Under the provision of the Act of July 31, 1876, c. 246, 19
Stat. 121,
"that before any land granted to any railroad company by the
United States shall be conveyed to such company, or any person
entitled thereto under any of the acts incorporating or relating to
such company, unless such company is exempted by law from the
payment of such cost, there shall first be paid into the Treasury
of the United States the cost of surveying, selecting, and
conveying the same by the said company or persons in interest,"
the New Orleans Pacific Railway Company, as the owner, by
conveyance from the New Orleans, Baton Rouge, and Vicksburg
Railroad Company of its interest in the land grant made to the
latter company by § 22 of the Act of March 3, 1871, c. 122, 16
Stat. 579, was bound to pay the cost of surveying the land before
receiving a patent for it, although such cost had been incurred and
expended by the United States before March 3, 1871, the
construction of no part of the road having been commenced before
the expiration of the five years limited for the completion of the
whole of it.
Appeal from a judgment against the petitioner in the Court of
Claims. The case is stated in the opinion of the Court.
Page 124 U. S. 125
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an appeal by the New Orleans Pacific Railway Company
from a judgment of the Court of Claims dismissing its petition, on
a demurrer thereto, after it had failed to amend the petition in
accordance with leave granted to it by the court.
The substantial allegations of the petition are these:
The petitioner is a corporation of Louisiana. The New Orleans,
Baton Rouge, and Vicksburg Railroad Company was incorporated by
Louisiana in 1869. By § 22 of an Act of Congress passed March 3,
1871, c. 122, 16 Stat. 579, there were granted to the New Orleans,
Baton Rouge, and Vicksburg Railroad Company, its successors and
assigns, in aid of the construction of its railroad from New
Orleans to Baton Rouge, thence by the way of Alexandria, in the
State of Louisiana, to connect with the Texas Pacific Railroad
Company at its eastern terminus, the same number of alternate
sections of public lands per mile, in the State of Louisiana, as
were, by the same act, granted in the State of California to the
Texas Pacific Railroad Company, and it was provided that said lands
should be withdrawn from market, selected, and patents issued
therefor, and opened for settlement and preemption, upon the same
terms, and in the same manner and time, as was provided for and
required from the Texas Pacific Railroad Company within the State
of California: "
provided that said company shall complete
the whole of said road within five years from the passage of this
act."
By § 9 of the same act, there was granted to the Texas Pacific
Railroad Company, its successors and assigns, every alternate
section of public land, not mineral, designated by odd numbers, to
the amount of ten alternate sections of land per mile on each side
of said railroad in California. Section 12 of the same act provided
as follows:
"That whenever the said company [the Texas Pacific Railroad
Page 124 U. S. 126
Company] shall complete the first and each succeeding section of
twenty consecutive miles of said railroad and put it in running
order as a first-class road in all its appointments, it shall be
the duty of the Secretary of the Interior to cause patents to be
issued conveying to said company the number of sections of land
opposite to and coterminous with said completed road to which it
shall be entitled for each section so completed. Said company,
within two years after the passage of this act, shall designate the
general route of its said road as near as may be, and shall file a
map of the same in the Department of the Interior, and when the map
is so filed, the Secretary of the Interior immediately thereafter
shall cause the lands within forty miles on each side of said
designated route within the territories and twenty miles within the
State of California to be withdrawn from preemption, private entry,
and sale."
On the 11th of November, 1871, the New Orleans, Baton Rouge, and
Vicksburg Company filed in the Department of the Interior a map of
the general route of its road from Baton Rouge to Shreveport, and,
on the 13th of February, 1873, a like map showing the general route
of its road from New Orleans to Baton Rouge. In 1871 and 1873, the
lands along said general route, within the grant of the Act of
March 3, 1871, were withdrawn from entry and sale by order of said
department. On the 5th of January, 1881, the petitioner became the
owner, by conveyance from the New Orleans, Baton Rouge, and
Vicksburg Company, of all its interest in such grant of public
lands, and the conveyance and its acceptance by the petitioner were
duly recognized by the Department of the Interior. After January 5,
1881, the petitioner constructed two hundred and sixty miles of the
railroad from Shreveport, by way of Alexandria and West Baton
Rouge, to White Castle in Louisiana, within the limits of the lands
withdrawn for its grantor, and substantially upon the course,
direction, and general route of the road filed by such grantor.
On the 13th of March, 1883, the Secretary of the Interior
transmitted to the President of the United States a report in
writing of the commissioner appointed by the President to
examine
Page 124 U. S. 127
said two hundred and sixty miles, and recommended that they be
accepted, and that patents for such lands as might have been earned
by their construction be issued to the petitioner. This
recommendation was approved in writing by the President, and on the
3d of March, 1885, patents were issued to the petitioner for
679,284.64 acres of land in Louisiana, as earned by the petitioner.
Before issuing the patents, the Secretary of the Interior exacted
from it $14,713.63, alleging the same to be due for the cost of
surveying the lands, although such cost had been incurred and
expended by the United States prior to March 3, 1871. The
petitioner denied the right of the United States to that sum, and
paid it under protest. The petitioner prayed judgment for that
sum.
The question in the case is as to the effect of a statutory
provision enacted July 31, 1876, c. 246, 19 Stat. 121, in "An act
making appropriations for sundry civil expenses of the government
for the fiscal year ending June 30, 1877, and for other purposes,"
in these words:
"
And provided further that before any land granted to
any railroad company by the United States shall be conveyed to such
company, or any person entitled thereto under any of the acts
incorporating or relating to said company, unless such company is
exempted by law from the payment of such cost, there shall first be
paid into the Treasury of the United States the cost of surveying,
selecting, and conveying the same by the said company or persons in
interest."
We are of opinion that this provision of the act of 1876
controls the present case, and is conclusive against the right of
the petitioner to recover the money in question. At the time this
act was passed, neither the petitioner nor its grantor had acquired
any right to claim the lands granted. The five years from March 3,
1871, within which, as a condition, the whole of the road was to be
completed, had elapsed without the commencement of any part of the
work of construction. That was not begun until nearly ten years
after the Act of March 3, 1871, was passed. The petitioner accepted
the conveyance from its grantor with full knowledge of the
provision of the act of 1876. Congress had a right at that time to
impose
Page 124 U. S. 128
upon the grant the new condition, the company having failed to
complete the whole of the road by March 3, 1876.
The restriction in the act of 1876 that the provision for the
payment of the cost of surveying the land shall not apply to a
company which is "exempted by law from the payment of such cost,"
does not apply to the case of the petitioner. There is no express
statutory provision exempting the grantor to the petitioner from
the payment of the cost of surveying the land. All that can be said
is that the Act of March 3, 1871, was silent on the subject. It
neither exempted the beneficiary from paying the cost of surveying,
nor did it expressly require it to pay such cost. It and its
grantee therefore fall within the provision of the act of 1876,
because not within the exception contained in that provision.
It is urged for the appellant that in the present case, the
surveys had been made and paid for by the United States prior to
the passage of the Act of March 3, 1871, and that, as § 12 of that
act provided for the issuing of patents without requiring the
payment of the cost of surveying, the company was therefore
"exempted by law from the payment of such cost," within the meaning
of the provision of the act of 1876, and it is suggested, that no
statute in respect to the granting of public lands to either a
state or a railroad company, passed prior to 1876, contained a
provision expressly exempting the grantee from the payment of the
cost of surveying. It is further urged, that the terms of the
provision of the act of 1876 are not intended to apply to
then-existing grants, but only to future grants, and to the cost of
surveys to be made thereafter.
But we are of opinion that the provision is a general one, and
that although it is enacted in connection with an appropriation of
money for the survey of public lands and of private land claims,
and follows a requirement that no patent shall issue for a private
land claim until the cost of survey and platting shall have been
paid into the Treasury by the party in interest, yet it is not
controlled by those circumstances. It is manifestly general
legislation, applying, as to the past, to all land theretofore
"granted to any railroad company by the
Page 124 U. S. 129
United States," and to the cost of surveying such land, whether
that cost had been previously incurred or expended, or was to be
incurred or expended in the future. The exception created, that the
provision is not to apply to a company exempted by law from the
payment of the cost, is general in its language. If such a company
is to be found, the exception applies to it; if it is not to be
found, the provision applies to it.
It is urged for the appellant, that, inasmuch as § 17 of the Act
of March 3, 1871, provided, in regard to the Texas Pacific Railroad
Company, that, upon the failure to complete its road within the
time limited by that act, Congress might adopt such measures as it
might deem necessary and proper to secure the speedy completion of
the road, and, inasmuch as that act contained no reservation of a
power to add to, alter, amend, or repeal its provisions, Congress
was restricted, on a failure of the New Orleans, Baton Rouge and
Vicksburg Company to complete the whole of its road within five
years from the passage of the act, to the adoption of measures for
the securing of a speedy completion of the road, and that the
imposition upon the company of the cost of surveying the land was
not such a measure.
But we are of opinion that while, on the failure of the company
to complete its road within the time limited, Congress might adopt
measures to secure its speedy completion, no limitation was imposed
on the right and power of Congress, the company having failed even
to commence the construction of any part of its road within the
time limited, to virtually renew the grant and extend the time
within which the land might be earned, with the imposition of a new
condition that, before any patent should be issued, the cost of
surveying the land patented should first be paid into the
Treasury.
In the case of
Farnsworth v. Minnesota & Railroad
Co., 92 U. S. 49, it was
held by this Court, that, where a grant of land and connected
franchises is made to a corporation, for the construction of a
railroad, by a statute which provides for their forfeiture upon
failure to perform the work within the prescribed time, the
forfeiture may be declared by legislative act, without judicial
proceedings to ascertain and determine
Page 124 U. S. 130
the failure of the grantee, and that any public assertion by
legislative act of the ownership of the state after the default of
the grantee is equally effective and operative.
See also
McMicken v. United States, 97 U. S. 204,
97 U. S.
217-218.
In the present case, it is true that the statute did not provide
for the forfeiture of the grant on failure to complete the whole of
the road within the five years; but, within the principle of the
case referred to, Congress was left free, on a failure of the
grantee to do any of the work within the five years, to impose the
condition it did upon the grant of the lands. As was said in
Farnsworth v. Minnesota & Pacific Railroad Co., the
act having made the construction of the whole of the road within
five years a condition precedent to a patent for any of the land
granted, no conveyance in disregard of that condition could pass
any title to the company, as was held in
Schulenberg
v. Harriman, 21 Wall. 44. It follows that Congress
had the power, after the lapse of the time during which the right
to any conveyance could have been earned, to impose a condition
upon which such right could be earned in the future. The
application by the petitioner for a conveyance or patent must be
taken as an assent by it to the condition imposed by the act of
1876.
The same principle was applied in
United
States v. Repentigny, 5 Wall. 211. In
Railway Co. v.
Prescott, 16 Wall. 603, it was held by this Court
that the twenty-first section of the Act of July 2, 1864, 13 Stat.
365, amendatory of the Act of July 1, 1862, 12 Stat. 489, to aid
the Kansas Pacific Railway in the construction of its road by the
grant of lands, which amendatory section required the prepayment of
the cost of surveying, selecting, and conveying the lands, required
the prepayment as to lands granted by the original act, as well as
to those granted by the amendatory act. It was contended by counsel
in that case that, as the original act required no such prepayment,
the United States could not, in disregard of the statute which made
the grant, annex new conditions to it by a subsequent enactment.
But this Court said (page
83 U. S.
608):
"We are of opinion that no patent could rightfully issue in any
case until the cost of survey had been paid. None of the road had
been
Page 124 U. S. 131
built when the amendatory act was passed. No right had vested in
any tracts of land, and the power, as well as intent, of Congress
to require such payment cannot be contested."
The same statutory provisions were under consideration in
Railway Co. v.
McShane, 22 Wall. 444. In that case, in reference
to the provision of § 21 of the act of 1864, this Court said (page
89 U. S. 462):
"That the payment of these costs of surveying the land is a
condition precedent to the right to receive the title from the
government, can admit of no doubt. Until this is done, the
equitable title of the company is incomplete. There remains a
payment to be made to perfect it. There is something to be done,
without which the company is not entitled to a patent."
This view was affirmed in respect to like statutory provisions
concerning the Northern Pacific Railroad Company, in the case of
Northern Pacific Railroad Company v. Traill County,
115 U. S. 600,
where, by an act passed in 1870, Congress had provided that before
any land granted to the company by the United States should be
conveyed, there should first be paid into the Treasury of the
United States the cost of surveying, selecting, and conveying the
same.
These views seem to us to be decisive in the present case,
and
The judgment of the Court of Claims is affirmed.