in many cases being held by third parties. The lands had been patented "at a time when government relations to railroad grants were little understood."

The bill finally passed with the Senate amendment, and $250,000 was appropriated for the payments involved.38

In this same year the act already referred to which provided for an adjustment of all land grants, contained important provisions concerning settlers. It provided that the entries of bona fide settlers which had been erroneously cancelled on account of any railway grant or the withdrawal of lands from market might be perfected; and, further, it authorized that erroneously issued lands, bought in good faith by settlers, might be patented to them, the railways to pay the purchase money to the government.

The period ending in 1887 closed, then, with an act to bring about the immediate adjustment of land grants; to cancel overissued patents, etc.; and three years later all unearned grants were forfeited. At about the same time various acts were passed to protect homestead and preemption settlers and insure their interests.

Meanwhile, it must not be thought that all grants were made without considerations in the nature of services to be rendered in return. Though, as will appear in the next chapter, such stipulations were not entirely clear, they were made, and naturally their enforcement became a problem after the reaction from the land-grant policy set in.

* Statutes at Large, 24: 550.

CHAPTER IV

THE FATE OF THE "FREE FROM ANY TOLL" CLAUSE

An entire chapter might be devoted to the attempts made by the government to get a direct return for land grants through making and enforcing stipulations concerning the transportation of troops, mails, etc. In the very early grants for canals it was customary to insert a provision to the effect that the canal should "be, and forever remain, a public highway" for the use of the government, "free from any toll or other charge whatever, for any property of the United States, or persons in their service.' When the railway came the same provision was made. The Illinois Central grant stipulated: "And the said railroad . . shall be and remain a public highway for the use of the government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.' Later grants to the states for railways contained practically identical provisions, sometimes specifying "all tolls."

3

Down to the time of the Civil War no question appears to have been raised except concerning mail transportation. Following that time the question of enforcing these provisions came up and was agitated throughout the next twenty years.

During the war it became a very important matter to the railways. To transport free of charge the great traffic in troops and supplies which then arose would have meant considerable sacrifice. In 1861 the secretary of war made the following statement to the president of the Illinois Central: "It has been decided by this department that the clause in your charter gives a clear

See Bul. of U. of W., Econ. and Pol. Sci. Series, 3: 364.

2 Statutes at Large, 9: 466, s. 4.

3 Below, p. 203. The mails were to be transported at such price as Congress might direct, the postmaster general meanwhile determining it.

.

.

right to the use of your roadway, without compensation . . As a proper compensation for motive power, cars, and all other facilities incident to transportation, two cents per mile will be allowed for passenger travel, subject to a discount of thirty-three and a third per cent, as due to government for charter privileges." A reasonable charge for freight would be allowed, subject to a similar discount.

In 1865 the matter of exacting free transportation was agitated in Congress; but no action was taken and settlements continued to be made on the above basis for nearly a decade. The chief reason for this course was the feeling that the various land-grant railways, except the Illinois Central, would be bankrupted by requiring free transportation.

But in 1866 the land-grant acts began to specify in more definite terms the free transportation of government property. Things came to a crisis in the Seventies. In 1874 Congress determined to enforce the law as it understood it, and an act was passed which declared that no part of the army appropriation should be paid "to any railroad company for the transportation of any property or troops of the United States over any railroad which was constructed by the aid of a grant of public land, on the condition that such railroad should be a public highway for the use of the Government of the United States, free from toll or other charge, or upon any other conditions for the use of such road for such transportation," nor was any allowance to be made for the transportation of army officers on duty. The law authorized suits to recover payment so withheld. The next year a deficiency appropriation act contained a similar provision, only it was not to apply during the current year, and not at all to roads concerning which the sole condition was that they should not charge the government higher rates than they did individuals.

These laws were put to the test almost at once. The circuit courts decided in favor of the government; but upon appeal

Cong. Globe, 38 Cong., 2 sess., pp. 890, 1387. The House passed a provision requiring free transportation, but the Senate finally rejected it and induced the House to accept.

Statutes at Large, 18: 74.

their decision was reversed in 1876 when the supreme court handed down its opinion in the cases of the Lake Superior and Mississippi Railroad Co., and the Atchison, Topeka, and Santa Fe Railroad Co. vs. the United States. The court began by stating that the question had arisen whether by the reservations alluded to above the free use of the road alone was meant or transportation also. The companies claimed that if they gave the government the free use of their roads, including track, terminals, etc., it was all that was required of them; the government claimed to be entitled to free transportation on the roads. "We are of opinion," said the court, "that the reservation in question secures to the government only a free use of the railroads concerned, and that it does not entitle the government to have troops or property transported by the companies over their respective roads free of charge for transporting the same." Accordingly there was awarded to each road "compensation for all transportation, performed by them respectively, of troops and property of the government (excepting the mails), subject to a fair deduction for the use of their respective railroads."

The court made much of the early distinction between toll and transportation charges, and the correlative belief that the railroad was to be similar to a canal or turnpike in that anyone might place one's vehicle on the rails and supply one's own motive power. It held that Congress in making the stipulations concerning tolls had in mind the mere use of the road as a public highway.

The logic of the opinion is questionable. Long before 1850, the idea of a practical distinction between toll owner and transportation agent had ceased. The idea that a railroad company is not necessarily a transportation company, when applied as a practical rule of action, seems either sophistry or anachronism. In the debates of 1865 Senator Wilson said, "I take it that when we made this bargain it was expected by the whole country that these railroads would carry our munitions of war and our troops; and if the Army had remained as we then had it,

3 Otto, 442.

they

would have performed the work and nothing would have been said about it.""

The reasonable assumption is that Congress, if it meant anything in the way of securing a return for the lands granted, meant free transportation. In the grants to canals it was impossible to stipulate free transportation, but freedom from tolls was exacted. Probably little importance was attached to the provision in the railway grants,-certainly not the importance it later gained, and words similar to those of the earlier grants were inserted. The questions that later arose were not foreseen. When they did arise, however, the interpretation should have been based upon the intent of Congress.

The words of the acts did not render this unreasonable; the effect was rather to the contrary. "Free from all toll or other charge upon (or 'for') the transportation" of government property, ran the acts. There seems to be no good reason for fixing attention upon the public-highway idea to the exclusion of the charge for transportation.

In a word, the intent was there, and the letter did not prevent.

But there was the decision, and under it the question was narrowed to the one covering the deduction to be made from usual rates. What allowance was the railway to make in return for its privilege of being a public highway? Meanwhile the secretary of war was reporting the embarrassments which attended the situation, that department not being able legally to compensate land-grant roads without a suit. A repeal of the prohibitory acts was recommended.8

In the Army appropriation bill for the year ending June 30, 1882, the following provision was made for transportation on land-grant railways:"

Cong. Globe, 1864-65, p. 893. Senator Howard made this statement: "When this statute was passed, undoubtedly it was in the mind of Congress that this transportation . . should be carried on and perfected by the respective companies themselves. I venture the surmise that had the idea been started in discussion at the time this law was under discussion in Congress, that the whole privilege thus granted to the United States was to employ their own cars upon the roads that might be constructed by these land grants these statutes would never have been passed." (Ibid., p. 892.) See Sen. Rep., 1880-81, no. 899, p. 23. Statutes at Large, 21: 348.