grant was not construed by the General Land Office to have been made to Territories. See memorial of the Assembly of Washington Territory to Congress dated December 21, 1865, which appears on page 1875 of the Congressional Globe, Thirty-ninth Congress, first session. The act of 1862 was amended by the act of July 23, 1866, supra, which is in part as follows: "That when any Territory shall become a State and be admitted into the Union, such new State shall be entitled to the benefits of the said act of July 2, 1862, by expressing the acceptance therein required within three years from the date of its admission into the Union, and providing the college or colleges within five years after such acceptance, as prescribed in this act." By act of March 2, 1887 (24 Stat., 440), appropriation was made for the benefit of agricultural experiment stations which might be established in connection with agricultural and mechanical colleges established under the act of 1862. And by act of August 30, 1890 (26 Stat., 417), certain additional appropriations were made "for the more complete endowment and maintenance of colleges for the benefit of agriculture and the mechanic arts" established in accordance with the act of 1862, such appropriation to be paid upon certificate of the Secretary of the Interior as to each State and Territory entitled to receive same. Oklahoma, by senate joint resolution No. 3, approved February 23, 1910, accepted the provisions of the act of 1862, as amended, and obligated itself to comply therewith, and now contends that it is entitled to receive under the acts of 1862 and 1866, 30,000 acres of land for each of its Senators and Representatives in Congress at the time of its admission to the Union. Reading together those parts of the acts of 1862 and 1866 which are important in the consideration of this case, the same provide that when any Territory shall become a State and be admitted to the Union there be granted to such new State an amount of public land, to be apportioned to it, equal to 30,000 acres for each Senator and Representative in Congress to which such new State is entitled by the apportionment under the census of 1860. No other measure of the grant is prescribed, and as Oklahoma was not entitled to representation in Congress by the apportionment under the census of 1860 it is impossible for this department to say how many acres it is entitled to receive, without reading into the act something that is not there and reading out of the same something that is there. Each new State admitted to the Union since the passage of the act of 1862 that has received the benefits of that act has received the same by subsequent legislation prescribing the number of acres to which it was entitled. Such action by Congress is tantamount to a legislative construction of the acts under consideration as a pledge and not a grant to new States not entitled to representation in Congress by the apportionment under the census of 1860, and demonstrates beyond doubt the necessity of further legislation in order to determine the number of acres such States are entitled to receive. This clearly appears from the act for the admission of Colorado, and the subsequent act by which it secured the benefits of the act of 1862. Colorado was the first State to be admitted to the Union, pursuant to an act passed subsequent to the amendment of 1866. The enabling act of the State was passed March 3, 1875 (18 Stat., 474), by which grants of land were made to the State for the support of common schools, State university, and other purposes, but no grant was made for agricultural and mechanical college purposes, nor did the act contain any reference to the acts of 1862 and 1866, nor make any grant in lieu of the benefits thereof, nor contain a general provision similar to that found in other enabling acts, except for Oklahoma, that the State should not be entitled to any further or other grant of land for any purposes than as expressly provided therein. Colorado duly accepted the provisions of the act of 1862, as amended, by legislative enactment approved January 27, 1879 (Stat. L., 1875, p. 174), but received the benefits thereof by act of April 2, 1884 (23 Stat., 10), which, including the caption, is as follows: "AN ACT To enable the State of Colorado to take lands in lieu of the sixteenth and thirtysixth sections found to be mineral lands and to secure to the State of Colorado the benefit of the act of July second, eighteen hundred and sixty-two, entitled 'An act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts.' 66 * * . SEC. 3. That the State of Colorado, in selecting lands for agricultural college purposes under the acts of July second, eighteen hundred and sixty-four, and July twenty-third, eighteen hundred and sixty-six, may select an amount of land equal to thirty thousand acres for each Senator and Representative which said State is entitled to in Congress, from any public land in said State not double-minimum-priced land; or selections may be made from said doubleminimum lands, but in the latter case the lands are to be computed at the maximum price and the number of acres proportionally diminished; but no mineral lands shall be selected." The only new matter contained in section 3 of this act is the declaration of the number of acres to which Colorado was entitled under the acts of 1862 and 1866, and since its enabling act did not exclude it from the benefits of said acts, the provisions of which were duly accepted by the State, this is the sole and only purpose of said section, which was enacted, as stated in the caption, "to secure to the State" the benefits of the act of 1862. In this connection it is important to note that the grant of land for internal improvements made to new States by section 8 of the act of September 4, 1841 (5 Stat., 453), which definitely specified the number of acres new States were entitled to receive, was self-operative, and Colorado received the benefits thereof without further legislation. Between the the dates of the passage of the original act of 1862 and the amendatory act of 1866 enabling acts were passed providing for the admission of the States of West Virginia, December 31, 1862 (12 Stat., 633), which never occupied the status of a Territory; Nevada, March 21, 1864 (13 Stat., 30); Nebraska, April 19, 1864 (13 Stat., 47). West Virginia was given the benefits of the act of 1862 on April 14, 1864 (13 Stat., 47); Nevada, by act of July 4, 1866 (14 Stat, 85); and Nebraska, by act of March 30, 1867 (15 Stat.. 13), the latter's grant of land having been made by the act of 1864. North Dakota, South Dakota, Montana, and Washington were admitted, pursuant to act of February 22, 1889 (25 Stat., 676), section 16 of which prescribed the number of acres these States were entitled to receive under the act of 1862. Said section is as follows: "That 90,000 acrs of land, to be selected and located as provided in section 10 of this act, are hereby granted to each of said States, except to the State of South Dakota, to which 120,000 acres are granted, for the use and support of agricultural colleges in said States, as provided in the acts of Congress making donations of lands for such purpose." The acts of Congress referred to are those of 1862 and 1866. Opposite this reference is printed in small type “vol. 12, p. 503. which is the volume and page of the Statutes at Large containing the act of 1862. The same is true of Idaho, section 10 of the act of July 3, 1890 (26 Stat., 215); and Wyoming, section 10 of the act of July 10, 1890 (26 Stat., 224). The Supreme Court of the United States, in the case of Wyoming Agricultural College v. Irvine (206 U. S., 278), held that the grant to Wyoming of 90.000 acres, by section 10 of the act last mentioned, was pursuant to the act of 1862. * 66 * The act of July 16. 1894, supra, for the admission of Utah, is worded somewhat differently from the other acts. Section 8 provides that in addition to certain other lands granted to the State, there shall be granted to it 110,000 acres of land, to be selected and located as provided in the foregoing section of this act, and including all saline lands in said State ** for the use of the said university, and 200,000 acres for the use of an agricultural college therein. That the proceeds of the sale of said lands, or any portion thereof, shall constitute permanent funds, to be safely invested and held by said State, and the income thereof to be used exclusively for the purposes of such university and agricultural college, respectively.” While no reference is made to the fact that this grant is in accordance with previous acts of Congress, the grant of 200.000 acres is made for the same purpose as provided in the act of 1862, and, as provided in that act, the proceeds of the whole of the granted lands are to constitute a permanent fund, the income thereof to be used exclusively for the purposes of such agricultural college. There is no doubt that this grant was made in fulfillment of the pledge contained in the acts of 1862 and 1866, and that it was so understood and received by the State of Utah clearly appears from the catalogue of the agricultural college of that State for 1901-2, wherein, under the head of " Foundation and endowment," the act of July 2, 1862, is referred to as the act by which the college was founded; and, in speaking of the endowment thereof, the grant of 200,000 acres of land is referred to as having been made under the aforesaid act. In making grants of land to agricultural and mechanical colleges in new States, under the acts of 1862 and 1866, Congress has not adopted any uniform rule with reference to the number of acres such States were entitled to receive. South Dakota, while entitled to two Senators and two Representatives in Congress at the time of its admission to the Union, receives 160,000 acres for agricultural and mechanical college purposes; and Montana, which was entitled to two Senators and one Representative, received 140,000 acres. (Secs. 17 and 19, act of Feb. 22, 1889, supra.) Utah was entitled to two Senators and one Representative, but, as has been seen, received 200,000 acres, pursuant to the acts of 1862 and 1866. It is argued on behalf of the State of Oklahoma that to place a different construction upon the act of 1866 than that contended for would be to hold that Congress did a vain and useless thing when it extended the provisions of the act of 1862 to new States. This would by no means follow, as it must be remembered that the census of 1860 continued to be the guide under which the apportionment of Representatives in Congress was made, for some years after the passage of the act of 1866, and new States admitted thereafter might have been entitled to representation in Congress by the apportionment under the census of 1860, in which event they would receive the benefits of the grant--the number of acres being readily ascertainable-in the absence of legislation to the contrary. (Sec. 20, Rev. Stats.) On the whole it would appear that, as to new States, not entitled to representation in Congress by the apportionment under the census of 1860, the amendment of 1866 was intended by Congress as a pledge, and is ineffectual as a grant, without further legislation. This theory is supported by the debate on the bill, in the House of Representatives, which appears on pages 1897 to 1899, of the Congressional Globe, Thirty-ninth Congress, first session. Representative Kasson, speaking in opposition to the provision with reference to new States, said: "I think it would be better that the grant should be made in the usual way. This bill proposes to allow three years for the acceptance of the grant after the State shall have been admitted, while, according to our practice heretofore, the acceptance is made at the time of the admission of the State. I very much prefer to adhere to this practice, under which the proposition is made and accepted at the time when the State is admitted, instead of our making this exceptional provision, entirely new to our legislation, pledging ourselves to all the Territories and giving them three years after their admission in which to accept the provisions of the grant. * * * "I took the position that it was unsafe to make pledges respecting the future disposition of the public lands and Territories changing their wants and conditions as rapidly as do the Territories of the United States." It has been ably argued that the grant of lands to Oklahoma, by its enabling act of June 16, 1906 (34 Stat., 267), for the benefit of agricultural and mechanical colleges, was not in line of the benefits of the acts of 1862 and 1866, but in view of the department's opinion that the measure of the grant is undetermined and undeterminable, it is unnecessary to pass upon this question. If this be true, it is a matter wholly within the discretion of Congress to say whether Oklahoma shall hereafter receive the benefits of said acts, and calls for no expression of opinion by this department at the present time. The decision of the commissioner is affirmed. ANDRIEUS A. JONES, First Assistant Secretary. DEPARTMENT OF THE INTERIOR, MY DEAR MR. FERRIS: I am in receipt of your request for report upon H. R. 15156, which proposes to grant to the State of Oklahoma a number of acres of public land, or its equivalent, provided for in the acts of July 2, 1862, and July 23, 1866, relating to land grants made to new States for the support of educational institutions, on the basis of 30,000 acres for each representative. The claim of the State was submitted to this department and considered at length, resulting in decision of April 24, 1916, copy of which I inclose for the information of the committee. The grant to Oklahoma made by the act of Congress approved June 16, 1906 (34 Stat., 273, 274, 275), granted to said State all sections 13 in the Territory and lands selected in lieu thereof, providing that one-third thereof were for the use and benefit “of the Agricultural and Mechanical College and the Colored Agricultural Normal University." It further granted "for the benefit of the Agricultural and Mechanical College, 250,000 acres; for the benefit of the Colored Agricultural and Normal University, 100.000 acres," the lands to be selected by the Territory immediately after the approval of the act I have also to advise that, according to the statement prepared in the General Land Office showing vacant public lands July 1, 1915, there were at that time only 42,177 acres of vacant lands in the State of Oklahoma. Doubtless, some of this area has since been entered under the homestead law. It is also possible that some other tracts have become vacant through the relinquishment or cancellation of homestead entries, but it is clear that there is no public land in the State sufficient in area to satisfy the claim presented by the State. This would involve either permitting the State to select public lands in other States, or issuance of scrip, which could be located only on public lands subject to private entry (now confined to the State of Missouri), or receivable as cash in the commutation of homestead entries at $1.25 per acre. If scrip were issued to the State it would be necessary probably for the State to dispose of same through local dealers in small quantities. The dealers would require a payment of a substantial commission and the purchasers who might desire to use it in payment for homestead lands would also expect to obtain the same at a discount. It would therefore seem that the State would not be able to realize anything like $1.25 per acre for such scrip. The department having concluded and decided that it can not, under existing law, recognize or satisfy the claim of the State, the matter of whether such claim is one that should be allowed or recognized is for the consideration of Congress. Should Congress determine that such a grant should be made to the State of Oklahoma, I believe it would be inadvisable to undertake to issue scrip therefor, but believe the State would secure more benefit, and both the United States and the State be involved in less expense, if the State were given $1.25 in cash for each acre of land to which Congress finds the State entitled. Cordially, yours, Hon. SCOTT FERRIS, FRANKLIN K. LANE, Secretary. Chairman Committee on Public Lands, House of Representatives. On April 28 I introduced a bill providing that the State of Oklahoma should be given the amount of land it was entitled to according to the act of July 2, 1862, as amended by the act of July 23, 1866, so as to give this same benefit to Territories admitted to the Union or to new States. I contend that the State of Oklahoma, according to its enabling act, did not receive any land in lieu of the land that was given to new States according to these two acts, and that for the reason that every State, unless specially excepted from the provision of these acts, has received 30,000 acres for each Senator and Representative in Congress, that no exception should be made when it comes to the State of Oklahoma. This is a matter in which every Representative from the State of Oklahoma is vitally interested, and it is hoped that the subcommittee which is now considering this matter will make a report to the Committee on Public Lands favorable to the amended bill I have prepared which, in my opinion, will give to the State of Oklahoma the benefits it is entitled to under the pro visions of these two acts. The Secretary of the Interior has stated that there is at this time 42,177 acres of unappropriated nonmineral lands situated in the State of Oklahoma. He also states in his report that inasmuch as the land is divided into small tracts it will probably be best, if the State of Oklahoma is to receive these benefits, to secure an appropriation on the basis of $1.25 per acre, and because of the statement he has made in this connection I have drawn an amended bill which I shall be pleased to insert in the record and have the committee consider instead of the original bill introduced relative to this subject. (Said bill follows:) A BILL Granting to the State of Oklahoma two hundred and ten thousand acres of unappropriated nonmineral land for the benefit of its agricultural and mechanical colleges according to the provisions of the acts of July second, eighteen hundred and sixty-two, and July twenty-third, eighteen hundred and sixty-six, and authorizing the Secretary of the Treasury of the United States, upon the Secretary of the Interior certifying that there are not sufficient lands in the State of Oklahoma to comply with the aforesaid acts, to pay to the State of Oklahoma in lieu thereof the sum of $262,500. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act approved July second, eighteen hundred and sixty-two, entitled "An act donating public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts" (Twelfth Statutes, page five hundred and two), on the basis of thirty thousand acres of nonmineral land of the value of $1.25 per acre for each Senator and Representative in Congress from each State, and the act of July twenty-third, eighteen hundred and sixty-six (Fourteenth Statutes, page two hundred and eight), extending the benefits of said act of July second, eighteen hundred and sixty-two, to any territory which may thereafter become a State and be admitted to the Union, are hereby made applicable to the State of Oklahoma, and the said State is hereby granted two hundred and ten thousand acres of unappropriated nonmineral public land, provided that the State of Oklahoma has by proper legislative enactment accepted the terms of the foregoing acts. SEC. 2. That in the event the Secretary of the Interior finds there is not a sufficient number of acres of unappropriated public land in the State of Oklahoma to carry out the provisions of this act, then he shall certify to the Secretary of the Treasury a statement that there are not sufficient lands in the State of Oklahoma to comply with this act, and the Secretary of the Treasury is hereby authorized to pay to the State of Oklahoma for the benefit of its agricultural and mechanical colleges therein established under the aforesaid acts the sum of $262,500, which shall be a full and complete satisfaction of the grant made by said acts giving to new States thirty thousand acres of public land of the value of $1.25 per acre for each Senator and Representative in Congress. On May 16 I sent the following telegram to the register of the land office, Guthrie, Okla.: WASHINGTON, D. C., May 16, 1916. Hon. J. Y. CALLAHAN, Guthrie, Okla.: Department gives number acres unappropriated land in Oklahoma, July, 1915, 42,177. If any has been withdrawn kindly wire me number of acres now available. JIM MCCLINTIC, M. C. On the same day I received a reply stating that the number of acres were correct, and I shall be pleased to insert the same in the record. (Said telegram follows:) JIM MCCLINTIC, Member of Congress, GUTHRIE, OKLA., May 16, 1916. Washington, D. C.: Number acres unappropriated about same as last year; none withdrawn. Mr. FERRIS. What is the total acreage in the State of Oklahoma still remaining? Mr. MCCLINTIC. Forty-two thousand one hundred and seventy seven acres. Mr. MURRAY. But that is all in small, broken lots. For instance, in Pottawatomie there are 89 acres. 44116-16- -2 |