselves in the final proof and in the hearing; and the record was so mutilated by an inexperienced office stenographer substituting for a court reporter that portions of the record showed the reverse of what some witnesses had testified to and much of the record was unintelligible through failure to properly and fully make or read notes.

This explanation and relation is purposely made full, with all different angles and phases presented. It may be tiresome to read. It could easily be brief and boiled down to but a fraction. But experience teaches the observant person that the one who has much to conceal submits a skeleton explanation when necessary so that further explanations when required may be made to fit the newly discovered facts-the application and evidence in the French case well illustrates this practice. Having nothing to be ashamed of and nothing to conceal, I prefer to make the explanation as complete as can be done without sacrificing any material phase. If the note at times seems light and unburdened with a false dignity, it should be borne in mind that a jest frequently is the best answer to an unreasonable and illogical statement.

There is hereto attached, in accordance with your request, a copy of my memorandum of February 10, 1928, to Mr. Ralph S. Kelly, chief of field division, General Land Office, Denver, Colo., which was forwarded to the then Secretary of the Interior, bringing to his attention the official misconduct of this firm, which I understand was forwarded to both Colorado Senators, came to the attention of this firm, and, in the absence of any other cause of malice, would be sufficient to actuate them in making their patently false and unbased charges.

Respectfully submitted.

Mr. RALPH S. KELLY,

BENJ. F. L. HUM,
District Law Officer.

DENVER, COLO., February 10, 1928.

Division Inspector Department of the Interior, Denver, Colo.

SIR: You are doubtless acquainted with the fact that the firm of Dines, Dines & Holme represents the defendants in the six separate applications involving the Denver group of oil-shale claims, the French group of claims, the Alturas Oil Shale Co., in the case tried about one year ago, and in several other cases, and that this firm has been particularly active in the various matters pending before the Department of the Interior in which oral hearings were granted. Mr. Harold D. Roberts, a member of this firm did not personally appear at Washington in the oral rehearing granted in the case of the United States v. Emil L. Krushnic, but the firm was represented by their Messrs. Holme & Keegan, the firm name appearing on the brief filed.

In checking up recent interpretations of the withdrawal act and leasing act, my attention was called to the case of Joseph Hodgson v. the Midwest Oil Co. et al., in which decision was rendered by the Circuit Court of Appeals at St. Louis. Mo. (eight circuit) on January 3, 1927, a perusal of which will be of great interest to you and to the department. Believing that the decision in this latter case, which upholds the rule of automatic forfeiture of a mining claim in conflict with a withdrawal, or the leasing act, during any year in which the locator fails to do his annual assessment work, is pertinent to the Spad case, I immediately communicated with the clerk of the district court, with a view of obtaining copies of the briefs filed by respective counsel, and under date of February 2, 1928, a copy of each brief was transmitted. An examination of defendant's brief shows that Tyson S. Dines, Tyson Dines, jr., Peter H. Holme, and Harold D. Roberts were of counsel in the case, and the arguments were personally presented by Mr. Roberts, as will appear from a perusal of the decision rendered.

In order that you may understand the peculiar position which this firm now occupies, having appeared as amicus curiæ in the oral rehearing on the Spad case, when they had previously successfully asserted the doctrine of automatic forfeiture in the circuit court of appeals, I am incorporating herein a brief statement of the facts of the case, together with quotations from the court's decision, applying the rule of automatic forfeiture upon default in the performance of assessment work.

DECISION IN THE HODGSON CASE (17 FED. (2d.), 71)

"The salient facts are: June 12, 1925, Hodgson sued the Midwest Oil Co. et al., in ejectment alleging rights predicated upon the Rifle Placer located in 1887, upon which annual labor had been performed up to the end of the year 1920, which claim was based upon a valid discovery, etc. The defendants held a section 18 lease, granted April 6, 1921, based upon the Tank location in March, 1910, upon which discovery had been made, which location was in trespass of the withdrawal of September 27, 1909. Plaintiff failed to allege performance of assessment work for the year ending July 1, 1922, assuming the defendants' possession under the lease rendered this unnecessary. A general demurrer, inter alia, was sustained by the lower court.

"After a lengthy citation from the Union Oil Co. v. Smith case (249 U. S. 337), as to necessity of assessment work, and resultant forfeiture through failure to comply with the conditions subsequent of the mining laws (sec. 2324 R. S.), the court states: 'From the foregoing it is clear that such original locator and his assigns was required as a condition subsequent to do the