See also Trustees of Union College v. City of New York (173 N. Y., 38); Howe v. Lowell (171 Mass., 575); Carbon Block Coal Company v. Murphy et al. (101 Ind., 115).

There is certainly nothing contained in the bill of complaint that shows that the Government did more than to remain silent while the Oregon & California Railroad Co. was disposing of the lands in violation of the condition prescribed by the settlers' clause, if it be a condition, and one of which the Government can avail itself. It did nothing affirmatively or actively by which to mislead the railroad company or cause it rightfully to presume upon the Government's acquiescence. So that the Government has neither waived, nor is it estopped to insist upon, forfeiture for condition broken, if forfeiture may be predicated upon the clause. This will be determined later. Furthermore, it is not believed that the executive officers of the Government can, without express authority from Congress, waive the conditions expressed in a grant emanating from Congress.

The acceptance and use of the road by the Government was contemplated from the beginning, and could not operate as a waiver of a condition subsequent attending the grant.

If it be the purpose to ground the defense upon laches, that can not be done, for laches is not imputable to the Government.

The other ground of waiver as assigned can not be supported. The act of Congress of September 29, 1890, supra, declares:

That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to any State or to any corporation to aid in the construction of a railroad opposite to and coterminous with the portion of any such railroad not now completed and in operation, for the construction or benefit of which such lands were granted; and all such lands are declared to be a part of the public domain.

It has been held in United States v. Tennessee & Coosa Railroad Co. (176 U. S., 242), that this act did not opérate upon lands opposite completed road, and did not work a forfeiture as to them. It is urged that, under the rule expressio unius est exclusio alterius, the act operates as a declaration of waiver of forfeiture as to all lands opposite the completed portions of all railroads. This is equivalent to saying that the effect of the act was to confirm to the railroad companies all lands opposite completed railroads, or portions thereof. The application sought is a novel one. To say that forfeiture by Congress of lands opposite railroads not constructed is to confirm to the grantee the lands opposite roads constructed, against all contingencies and reserved conditions, whether precedent or subsequent, is carrying the doctrine beyond its purpose and effect. It could not be presumed that Congress, when adopting the general statute applying to all lands under grants lying opposite parts of railroads uncompleted, had in mind all conditions subsequent that might have been annexed to grants where the roads had been completed. The thing is so manifest that it requires no argument; it is sufficient to state the proposition. So Congress could not have intended by the act under discussion to confirm the grants here concerned against any condition subsequent that might have been annexed to them, and, if not intending so to do, the act could not operate as a waiver of forfeiture of conditions subsequent if broken. The same is true of the act of January 31, 1885 (23 Stat., 296), forfeiting the unearned

land grant to the West Side Co., although its operation was not general, but related to the forfeiture of a portion of one grant only. The fourth ground upon which waiver is predicated relates to the statutes of limitation for bringing suits for the annulment of patents, and is rather an objection going to the remedy or the right to institute the suit. The statutes invoked are section 8 of the act of March 3, 1891 (26 Stat., 1099), and section 1 of the act of March 2, 1896 (29 Stat., 42). The former statute provides:

That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.

The provision is contained in "An act to repeal timber-culture laws, and for other purposes," but, being general in its terms, would seem to include patents to railroad companies under grants thereto, as well as other patents issued by the Government. The later statute declares:

That suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon-road grant shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is extended accordingly as to the patents herein referred to.

The two statutes read together put all patents, whether issued in pursuance of railroad grants or otherwise, in the same category, and suits by the Government to cancel can not be maintained except as thereby provided. But the plain answer to the objection is that this is not a suit to annul the patents issued under these grants. It reaches back of the patents, the purpose being to forfeit the entire grants so far as the lands are now held by the railroad company for failure to observe the condition requiring the company to sell to actual settlers. The patents are only evidentiary of the grant; it is the grant that confers title. If the grant is rendered subject to forfeiture for want of the observance of a condition subsequent, the breach whereof may have occurred later than the issuance of many patents, it does not appeal to reason that the forfeiture should be defeated because suits were not instituted to annul the patents within the time fixed by the statute. Should the grant be annulled, the annulment would carry with it, it is true, the avoidance of the patents. But the conditions of the grant must be read into the patents, so the patents can not stand in the way of the enforcement of such conditions.

The cause which forms the basis of this suit arises out of none of the facts adjudicated by the Land Department, or with which that department had anything to do in issuing the patents; but it arises from the alleged want of the observance of the terms of the grant, whereby the grant itself, it is alleged, has been forfeited. The patents add nothing to the terms of the grant nor take aught from them.

So I conclude that the Government has not waived its right to maintain this suit for any of the reasons assigned. Nor is it barred of its remedy by virtue of the statutes of limitation relied upon by counsel.

The crucial controversy attending this cause relates to the true intendment of Congress as expressed by the clause contained in the

amendment of April 10, 1869, referred to as the "Actual settlers" proviso, as follows:

And provided further, That the lands granted by the act aforesaid shall be sold to actual settlers only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.

The Government contends that this is a condition subsequent, subjoined to the original act, the effect of which is to entail a forfeiture of the lands granted for nonobservance of the condition. The defendants, the railroad companies and Stephen T. Gage, contend that it is neither a condition subsequent, an enforceable covenant, nor a trust obligation, it being urged that it is an "unenforceable regulative, directive covenant," leaving it wholly to the good faith and discretion of the grantee whether to observe its terms or not.

Reference to some of the plain rules of statutory interpretation will aid in the solution of the problem. It is axiomatic that the intent of Congress, as a first principle, should be ascertained and enforced. These grants, says the Supreme Court

are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. Winona & St. Peter R. R. Co. v. Barney (113 U. S., 618, 625).

"There is a presumption," says the same court, "against a construction which would render a statute ineffective or inefficient or which would cause grave public injury or even inconvenience." Bird v. United States (187 U. S., 118, 124).

The first and most elementary rule of construction is that it is to be assumed that the words and phrases are used in their technical meaning if they have acquired one, and in their popular meaning if they have not, and that the phrases and sentences are to be construed according to the rules of grammar; and from this presumption it is not allowable to depart, unless adequate grounds are found, either in the context or in the consequences which would result from the literal interpretation, for concluding that that interpretation does not give the real intention of the legislature. (Endlich on the Interpretation of Statutes, p. 4, sec. 2.)

In application of this rule the court says, in McCluskey v. Cromwell (11 N. Y., 601):

If the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation.

And so in United States v. Goldenberg (168 U. S., 95, 102), Mr. Justice Brewer says:

The primary and general rule of staty tory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise when there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide for contingencies which it may seem wise to have specially provided for, justify any judicial addition to the language of the statute.

In further elucidation: "The province of construction," says the court in Hamilton v. Rathbone (175 U. S., 414, 421), "lies wholly within the domain of ambiguity." And in another case, Kohlsaat v. Murphy (96 U. S., 153, 160), that

The controlling rule of decision in applying the statute in any particular case is that whenever the intention of the legislature can be discovered from the words employed, in view of the subject matter and the surrounding circumstances, it ought

to prevail unless it lead to absurd and irrational conclusions, which should never be imputed to the legislature except when the language employed will admit of no other signification.

Another plain rule of interpretation is that the purposes of the act must be gathered from the context and a survey of all its provisoins, so that if possible it may stand as a harmonious and consistant whole, every word and sentence bearing an appropriate meaning and signification, rejecting none, unless leading to a manifest absurdity, which it must be presumed that the legislature never intended. (Rice v. Railroad Company, 1 Black, 358, 378; United States v. Winn, 3 Sumner, 209, 211; United States v. Bitty, 208 U. S., 393, 402.)

Furthermore, interpretation must be had in the light of the conditions prevailing at the time of the enactment, and thus by standing in the place of the legislative body its intendment may be gathered by looking through its vision at the things as they then existed, and the probable exigencies that gave rise to the measure.

In Platt v. Union Pacific R. R. Co. (99 U. S., 48, 60), construing the Union Pacific land grant by act of 1862, the court says:

All will concede *

*

* we are to look at the state of things then existing, and

in the light then appearing seek for the purposes and objects of Congress in using the language it did. And we are to give such construction to that language, if possible, as will carry out the congressional intentions.

As stated by Mr. Justice Jackson, in Mobile & Ohio Railroad v. Tennessee (153 U. S., 486, 502):

Legislative contracts, especially, should be read in the light of the public policy entertained and the purposes sought to be accomplished at the time they were made, rather than at a later period when different ideas and theories may prevail.

Other citations to this purpose are unnecessary. I shall later point out some of the attendant and inducing conditions, including the policy and purposes of the Government pertaining to railway grants and donation and sale of the public domain to private settlers, leading in all probability to the legislation in controversy.

In the case of legislative grants, imposing conditions along therewith upon the grantee in relation to the thing granted, the acts conferring them are to be construed as laws, and the technical rules governing the interpretation of contracts are inapplicable; the single inquiry being as to the intent of the one party-the legislative intendment in promulgating the law.

Says the court, in Schulenberg v. Harriman (21 Wall., 44, 62):

A legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires.

So in Missouri, etc., Ry. Co. v. Kan. Pac. Ry. Co. (97 U. S., 491, 497):

It is always to be borne in mind in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties.

Mr. Justice Brewer, sitting in the circuit court, states the rule concisely, yet comprehensively, thus:

All legislative land grants are to be regarded, not merely as contracts, but also as laws. As such, they are subject to the same rules of interpretation that govern other

laws, and a primary rule is that the intent of the legislature is to be sought, and, when ascertained, controls. The technical rules which govern the interpretation of private contracts must always yield to the single inquiry of the intent of the one party-the legislature. St. Paul, M. & M. R. Co. v. Greenhalgh (26 Fed., 563, 568).

See also Platt v. Union Pacific R. R. Co. (99 U. S., 48); Hall v. Russell (101 U. S., 503, 509); Johnson v. Ballou (28 Mich., 378).

And still another rule of construction as it pertains to grants of the public domain to private individuals or corporations is that they should, where there is ambiguity or uncertainty, be construed most favorably to the Government, thus devolving upon the grantee, in whatsoever claim he seeks to maintain against the Government relative to the grant, to show a right clearly defined and about which there can be no controversy or contention. Mr. Justice Harlan, in Sioux City, etc., Railroad v. United States (159 U. S., 349, 360), states the principle thus:

If the terms of an act of Congress granting public lands "admits of different meanings, one of extension and the other of limitation, they must be accepted in a sense favorable to the grantor. And if rights claimed under the Government be set up against it, they must be so clearly defined that there can be no question of the purpose of Congress to confer them." Leavenworth, &c., Railroad v. United States (92 U. S. 733, 740).

Mr. Justice Field earlier stated the same principle in Slidell v. Grandjean (111 U. S., 412, 437):

It is also a familiar rule of construction that where a statute operates as a grant of public property to an individual, or the relinquishment of a public interest, and there is a doubt as to the meaning of its terms, or as to its general purpose, that construction should be adopted which will support the claim of the Government rather than that of the individual. Nothing can be inferred against the State.

Mr. Justice Harlan makes use of this explicit and significant language in Water Company v. Knoxville (200 U. S., 22, 33):

The universal rule in doubtful cases- this court said in Oregon Railway Co. v. Oregonian Ry. Co. (130 U. S., 1, 26)-is that "the construction shall be against the grantee and in favor of the Government." As late as Coosaw Mining Co. v. South Carolina (144 U. S., 550, 562), this court said: "The doctrine is firmly established that only that which is granted in clear and explicit terms passes by a grant of property, franchises, or privileges in which the Government or the public has an interest. Statutory grants of that character are to be construed strictly in favor of the public, and whatever is not unequivocally granted is withheld; nothing passes by mere implication."

And so it was held in that case.

See further: Hannibal, &c., Railroad Co. v. Packet Co. (125) U. S., 260, 271); Barden v. Northern Pacific Railroad (154 U. S., 288, 325); United States v. Oregon, &c., Railroad (164 U. S., 526, 539); Northern Pacific Railway v. Soderberg (188 U. S., 526, 534); Cleveland Electric Ry. Co. v. Cleveland (204 U. S., 116).

Some inquiry now relative to the conditions existing at the time. these grants were made, and the history, policy, and purposes of the General Government in its control, administration, and disposition of the public domain.

In the early annals of the United States the public lands were regarded largely as an asset out of which to derive revenue for the needs of the Government. At one time the domain was pledged to the payment of the public debt. The earlier policy was to dispose of these lands to private purchasers, both at public and private sale, but for as much as could be had, and thus to increase the revenues of the Government. Such was the central thought. It may