Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1884-08-24
TnR LAW AND TEE GRANr.
Yakima Signal. !

At this late day it would seem 20 b
( hardly necessary to discuss the question
as to whether Congress has Lawful
| right TO declare forfeiture Of the North.
ern Pacific land grant. After q careful
consideration of the questios. both the
House Committee and the Senate Com
mittee on Public Lands (being mainly
composed of able lawyers have agreed
that Congress has unqnestionably the
right to declare sach forfeiture, and
both committees agree that justice and
sound policy demand that il right
should be exercised. The railruad at
torneys ami railroad newspapers con
tend to the contrary and foolishly insist
that Congress has no right TO declare q
forfeiture, even where the road has not
been boilt. This is sheer nonsense. and
1t seems almost like an utter waste Of
time 10 seriously discuss a propositions
so devoid of support.
The last clause in the granting act it,
self declares that Congress has the right
g at any time to add to, alter, amend or
repeal this act" Even without this pro-
vision IN the act there can be no reason
able question but Congress would have
the right to resume possession of the
lands IN case of the company's failure
TO earn them within the time specified
in the contract. This is self evident;
for otherwise the provision in the grant
ing act which specifies the time within
which the required wurk should be done
is of no use. IL il il fact that a oon
tracing party may have unlimited time
TO perform a given piece of work, what
possible advantage is there in specifying
q time In the contract2
Tbe original granting act prescribed
that the road must be built within a
speciHed time. The company, knowing
well that Congress had a perfect right
TO take advantage of its failure to build
the road within the prescribed time, sent
lobbyists to Washington, and these lob
byists, at great expense to the company,
secured an extension of time. Time
rolled on and the company felt compelled
to rspeat this action at even greater ex-
penss than before. Now, if the matter
of time il of no consequence. why did
the company 60 to all this trouble and
expense?
Every lawyer knows that where time
is the essence of q Contract to do or not
to do q given thing. the terms of the
contract must be complied with in the
time specified, and that IN case the con-
tract IL not SO complied With. the party
of the second part must suffer the con-
sequences. The only question to be de-
termined with references TO the contract
between the United States and the
Northern Pacific Railroad Company il
this: Was time the essence of the CON.
tract? That time is tue essence of the
contract perhaps NO one would attempt
to dispute, unless paid to do 80 by the
company. Even though the act itself
had cont aimed no express limit as to
time, 1t would be prepostcrOus TO sup
pose that the Government would have
to wait forever in order to determine
its right to resume control of land
granted upon condition that desired
road should be built through a specified
1t is now generally cor ceded
that the Northern Pacific Company has
no intention of building the road down
the Columbia River, between Wallula
and Portland. Assuming this to DO a
fact, and that Congress really has no
right to take advantage of breach in |
The agreement with respect to time, we |
must logically conclude that vast tract |
Of public land, included in the grant |
the points named. must remain |
from purchase until the crack !
Of doom, Hence We remark that the |
AZ ertion put forth by railroad hirelings, |
TO the effect that the Governments has |
no power 10 resume possession of these |
lands, Is too preposterous to admit of |
discussion even on general principles. |
But that time is the essence of the con
tract In this instance need not be left to |
1t is shown BY the word |
inc OF the law IN numerous places, Sec |
ton eight even going SO far as to pre- |
scribe that certain number of miles |
must be built each year, and that the |
whole road must be fully completed by |
July 4, 1876 The same restrictions as |
TO time were incorporated in the acts |
the period for the ROADS CON- |
pletion. 1t was not merely the building
Of road that the Government soHght |
to encourage, but the building of road
within a liked period. La order that
the company might have no reason for
making failure In this particular, am
pie power was given in the granting act
to compel stockholders to pay up their
Eat sach times and IN such
proportions" to use the language Of the
act itself, as they might "deem to be
necessary to complete the road and tele-
graph newithin the time in this act
prescribed"
In view of such explicit language as
the above, and in consideration of the
subject matter of the contract, there can
be no doubt whatever that the essence of
the agreement was time.
1t is commended, however, that because
the Government failed TO assert its right
10 declare forfeiture as soen as the
breach occurred. il is estopped from as
serung that right at all. This IL not q
correct assumption. Ii is an old and
well established legal maxim that laches
never run against the sovereign. The
Cow rnment may assert its legal rights
az any time, and its failure to do 80
within Q given period cannot be plead
ed as q bar to the exercise of the pre-
negative.
Viewed in any light whatever. the Gov
eminent has full and perfect right to
declare forfeiture, just as it has q
right to recede from any other broken
agreement to which it may have become
q party.