Lapas attēli

immigrating," and if not for any other reasons excluded persons, should be admitted "if and so long as it might be found in your supervision of the subject and administration of the laws) by experience and inspection that they were in

not such persons" (22 Opins., 464); that is, not alien immigrants as herein defined for this particular class of cases, nor excluded persons. Very respectfully,


fact *



The appropriation by Congress of land for a military road and the build

ing of such road thereon, just as effectually withdraws and excludes

such land from sale as if it had been done in express terms. The fact that patents have since been issued for lands through which

such road passes, without any reservation of the lands included within the roail, does not operate as a vacation of the portion of the road within the patented lands, nor give to such owner a right to obstruet,

interfere with, or change the location of the road. Congress having set apart a portion of the public domain for a military

road, and having constructed thereon such road, it is not within the power of any other department of the Government to abandon, vacate, or alienate the road, or the land on which it is constructed, and a patent issued for such lands would, to that extent, be inoperative and

void. Such a road, though within a State, is not subject to either State, munic

ipal, or private control, or interference in any way.


October 9, 1900. SIR: By indorsement, October 2, 1900, upon the letter of the Chief of Engineers to you, of September 29, 1900, you request my opinion upon the question there presented.

That letter stated, in substance, that the military road between Fort Washakie and Jacksons Lake, Wyoming, and thence across the forest reserve to the Yellowstone National Park, is being obstructed, and, in some cases, its location changed by private individuals; in some instances, by bona fide legal settlers on surveyed lands; in others, by persons having claims, of more or less validity, to tracts of the unsurveyed lands of the Teton and Yellowstone Park reservations, and that Captain Chittenden, in charge of that road, had caused notices to be posted, at different points along that road, warning the people against such interference with the road, as it is a Government road under the control of the United States; and one question submitted is as to the propriety of his action in so doing.

As to this, there can scarcely be a question. The road was built as a military road, by the United States, under the authority of Congress expressed in the sundry civil appropriation act of June 4, 1897, which appropriates (30 Stat., 50)

“For 'the construction of a military road from Fort Washakie, Wyoming, by the most practicable route near the Wind River and to the mouth of the Buffalo fork of Snake River, near Jacksons Lake, in Uinta County, Wyoming, to be expended under the direction of the War Department, ten thousand dollars, or so much thereof as may be necessary.

And the sundry civil appropriation act of June 6, 1900 (31 Stat., 631), appropriates

“For the repair, construction, and completion of the military road from Fort Washakie to near Jacksons Lake, in Uinta County, Wyoming, authorized by provision in the sundry civil appropriation act approved June fourth, eighteen hundred and ninety-seven, ten thousand dollars."

The clear effect of this legislation is to make the road here in question, a military road of the United States, under the exclusive control of Congress, through such agencies as it may appoint; and it will so remain until abandoned or vacated by the same authority which created and controls it. It follows that, though within a State, this road is not subject to either State, municipal, or private control or interference in any way.

I am informed from the engineer's office in your Department that some, at least, of the interference with this road is by individuals to whom patents have been granted for some of the lands through which this road passes, and who


claim that because their patents make no reservation on account of this road, they therefore convey the lands occupied by the road within the granted limits and operate as a vacation of so much of the road, or, in some way, give to such owners a right to obstruct, interfere with, or change the location of the road as if it were occupying without right a portion of their land. Any such claim is an entirely mistaken one and is without legal foundation. The road was built by Congress upon the public lands of the Government as a military road, and is one of the means and instrumentalities by which the business of the Government is carried on.

It is the creature of legislation, and can be destroyed by the legislative power alone. Congress having thus set apart, appropriated, and reserved this portion of the public domain for this road, and having constructed thereon a military road of the United States, it is not within the power of any other department of the Government to abandon, vacate, or alienate the road or the land on which it was located; and any patent issued by the General Land Office for lands through which this road runs, which should, by construction or otherwise, appear to grant land occupied by this road, so as to give a right inconsistent with the right of the Government to own, operate, and control this road, would be to that extent inoperative and void, as being beyond the power of that agency of the Government. The General Land Office is the proper agent of the Government for the sale and conveyance of such of the public domain as is for sale; but, when Congress has set apart and appropriated a particular part of that domain for public uses and purposes, it thereby just as effectually reserves and excludes such portion from sale, as if it had done so in express terms; and in the one case, as much as in the other, no sale of such portion can be made except by authority of Congress.

We need not stop to consider here whether all such grants would not, on general principles, be held to be subject to existing vested rights of easement or otherwise, in the Government or in the public, for, however that may be, the appropriation by Congress of this land for a military road, and the building of such road thereon as effectually with

draws and excludes the land from that which may be sold without the express authority of Congress as in the case of any military reservation, fort, or navy-yard.

Nor, need we consider here whether this exclusion from sale is of the entire title to the land set apart for the road; or, whether in such case the rule of the common law prevails, which gives to the owner of the land through which a public road passes, the fee in the road bed subject to the easement of the road; for no such question arises here, the only question being of the right to interfere with the road itself.

The action of Captain Chittenden, the officer in charge of this road, in posting along its line the notices warning the people to desist from interfering with the road was unnecessary, as it is not necessary that the United States should notify people not to meddle with its property; but, however unnecessary, his action in this respect was, in my view, eminently wise, discreet, and proper, as calculated to prevent difficulties and trouble to the Government, and unpleasant consequences to individuals, and was clearly within his legitimate province.

But, in case this warning of the officer in charge prores ineffectual, and persons persist in interfering with the road, the other question submitted by the Chief Engineer has relation to the course to be pursued—the remedy. This can not be answered in advance. In each case the course to be pursued will depend upon the nature, facts, and circumstances of the particular case, and may differ in different

In such case, if the officer in charge can not control the matter himself, or is in doubt as to the proper course to be taken, he may consult the United States attorney for that district, who will advise him and, if necessary, take the proper steps, as in other cases of violation of law or interference with Government property. Respectfully,




The Government Hospital for the Insane, the Washington Hospital for

Foundlings, the Columbia Institution for the Deaf and Dumb, and the Freedmen's Hospital and Asylum are each charitable or eleemosynary institutions within the meaning of the act of June 6, 1900 (31 Stat.,

664), which creates a Board of Charities for the District of Columbia. A charitable or eleemosynary institution is one created or existing for

the relief of the poor, or for the conferring of any gratuitous benefit. The Board of Charities has general supervision of these institutions,

and, under the order of the District Commissioners, has power of investigation with the duty of submitting a report and recommendation to Congress. With this exception, the powers and duties of the Secretary of the Interior are unchanged by the act of June 6, 1900, and remain the same as before its enactment.


October 12, 1900. Sir: Your letter of August 13 brings to my attention the act to establish a Board of Charities for the District of Columbia, approved June 6, 1900, and the question in view of its provisions as to the relationship of the Secretary of the Interior to certain institutions located in the District, namely, the Government Hospital for the Insane, the Columbia Institution for the Deaf and Dumb, the Freedmen's Hospital and Asylum, and the Washington Hospital for Foundlings. You inform me that it is necessary that the Secretary's duties in the premises be authoritatively determined, and cite the various laws and opinions of AttorneysGeneral affecting these institutions, and request my opinion was to the duty of the Secretary of the Interior in respect to the management of these institutions and the extent of bis authority to supervise and control the affairs of each and the expenditure of the money appropriated for the support thereof."

I have the honor to say in response, in the first place, that the field of the inquiry is so broad and general that I can not regard the question in the form indicated as strictly a question of law which it is incumbent upon me to answer, nor, if not such a question, would it be proper for me to answer, however much inclined I might otherwise be to do so. The matter of your relations in general to these institutions, of

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