moval of timber from mineralized public lands, viz., the act of June 3, 1878 (20 Stat., 88). The practical question is: Does said act relate to such lands situate in the State of California, or is it confined to the States and Territories expressly enumerated in the act itself— Colorado, Nevada, New Mexico, Arizona, Utah, Wyoming, Idaho, Montana, and the Dakotas?

Departmental construction heretofore has uniformly been to the effect that the expression "and all other mineral districts of the United States," following the enumeration of States and Territories in said act, is sufficiently comprehensive to include the States of California, Oregon and Washington. (Instructions, 29 L. D., 349; 24 L. D., 167.)

This construction is more favorable to the individual than that which has obtained in the United States courts for California and Oregon. (United States v. Smith, 11 Fed. Rep., 487; United States v. Benjamin, 21 Fed. Rep., 285.) In these cases the courts held that said act does not apply to Oregon (United States . Smith) nor to California (United States v. Benjamin). The courts were persuaded that another act of the same date (20 Stat., 89) defined the rights of residents of the Pacific coast states in the removal of timber from the public domain.

Both cases were considered by the Department in its previous instructions, the last (29 L. D., 349) being under date of December 14, 1899.

Since this date, however, a Federal court has again had occasion to construe the act. In United States v. English et al. (107 Fed. Rep., 867) it was held, in effect, that "other mineral districts of the United States," does not enlarge the field of operation of the act, because Oregon (and the same is true of Washington and California) is not "a mineral district."

The line of demarcation thus established, in considering the territorial operation of either act, was again observed in United States v. Price Trading Co. (109 Fed. Rep., 239).

While the subject was not immediately considered by the Supreme Court in Northern Pacific Ry. Co. v. Lewis (162 U. S., 366), yet the language of Mr. Justice Peckham may not be without significance. In speaking of the act he said (p. 376):

The government, however, chose to make some exceptions in favor of certain classes of people to whom was given the right to cut timber for certain purposes: 1st. They were to be citizens of the United States. 2nd. Bona fide residents of the State or Territory mentioned in the act.

The construction by the courts, whenever the matter has been presented, is more restrictive than that given by the Department. The effect is a paradox. The Department, holding to a more liberal construction recognizing in residents of California, Oregon and Wash

ington the same rights that the act of June 3, 1878, expressly confers upon residents of the other States and Territories therein named, may nevertheless instigate suits or prosecutions for the cutting or removal of timber in the mineralized portions of those three States, which the Federal courts will sustain.

Without further consideration of the question in thesi, and without relation to whether the administrative or the judicial construction better expresses the legislative intent, it is now idle to insist upon an interpretation which confers no defense to a prosecution before a Federal court.

The instructions heretofore given are therefore vacated and withdrawn, and you will henceforth so administer the act in question as to exclude from its purview any State or Territory not specifically therein mentioned.

Very respectfully,

FRANK PIERCE, First Assistant Secretary.

NORTHERN PACIFIC GRANT-JURISDICTION OF LAND DEPARTMENTJOINT RESOLUTION OF MAY 31, 1870.

HEATH. NORTHERN PACIFIC RY. Co.

While the joint resolution of May 31, 1870, provides that all lands thereby granted to the Northern Pacific Railway Company which shall not be sold or disposed of, or remain subject to mortgage, at the expiration of five years after the completion of the entire road, shall be subject to settlement and preemption, the land department is without authority, in the absence of specific legislation, to authorize the sale or entry of any such lands which have been earned by the company and are still held by it. Where such lands have been patented to the company the jurisdiction of the land department has terminated, and where earned but not patented it is the duty of that department to issue patents therefor, leaving for determination by the courts questions arising under said provision.

First Assistant Secretary Pierce to the Commissioner of the General (O. L.) Land Office, July 17, 1909. (S. W. W.)

This case involves the construction of the joint resolution of May 31, 1870 (16 Stat., 378), making a grant of lands to aid in the construction of that portion of the Northern Pacific Railroad from Portland to a point on Puget Sound, and is brought before the Department by the appeal of Melvin Heath from your office decision of November 14, 1908, affirming the action of the register and receiver rejecting his homestead application for lot 1, SE. NE. and E. 1 SE. 1, Sec. 5, T. 5 N., R. 3 E., Vancouver, Washington, land district. It appears that the lands involved herein are within the primary limits of the grant made by the joint resolution aforesaid on definite

location of September 22, 1882, and were listed by the company August 6, 1895, per list No. 56, but no patent appears to have been issued, and when on May 11, 1908, Heath presented his homestead application, it was rejected by the register and receiver for the reason of conflict with the railroad company's claim.

In his appeal to your office the homestead applicant contended that the railway company was violating the terms of the grant made by the act of July 2, 1864 (13 Stat., 365), and the joint resolution aforesaid in that more than five years had elapsed since the completion of the road and the company was holding the land in violation of the express terms of the joint resolution which provided:

That the Northern Pacific Railroad Company be, and is hereby 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 delivery, 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 privilege, grants and duties provided for in its act of incorporation, its main road to some point on Puget Sound, ria 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 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 first day of January, Anno. Domini Eighteen Hundred and Seventy-two, and forty miles of the remaining portion thereof each year thereafter, until the whole shall be completed between said points: Provided, That all 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 preemption like all other lands, at a price to be paid to said company, not exceeding two dollars and fifty cents per acre; and if the mortgage hereby authorized shall at any time be enforced by foreclosure or other legal proceedings, or the mortgaged lands hereby granted, or any of them, be sold by the trustees to whom such mortgage may be executed, either at its maturity, or for any failure or default of said company under 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 subdivisions thereof, to the highest and best bidder.

Your office decision holds that by reason of regular proceedings had in the courts whereby all the property of the Northern Pacific Railroad Company, including the land grant, was sold to the Northern Pacific Railway Company, the lands granted to the company are no longer subject to the provision relied upon by the appellant ; and that moreover, whether such lands are subject to preemption or not, there is no authority in the officers of the land department of the United States to accept payment for the lands or to allow entry

thereof, citing as authority the decision of the Department in the case of Cooper et al. v. Sioux City and Pacific Railroad Company (9 C. L. O., 217; 1 L. D., 345).

The material facts concerning which there can be no controversy may be briefly stated as follows:

The original Northern Pacific Railroad Company was created by the act of Congress of July 2, 1864, supra, and by the same act certain lands were granted to said company " its successors and assigns (section 3); and for these lands patents were to be issued to said company confirming the title as the lines should be completed in sections of 25 miles (section 4).

By section 10 of the act the issue of mortgage or construction bonds was forbidden except upon the consent of Congress, but by the joint resolution of March 1, 1869 (15 Stat., 346), Congress granted the company authority to issue bonds and secure the same by mortgage on its railroad and telephone line, and by the joint resolution of 1870, supra, authority was granted the company to mortgage its property "of all kinds and descriptions, real, personal and mixed, including its franchise as a corporation." Bonds were thereafter issued secured by mortgage, which were foreclosed in 1875, on suit instituted by the trustees in the United States Circuit Court, Southern District of New York. Under an amended decree rendered by that Court August 6, 1875, all the property of the corporation including its franchises (except lands which had at that time been patented or certified to the company and with which this case is not concerned) was ordered sold and was purchased by a committee of the bond holders who reorganized the company as the Northern Pacific Railroad Company under a statute of the State of New York, and conveyed all the property so purchased to the reorganized company. Thereafter other mortgages were issued from time to time and money raised with which the road was completed and put into operation.

In 1896 a second foreclosure sale took place under a decree of the United States Circuit Court of the Eastern District of Wisconsin, whereby the Northern Pacific Railway Company, a corporation organized under the laws of the State of Wisconsin, became the purchaser and has ever since claimed ownership of the entire road, including the lands and land grants. By the terms of the decree under which this sale was made the lands in the State of Washington which had been patented to or selected by the company were sold in separate tracts, by specific description, while the lands not selected "including every possible right, title and interest of said railroad company in and to any of the lands within said State covered by any grant to said railroad company by the Congress of the United States and which may not be included in the sale under said decrees under the foregoing description of lands for which letters patent have

issued to said railroad company and the right to receive lands for which letters patent have not issued but have been selected by and certified to said company," were sold as one parcel.

The land involved in this case was surveyed in April, 1894, as shown by the township plat approved October 10, 1894, and the construction of that part of the road coterminous therewith was accepted by the President on October 4, 1883.

Counsel for appellant have submitted elaborate arguments in support of their contention which they claim are applicable not only to this case but to many others similarly situated and now pending before the Department, which arguments may be summarized as follows: that the Northern Pacific Railway Company is not only the successor of the Northern Pacific Railroad Company but it is in fact. the latter company by a new name; that by the purchase under the foreclosure of 1875 the New York company acquired no title to any lands in the State of Washington, but merely the right to earn such lands by complying with the requirements of the laws of Congress making grants, and thus the New York company took the lands to be thereafter acquired, subject to all the conditions specified in the laws; that the sales made under the foreclosure proceedings were not in accordance with the provisions of the joint resolution of 1870 in that the lands were not sold at different places in the State and "in single sections or subdivisions thereof;" that the mortgage executed in 1870 exhausted the right of the company conferred by the joint resolution to mortgage the lands and consequently all subsequent mortgages were invalid; that more than five years having elapsed since the completion of the road and the land involved herein not having been sold or disposed of by the company is subject to preemption; and that the land department of the United States has authority without additional legislation to issue regulations providing for the entry under the homestead laws of the lands now remaining unsold upon the condition of payment for the same at $2.50 per acre, which the Government should in turn pay over to the railway company.

This Department is thus asked to determine the effect of the legal proceedings had in the United States Circuit Court for the Southern District of New York whereby the mortgage of 1870 was foreclosed and whether the execution of that mortgage exhausted the right to mortgage which was granted by Congress; to determine the right acquired and the obligations assumed by the reorganized Northern Pacific Railroad Company under the New York statute; to determine the validity of the mortgages issued by the reorganized company and the legality of the proceedings had in the United States Court for the Eastern District of Wisconsin for the foreclosure of such mortgages and the effect of the sale had in pursuance thereof.