The Iola register., 1888-09-07
rm xvxx SECTION CASE

THE xvxN SECTION CASE
In the case Of the United States VS..
the M. X. & T. Ry. Co. aud many 9TH
er defendants in Allen county. pcpu-
larly known as the seven section case''
a joint brief and argument was filed
by Messrs. Hutchins & Keplinger,
Benton & Scott, and Knight & Foust,
attorneys for the defendants. on the
demurrer to the petition. To this.
Judge Lawrence. of Ohio, replied, and
Mr.. Keplinger then filed a reply brief,
at the instance Of the railway company
extracts from which We print below.
The argument is an extremely able one
throughout. These extracts deal
with the popular rather than with the
more technical and legal part of the
controversy; and certainly the long
suffering citizens of Allen county will
recognize the accuracy of the facts and
the force of the argument. The case
is now under advisement by Judge
Brewer.
THE RIGHT OF TIE ATTORNEY GENERAL TO MAIN
TAIN THIS SUIT.
The question we next consider involves prip-
ciples Of vital consequence, which In their Op-
GRAFTON extend far beyond the real parties to
This suit affects the title to twenty-seyen
| Thousand acres Of land. The questions raised
with respect to the rights OF the New York In
| dians equally affect the title to one million
numbering Inhabitants by the ten thousand
on these lands. Nearly II not quite one hund-
| red thousand people have homes upon them,
rant Of any question having ever been raised
as to the validity Of their titles. All this is q
matter OF no consequence. But 1t IL matter
Of very serious consequence whether the in
dividual who for the time being happens to be
| the Attorney General has the power merely by
virtue OF his Official position to institute suit
| to cancel these patents, merely because they
| to do 30 by virtue Of his ofacial position when
| the interest of the Government whose officer he
is ore to be protected, and ,chere the action is
theory of the iii be true, the Government @ r has
no present interest in the land. 1t is not claim
ed that the lndians themselves ever set up any
claim to these lands. or desired the institution
caprice Of the Attorney General? Might he il
he had felt 30 disposed have brought this suit
Tor the cancellation OF patents for two million
the seventy-five thousand other Inhabitants of
these lands indebted for their immunity to the
imperial grace Of the Attorney General, and do
they hold their homes ON by 90 uncertain tenure
cessorp Is there no Limitation upon the power
Of the Attorney General In this matter? Is It
Cor him to say when or whether be will. pro
ceed, and when he elects to do so must he pro-
ceed against all? or is he q veritabIe Jupiter
TOnans. at liberty to launch his thunder now
here, now there: against any particular class
political or personsl friendship or hostiiity
OF caprice, may direct?
Again, a. to great portion of these lands,
the bill comedies the plaintiff has neither legal
patents, and the settlers are entitled to the
patents, is the plea. Now, by what authority
does the Attorney General place the United
ties in controversy over . subject matter in
which plaintiff has no interest? That the Gov
ernment itself can assume such attitude we do |
eG cSnGSede; put @ ~ can the question ,rhsiher il
erecufire policy.
II the Attorney General can introduce the
United States as litigant In one case in which |
And If not. what are the limitations upon his |
power In this respect, and by what marks are
the cases In which he may do 30 to be distiDgu- |
and who is to determine whether any partic u |
lar case comes within one class or the others /
Why should the United States be permitted to |
take sides against us In this matter? We, too, /
are citizens OF the Government, and in every
way that citizens may we have contributed to
the upholding and maintenance of the Govern
ment. For Years we have paid the taxes on
the Attorney General is our officer. and we are
entitled to have his time and ability devoted to
the public service. Out Of our funds we bear |
the expenses of our side Of this litigation. Why
shall our opponents have the prestige of the
Government on their side, and be permitted to
resort to the public treasury for the payment
OF their lawyers and the expense Of litigation?
paid for the lands they occupy, and who have
themselves paid the taxes thereon, who receive /
no such favOre. The Attorney General in this
attitude OF an offcious intermeddier in matter
which IL absolutely none of the Governments |
business. This action is in the line of the same
policy which caused Commissioner Sparks, on
the lath Of March, 1883, Is Land Decisions. 4sl)
to reccomend that the Attorney General sbe
requested to institute proceedings In the Unit
ed states Court for the purpose Of restraining |
from prosecatlng any suits against ssttiers'; -;
pending this action. The same policy also 1
caused Commissioner Sparks, on the 2lth Of
ss hf
Attorney be instructed to appear in such cases
in the State Court, and take such steps, and file
such ~ papers a. a. may bs necessary TO protect
the Executive Department Of the Federal Gov
ernment should ever be SO forgetful or 80 igno-
rant Of Its appropriate sphere as to make such
ereignty without an invitation, whether such
appearance be with or without legal process,
we trust It will be at time when the State
courts are presided over by judges who have
intrusion. Whether the United states may in
any case appear as the champion of one citizen
against another, where It has no interest In the
In the case OF United States Ss. Minor ia U. s.
That 1t cannot be done Is expressly held in the
same case, in p Fed; Rep. 7E. But that ques-
not the Attorney General. by virtue of his OFF,
cial position, and without any legislative di-
rectiOn. has power to intrude the United States
70 party In snch controversy, and not only
sythe power Of the Government shall be enlist
d, is very different question, and is the pre-
else question herein involved.
The very same logic that establishes the
right of the Attorney General to institute this
suit in the name Of the United States establish
,s the right OF his successor to dismiss it and
institute general ejectment action in the
name OF the United States against the settlers,
y our behalf, for the recovery Of these lands: ,
q the person who happens to fill the Office Of
attorney General is endowed by virtue Of his
,Dewhich the most despotic monarch of thous !
ind years since might have envied. If no pre-
'edent can pe found which denies him this {
IAN be maintained in the name Of the United !
'tates on behalf Of private party, the statute
Il limitations that would apply II suit were i
,rought by the real party In interest applies.
U. s. rs Minor, q Fed Rep. 672; U. 3. rs. San I
acinf0 Tin Co. 8. Fed. Rep. 1911 Ii
This action Is in the nature Of an attack on q n
.atent by one in possession who claims to have :
he equitable title.
Section s5 OF the code provides that 'when | \
light Of action is barred by the provisions OF
ny statutes it shall be unavailable either asa
ause OF acton or ground of defense"
Mdine R0unP II KanR 6l1 holda haf Il
Ot the ffteen-year statute Of ltimitai0n, il notl