that. There is evidence that it was a deliberately conceived scheme to grab the lands away from the Government.

The Government brought two suits here one covered 600 acres in the Elk Hills region-after the Burke decision was rendered. By the way, that Burke decision is self-contradictory. The decision itself admits that Congress has not conveyed the mineral lands to the railroad. The exact language of that decision is such that words could not make it plainer-that mineral lands were not included in the grant, but were expressly excluded; that the exclusion was of all mineral lands; and that it was coupled with a provision that the railroad company should select an equal amount of nonmineral land in lieu of any lands discovered to be mineral.

The CHAIRMAN. Was it incumbent on the Government to designate the mineral lands within any period of time?

Mr. MILLER. It was not. The granting act neither by word nor implication limits the time for discoveries, nor does it limit the time for making lieu selections. The only right in the world that the railroad company has or ever has had or ever can have under the granting act with reference to mineral lands is to select an equal amount of nonmineral lands whenever and wherever any portion of the grant is found to be mineral.

Now, Congress has always, in a half a dozen instances, confirmed the original reservation of mineral lands. Four years after the grant Congress passed a resolution in reference to the issuance of patents in which it specifically directed that the patent should save and preserve all the rights of the actual settlers, together with the other conditions and restrictions provided for in the act, and the major restriction in the act was the reservation of mineral lands.

In 1887 Congress passed an act to protect bona fide innocent purchasers of grant lands, so that if a man had purchased lands from the railroad company as agricultural land and it developed later that it was mineral land, the purchaser only could get a patent, and he alone could get a patent to that land as mineral land by paying the Government $5 per acre.

As late as 1910 Congress confirmed the withdrawal of these very lands down here in California, these oil lands, from entry under the mining laws, which in effect was a declaration by Congress that they were Government lands, not privately owned lands. And that was only three or four years prior to this Burke decision.

In the Burke decision the court simply went beyond its powers. It was misled by the people who presented the case into adjudicating the grant under the wrong laws, under the general land laws, instead of under the special act which created this grant.

It is a long story, and the purpose of my appearance here to-day is to present these few statements with the hope that your committee later on when it is convenient will dig into this thing. Because the lands can readily be recovered to the Government; there is no doubt about that. All it needs is a proper resolution, properly drawn, and to be followed by an action by the Attorney General to quiet the title. I have had the matter up with President Coolidge recently. I have copies of my letters to him, and I also have a brief in my pocket that was drawn in the suit which attempted to get this matter before the Supreme Court, but which failed because the railroad company

presented a motion to the court to dismiss the case on the ground that the suit was frivolous, claiming that the Burke decision had settled the issue, and the court dismissed the suit. When asked on what authority they said on the authority of the Burke decision. In other words, they used the Burke decision as the sole authority for sustaining the Burke decision.

The Burke decision will not stand up for a moment under careful analysis. The decision itself, as I have stated, admits that Congress has not conveyed mineral lands, never has conveyed mineral lands to the railroad company, and therefore how can the company have title?

The CHAIRMAN. But did not the Supreme Court so hold?

Mr. MILLER. It held to that effect in that part of the decision, and then later on it assumed the power to fix a time limit for the discovery of mineral and said that that time should be the date of the patent. Well, to fix a time limit for the discovery of mineral is plainly legislation, it is an amendment to the act. The court has no more power to do that than a policeman out here on Market Street. They simply exceeded their powers. And if that one statement is presented to the Supreme Court, why I don't know how they can deny it. Congress alone could limit the time for discovering minerals by amending the act. That is fundamental. The Land Department has never attempted or purported to convey title to these mineral lands to the railroads, but has always inserted in the land commissioner's decree and in the patent the reservation.

The court alone has attempted and purported to pass the title, and of course they have not the power to do it. If Congress will stick to that one proposition that it has not conveyed mineral lands to the railroad company and that no power exists in any administrative official or in any court to make the conveyance over the head of Congress you can not help but recover those lands, and it is the biggest issue to-day that anybody could raise in this country. The CHAIRMAN. What action would you suggest?

Mr. MILLER. I would suggest the adoption of a joint resolution in Congress reciting the facts, and instructing the Attorney General to bring an action to quiet the title. In that resolution you could direct you have the power to direct the Supreme Court-you have already directed the Supreme Court-that no land grants shall be interpreted as to include mineral lands. Congress passed such a resolution in 1865, that no land grant should be interpreted to include mineral lands. And if you pass such a resolution just in advance of a suit to be brought by the Government it seems to me that the Supreme Court would reverse that portion of the Burke decision which has enabled the railroad companies to make the biggest grab of the public lands in all our history, because it was undoubtedly a carefully worked-out scheme to grab the lands. There is evidence to that effect, plenty of it. Knowing that they had no title, and that they thought they saw a chance to get away with it, and they really have succeeded in doing it.

The CHAIRMAN. Under the terms of the grant they are entitled to the land?

Mr. MILLER. Oh, certainly they are entitled to agricultural land. The CHAIRMAN. What you referred to is that they had no right to the mineral land?

Mr. MILLER. Yes.

The CHAIRMAN. But you are not denying the right to land?
Mr. MILLER. No; not at all.

The CHAIRMAN. You spoke of it as a land grab.

Mr. MILLER. That is not what I meant to say.

The CHAIRMAN. You meant mineral lands?

Mr. MILLER. Yes; mineral lands. I have here, if you care to look them over, the letters and the brief in the case, that will give you a pretty clear outline.

The CHAIRMAN. Do you care to file those with the committee? Mr. MILLER. I would like to if they would be of use to you.

The CHAIRMAN. We would be very glad to have them, and it will be taken up.

Mr. MILLER. Personally it has been my little experience in my life to have had occasion to dig into this thing covering a long period of years. I have personally purchased lands from the railroad company, and I have had oil interests here for 25 years, and I attempted to adjust this thing through the courts myself and lost out, as I have explained, by the company putting in a motion to dismiss the case on the ground that it was frivolous. They were very evidently not willing that the merits of the case should get before the Supreme Court. And they succeeded in having that motion sustained. No argument was permitted, and our briefs never reached the court. Our reply brief to their motion, as a matter of fact, I don't think ever reached the court. It never was placed in the official file by the clerk of the Supreme Court in Washington. There are many things about this thing that ought to be looked into, things that you would scarcely believe.

The CHAIRMAN. You could not specifically mention some of the things that you refer to that should be looked into?

Mr. MILLER. Why, yes, I could. I could tell you what happened in the office of the clerk of the Supreme Court.

The CHAIRMAN. Will you do that briefly?

Mr. MILLER. Yes. Our case was before the Supreme Court regularly on an appeal from the circuit court of appeals. And our briefs were on file there. The railroad company exercised its right to file a motion to dismiss the case on the ground that it was frivolous. That sidetracked our appeal, and on motions the court permits no argument in open court. We filed with the clerk of the court our reply brief, a pamphlet of about 15 pages, and I personally went to Washington a week before the motion was to come up and called on the clerk, and there was a bare possibility, among other things, that the court might permit oral argument on the motion. I wished to ascertain definitely whether that would be permitted or not, and various other things came up in connection with the case, and the clerk-that is, the assistant clerk who waited on me-went to the file of our case and took out all the papers, and I noticed at once that our reply brief to the railroad company's motion was not there, and I said to him, "Where is our reply brief to this motion?" He said, "Do you mean to say that you have filed a reply brief?" And I said, "We certainly have; and we have an acknowledgment from the clerk of the court a month ago by mail that our reply brief had been received."

Well, this assistant clerk was plainly puzzled. He assured me, however, that he would look it up. You can understand that if no reply brief to that motion was before the court, why the court naturally would assume that we had no reply to make, and it would leave us at a great disadvantage.

Well, I went over to New York for a few days, and came back the day before the motion was to come up, and I again went to the clerk and I said. "Has this brief materialized?" He said, "No; it has not." So then I had a very plain talk with him and emphasized the importance of finding it; that it must be there in the office somewhere. And he said, "Well, I will go out and talk with my superior, the clerk of the court. And he did so and came back in a few minutes. He said, "Well, the clerk says that he has the brief himself in his possession."

Now, it was not in the file. I do not believe it was ever in the file, and I do not believe it ever reached the court.

The motions came up the next day along with a long list of other motions, and on Tuesday, October the 3d, the following day, a broad, wholesale disposal of all those motions was made by the court, including our motion. All we ever got of it was, "Motion sustained." That is all the information we ever got.

We then filed a petition for a rehearing. That was drawn up within some three or four weeks and sent on from here to the clerk, and in the regular procedure that petition for a rehearing-it is filed with the clerk and then later on counsel appears personally before the court to present it and say what he has to say on the subject. In our case the petition was sent on by registered mail, and the very day and apparently within the hour that it was received by the clerk we got a wire from him that our petition was denied. It had not been presented to the court at all, unless the clerk took it around and presented it personally, entirely out of the regular order. Our attorney was never allowed to appear before the court. Now, I made an affidavit of this and sent it on to Chief Justice Taft myself. I was president of the company that was prosecuting this litigation. And, by the way, President Taft himself withdrew these very lands from entry under the mining laws by proclamation. Now, how can you account for the fact that when having done so, and with full knowledge that they were Government lands, according to his own action, that he would not see to it that we had a hearing on the merits of the case, when we were simply asking the court or simply contending before the court that the lands were Government lands?

When our case came up just three or four years later, why, we got the treatment that I have just described to you. As President he said the lands were Government lands, but as Chief Justice of the Supreme Court he would not even give us our day in court to present the issue.

The CHAIRMAN. Just what was the nature of your case?

Mr. MILLER. Simply contesting the title of the railroad company, claiming that the lands were Government lands.

The CHAIRMAN. And you were making application for lease?

Mr. MILLER. No; we had filed upon the lands under the mining laws. That is the only way you could acquire oil land at that time.

The CHAIRMAN. That was prior to the withdrawal?

Mr. MILLER. That was prior to the withdrawal, prior to the leasing act.

Mr. BOWDEN. What was the name of your case?

Mr. MILLER. Peoples Development Co. v. The Southern Pacific. Mr. BOWDEN. What is the docket number in the Supreme Court? Mr. MILLER. No. 28767 in the Supreme Court of the United States, October term, 1921, No. 304.

The CHAIRMAN. Very well, Mr. Miller, if you will file those papers with the committee. Mr. Metcalf.

FURTHER STATEMENT OF VERNON METCALF, SECRETARY NEVADA LIVESTOCK ASSOCIATION, RENO, NEV.

The CHAIRMAN. Mr. Metcalf, you served as a forest supervisor for a number of years?

Mr. METCALF. Yes, sir.

The CHAIRMAN. How many years?

Mr. METCALF. In that particular title?

The CHAIRMAN. Yes.

Mr. METCALF. As forest supervisor from September, 1915, to, I think, some time in August, 1919. I changed title so many times that I can not remember that exact title. No; 1917. Then I was made an assistant district forester.

The CHAIRMAN. Now, Mr. Metcalf, you are in favor of area leases or permits?

Mr. METCALF. Well, it all depends upon what the permit means. I am in favor of the area system for any lease or permit that gives the operator a definite form of control over his operation.

The CHAIRMAN. Do you believe that if the lessee or permittee improves the grazing facilities of that area so that it will have a larger carrying capacity that that benefit should inure to him?

Mr. METCALF. I do.

The CHAIRMAN. And that would be an incentive for him to bring the area to the highest possible standard of grazing?

Mr. METCALF. It would.

Mr. BOWDEN. As forest supervisor did you have oportunity to observe the working out of individual allotments?

Mr. METCALF. I did.

Mr. BOWDEN. In the forest where you were supervisor did they also have community allotments?

Mr. METCALF. Yes, sir.

Mr. BOWDEN. Which system, the individual allotment or the community allotment, do you think was preferable?

Mr. METCALF. The individual allotment.

Mr. BOWDEN. Will you state the reasons why you think so?

Mr. METCALF. Any form of allotting the range that leaves a situation where there will be competition for the feed, the same feed, between a number of people, can not permit any of them to exercise their individual desires as to how it should be grazed. Consequently, any system that necessitates groups of individuals using the same feed will not permit the circumstances for improvement of the range as well as a situation of individual allotments?