# Reply Brief for the United States — United States v. Northern Pacific R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0310%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for the United States - **Published:** January 1, 1940 - **Citation:** 311 U.S. 317 ## Text -~% ° ® 9 w - ° oS age a i ank P Ja if ‘es ; : 2 nae 7 ae. anaes Sr seer Si 2 eae ss wnmagis: x cg fe us cae Si & ; e : es id * BAe or 7 ie er. Ss LEN DEX Se ee . The Company’ 8 Basic-Miseonceptions- - .-.----------------- Se i ‘hemes Corrections-in the Company’s Brief... ..---- See 4 I. D. The 1929 Act conferred a new right_..--- Slatin toto ae 7 . II. Certain defenses‘not available to the company - - - & . III. B. Failure to complete the Wallule-Portland line was m : .@ substantial breach. ---.-..-.-----------.---- 7 : III. C. Violation of the sale ane! preemption proviso was a i % substantial breach --.- ..-=-..--..-.-----.--- 8 Th III. D Violation of the forecloeure provieo was a substan- oF ET IR i it cb indie dees cncdbosciivances 4 “2 III. E. The company’s jllegal disposition of assets was a substantial breach... ..-..--.-.-------.---- 10 = III. G. The company’s fraud in connection with the mia- ie aoe - e. - eral classification was a substantial breach_-- -- . -. 4 IV. . The com Taust account for excess velues re-- , ~ Bee. ceived through illegal withdrawals. ---- ~~ ----- 13- = v. B. 2. In any event, subsequent restorations should have eee 2 Sg Re iy: SERN gen, sy hrs Ae _ a Le CIEE SEEN Feet OO: 2 pears Vv. C. 6. Proce elanl ication wo tania 4 3 ob eileen ent toe hire pret eRNN oe ee ue » nei aR ae fife £5 ast Bases SAREE 8 5 ze i. © mere: mn o eth, 4 : ' + -W.E.2: No deficiency because no showing that company 3 . would or could have selected or obtained om : J WER a oc ncdccdecsssaccdondndcrebesenweres 19; ; : Conelusioff........-.----- Geetisiclbiriverssqewsaplicens > 22: ee ‘ . " Load So |g -. | ta). GIPATIONS Sey . - _ - Cesey v. United i eeid: 260 UV. G, 900.......--nrehe~--s 11,12 = -- Deviev. Mille, 194 U.8. 461..-.2.--2----,----2------- 5. 3 a - Forest Reserve case (United States v. Northern Pac. ‘Rye Co., a 3 ABER. CE. SES 17, 20,24. ° = 4 RRA TBE ER TEIN EEE IONE SAAR OT: RING ara aw An OMT TAS IE OR 1} . - : +o - 2, Il _ . . Gases—Continued. " “ . oe ‘dees i McHenry v. Alford, 168 U: S. BS EPA Sapte acy ap See - - EB & Oregon & California R. R. Co..v. Unied States, 238 U. 8. i ; SEE SITES CREE . SR RAMES : AGENT 28 3, 4, 6, 11 ii Oregon a California R. R.,Co. v. United States, 243 U.S. Bi ot Seen ete Aeneas Us kiee ae savage ond wecsc-- S41 ; - Pan American Co. v. United States, 273 U. 8. oe ES ae x ° a: : United States v..Oregon Lumber Co., 260 U. 8. 290... ...... 7 ee f United States v. San Francisco, 310 eM, 2G ae. 5 ids oo ee fs United States v. Trinidad Coal Co., 137 U. 8. 160_..--- waa ts D 4 United States v. Union Pacific R. R. Co., 98 U. 8. 569____- 11 2 United States v. Winona &c. R. R. Co., 165 U.S. 463. __- 13 : Utah Power & Light Co. v. United States, 243 U. 8. 3892.. 11 3 Wardell v. Railroad Company, 103 U. 8S. 651. -... —— ae 12: 4 The Western Maid, 257 U. S. 419___-- foe teanerenateeee- | . Statutes: q Act of July 2, 1864, e. CCXVII,,13 Stat. 365_-_____- ene. g Joint Resolution of March 1, 1869, No. 15, 15 Stat. 346___ 8 7 Joint Resolution of May 31, 1870, No, 67,-16 Stat. 378... 3, 8°9 7 Act of June 25, 1929, c. 41, 46 Stat. 41__._..._. Seer 2, 4, 13 + vy | Necisigps of the Secretary of the Interior: * ra " , So° safer 2 L. D. i OO | Se ail 16 “4. * ib ie cs g.7 | a © cme tad Be ee eee EL EE. EE eee: a Ae 1 ee SO SRS ae aa eee ne a “7 i 7 Miaes Ty Rows 944 0.. 5i 0-252 - ules SSeS soa eis 7. ‘ - 71 U. of Pa. L. Rev, 178_._--- pibtoiednetNehiete tin cass 7 : ¢ ms é zy a @ ‘ 4 l { Inthe Supreme Gourtof te inited Sines wet aN _ OctoseR TERM, 1940. —— . / - No. 3. Unie Grares OF AMERICA, APPELLANT \ Vv. : - NogkrHern Paciric Ramway CoMPANY, Nowienaan PaciFio RarroaD COMPANY, ET AL. ON APPEAL .FROM {FE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WASHINGTON, NORTHERN* DIVISI ON $ L a ~ ° 6 REPLY BRIEF FOR THE UNITED STATES ON REARGUMENT The company’s brief on reargument, filed Octo- ber 8, 1940 (hereinafter cited as N. P. 2a Br.), fails almost _ completely. to meet, the contentions - made inthe Government’s main brief on reargu- ment. (cited as U. 8. 2d Br.). In addition, the company’s brief et a number of pipers, misstates _ - the record. - We shall onddinds to: deal, as devitiexily ’ af, possible, ~with the basie errors contained in that*” brief, and thereafter with the specific matters ‘in it which seem ‘in monk urgént need of correction. —@) ta a iY > eH Ss ghana TN IT sh ite RA HOA met Mere Sec La! sa ss ade 2h me 9 i RAGA May Remtrspi oy ier - - £ | | ‘ thw SILK We: /. Sane 7 a R fhe , ee HE ye 3, % ; H 3 e Ks s ue “y i BS AS \ a * : | f + fe "4 “a a 4. * pe $ ? 6 ” sad : gations of the. ‘parties exactly where they Were * - under settled principles of law and equi ' If “‘settled principles of Jaw and equity” in- ¢ludes the settled principle that railroad. land ' - . grants are laws as well as grants, having ‘the con- stancy and. command of law, binding and, obli- -gatory upon all untit repealed, and: thus not subject ’ to defenses of waiver, acquiescence, or estoppel, Oregon & California R. R. Co. v. United States, - 238 U. S. 393, 427, then there is no dispute between the parties. Congress believed that principle to | _ applicable; the’ language in question from the Ore- gon & Caiifornia opinion was incorporated by ref- - ‘serence into the committee report (U. S. 2d Br. 82-83, 277-78). That is decisive of the entire con- _ troversy on this question. ,/_- 2. The remainder of Point II (U. S. 2d Br. 85-111) was included simply to show that, even if for some reason not now apparent the land grants should be held not to be laws, or somehow subject to the defenses of waiver, acquiescence, or estoppel, then it would still be possible for this Court, with- out any legal or constitutional. difficulty, to give _ effect to the purpose of Congress, and reach the result which Congress‘ititended, viz.,a free and un- trammelled i laquiry, undeterred iy technical con- _ siderations or unmeritorious defenses, into all the - - frauds of the company and breaches of contract which were disclosed to the Joint Committee. ‘ Thé company argues however (N. P. 24 Br. 10), | that Congress elec not to cenlare | a a ~ = and that the United States is bound by the doc- trine of election of remedies, citing United States v. Oregon Lumber Co., 260 U. 8. 290. But the doctrine’of election of remedies re- quires, first, that a remedy actually be undertaken and pursued : to final judgment; and, second, that : . the remedy thus chosen be entirely inconsistent. -with the remedy sought thereafter. See United States v. Oregon Lumber Co., supra, at 294-95, ‘297, and cases there cited. Here, no remedy was ever elected; and there is no inconsistency at all be- tween refusal.to declare a common-law forfeiture . —_ Pak (letting the company retajn what it has) and re-. ‘fusal of “counter-performance ‘(saying . that the -eompany is not entitled’ to more). The decision . cited ha therefore no application: here.’ i) III. B. FAILURE TO COMPLETE ‘THE WALLULA- PORTLAND LINE WAS A SUBSTANTIAL BREACH. The company does not deny the application of contract principles, nor the soundness of the par- ticular propositions submitted, nor the substan- tiality of: this breach asa matter ‘of contract law; it simply urges th a 2d Be 18-19) that, An: the: 1 The decisions seems, im any event, to be es «Re in rea- soning by the dissent (Brandeis, J., Taft, C. J.; and Holmes, J.J, and has never won tlie approval of the- profession. ee 36 Harv. L. Rev. 593; 23 Col. L. Rev. 380; 17 Ill. L. Rev. 614; 7 Minn. L. Rev. 244: 71 U. of Pa. L, Rev. 178. presents no occasion for its reexamination, ‘but it shguid cer- tainly not be extended t to the. wcities! different issué _— presented. SP ° . 266961—40-—8 ee *This case ODES a Raa SAS RS ee ae Breeael Brahe ts. of hee ES, OP a "ee ‘eighties, Congzess elected not to declare a for- , feiture because it deemed the completion of the | Wallula-Portland line unnecessary. But Congress was dealing with sieioeuelle for a common-law forfeiture, not, as here, with a. re- - fusal of counter-performance. It is oné thing to. say that the noncompletion of the Wallula-Port- land line is insufficient reason to strip the com- ‘+ pany of all its assets; it is quite another to say that this admitted breach‘ is ground for holding _ 1° that the company should not receive more than | reney has. 2 TIL, C. VIOLATION OF THE SALE AND PREEMPTION PROVISO WAS A SUBSTANTIAL BREACH “4. ‘The company says (N. P. 2d Br. 46), “Seo- . tion 10 of the Act-of 1864 is specific in forbidding a mortgage ‘by thé said company on said road.’ This language, by implication, authorizes a mort- gage on the lands.”” .The argument then continues ‘to the effect that the mortgage authorization in _ 1870 extended only to the additional lands then graritéd. (Se -But this satin saline siecioak the “ cumstance that the company did not need the 1870 _Joint Resolution for autHority to mortgage the road; such authority it gtready had by virtue of the Joint Resolution of March 1, 1869, No. 15, 15 Stat. 346 (App. 85) This Court has already recognized that the company was prohibited from _ : mortgaging its lands by Section 10 of the 1864 — | Act. See McHenry'v. Alford, 168 U. 8. 651, 667. What the’ company now urges is that when Con- gress authorized it to mortgage all its lands, the - limitations placed on that‘authority were intended to apply ‘only to the additional fringe of lands - - granted in 1870. Under. this view, the bitter legis- lative controversy over the 1870 Joint Resolution could have been no more than an exercise in shadow boxing. a é ' 2. The company (N. P: 2d Br. 46) cites ‘Heath Vv. Northern Pac. Ry. Co.;-38:L. D. 77, as sustaining | . the view that it was justified in denying preemp-. ; tion rights to settlers. That ruling, howeveyy sim- - ply went to the question of enforceability {i only -.. held that, title to the lands having passed from the _ ; United States to the company pthe Department of the Interior would not ‘enforce, nor promulgate regulations concerning, the company’s sce shar ae with respect to the preemption proviso. Tm, D. VIOLATION OF THE FORECLOSURE PROVISO WAS A SUBSTANTIAL BREACH 1. Under this heading the company. resumes its — vigorous defense of the validity of the 1875 and 1896 foreclosures as conduits of title CN. 2 oe ' Br.-31-48). As we stated in our main brief (w. S. 2d Br. . 162-63); we do not question thé suecession of the Northern. Pacific Railway Company to the rights - _ hae 2 : : ’ 7 EAH PURER OCT RN EOD AN eS. OL a ERI PED TARY, AERA SRE RNP TOE LYE We MNES 0 pane ie cess Re ot Ba) Ke Re gre sake eas eis easy =f . > Ge mee =F figs" iy x . ee a : aa pepe > - . , 5 * . a) a? “ee ; ; : cc TAS ; 10 . conferred by the evanting Act and Resolution. Tho real question is as to the extent of those rights, and ‘specifically, whether the alleged violations of the foreclosire ‘sale proviso amount to a substantial breach of the company’s contract. The company ’s argument deals primarily with its right” of suc- cession ; it does not squarely meet our contentions as to deficiencies i in performance. 2.“The company asserts (N. P. 2d Br. 43) that : the United States took no.exception to the finding that the sales were made to the highest and best - bidders where the lands were situated. To the con- trary, that finding .was very specifically. objected to before it was made (R. 593, Objection 2). . 3. The company then argues (N. P. 2d Br. 43) that the evidence does not support the Govern- — ment’ s contention on this point. It is not per- ceived how this fact (if established, which we do not concede) is in any way relevant to the present inquiry; which concerns the sufficiency of the chal- lenged subdivision of the bill. | ILE ‘THE COMPANY'S ILLEGAL DISPOSITION OF ASSETS _ - WAS A SUBSTANTIAL BREACH 1. The. company urges N. Pp, 2d Br. 51) that. “The Dnited States, with : full knowledge, has waived all rights, if any, it ever had.” No record - ' references aré cited in support of this assertion, eand: we think: that none are available, & . etn ne _ iets see te apace bet Bb SAE se Fn ih ERE ERNE ae Lhe clea cukon = | zm | \ F Wo 2, United States v. Union Pacific R. R. Co., 98 = ie U. 8. 569, is cited (N. P. 2d Br. 103) as a com- £ "plete answer to this phase of the litigation. It may. be questioned. whether the approach of that 24 opinion is law today after the Oregon & California : litigation, 238 U. S. 398, 243.U, S. 549, or after a : the rulings in Causey v. United States, 240U.8. ° . a Se 399; Utah Power & Light Co.‘v. United States, I 243 vw S. 389; and United States v. San Francisco, — * 310 U. S: 16, which establish that pecuniary dam- _age. is immaterial where the United States sues. = to enforce the policy , underlying a public statute. , e - But there is a further and even more conclu- | sive answer. The Union Pacific case arose out of the Credit Mobilier scandals, and was brought by. the United States for “the collection sand pay-_ rie ate fe ment of such moneys and the restoration of such ; _ property, or its value ‘either to said railroad cor-, : . ie » poration or to the United States, whichever shall in equity be entitled thereto’’”’, This Court held — ‘ - that since the railroad company asked for no relief. . and since the United States was not injured, ‘no case for relief is made by the bill.”’” The caseis © = + 4+ completely distinguishable from the present case EES in that here the company is seeking to recover from ‘ Pe - the United States and bases its right to recovery: ay ie ; upon a contract which it has violated.. Here the _ s United States is. not seeking: to recover anything ~ because of the illegal disposition of assets; -it is simply setting up those facts as a defense to the y = 2: “eompany’ 8 lati Moreover, in n the Jater decision Of Wardelt-v-Reitroad-Company, 103 U. 8. 651, 659, this Court-held that a diversion of assets of the Union Pacific was a fraudulent proceeding “‘not only against the company, but also.against the gov- ernment, which had largely contributed. to its aid > _ by the loan of bonds and by the grant of lands.” III. G. THE COMPANY’S FRAUD IN CONNECTION WITH | THE MINERAL CLASSIFICATION WAS “A SUBSTANTIAL ‘ BREACH « . 1. The company argues (N. P. 2d Br. 55), ‘‘the United States affirms the classification so far as it benefited and repudiates the classification so far as it imposes an obligation.’’, Granted that, in the ordinary case, a party seeking to rescind a _ fraud- ulent transaction must offer to do equity, | the short answer is that no such obligation rests upon — _ the United States when: it is enforcing the policy underlying , a public statute. When the leases made by ‘Secretary Fall were annulled, the United States was granted relief without first compen- sating, the lessor for its improvements. Pan | - American Co. v. United States, 273 U.S. 456. — Accord: United ‘States v. Trinidad Coal Co., 137 U.S. 160; Causey v. United: States, 240 U: 8, 399. . One who defrauds the public does so at his peril. | 2. The company states (N. P: 2d Br. 54) that — the United States “had complete knowledge, gained after full investigation, of all particulars ( * ’ } - ee woke ee a Sean i ae ris a Te eae LOUR “« ort - » of the classification as early as 1908,’’ This as- _ ___sertion is not supported by any record reference; . the undisputed evidence shows that the United States had no knowlége of the company’s par- ticipation in the fraud (U. 8. 2d Br. 194198). IV. B, THE COMPANY MUST ACCOUNT FOR EXCESS | VALUES RECEIVED THROUGH ILLEGAL WITHDRAWALS 1. “The company’s brief asserts (N. P. 2d Br. 57). that the adjustment of the grant ‘involves 5 only determination of; first, the measure of the — grant; second, acres received; and, third, whether the company had earned them.” Nothing is said -—— regarding the company ’s obligation to return lands - or values received without authority of law,’ and a discreet silence is preserved as to the require-_. mient.of Section 6 ‘of the 1929 Act that tle court “‘shali determine what quantities in lands or values - _ said companies have received :in excess of the full ~ ‘-amounts they were entjtled to receive * * .* . through mistake of law or fact, or through misap-_ } prehension as to the proper construction of said grants, * * * and said excess lands and yal- ues, if any, shall be charged against said companies in the judgments and decrees of said couitt.’’ Nothing eould better illustrate the company’s one-: sided approach to the. present litigation. _ . | 2. The company cites United States v. Winona &e, R. R. Co., 165 U: 8. 463, a suit to cancel cer- ‘tain patents alleged to have been issued by mis- — NERO i aS R wp M Z ene: cs us : CL gh TERI EES 3 eee ape, ¢ 5 aed : ‘ . . a 2 a ata SOOT CONROE ARES “NERS SECA Seen SNe Se ~~. * down of second indemnity limits at all; it con- . oS _ cerned the withdrawal of jands within. those limits. Such a withdrawal the Departnient re- We i | fused to make because-at the time, in 1883, it did ee ae __not appear that resort’ to those limits would ever - be necessary. Four years later, as we have shown, __the practice of withdrawing indemnity lands was stopped, 6.L. D. 77, 92-93; and in 1901 it was ————. .« ~~. Se [es ss fen a ae ee a oa Pre ee Fe Le Oe ee Ne - 7 : ee eeiehemieie BoM cee* bee 2 dba . : ah 17 ae '@ authoritatively demotistrated that all the indem~ nity withdrawals for the benefit of the company | had’ been illegal. Hf ewitt v. Schultz, 180 ie 8. = ~~ V. B. 3. WITHDRAWALS ONLY INVALID TO THE EXTENT > THE DEFICIEN CY The company face P,-2d Br. 62-63) ‘oumntiy ena pe assumes that our argument on this point reduces x, 2 oe | itself to a mere question of valuation, and that ~~. - ee _ the difference between the parties is whether the | - . - company shall be in effect entitled to sélect, or » whether, as we urge (U. S. 2d Br. 236-38), it ‘may: have compensation for a resultant deficiency based on. the average valuation of the entire - withdrawal.* , But. our contention has a bende application than simply valuation ; it goes to the- heart of the as : award. . Take, for example, the Idaho withdrawal a of March 1, 1898, discussed at U. S. 24 Br.224-_ | re 25: If, as we contend, unsurveyed lands are to be taken irto consideration, that withdrawal was valid. If, as we. contend in any event, subse- quently surveyed or subsequently restored lands are to be taken into consideration, that withdrawal was | ; valid. Only if both these contentions are rejected : He oc. ~ 8 Qur.contention was. predicated. on the view that the grava- — men of any injury suffered by the company was not the cur-" * | tailment of the right to select but the uccurrence of a defi- ciency. Even the Master came to the conclusion that this - was the effect of the Forest Reserve case (R. 497-99), stating (R. 499) that “the grant of indemnity may become in the lust stage.a grant of quantity and not of quality.” = ee 2 : Se ie b Co Be + ater - i : @ 4 i 3 pe Ra. bs, a Bee Sie ¢ ie ® e Li eae BK we ia ie 2 tA c% ‘ . . e o * . . J Se PLATES One eae ie Po RT ee Ta ane DO Avis Late eae Ae eS ete Bey 2 NES LEO OIE HEE ge EEE AE TAR PBA EL et MELT EE 5 , FRG VE CR ES I ta hy he ere re BOE —_ 4 mR ae ; ; , ry . : “ . + n a e ; % : . ‘ s 7 . : P . . ° ; \ 7 eee ean this withdrawal of 163,280 acres be held in- -valid—and then only because it created a deficiency _ of some 5,600 acres. But fr this deficiency of $,600 acres the court: below awarded compensation for 19,680 acres. Obviously, such a — cannot be supported. os ‘Vv. C. 6. THE AWARD CANNOT BE SUSTAINED AS TO 45, 178 ACRES OF INDEMNITY LANDS FOR WHICH ‘PATENTS ‘ARE DIRECTED TO ISSUE Here again (N. P. 2d Br. 64) the*company : charges that. the United States is raising on ap- peal questions not raised below, saying that the . Government. below ‘conceded the Company, ’s right : to patent for these lands. . This overlooks that the proof on the se Re _ phase necessarily’conformed to the issues as then : _ framed, Every subdivision charging fraud or - breach of contract had been stricken from the. bill, . and the United States was obliged to proceed on the assumption ‘that the company was entitled to : compensation. None the less, the basic point was , preserved by exceptions to the Master’s second: re- = ‘SS 6S! port. (B.. 976, _ Exception LVIID), and by objec- . emer. tions to the proposed: findings (R. 594, Objection.’ . "6 (a); R.-597-98, Objection 10; R. 598, Objection” 12). And the objection as to. lack of a proper - tract-for-tract pees was likewise made @.. -» 600, Objection as) ; . he Pe PAL ae Oe ee Tey eo ee oe = oe ae ° ‘i iat ° Bis rT tiene meee errs tee RT ame comin ean aa GOERS IRE NEED By pee Sharan om “ fasnesrrrties.. we a pind Secu ate ee ce Sis o Un cimin Koa Nise oe ae me. | . ae . 19 7 \ v. EB. 1. NO DEFICIENCY 1 WALLULA-PORTLAND LINE HAD BEEN CONSTRUCTED i Here the company (N. P. 2d Br. 65) admits that _ ate Ae the objection was raised before thé court below, , - HE but argues that it should have been taken before the Master. Se But the basis for. the contention had- already | ee been stricken, and the Master in his first report _ . TE othe _had professed himself unable to see how failure to ~~ eit hes construct the’ Wallula-Portland line could have - . .° any relevance to the adjustment of the grant (R. S| 386). When that position was ‘sustained by the be | ee . eourt, it would have been perfectly useless to have —— raised it before the Master again. The United - | . sae on ~. Statesduly—excepted to the striking out of the Me s i challenged . subdivisions (R. 412-14), and raised , emer. the objection again when proposed ‘findings ‘were , A We ; before the court (R. 595, Objection 6 {d]).. Mis =) > Mie dL not perceived how its Fights could have been more. « ae es _sedulously guarded. 4 BT See “7 V. B. 2. NO DEFICIENCY BECAUSE NO anes : * Hies. _ COMPANY’ WOULD’ OR COULD HAVE SELECTED OR Be OBTAINED SUCH LANDS — ae MT eo a ee > TBS. 1, Again, the company asigeria OVP. 24.Br.65), Raker, «86 fa Weta “We do riot. find that this point. ever was raised _ vid nn below, having | been - first presented py: assign- ‘Sere - rg : . , U,8.-18, which’ held squarely that’a withdrawal © - “of Yands within’ the indemnity limits for the exclusive benefit of the company was illegal and unauthorized. Yet the effect of the decree. « below is tdé recognize just such. an illegal , withdrawal. It is no answer to.this argument to cite the Farest Reserve case; that does ‘not ques- tion the itt v. Schultg ru ruling, but simply adds 4 See the % siiinianaitle brief, Sis which the following excerpts are quoted (pp. 252, 253) : “# *°* Tf this Court should now hold that. the ih: yee. drawals of indemnity lands made ‘by the Government for _.. its own purposes .are not valid and ‘should: hold that ‘the “United States is obliged to compensate defendants for‘ all © these lands, the result ‘will be that the Company will haye ~ benefits to which it is not entitled under the provisions of :* 7 . the granting act but: te which the settlers were. entitled. . The net result of the withdrawal made by the Government . for its own purposes -would ,.. practically. the same as _. if the withdrawal had been made by the Government for the - benefit of the Company in the’ first place. This could not | * legally have betn, dons: aise: v. Schult 2, 180 U. S. 189). 4 ae ” “* Jee. eae | we. iristead of whine the 1929 Act, Congress had restored all Withdrawn lands defendants could not: have obtained all of them under the contract. Defendants were obliged-wnder _ the terms of the contract to submit to such depletions cf the area as might result from acquisitions. by settlers.” They -were not entitled to the benefits that would flow from the. . equivalent of & withdrawal of. the land for their own benefit. . oer: g . hee fac ; i eB te. oO ' ; ‘ . ‘ ‘ > the qualification that the United States may: not, by its own act, create a deficiency. The Forest - Reserve case recognizes the supremacy of the set- - tler in the indemnity limits, and the basic error of. the court below on. this point was that it disre- garded the settler in favor’ of the companfiy. — 8. So far as the company’s. delay in ‘making’ selections is concerned (see U. 8. 2d Br. 253), it is to be ‘noted that the facts there stated -are not disputed, - N onetheless, the oigeny singles out - in Idaho winikdiaad in. 0 there stated, set out only by - might properly have added that. between 1884 and. _ 1900 there were in ‘the second indemnity belt. in . Montana .as later laid down from 421,343.70 acres | to 671,603.83 acres of vacant surveyed lands which o would have been available for selection had the - p eee company obtained :the establishment of the second “indemnity, belt in Montana immediately after the’ - ‘Toad was- definitely . located’ in that ‘State fun- . printed Govt.. Exk. 90}. . The completion of the . _ mineral élagsification- was not essential to gemon-*~ on-". ‘ strate. the néed for a. ‘second deity tlt ee Montana. - And to complete the ae we might ‘also ‘bate stated that, as. shown by Government Exhibits 82, . ~ 85, 88, 90, 93, 95, 98, and 100 (unprinted), there were on December ‘31, 1897, immediately prior to Mag brief was, | ae ay of example. We : . . _ ie 8% ‘ the ‘withdrawals of March -1, 1898, 929,005.99 acres aca 2 Ac aE : Q : of surveyed lands in all indemnity limits of the — : grant as then laid down or which might have been _. laid down at that time, which had not been elected | 3 - by the: company. — wo eae CONCLUBION : be For these reasons, as well as those set out in i : our main brief, it is submitted that the Poa 8 below should be reversed. ; Respectfully submitted. —_— ———Funars Bwo.z, Fy Se - 3 Solicitor. General. re de he Noamax M. Lerrent; Simona rs ihe Assistant Attorneys General. FREDERICK. BERNAYS WIENER, i Loy nee E. E. Dan ty, a“ . “Special Assistants to uhe Attorney General. ; | - Waurer 8. Suaney, _ Manaanar A. SHEA, ao aha panies de : ; g ‘U.S. GOVERNMENT PRINTING OFFICE: 1946 o . ; “ ’ © . ° ‘ ‘ = £ t . . e 2 ~ e . ny ° Vv . . . . bad . - * ° ° . . . ‘ © wy ad . . s > — . . a . ° - e bd ™ m4 : a ° é . . ( . ‘ . . . : : > . - : ; ” . ° ; . e t= o ’ ¢ . & F me - . * e . e --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0310%3A07. Public record. Not legal advice.