Respondents Brief in Opposition to Petition for Writ — Krug v. Santa Fe Pacific R. Co.

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Pes a oF AN THE ene ees ee

ipreme Court of the United States

Oconee Trem, 194.

Nos, uae OF OQ

Jers A. Race. Osean B. Cirupaias, and Firbto W. JOLNSON,

Petitioners,

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rere vs

Sissy Fe Pacier Ratnoap Company, Res sondene,

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On Petition for. Certiorari to the United States Court: of

- ee for the District of Cotumbia.

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a ete cecenn an Eoand re isi acct aaa Re Gite sh aahsiins

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BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR CERTIORARI.

ec. 722, 34, Stat.‘ 954: sec, 321, 49 U.S.C. 65 2... ..-

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° INDEX

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Opinions below ......---++: eas} PU er Pee eee aes eae,

* Jurisdiction ......... nome nuh Serer ee ase? ene pees oe

Question presented .......... Sua a nels ree a 2 6:

Statement for respondent in opposition to certiorari : 3

Cases. CITED. | agile

Hannegan v. Kequive, No. 399, October: Term 1945 eRe

Ickes 'v. Fox, 330 U.S. 82 2.2... eee eee ete ete es 7

‘Payne v. Central Pacific R. Co,, 255 U. S. 228/. Nececant ue

—Santa Fe Pacific RCo. v. Fatt, 259 UTS. 1g4 ee 6

Santa Fe Pacific R. C o. v. Lane, 244 U. §/492 ........ 7

IU BSH 6

Stark v. W ickard, 321 US OL GARTER: Gee rr rare eek

nited States v, No-thern Pacific RAC. BEE ads us Se 3

Sratt TES: SM ITED. Rin

Act July 27, 1866, ¢. 278, 14 Stat. OE Cree 2,6

Act June 22, 1874, c. 400, 18 Stat. 194, 43 U.S.C. BSS ae

Act April 28, 1904, ¢. 1810, 33 Stat. 556 ...........)- 2,6

Act September 18, 1940, eatensees ere Act of 1940)

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“IN THE oa

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soupreme Court of the United States.

. - OcroBer TERM, 1945. |

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| = 7 Nos. 1192-1193.

Junius A.. Kuvg, ‘Oscar L. CHAPMAN, and Fee. W. JeuNsoN,

Petitioners, Se nS, tt

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“Santa Fr Pacrric Raitroap Company, Respondent.

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On Petition for Oartiorari to the United States Court vat

‘ - Appeals 9) the District of: Colurnbia.

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BRIEF FOR RESPONDENT IW. OPPOSITION 7”

PETITION FOR CERTIORARI. 2

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The opinion of the District Court ( R: 19-24) is reported

in 57 F. Supp. 984. The opinion of the United States Court

of Appeals for the District of Columbia (R. 33- a is re-

ported | in 153 F: (2d), 305.

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J URISDICTION. .

The jurisdiction of chis court to review. the judgment, by

certiorari, is under section 240(a) of the Judicial Code, as

amended; U. S.Code, Title 28, section 347.

THE QUESTION PRESENTED.

7 he audation ‘presented to and decided by the courts below

was whether the rights of the railroad company to “select”?

certain publie lands, in liew of other lands which the rdilroad

company had previously reconveyed to the United States

under the Acts of June 22; 1874, andeAprit 28, 1904, —were

wlaims to. latds granted “in aid of the construction of any

portion of its railroad’’ and. therefore within the t terms of:

a certain relodse executed bye the railroad company pur- °

suant to section 321(b), Title III, of the i chamscrchans eu Act

of 1940, .° ~ &

Tf such selection rights under-the Acts of 1874 and 1904

are claims to lands granted i in aid of construction, they were

extinguished by the rele ase, If they are not claims.to lands

granted in aid of construction i then they aré valid selection

rights which the Department of the Interior has wrotigfully

and mistakenly: rejected and refused to recognize, solely, be-

* cause of the release. * |

. The District Court held that: the Acts ‘of 1874 and 1904,

were supplemental, to and in legal effect amendatory of ,the

‘ original granting act of July 27, 1866; that-the lands to be .

se ‘leeted under. the Acts of 197 and 1904 were in substitu-.

tion, for:the lands originally granted by’ ‘the Act of 1866°

in aid of construction: that the raifroad company’s righ*s

te select lieu’ lands under the Acts of 1874 and 1904 were

therefore clainis to lands granted i in aid of construction and -

within the scope of and extinguished by the release. |

The United States Court of Appeals for the District of

Columbia in reversing. the District Court, held (1) that the

release was a release of further claims to lands granted in

jiid-of construction, and (2) that the selection rights in quee-

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‘tion, under the Acts of 1874 and 1904, were not claims to

lands granted in atd of construction,

Beth courts assumed jurisdiction and decided the case on

> the inerits. i ih

STATEMENT FOR RESPONDENT IN OPPOSITION TO

CERTIORARI. és

1. This suit is not—as-suggested in the petition for core.

tiorari (page 7)— ‘an attempt -to avoid”’ the release filed

pursuant to the Transportation Act of 1940..

Respondent has given full effect to ¢hat release by relin-

quishing all further claims to approx 1,500,000 acres

granted by the Act of July 2 _ " wtned hy the con-

struction of the railroad, mi Tespondent.

See Trdusportation—Inf | pare Land Grants

for Roads, Canals, River Th ts, and Railroads—

Information Bulletin, 1939 Ser1e® No. 5 (Government

Printing Office: 1940), which shows the status’ of the At-

lantie and Pacific grant as of Jane 30,1938, as follows:

%

GRANTS PRACTICALLY Apacstep, But Nor CLosep .

; Ared of grants © ¢ Anionnt due

Nameof railroad, Date of grant in acres Acres patented — [in acres]

. . . . te . . . .

Atlantic & Pacific, July 27, J866 13,429.237.02 11,917,308.83 1,505,927.19 -

R. R. Co. (West- (14 Stat. 292):

ern Division)

See also statement issued on Mareh 13, 1941, by the De-

partment of. the Anterior, Information Service; after the.

release filed by respondent was approved by the Secretary

of litteriot, as follows:

“ 47 he claim of the Atehison, Topeka and Santa Ke

Railroad Company to approximately 1,400,00 acres of

public land in Arizona and. New Mexico has. been

‘cancelled Gut’ after 75 years-of railroad land grant

negotiations, with, the approval of a land grant claim

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. release submitted by. that ridtrend, Secretary of the

Interior Harold L. lekes annotineed today.

**The release of the Santa Fe constitutes the second

oo in which land is being relinquished to the Gov-

Anes” ernment under pfovisions-ef the “Pransportation Actor

140. . The first relinquishment, made by the Southern

Pacific Railroad, inv aired about 2 2,000,000 acres of pub-

lie land in Southern California.

‘*Approval of the release by Secretary Ickes clears

the track for the Santa Fe to take advantage of in-

creased rates for certain classes of Government freight

» and passenger business on ——e of its early land-

grant road predecessor, the Atlantic and Pacifie Rail-

road Company, from Isleta, New Mexico, to the Colo-

rado River in Arizona in the vicinity of Needles, Cali-

ornia, Under the Transportation Act, railroads orig-

inally constructed with the aid of publie land may dis-

continue preferential reduced rates for eertain forms

of Government traffic.if, as and when the roads receive

approval by: the Seeretary of the Interior of a formal

release of any claim under such grants, ©

~ “One ff the factors in the expansion of the nation’s

transportation network westward to the Pacifie, the

Atlantie and Pacifie Railroad Company was awarded

a grant of approximately 13,422,000 acres of the public

domain by Cong ‘ess in 1866, ‘according to General Land.

Office records, Of this original grant, the railroad re::

ceived title to approximately 11,917,000 acres from the

United States, Claims for the unpatented area of ap-

proximately 1,400,000 acres, now have been relinqnished

‘by the release submitted by the Santa Fe.’*

| Respondent's position in this suit (which has been sus-

tained by the court below) is that the release has nothing

- whatever to do with the approval of the selections here in

question which are iy completion of exchanges proposed by

the Secretacy of tie Interior under the Acts of 1874-and

1904 and partly erecuted by respondent's reconvevance to -

@he Upited States of the base lands sought by the United -

States. |

| 2. The-release executed and filed ed (R. 8.9)

WAS spe ‘cifically a release of any and all ¢laims of whatever

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description. to lands, ete: ‘‘granted, claimed to have been

granted, or claimed. should have been granted by any act

of the Congress to Santa Fe Pacific Railroad Company or

any-predecessor in interest in aid of the construction of any

portion of its, railroad’’.

This was the exact form prescribed by the Secretary of :

the Interior in General Land Office Circular 1480 (6 F. R.

#22) includitig the words ‘‘in aid of the construction of any

portion of its railroad’’—and was in strict cohtipliance with

the statute. ‘ ’

- Obviously the words ‘‘any act of the Congress’’ were

necessary hecause the form was prescribed for ust by all |

railroads which had received grants in aid of construction,

ander many different acts of Congress. This is clear from

Section 273.64 of Ciréular 1480, 6 F. R. 422,.which. pre-

seribed the form of the release, as follows:

273.64. Form of'release. The release juust he sub-

siantialty in the following form:

“The . . . Railroad (Railway) Company, a corpora-

tion organized and existing by virtue of the laws of the

State of ...., with office and principal place of, business

-at’. .., in ‘the state of . .., hereby, in accordance with

section 321 of Part Il of Title III of the: ‘Transportation

Act of 1940, and the rules and regulations issued there-

under by the Secretary of the. Interior, relinquishes,

remises and quitelaims to the United States of America

any and all claims of whatever description to lands, in- ‘

terests therein, compensation or reimbursement there-

. for on account of lands or interests granted, claimed

to have been granted or claimed should ‘have heen °

granted by any act of the Congress to the... Railroad

(Railway) Company or to any predecessor j in interest

in aid of the construction of any portion of its: rail-

road, .

“This release does not embrace the rights of’ way or

. station grounds of this company, lands sold by the com-

pany to innocent purchasers for-value prior to Septen-

her 18, 1940, latids‘embraced in. selections’nade by the

company and approved hy the’S Sceretary of the TIn‘erior

prior to September 18, 1940, or lands which have been

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. patented or certified to the company or any predecessor

in interest_in aid of the construction of its railroad.

‘*( Followed by seal, Signatures, execution and_ac-_.

~~knowledgment,)**— . “

3..Contrary to the arguinent suggested i in support of the

Government's position. as stated in. the petition for cer-

ttiorari, this Court dias held in Santa Fe Pacific R. Co. v.

Work, 267 &.S. 511, that the Act of 1874 and the granting

Act of 1866 are not in pari- materia to the extent that the

provisions of the Act.of 1866 mugt be read into the Act of

“1874. In that case the railroad company attempted to se-

leet, under the Act of 1874, lands classified as coal lands not-

withstanding a provision in the Act of 1874 that only ‘‘pub-

lic lands not mineral’’ could be seleeted under that act—the

nrgument for the railroad éompany being that-the Act of

1874 was in legal effect amendatory of the granting act of

1866; that the latter granted and authorized indemnity

selection of Jands coitaining coal and iron by expressly pro-

viding tliat the word ‘*mineral’’ as used in the granting act

was not to be considered as including coal and iron; and that ~

the word ‘‘mineral’’ as used in the Act of 1874 should be |

siven the kame construe ‘tion, This court, however, held that

the two acts were ‘separate and distinct and that the con-

struction argued forthe Act of 1874 was not justified. ;

That the Act of 1904 likewise. was new and independent

leGislation and in no sense amendatory of the Act of 1866 is

apparent on its face. It plainly and in simple terms offered

a trade, section for section, of public lands for lands owned |

by the railroad company. Compare Santa Fe Pacific R. Co.

*. Fall, 2Ath U.S..197, which like the present case (No. 1192)

was a suit to en join the Secretary from rejecting and can-

celling lieu selections under the Act of 1904 on the ground

fhat his action was erroneous and arbitrary,

A..That in vertain cases and within judicially defined -

limits an aggrieved party is entitled to a judicial review of °

the action of an administrative officer, such as the Secretary

of the Interior, and that such review may be had by an ac-

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tion for injunction or mandanius in.the Courts of the Dis-

trict of Columbia is not a novel questton. It has recently _

been given consideration in Stark v. Wickard, 321 U.S 288.

Compare Hannegan v. Esquire, No. 399, October Term 1945.

’ The historic use of the remedy of injunction or mandamus

in cases involving the Secretary of the Interior and rights

claimed under the public land laws, is illustrated by many

cases. Santa Fe Pacific Ri Co. v. Lane, 244 U.S. 492; Payne

v. Central Pacific R. Co., 255 0. 8, 228; Santa Fe Pacific R.

Co. v. Fall, 259 U.S. 197, Ickes v. Fox,.300 U. 8.82. -

Santa Fe Pacific R.Co, y. Fall, 259 U.S. 197, for example,

was a suit to enjoin the Secretary of the Interior from re- —

jecting and cancelling selections under the same act, the Act

of Apri} 28, 1904, Which is involved in one of the present —

cases, and the use of injunction as a remedy was revog-

nized ang approved. ’

®: The Opinion of the United States Court of Appéals for

the District of Columbia (R. 53-58) evidences a full under-

standing of the issues presented and the respective posi-

tions of the parties, and reaches a sound conclusion. on

~ the law. Further argument, therefore, seems unnecessary.

Respectfully submitted,

or . R

LAWRENCE CAKE, _ in es

Attorney for Respondent.