A-4582, NOVEMBER 29, 1924, 4 COMP. GEN. 486

A-4582: Nov 29, 1924

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IS. WAS NOT AIDED IN ITS CONSTRUCTION BY LANDS GRANTED BY CONGRESS. 1924: I HAVE YOUR REQUEST PER LETTER OF AUGUST 9. IS SUBJECT TO LAND-GRANT DEDUCTION FROM PAY FOR CARRYING THE MAILS UNDER THE ACT OF CONGRESS OF JULY 28. INCLOSED WITH YOUR COMMUNICATION IS A STATEMENT OF THE GENERAL LAND OFFICE AND AN ARGUMENT SUBMITTED BY THE CHICAGO. IN WHICH THE CONTENTION IS MADE THAT THE SAID LINE OF RAILROAD IS NOT A LAND-GRANT ROAD AND IS NOT SUBJECT TO LAND-GRANT RATES FOR CARRYING THE MAIL. - RAILROAD COMPANIES WHOSE RAILROADS WERE CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT MADE BY CONGRESS ON THE CONDITION THAT THE MAILS SHOULD BE TRANSPORTED OVER THEIR ROADS AT SUCH PRICE AS CONGRESS SHOULD BY LAW DIRECT.

A-4582, NOVEMBER 29, 1924, 4 COMP. GEN. 486

MAIL TRANSPORTATION - LAND-GRANT DEDUCTIONS AS THAT PORTION OF THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY BETWEEN MADISON AND PORTAGE, IS., WAS NOT AIDED IN ITS CONSTRUCTION BY LANDS GRANTED BY CONGRESS, THE CHARGES FOR THE TRANSPORTATION OF UNITED STATES MAIL OVER SAID PORTION DO NOT COME WITHIN THE PROVISIONS OF THE ACT OF JULY 28, 1916, 39 STAT. 426, REQUIRING REDUCTION IN PAYMENT OF CHARGES FOR THE TRANSPORTATION OF MAIL OVER RAILROADS CONSTRUCTED IN WHOLE OR IN PART BY LANDS GRANTED BY CONGRESS.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, NOVEMBER 29, 1924:

I HAVE YOUR REQUEST PER LETTER OF AUGUST 9, 1924, FOR DECISION AS TO WHETHER THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY BETWEEN MADISON AND PORTAGE, WIS., IS SUBJECT TO LAND-GRANT DEDUCTION FROM PAY FOR CARRYING THE MAILS UNDER THE ACT OF CONGRESS OF JULY 28, 1916, 39 STAT. 426. INCLOSED WITH YOUR COMMUNICATION IS A STATEMENT OF THE GENERAL LAND OFFICE AND AN ARGUMENT SUBMITTED BY THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY CO., IN WHICH THE CONTENTION IS MADE THAT THE SAID LINE OF RAILROAD IS NOT A LAND-GRANT ROAD AND IS NOT SUBJECT TO LAND-GRANT RATES FOR CARRYING THE MAIL.

THE STATUTE REFERRED TO BY YOU PROVIDES THAT---

RAILROAD COMPANIES WHOSE RAILROADS WERE CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT MADE BY CONGRESS ON THE CONDITION THAT THE MAILS SHOULD BE TRANSPORTED OVER THEIR ROADS AT SUCH PRICE AS CONGRESS SHOULD BY LAW DIRECT, SHALL RECEIVE ONLY EIGHTY PERCENTUM OF THE COMPENSATION OTHERWISE AUTHORIZED BY THIS SECTION.

BY THE ACT OF JUNE 3, 1856, 11 STAT. 20, THERE WAS---

* * * GRANTED TO THE STATE OF WISCONSIN FOR THE PURPOSE OF AIDING IN THE CONSTRUCTION OF A RAILROAD FROM MADISON OR COLUMBUS, BY WAY OF PORTAGE CITY TO THE ST. CROIX RIVER OR LAKE BETWEEN TOWNSHIPS TWENTY FIVE AND THIRTY-ONE * * * EVERY ALTERNATE SECTION OF LAND DESIGNATED BY ODD NUMBERS FOR SIX SECTIONS IN WIDTH ON EACH SIDE OF SAID ROADS RESPECTIVELY. * * *

PROVIDED, THAT THE LANDS TO BE SO LOCATED SHALL BE SELECTED FOR AND ON ACCOUNT OF SUCH ROADS; PROVIDED FURTHER, THAT THE LANDS HEREBY GRANTED SHALL BE EXCLUSIVELY APPLIED IN THE CONSTRUCTION OF THAT ROAD FOR WHICH IT WAS GRANTED AND SELECTED AND SHALL BE DISPOSED OF ONLY AS THE WORK PROGRESSES, AND THE SAME SHALL BE APPLIED TO NO OTHER PURPOSE WHATSOEVER.

SEC. 3. THAT THE SAID LANDS HEREBY GRANTED TO SAID STATE SHALL BE SUBJECT TO THE DISPOSAL OF THE LEGISLATURE THEREOF, FOR THE PURPOSES AFORESAID, AND NO OTHER; AND THE SAID RAILROADS SHALL BE AND REMAIN PUBLIC HIGHWAYS FOR THE USE OF THE GOVERNMENT OF THE UNITED STATES FREE FROM TOLL OR OTHER CHARGE UPON THE TRANSPORTATION OF PROPERTY OR TROOPS OF THE UNITED STATES. * * *

SEC. 5. THAT THE UNITED STATES MAIL SHALL BE TRANSPORTED OVER SAID ROADS, UNDER THE DIRECTION OF THE POST OFFICE DEPARTMENT, AT SUCH PRICE AS CONGRESS MAY, BY LAW, DIRECT. * * *

THE LANDS, RIGHTS, AND PRIVILEGES THUS GRANTED WERE BY THE ACT OF THE LEGISLATURE OF WISCONSIN OF OCTOBER 8, 1856 (CH. 118, GENERAL ACTS OF WISCONSIN, P. 137), FORMALLY ACCEPTED BY THE STATE UPON THE TERMS, CONDITIONS, AND RESTRICTIONS CONTAINED IN THE ACT OF CONGRESS, AND THE STATE BY ACT OF OCTOBER 11, 1856 (CH. 122, GENERAL ACTS OF WISCONSIN, P. 217), AUTHORIZED THE LACROSSE AND MILWAUKEE RAILROAD CO., A CORPORATION CREATED BY THE LAWS OF WISCONSIN, TO CONSTRUCT AND OPERATE THE ROADS DESCRIBED IN THE ACT OF CONGRESS FROM MADISON AND COLUMBUS VIA PORTAGE CITY TO ST. CROIX RIVER AND LAKE, AND FOR THE PURPOSE OF AIDING SUCH CONSTRUCTION THE STATE GRANTED TO THAT COMPANY ALL ITS INTEREST AND ESTATE, PRESENT AND PROSPECTIVE, IN OR TO THE LANDS GRANTED BY THE ACT OF JUNE 3, 1856, FOR THE CONSTRUCTION OF THE RAILROAD BETWEEN THE POINTS AND ALONG THE ROUTES JUST NAMED.

THE COMPANY ACCEPTED THE GRANT, AND IN ORDER TO RAISE MONEY FOR CONSTRUCTION OF THE ROAD, ISSUED BONDS, SECURED BY DEEDS OF TRUST DATED DECEMBER 31, 1856, UPON ITS FRANCHISES AND THE LANDS TO WHICH IT WOULD BE ENTITLED AND COMMENCED WORK, BEGINNING AT PORTAGE AND WORKING WESTWARD TOWARD THE ST. CROIX RIVER BY TOMAH. THE LINE BETWEEN PORTAGE AND TOMAH, A DISTANCE OF 61 MILES, WAS COMPLETED BY APRIL, 1858, AND WAS USED FOR FREIGHT AND PASSENGER TRAINS FROM SAID TIME. THE GOVERNOR OF THE STATE ON JULY 23, 1858, REFUSED TO CERTIFY THE COMPLETION OF THE ROAD TO THE SECRETARY OF THE INTERIOR UPON THE GROUND THAT THE CONDITIONS UPON WHICH THE GRANT WAS MADE BY THE STATE TO THE COMPANY HAD NOT BEEN COMPLIED WITH, IN THAT THE COMPANY HAD NOT BUILT ANY ROAD FROM MADISON AND FROM COLUMBUS TO PORTAGE, WHILE BOTH OF SAID ROADS WERE TO HAVE BEEN COMPLETED BY DECEMBER 31, 1858.

THE TRUSTEES UNDER THE DEED OF TRUST, SUPRA, MADE APPLICATION JULY 8, 1859, TO THE SECRETARY OF THE INTERIOR FOR PATENTS FOR LANDS APPLICABLE UNDER THE ACT OF JUNE 3, 1856, SUPRA, TO SAID COMPLETED SECTIONS BETWEEN PORTAGE AND TOMAH. IN THAT APPLICATION THEY SAID:

CONGRESS GRANTED THE LAND TO THE STATE OF WISCONSIN, THE STATE GRANTED TO THE RAILROAD COMPANY, AND THE COMPANY TO THE TRUSTEES. THE EQUITABLE, IF NOT THE LEGAL, TITLE IS IN THEM IN TRUST FOR THE BONDHOLDERS.

THE SECRETARY OF THE INTERIOR IN HIS REPLY SAID:

* * * THE ACT OF CONGRESS OF JUNE 3, 1856, WHICH IS THE BASIS OF THE ACTION OF THIS DEPARTMENT IN THE CASE, HAS MADE A GRANT OR GRANTS TO THE STATE OF WISCONSIN, AND IT HAS BEEN THE UNIFORM PRACTICE IN ADJUSTING SIMILAR GRANTS IN THE GENERAL LAND OFFICE TO TRANSACT THE BUSINESS DIRECTLY WITH THE STATE AUTHORITIES AND WITH THEM ALONE.

PARTIES WHO SEEK RECOGNITION OR COMPLETION OF THE TITLE OF THE STATE TO ANY PARTICULAR LANDS MUST THEREFORE OBTAIN THE INTERVENTION OF THE STATE OFFICERS; AND IT IS NOT NECESSARY FOR US TO ENTERTAIN OR CONSIDER QUESTIONS WHICH ARISE UPON STATE LEGISLATION CONCERNING THE LANDS; QUESTIONS WHICH APPEAR TO BE MORE APPROPRIATE FOR THE STATE AUTHORITIES OR THE COURTS. THIS POSITION IS MORE MANIFESTLY PROPER WHEN IT IS CONSIDERED THAT IN THE RECEIVED CONSTRUCTION OF EXISTING LAWS OF CONGRESS A PATENT IS ENTIRELY UNNECESSARY TO ASSURE THE TITLE OF THE STATE TO ANY OF THE LANDS GRANTED BY CONGRESS FOR AID IN CONSTRUCTING RAILROADS. THESE GRANTS ARE ACCEPTED BY THE STATES WITH CONDITIONS, AND SO LONG AS THOSE CONDITIONS ARE COMPLIED WITH BY THE STATES, THE TITLE OF A STATE TO ANY GRANTED TRACTS WILL BE DULY RESPECTED BY ALL THE OFFICERS OF THIS DEPARTMENT.

THE SAID TRUSTEES NEVER RECEIVED PATENTS FOR ANY PART OF SAID LANDS.

THE LACROSSE AND MILWAUKEE RAILROAD CO., HAVING MADE DEFAULT IN THE PAYMENT OF THE INTEREST ON ITS BONDS, THE MORTGAGE TO SECURE THE DEBT WAS FORECLOSED IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF WISCONSIN AND THE MORTGAGED PROPERTY, INCLUDING THE INTEREST OF THE COMPANY IN THE CONGRESSIONAL GRANT, WAS SOLD AND DEEDED BY THE MARSHAL TO WILLIAM WALLACE PRATT AND WILLIAM HENRY WHITE ON MAY 5, 1863, WHO, ON THE SAME DAY, CONVEYED THE SAME TO THE MILWAUKEE AND ST. PAUL RAILWAY CO., BY WHICH THIS COMPANY BECAME OWNER OF THE 61 MILES OF COMPLETED ROAD FROM PORTAGE TO TOMAH AND OF THE CLAIM FOR LANDS EARNED BY THE CONSTRUCTION THEREOF. THE SAID COMPANY ENTERED INTO POSSESSION OF ROAD FROM PORTAGE THEREOF. THE SAID COMPANY ENTERED INTO POSSESSION OF SAID RAILROAD AND HAS SINCE CONTROLLED AND OPERATED IT, THE NAME LATER BEING CHANGED TO THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY CO., BY WHICH IT IS NOW KNOWN.

IN 1856, SHORTLY AFTER THE STATE HAD CONFERRED UPON IT THE WHOLE CONGRESSIONAL GRANT, THE LACROSSE AND MILWAUKEE RAILROAD CO. INDUCED PERSONS LIVING ALONG THE LINE OF ITS PROPOSED ROUTE TO AID IN ITS CONSTRUCTION BY GIVING NEGOTIABLE NOTES, SECURED BY MORTGAGES UPON THEIR FARMS. MONEY WAS RAISED ON THESE NOTES BY THE COMPANY AND USED IN GREAT PART IN THE CONSTRUCTION OF ITS ROAD BETWEEN PORTAGE AND TOMAH. WHEN THE LACROSSE AND MILWAUKEE CO. FAILED, SAID MORTGAGORS HAD THESE NOTES TO PAY, THUS ENTAILING GREAT HARDSHIP AND LOSS UPON THEM.

IN VIEW OF THESE FACTS, ON MARCH 6, 1868, THE STATE LEGISLATURE INCORPORATED THE WISCONSIN RAILROAD FARM MORTGAGE LAND CO., ON WHICH WAS CONFERRED THE BENEFIT OF THE LAND GRANT FOR THE CONSTRUCTION OF THE ROAD FROM PORTAGE TO TOMAH, FOR THE BENEFIT OF THE AFORESAID MORTGAGORS. SAID ACT RECITED THAT THE MILWAUKEE AND ST. PAUL RAILWAY CO., AS SUCCESSOR OF THE LACROSSE AND MILWAUKEE RAILROAD AND THE OWNER OF SAID ROAD, WAS WILLING TO RELINQUISH IN FAVOR OF SAID MORTGAGORS ITS CLAIMS TO THE SAID LANDS UPON CONDITION THAT THE STATE OF WISCONSIN WOULD RELINQUISH ITS RIGHT TO TAX THE SAID MILWAUKEE AND ST. PAUL RAILWAY CO. OR ITS TRAFFIC, FOR OR ON ACCOUNT OF ITS BEING THE OWNER OF SAID LANDS, AS PROVIDED BY CHAPTER 122, LAWS OF 1856, SUPRA. (SEE PRIVATE LAWS OF WISCONSIN OF 1868, CH. 446, P. 1149.)

ON JULY 27, 1868, CONGRESS PASSED AN ACT (15 STAT. 238) AUTHORIZING THE STATE OF WISCONSIN "TO DISPOSE OF THE LANDS GRANTED AND WHICH MAY HAVE ENURED AND BEEN CERTIFIED" TO IT UNDER THE ACT OF 1856, SUPRA, IN AID OF THE CONSTRUCTION OF THE RECORD FROM MADISON OR COLUMBUS VIA PORTAGE TO THE ST. CROIX RIVER,"FOR THE BENEFIT" OF THE AFORESAID MORTGAGE COMPANY---

PROVIDED, HOWEVER, THAT THIS ACT SHALL APPLY ONLY TO SUCH LANDS AS MAY BE DUE THE STATE OF WISCONSIN FOR THE PORTION OF THE ROAD ALREADY COMPLETED.

ON SEPTEMBER 15, 1868, THE MILWAUKEE AND ST. PAUL RAILWAY CO. IN DUE FORM ASSIGNED ALL ITS RIGHT AND INTEREST TO THE SAID LANDS TO THE WISCONSIN RAILROAD FARM MORTGAGE LAND CO.

IN THE CASE OF SCHULENBERG V. HARRIMAN, 21 WALL. 44, THE SUPREME COURT IN ITS OCTOBER TERM, 1874, HELD (P. 60):

1. THAT THE ACT OF CONGRESS OF JUNE 3, 1856, PASSED A PRESENT INTEREST IN THE LANDS DESIGNATED THERE CAN BE NO DOUBT. THE LANGUAGE USED IMPORTS A PRESENT GRANT AND ADMITS OF NO OTHER MEANING. THE LANGUAGE OF THE FIRST SECTION IS "THAT THERE BE, AND IS HEREBY, GRANTED TO THE STATE OF WISCONSIN," THE LANDS SPECIFIED. THE THIRD SECTION DECLARES "THAT THE SAID LANDS HEREBY GRANTED TO SAID STATE SHALL BE SUBJECT TO THE DISPOSAL OF THE LEGISLATURE THEREOF; " AND THE FOURTH SECTION PROVIDES IN WHAT MANNER SALES SHALL BE MADE, AND ENACTS THAT IF THE ROAD BE NOT COMPLETED WITHIN TEN YEARS "NO FURTHER SALES SHALL BE MADE, AND THE LANDS UNSOLD SHALL REVERT TO THE UNITED STATES.' THE POWER OF DISPOSAL AND THE PROVISION FOR THE LANDS REVERTING BOTH IMPLY WHAT THE FIRST SECTION IN TERMS DECLARES, THAT A GRANT IS MADE; THAT IS, THAT THE TITLE IS TRANSFERRED TO THE STATE. IT IS TRUE THAT THE ROUTE OF THE RAILROAD, FOR THE CONSTRUCTION OF WHICH THE GRANT WAS MADE, WAS YET TO BE DESIGNATED, AND UNTIL SUCH DESIGNATION THE TITLE DID NOT ATTACH TO ANY SPECIFIC TRACTS OF LAND. THE TITLE PASSED TO THE SECTIONS, TO BE AFTERWARDS LOCATED; WHEN THE ROUTE WAS FIXED THEIR LOCATION BECAME CERTAIN, AND THE TITLE, WHICH WAS PREVIOUSLY IMPERFECT, ACQUIRED PRECISION AND BECAME ATTACHED TO THE LAND.

THE RIGHT OF THE MORTGAGE COMPANY TO SELECT LANDS ACCORDING TO ITS CLAIM NORTH OF THE SAINT CROIX RIVER, WITHIN THE INDEMNITY LIMITS OF THE ACT OF 1856, SUPRA, WAS SUSTAINED BY THE CIRCUIT COURT FOR THE WESTERN DISTRICT OF WISCONSIN IN THE CASE OF THE MADISON AND PORTAGE RAILROAD COMPANY V. WISCONSIN ET AL., DECIDED OCTOBER 28, 1879. THE CASE WAS TRIED BEFORE MR. JUSTICE HARLAN, OF THE UNITED STATES SUPREME COURT; JUDGE DRUMMOND, OF THAT CIRCUIT; AND JUDGE BUNN, DISTRICT JUDGE.

JUSTICE HARLAN, WHO DELIVERED THE OPINION OF THE COURT, AFTER RECITING ACTS OF CONGRESS AND OF THE STATE RELATING TO THE MATTER AND REFERRED TO, SUPRA, SAID:

CONGRESS AND THE STATE SEEM TO HAVE CONCURRED IN DESIRING TO PROVIDE FULL COMPENSATION IN LANDS TO THE FARM MORTGAGE COMPANY FOR THE 61 MILES OF ROAD CONSTRUCTED AND IN USE LONG PRIOR TO 1864. (SEE 16 FED.CAS. P. 366, CASE 8939.)

IN THE CASE OF CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY V. UNITED STATES, 14 COURT OF CLAIMS, 125, DECIDED DECEMBER TERM, 1878, WHICH WAS A CLAIM FOR THE TRANSPORTATION OF THE MAIL OVER THE ROAD NOW UNDER CONSIDERATION FROM JULY 1, 1876, TO JANUARY 31, 1878, THE COURT, AFTER REFERRING TO THE DECISION OF THE SUPREME COURT IN SCHULENBERG V. HARRIMAN, SUPRA, AS SETTLING THE NATURE OF THE TITLE ACQUIRED BY THE STATE OF WISCONSIN UNDER THE ACT OF JUNE 3, 1856, SUPRA, TO THE LANDS REFERRED TO, SAID, PAGE 140:

* * * THE MEASURES TAKEN BY THE STATE TO TRANSFER THE LAND GRANT TO THE COMPANY DIFFERED RADICALLY FROM THOSE TAKEN BY CONGRESS TO PASS THE LANDS TO THE STATE. CONGRESS MADE A STATUTORY GRANT IN PRASSENTI; BUT THE STATE, ALTHOUGH DECLARING THAT THE RIGHTS GRANTED BY CONGRESS WERE THEREBY GRANTED TO THE COMPANY, ENACTED THAT THE TITLE TO THE LANDS SHOULD VEST IN SAID COMPANY ONLY AS THE GOVERNOR OF THE STATE SHOULD CERTIFY. * * *

IT IS MANIFEST THAT THE RAILROAD COMPANY DID NOT ACQUIRE TITLE BY THE MERE PASSAGE OF THE STATUTE, AS DID THE STATE OF WISCONSIN. BY THE COMPLETION OF A SECTION, ACCORDING TO THE TERMS OF THE ACT, THEY ACQUIRED A RIGHT IN EQUITY TO DEMAND LEGAL TITLE FROM THE STATE; BUT THE STATE CLEARLY PROPOSED TO KEEP WITHIN ITSELF THE LEGAL TITLE UNTIL ITS GOVERNOR SHOULD EXECUTE AND DELIVER THE DEED OR DEEDS CONTEMPLATED BY THE ACT.

THAT IT WAS THE TRUSTEE'S DUTY TO RETAIN SUCH CONTROL OVER THE TRUST PROPERTY AS WOULD ENABLE IT TO ENFORCE THE APPLICATION OF IT TO THE OBJECT OF THE TRUST IN THE MANNER CONTEMPLATED BY CONGRESS IS PLAIN. WHETHER THE STATE USED THE POWER WHICH IT THUS RETAINED JUSTLY OR UNJUSTLY, WISELY OR UNWISELY, TOWARDS THE LACROSSE AND MILWAUKEE RAILROAD COMPANY AND TOWARD THEIR PRIVIES IN ESTATE, AMONG WHOM ARE THE CLAIMANTS, IS NOT FOR US TO DETERMINE. THE COURT THEN HELD, AFTER RECITING FACTS AS SET FORTH ABOVE WHICH SHOWED THAT THE LANDS UNDER CONSIDERATION WERE TRANSFERRED TO THE MORTGAGE COMPANY, THAT NO PORTION OF THE CLAIMANT'S ROAD WAS CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT WITHIN THE MEANING OF SECTION 13 OF THE ACT OF JULY 12, 1876, 19 STAT. 82, WHICH PROVIDES:

THAT RAILROAD COMPANIES WHOSE RAILROAD WAS CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT MADE BY CONGRESS ON THE CONDITION THAT THE MAILS SHOULD BE TRANSPORTED OVER THEIR ROAD AT SUCH PRICE AS CONGRESS SHOULD BY LAW DIRECT, SHALL RECEIVE ONLY EIGHTY PERCENTUM OF THE COMPENSATION AUTHORIZED BY THIS ACT.

THE COURT THEREUPON DECIDED THAT THE 20 PERCENT DEDUCTION FOR MAIL TRANSPORTATION WAS NOT APPLICABLE TO THE ROAD UNDER CONSIDERATION.

UPON APPEAL THE SUPREME COURT HELD, AT ITS OCTOBER TERM, 1881, 104 U.S. 687, THAT THE ACT OF JULY 12, 1876, WAS NOT INTENDED TO APPLY TO THE CASE OF CONTRACTS PREVIOUSLY MADE FOR A TERM OF YEARS NOT EXPIRED WHEN IT TOOK EFFECT, AND THAT "THEREFORE, WHETHER THE RAILROAD OF THE COMPANY WAS OR WAS NOT THE SUBJECT OF A LAND GRANT BECOMES IMMATERIAL; ALTHOUGH WERE IT OTHERWISE WE SHOULD HAVE NO HESITATION IN AFFIRMING THE FINDING OF THE COURT OF CLAIMS UPON THAT POINT FOR THE REASON SET FORTH IN ITS OPINION.'

THE COMMISSIONER OF THE GENERAL LAND OFFICE ON MAY 27, 1886, REFUSED THE APPLICATION OF THE STATE OF WISCONSIN TO HAVE CERTIFIED TO IT, FOR THE BENEFIT OF THE WISCONSIN RAILROAD FARM MORTGAGE LAND CO., CERTAIN INDEMNITY LANDS SELECTED UNDER THE ACT OF JUNE 3, 1856, SUPRA, FOR THE REASON:

(1) THAT THE PROPOSED ACTION OF THE STATE IN DISPOSING OF THE LANDS SELECTED FOR THE BENEFIT OF THE MORTGAGE COMPANY WOULD BE A DIVERSION OF THE SAME FROM THE PURPOSE FOR WHICH GRANTED--- AN ILLEGAL ACT WHICH THE COMMISSIONER WAS UNWILLING TO COUNTENANCE AND AID; OR

(2) IF NOT SUCH DIVERSION THEN THE MORTGAGE COMPANY IS ONLY ENTITLED TO SUCH LANDS AS, BEING COTERMINOUS WITH THE LINE OF THE ROAD BETWEEN PORTAGE AND TOMAH "MAY HAVE ENURED AND BEEN CERTIFIED" TO THE STATE UNDER THE ACT OF 1856, PRIOR TO THE PASSAGE OF THE ACT OF JULY 27, 1868, (15 STAT. 238).

UPON APPEAL BY THE STATE OF WISCONSIN FROM THE AFORESAID DECISION OF THE COMMISSIONER OF THE GENERAL LAND OFFICE, SECRETARY OF THE INTERIOR LAMAR, IN A DECISION OF AUGUST 20, 1886, 5 LAND DECISIONS 89, REVERSED THE COMMISSIONER'S RULING AND AUTHORIZED THE CERTIFICATION OF THE LANDS SELECTED BY THE STATE FOR THE BENEFIT OF THE MORTGAGE COMPANY, SO FAR AS SAID SELECTIONS ARE WITHIN THE INDEMNITY LIMITS OF THE GRANT OF 1856, SUPRA.

THE REASONS FOR THIS DECISION ARE STATED TO BE:

(1) THAT THE EXISTING RIGHT OF THE STATE OF WISCONSIN UNDER THE CONGRESSIONAL GRANTS AFORESAID IS UNIMPAIRED BY ANY CONGRESSIONAL DECLARATION OF A FORFEITURE OR ANY JUDICIAL DECREE TO THAT END, ENTERED UNDER THE AUTHORITY OF A LAW OF CONGRESS.

(2) THAT WITH RESPECT TO LANDS EARNED BY CONSTRUCTION WITHIN THE PERIOD PRESCRIBED BY AND IN ACCORDANCE WITH ALL THE CONDITIONS OF THE GRANT, THE WISCONSIN FARM MORTGAGE COMPANY IS THE LAWFUL SUCCESSOR OF THE STATE THERETO.

THE LANDS WERE CERTIFIED IN ACCORDANCE WITH SAID DECISION, THUS COMPLETING THE GRANT AUTHORIZED BY THE ACT OF 1856, SUPRA, FOR THE 61 MILES OF ROAD BETWEEN PORTAGE AND TOMAH WHICH WERE COMPLETED IN 1858.

THE COMPTROLLER OF THE TREASURY BY DECISION OF MAY 7, 1912, 18 COMP. DEC. 867, HELD THAT THE ROAD BETWEEN PORTAGE AND TOMAH IS NOT ALAND GRANT ROAD SUBJECT TO THE CONDITIONS OF THE ACT OF JUNE 3, 1856, SUPRA, THUS FOLLOWING THE DECISIONS OF THE COURTS AS ABOVE SET FORTH.

THE QUESTION NOW FOR CONSIDERATION IS WHETHER THE ROAD CONSTRUCTED BETWEEN MADISON AND PORTAGE WAS AIDED IN ITS CONSTRUCTION BY A GRANT OF LANDS AND SUBJECT TO THE CONDITIONS OF THE ACT OF JUNE 3, 1856, SUPRA.

THE COMMISSIONER OF THE GENERAL LAND OFFICE, IN A LETTER TO THE SECRETARY OF THE INTERIOR, MARCH 31, 1888, STATED:

THE LACROSSE AND MILWAUKEE RAILROAD COMPANY COMPLETED ITS ROAD FROM PORTAGE TO TOMAH DURING THE YEAR 1858, AND THEN ABANDONED THE FURTHER CONSTRUCTION OF THE SAME.

THEREUPON THE LEGISLATURE OF THE STATE, BY ACT APPROVED APRIL 12, 1861, DECLARED SO MUCH OF THE GRANT TO THE LACROSSE AND MILWAUKEE RAILROAD COMPANY AS WAS OR COULD BE MADE APPLICABLE TO THE CONSTRUCTION OF THE ROAD BETWEEN MADISON AND PORTAGE FORFEITED TO THE STATE AND CONFERRED THE SAME UPON THE SUGAR RIVER VALLEY RAILROAD COMPANY.

THE SUGAR RIVER VALLEY RAILROAD COMPANY, UPON WHICH THE STATE IN 1861 CONFERRED THE GRANT BETWEEN MADISON AND PORTAGE, HAVING FAILED TO CONSTRUCT THE ROAD BETWEEN SAID POINTS WITHIN THE TIME REQUIRED BY THE ACT OF THE LEGISLATURE, THE STATE, BY ACT OF ITS LEGISLATURE APPROVED FEBRUARY 25, 1870, GRANTED TO THE MADISON AND PORTAGE RAILROAD COMPANY ALL THE RIGHTS, PRIVILEGES, GRANTS, AND FRANCHISES THAT WERE GRANTED TO THE SUGAR RIVER VALLEY RAILROAD COMPANY IN 1861.

DURING THE YEARS 1870 AND 1871 THE MADISON AND PORTAGE RAILROAD COMPANY COMPLETED ITS ROAD FROM MADISON TO PORTAGE AND SUCH COMPLETION WAS DULY CERTIFIED TO THE SECRETARY OF THE INTERIOR BY THE GOVERNOR OF WISCONSIN.

DECEMBER 18, 1863, THE LANDS WITHIN THE SIX MILES, OR GRANTED LIMITS OF THE GRANT OF 1856, FROM MADISON, VIA PORTAGE, TO THE ST. CROIX RIVER, OR LAKE, ACCORDING TO THE LINE ORIGINALLY LOCATED BY THE LACROSSE AND MILWAUKEE RAILROAD COMPANY, WERE APPROVED TO THE STATE, UNDER THE GRANT OF 1856.

OF THE LANDS THUS APPROVED BUT 1,115.38 ACRES WERE COTERMINOUS WITH THE ROAD BETWEEN MADISON AND PORTAGE, AND SUBJECT TO THE GRANT MADE TO THE MADISON AND PORTAGE RAILROAD COMPANY BY THE STATE OF WISCONSIN.

JANUARY 24, 1875, THE MADISON AND PORTAGE RAILROAD COMPANY MADE APPLICATION TO SELECT 149,760 ACRES IN THE ODD-NUMBERED SECTIONS OUTSIDE OF THE SIX AND WITHIN THE FIFTEEN MILE LIMITS OF THE GRANT OF 1856, NORTH OF THE ST. CROIX RIVER, OR LAKE, IN LIEU OF THE LANDS DISPOSED OF BY THE UNITED STATES WITHIN THE PRIMARY LIMITS OF ITS GRANT BETWEEN MADISON AND PORTAGE.

NO ACTION UPON SAID APPLICATION APPEARS TO HAVE BEEN TAKEN BY THIS OFFICE. THE RAILROAD COMPANY, HOWEVER, RESORTED TO THE COURTS FOR THE PURPOSE OF ENFORCING ITS CLAIM, PLACING ITS RIGHT TO MAKE THE SELECTIONS REFERRED TO UPON THE RESERVATION IN THE CONVEYANCE OF MCH. 10, 1857, TO THE ST. CROIX AND LAKE SUPERIOR RAILROAD COMPANY.

THE QUESTIONS INVOLVED WERE DECIDED BY THE UNITED STATES CIRCUIT COURT FOR THE WESTERN DISTRICT OF WISCONSIN, IN THE CASE OF THE MADISON AND PORTAGE RAILROAD COMPANY VS. THE TREASURER OF THE STATE OF WISCONSIN AND RAILROAD COMPANIES. IN THAT CASE THE CLAIM OF THE MADISON AND PORTAGE R.R. CO. TO MAKE UP ITS DEFICIENCIES FROM THE INDEMNITY LIMITS OF THE GRANT NORTH OF THE SAINT CROIX RIVER, OR LAKE, WAS DENIED BY THE COURT, THE EFFECT OF THE DECISION OF THE COURT BEING TO RESTRICT THAT COMPANY TO THE LANDS COTERMINOUS WITH ITS ROAD BETWEEN MADISON AND PORTAGE.

THE QUANTITY OF LAND WITHIN THE PRIMARY LIMITS OF THE GRANT BETWEEN MADISON AND PORTAGE WHICH WAS FOUND TO BE SUBJECT TO THE GRANT IS, AS ABOVE STATED, BUT 1,115.38 ACRES. NO SELECTION OF INDEMNITY LANDS BETWEEN SAID POINTS HAS EVER BEEN MADE BY THE RAILROAD COMPANY.

IN VIEW OF THE CONTENTION OF THE CHICAGO, MILWAUKEE AND ST. PAUL RAILROAD CO., TRANSMITTED WITH YOUR REQUEST FOR DECISION, THIS OFFICE REQUESTED SPECIFIC INFORMATION FROM THE ATTORNEY GENERAL OF THE STATE OF WISCONSIN UPON THE QUESTION INVOLVED. THE ATTORNEY GENERAL, IN HIS REPLY OF OCTOBER 28, 1924, STATED:

THE LINE BETWEEN MADISON AND PORTAGE WAS COMPLETED BY THE MADISON AND PORTAGE RAILWAY COMPANY IN AUGUST, 1871.

NONE OF THE LANDS GRANTED BY THE ACT OF CONGRESS OF JUNE 3, 1856, WERE CERTIFIED TO ANYONE ON THE COMPLETION OF THE ROAD BETWEEN MADISON AND PORTAGE. WHEN THIS ROAD WAS COMPLETED THERE WAS NO GOVERNMENT LAND ADJACENT TO ANY PART OF THIS LINE. (SEE CARY,"THE ORGANIZATION AND HISTORY OF THE CHICAGO, MINNEAPOLIS AND ST. PAUL RAILROAD COMPANY," PAGE 200, AND MERK,"ECONOMIC HISTORY OF WISCONSIN DURING THE CIVIL WAR," PAGE 282.) THE MADISON AND PORTAGE RAILWAY COMPANY DID, INDEED, CLAIM THAT UNDER THE FEDERAL AND STATE LEGISLATION IT HAD A RIGHT TO SELECT PUBLIC LANDS IN THE NORTHERN PART OF THE STATE IN LIEU OF LANDS ADJACENT TO ITS LINE, BUT ITS CONTENTION IN THIS RESPECT WAS DENIED BY THE U.S. CIRCUIT COURT IN THE CASE OF MADISON AND PORTAGE RAILWAY COMPANY VS. WISCONSIN ET AL., 16 FED.CASE. 366, DECIDED IN 1879. THUS NO GOVERNMENT LANDS WERE CONVEYED TO ANYONE FOR THE CONSTRUCTION OF THE LINE OF RAILROAD BETWEEN MADISON AND PORTAGE.

THE LANDS DESCRIBED (1,115.38 ACRES), STATED BY THE COMMISSIONER OF THE LAND OFFICE TO HAVE BEEN GRANTED ON ACCOUNT OF THE COMPLETION OF SAID ROAD, WERE CONVEYED TO THE WISCONSIN FARM MORTGAGE LAND COMPANY IN CONSIDERATION OF THE COMPLETION OF A LINE OF ROAD BETWEEN PORTAGE AND TOMAH. THIS IS ESTABLISHED BY THE COPY OF A CONVEYANCE BY THE FEDERAL GOVERNMENT TO THE STATE AND BY THE GOVERNOR OF THE STATE TO THE WISCONSIN FARM MORTGAGE LAND COMPANY, IN SO FAR AS THE TWO DESCRIPTIONS MENTIONED ARE CONCERNED, GIVING THE RECITALS OF SAID CONVEYANCE, WHICH WAS PREPARED BY MR. LAMPERT (CHIEF CLERK, STATE LAND DEPARTMENT) FOR YOU. THIS CONVEYANCE, IT SHOULD BE EMPHASIZED, HAD NOTHING TO DO WITH THE CONSTRUCTION OF THE LINE OF ROAD BETWEEN MADISON AND PORTAGE AND WAS NOT MADE IN CONSIDERATION THEREOF.

IT APPEARS THAT THIS LAND, 1,115.38 ACRES, WAS CONVEYED BY THE STATE CONTRARY TO THE ACT OF CONGRESS OF JULY 7, 1868, SUPRA, WHICH "APPLIED ONLY TO SUCH LANDS AS MAY BE DUE THE STATE OF WISCONSIN FOR THE PORTION OF SAID ROAD ALREADY COMPLETED; " THE ROAD BETWEEN MADISON AND PORTAGE WAS NOT COMPLETED AT THE TIME OF THIS ACT. YET, NOTWITHSTANDING SUCH FACT, IT APPEARS FROM THE FOREGOING THAT THE LANDS GRANTED THE STATE WERE NOT CONVEYED AS REQUIRED BY THE ACT OF CONGRESS TO AID IN THE CONSTRUCTION OF A RAILROAD BETWEEN MADISON AND PORTAGE, BUT WERE DIVERTED TO THE WISCONSIN FARM MORTGAGE LAND CO. AND ON ACCOUNT OF THE ROAD WEST OF PORTAGE. THUS APPEARS THAT THE SAID ROAD BETWEEN MADISON AND PORTAGE WAS NOT AIDED IN ITS CONSTRUCTION BY ANY GRANT OF LANDS AND IS THEREFORE NOT SUBJECT TO THE PROVISIONS OF LAW REQUIRING REDUCTION IN PAYMENT OF CHARGES FOR TRANSPORTATION OVER RAILROADS CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT MADE BY CONGRESS. THE INCLOSURES TRANSMITTED BY YOU ARE HEREWITH RETURNED.