The San Francisco call., 1897-10-05

Thereisno legal authority for the course
now being pursued by the administration
regarding the foreclosure sale OF the Union
Pacific property. Under the Thurman act,
which is the last and controlling legisIa-
tion on the subject. it is the duty of the
Secretary of the Treasury, under the cir
cumstances that have arisen, to pay the
first mortg, tee bonds of the Union Pacific
Railroad and TO take and operate the road
for the account of the Government until
Congress shall authorize its sale or other
disposition.
There is not the slightest authority fo-
the sale OF the property on foreclosure or
otherwise for less than the whole amount
due to the Government of the United
States over and above the first mortgage
indebtedness. Ihdeed, know of no law
authorizing the Attorney-General or the
President, or any other part or the whole
Of the executive department of the Gov
ernment, TO submit the Governmen nt's
rights or interests in the Pacific railroads
10 the adjudica ton of any court or courts.
The Government of the United States
cannot be sued, nor can any right which
il claims be cut off by the adjudication of
any court without its consent to such SUIT
or adjudication given by an act of Con-
gress. Therefore, in my opinion, the
entry OF the appearance of the United
States Government by the Attorney Gen.
eral, or his representative, Mr.. Hoadley,
in the foreclosure suit, was Unauthorized,
and the decree of the court, in so far as it
purports 10 Deal with the rights or in ter
ests or liens OF the United States Govern
ment In the roads, is void for want OF juris-
dictlon.
l! The court bas jurisdiction, the course
being pursued is grossly and fagrantly
wrong. because by Ii the administration
is abandoning more than $40. 900 000 of the
Governmeni's claim contrary to law.
1t is contended in support of the admin
istration's policy that the so-calle q upset
price for which the administration is 10
consent to the sale on foreclosure is the
full market value of the road and that it
Is better for the Government to let the
property go at that price than to take the
road and pay the first mortgage as the law
requires. To discuss this question would
involve the admission that Federal
officer or that the Executive Department
of the Federal Government has ri ght to
override or TO refuse to obey or execute a
Federal law which he or it believes to be
unwise. This is not TO be tolerated and
ii it shall be tolerated by the present
Congress another Congress will ere long
be elected which will make this act of
resurpation memorable in The history Of
the country and will so deal with 1t that
no future administration and no future
Congress will be likely to commit SINH
lar offense against the authority and su-
premacy of the law.
Ii the scaeme now on foot should be
carried out and the road sold to the Fitz-
gerald syndicate for S20000000 less than
enough to pay the Governments claim,
it would be done without any color of
legal right on the part of the admins
tration. and solely upon the hope of prob
able conformation and possible ratification
by the present Congress.
1t is probable that the administration
can prevent impeachment or rather hos
tile action by this Congress, which will
amount to conformation by silence; but it
is not probable that affirmative ratifica.
ton can be secured.
JAMES G. MAGUfRE.