[To accompany joint resolution S. R. No. 253. J

The Committee on Public Lands, to whom was referred Senate joint resolution No. 253, entitled "A joint resolution explanatory of the act admitting the State of Oregon into the Union," respectfully submit the following report:

That section 8 of the act of Congress of September 4, 1841, entitled "An act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights," declares as follows:

That there shall be and is hereby granted to each new State that shall be hereafter admitted into the Union, upon said admission, 500,000 acres of land for purposes of internal improvement.

Oregon was admitted, as a new State, into the Union on the 14th day of February, 1859, with a constitution submitted to Congress upon its application to become a State, containing the following clause: "All the proceeds of the 500,000 acres of land to which this State is entitled by the provisions of an act of Congress entitled An act to appropriate the proceeds of the sales of public lands, and to grant preëmption rights,' approved the 4th of September, 1841; and also the five per centum of the net proceeds of the sales of the public lands to which this State shall become entitled on her admission into the Union, (if Congress shall consent to such appropriation of the two grants last mentioned,) shall be set apart as a separate and irreducible fund, to be called the common school fund."

Nothing was said in the act of admission as to the 500,000 acres; but it was proposed, among other things, to the people of the State, for their free acceptance or rejection, that the five per centum fund above referred to shall be paid to the State for the purpose of making roads and internal improvements, as the legislature shall direct. This proposition, with others, was accepted.

Prior to the year 1868, the legislative and executive departments of Oregon assumed that the act admitting the State was a tacit consent by Congress to the use of the proceeds of said 500,000 acres, as provided in the constitution; but in 1868 an act of the said legislature was passed appropriating a portion of these proceeds to the construction of a dam and locks in the Willamette River, and in 1870 this appropriation, which had lapsed, was revived and increased to the sum of $200,000. Several of the new States, considering the diffusion of knowledge among the people the primary source of their improvement and happiness, have provided in their constitutions for the diversion of the proceeds of the

500,000 acres granted to them by the act of September 4, 1841, from internal improvements to educational purposes.

Section 2 of article 10 of the constitution of lowa provides "that the proceeds of the 500,000 acres granted to the new States under the act of Congress distributing the proceeds of the public lands among the several States of the Union, approved A. D. 1841, shall be inviolably appropriated to common schools in this State."

No reference is made to this clause of the State constitution in the act of admission, but it simply declares that Iowa is admitted into the Union on an equal footing with the original States. No claim was made in Iowa that any further action by Congress was necessary to validate the diversion of the 500,000 acre fund, as provided in the State constitution, but some question of that kind was made by one of the Comp trollers of the General Government, in consequence of which, on the 2d of March, 1849, the following act was passed by Congress:

"An act declaratory of the act for the admission of the State of Iowa into the Union. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That by the act entitled 'An act for the admission of the State of Iowa into the Union,' approved December twenty-eight, eighteen hundred and forty-six, the United States assented to the application for the support of common schools, as made in the second section of the tenth article of the constitution of said State, of the five per cent. of the net proceeds of the sales of the public lands within the State of Iowa, and of the five hun dred thousand acres of land granted to said State by the act of the fourth of September eighteen hundred and forty-one; said land to be selected in legal subdivisions of not less than three hundred and twenty acres."

This declaratory act does not, of course, determine the question as to whether the United States did or did not assent, as it states, so as to bind judicial tribunals considering rights intervening between the two acts, but it is valuable and of high authority as showing that in the opinion of Congress an act simply admitting a new State implies an assent by the United States to all the provisions of the constitution of such new State.

Section 2 of article 9 of the constitution of California is precisely like the above-cited clause from the constitution of Iowa as to the 500,000 acre grant. To this constitution was attached an ordinance which, with the constitution, was submitted to Congress, and the act admitting the State provides as follows: "Provided, that nothing herein contained shall be construed as recognizing or rejecting the propositions tendered by the people of California as articles of compact in the ordinance adopted by the convention which formed the constitution of that State." No allusion is made in this act to the second section of article 9, applying the 500,000 acre grant to school purposes, but the legisla ture of California, inferring the assent of Congress from the act of admission, provided in 1852 for the sale of scrip to the amount of said grant, the proceeds of which have been placed to the credit of the "school fund."

Argumentatively it appears that in the judgment of Congress the foregoing proviso in the act of admission was necessary, to avoid the conclusion that silence as to said ordinance would amount to congressional assent.

Section 2 of article 10 of the constitution of Wisconsin is precisely like the constitution of Oregon as to the 500,000 acre grant.

Attached to said constitution, and submitted with it to Congress, were

certain resolutions, the 4th of which was, "that Congress be requested, upon the application of Wisconsin for admission into the Union, to pass an act whereby the grant of 500,000 acres of land to which the State is entitled by the provisions of an act of Congress entitled 'An act to appropriate the proceeds of the sales of the public lands and to grant preemption rights,' approved September 4, 1841, and also the five per centum of the net proceeds of the public lands lying within the State, to which it shall become entitled on its admission into the Union by the provisions of an act of Congress, entitled 'An act to enable the people of Wisconsin Territory to form a constitution and State government, and for the admission of such State into the Union,' approved the sixth day of August, eighteen hundred and forty-six, shall be granted to the State of Wisconsin for the use of schools, instead of the purposes mentioned in said act of Congress respectively."

Responsive to said resolution, section 2 of the act admitting the State provides, "that the assent of Congress is hereby given to the 1st, 2d, 4th and 5th resolutions adopted by said convention and appended to said constitution, and the acts of Congress referred to in said resolutions are hereby amended so that the lands thereby granted, and the proceeds thereof, and the five per centum of the net proceeds of the public lands, may be held and disposed of by said State, in the manner and for the purposes recommended by said convention."

Section 3 of article 6 of the constitution of Kansas is like the abovecited clause from the constitution of Iowa as to the 500,000-acre grant. Subjoined to that constitution and with it submitted to Congress were also certain resolutions, the fourth of which was "that the legislature shall make provision for the sale or disposal of the lands granted to the -State in the aid of internal improvements and for other purposes, subject to the same rights of preemption to the settlers thereon as are now allowed by law to settlers on the public lands." No reference is made to said section 3 of article 6 of the constitution in the act admitting the State, but the third section thereof provides "that nothing in this act shall be construed as an assent by Congress to all or any of the propositions or claims in the ordinance of said constitution of the people of Kansas, or in the resolutions thereto attached."

Some difficulty arises in defining exactly the effect of this section, but the legislature of Kansas, it is understood, has construed it into a dissent by Congress from the application of the 500,000-acre grant to educational purposes; but evidently there is room for doubts as to the correctness of that decision.

Taking the act of admission without said section 3, and the assent of Congress would have been implied, as it was in the case of Iowa.

Section 3, article 10, of the constitution of Nevada provides that the 500,000 acres granted to the new States by the act of September 4, 1841, for internal improvements, shall be applied to school purposes, "Prorided, That Congress makes provision for or authorizes such diversion to be made for the purpose herein contained." Nevada was admitted by proclamation of the President, so that its constitution was never submitted to Congress, but July 4, 1866, it was enacted "that the appropriation by the constitution of Nevada to educational purposes of the 500,000 acres of land granted to said State by the law of September 4, 1841, for the purpose of internal improvement, is hereby approved and confirmed."

Alabama was also allowed by an act of Congress in 1848 to apply the proceeds of said grant to school purposes.

Several of the States, therefore, it seems, have provided for the diver

sion of the proceeds of said fund to school purposes, with the express or implied assent of the United States, if assent can be implied from an act admitting a State without any express declaration upon the subject. Force is added to the argument in favor of congressional assent to section 3, article 11 of the constitution of Oregon, so far as it relates to said grant of 500,000 acres, by the fact that, to that part of the same section appropriating the 5 per centum paid to schools, Congress in effect disagreed in the act admitting the State.

When a new State applies for admission into the Union, unless it be otherwise provided by law; its constitution is submitted to Congress for examination, and since the admission of Missouri, in 1820, Congress has exercised the power of objecting to such parts of a constitution so submitted or it was not willing to approve, and a modification of its constitution as proposed by Congress has in more than one case been made the condition of a State's admission into the Union. Nebraska is an example. Congress has exercised this power as to the new constitutions of all the States lately in rebellion, and a single reference will suffice as an illustration.

Section 17 of article 5 of the constitution of Georgia, relating to certain lands within that State, was declared null in the act admitting said State to representation, and to this change, as a fundamental condition of admission, the State was required to give its assent. Viewing the question in the light of this history, it seems fair to conclude that when a new State is admitted into the Union, Congress, if it does not object, agrees that the principles, provisions, and propositions of the constitution with which the State is admitted shall constitute its organic law, and particularly so when the objection, if made by Congress, would take effect, as in the Oregon case, without any further action by the State. * The following communication from the Commissioner of the General Land Office relates to this question:

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE,
December 31, 1870.

SIR: I had the honor to receive this morning your letter of 29th instant, asking to be advised upon several points appertaining to the "internal improvement grant to Oregon. In answer, I respectfully state that the grant of 500,000 acres to each of the States for internal improvements, made by the act of 4th September, 1841, has always been considered by this office an absolute, unconditional grant, and the lands selected under it, where subject to such selection, have been approved and certified to the State. Consequently, no report has ever been required of the States, nor has any been made to this office, of the objects to which the lands thus certified or the proceeds of them have been dedicated; nor can any question on this point be here considered between the States and the Federal Government.

The fact that the constitution of Oregon contained a clause accepting this grant, and devoting it or the proceeds of it to educational purposes, having been passed on by Congress without any objection to that feature, is in the opinion of this office a tacit recognition of the same, and would fully justify the legislature in so disposing of it. In fact, the only question that could even arise relative to this grant to your State, would be, whether the legislature, under this constitutional provision, could divert these lands, or the proceeds of them, from educational to any other purpose. But whatever disposition the legislature may see fit to make of these lands, it is not seen how the General Government could in any manner interfere, as the fee simple has passed out of the United States; and the General Government has no right or trust in them whatever. I regret that we have no specific information as to the action of the States to which you refer on this subject, but for the reasons above mentioned no reports have been received or required from the States relative to the same. With great respect, your obedient servant,

Hon. GEO. H. WILLIAMS,

United States Senate.

JOS. S. WILSON,

Commissioner.

Referring to the act of 1841, it will be seen that its operative words are "shall be and hereby is granted," so that when the selections of lands are duly made and approved, there is a present and perfect title in the State.

To enable the State, therefore, to appropriate the proceeds of such lands to school purposes, nothing is necessary but an acquiescence on the part of the United States. All the world (excepting the General Government) is bound by the appropriation which the constitution of Oregon makes of the proceeds of the lands granted to it by the act of 1841, and the General Government is bound until it indicates its dissent by some affirmative act.

When a person donates property to another for one purpose, and the donee applies it to a different purpose, nobody can interfere so long as the donor acquiesces in the donee's action.

Between the constitutions of Iowa and Oregon there is this difference, that the language of the one expresses nothing as to the assent of Congress, while the other expressly provides for that assent. Both, however, in effect, are alike, for in both cases the assent of Congress, in some form, is necessary, or, in other words, both constitutions alike take effect as to the application of the grant of 1841, if Congress does not interfere by some affirmative declaration of dissent.

Congress made no objection in the case of Iowa, and therefore it was held that assent was given; and the argument applies with equal force to Oregon, and the difference in the phraseology of the two constitutions does not affect its application or validity, for that is implied in the Iowa case which is expressed in the Oregon case.

That the appropriation of said fund as made by the constitution of Oregon is wise, admits of no question. To put the proceeds of 500,000 acres of land into the hands of the legislature, to be disposed of at its will for what is called internal improvements, is to open the door to all sorts of jobs and schemes of speculation. By an act of the last session, $200,000 of this fund was given to a company to build a dam and locks at the falls of the Willamette, while there was a proposal pending at the same time by another responsible company to do precisely the same work for $125,000. This looks like a gratuity of $75,000 to certain persons. All propositions to allow competition for the contract were rejected, and instead of paying the subsidy pro rata as the work progressed, as is usual in such cases, the whole amount was delivered to the company within ninety days after the passage of the act. No doubt the construction of said dam and locks will create an excellent waterpower, and may, perhaps, improve the navigation of the river, but as the act granting this subsidy allows the company to tax the commerce around the falls fifty cents per ton, while the tax now is only fourteen cents per ton, the public necessities and advantages of the work are not very apparent, to say nothing of the competition in transportation which lines of railroad parallel to the river will produce. Various other plans to divide the balance of this fund, among wagon roads, canals, and other local projects, were before the legislature, and it only accords with all experience to say that if the legislative will is free from constitutional restraints, the whole of this magnificent fund will be consumed in this way, without any great or permanent advantage to the people of the State. One million of dollars ought to be realized from the sale of 500,000 acres of land. This, if properly invested, will produce at least $100,000 annual interest. That would furnish 400 school districts with $250 each per annum.

Thus would be laid the foundations of a splendid educational estab