New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-06-27
hA-sECRETARY r. A. BALLINGER'
Vhoto copyright by Harris G. Ewins)

of human testimony, however. does not
preclude a more lenient judgment This
is a case where the substance Of trans
action was different from its form. ana IN
which the form was adopted solely III on
law which required that particular form.
In such circumstances 1t is neither uI
natural nor unusual that under an attack
the participants should later persuaue
themselves that the form was, IN TACT lEc
substance but in seeking To ascertain now
what was then substance and what was
merely form, the present deciarations OF
the parties are far less significant thah
are their words and acts during the prog
ress of the transaction Itself
Commissioner bennett presents most
careful review of the entire history of the
Cunningham claims from the time when in
1902. Clarence Cunningham visited Alaska
and examined the lands. and in 1898 re
turned. bought out the alleged rights OF
certain souatters and filed claims with the
local land office. down to the present time.
The Commissioner shows that as early as
1902 some agreement" was entered into;
that Joint fund was subscribed; that al
first Clarence Cunningham was 70 receive
an eighth interest for his services. but that
later this was changed to a salary OF 5000
a wear: that one of the claimants. one PEEL
testified that he expected corporation
would be formed. bonds issued. docks ana
q railroad, etc. acquired when he went INTO
the scheme: that in May 1903. there We're
twenty-three claimants for twenty-five
claims. that in June other sQuatters had
been bought out. being paid out or the JOINT
fund. and that the twenty-three locators
had thirty-one and one-half claims; that
during the summer Of 1904. when there were
still only twenty-seven subscribers 10 V"e
ioint fund the number of claims had peeii
Increased to thirty-five; that the cost ol
surveying the group of claims was PAID out
of the common fund, and that to meet tils
exnense an assessment OF $40 each was I'M
noead on the subscribers. followed by SUD-
seauent equal assessments.
The minutes OF the meetings OF the claim
ants are reproduced. by which II is shown
,ho, tho claimants are referred to therein
90 ..,,,er,hers" IL is shown that Governor
,,oora u,ho was one of the claimants, ana
.,,,bo later anpeared in Washington as their
oo,,nse1 made an affidavit that there had
neen only "a tacit agreement between the
claimants hut il is also shown that TINS
",aci,'' agreement was drawn up IN VIII
ing and was formally dPPioN'" ~ " ~
ing Of the members.
Unlawful Purpose Established
Summing up his findings. Commissioner
bennett says
Carving into effect the purpose Of &C
ouiring this coal field for the common use
and benefit Of the mem nels 81 VIZ ID
lion claims were located and entries mace
tn H. names of individuals, but me making
Of these locations and entries III INC hiah
NV indicated were but incidents IN the
,ransaction hut means to an end, ana tne
a,,,oe ~ tho individuals We're used only 10
nefect a colorado compliance with me la"
Each location was made ana eaGn IRA
was entered with the unosIsI ,4 g ar" io
under an agreement that the amos so 10
ted end entered should be held Tor 'he
common use and benefit OF al me inenprIS
in the association. ana II was lui - IN ~,
Iarstood and agreed that the claims To-
ca,ad and entered for tire common use
ard benefit should he consolidated nlo one
nropertv and taken over by cotp"I d'Io l
- he organized by the members or the as
Tbev exercised no choice In the selection
NJ their claims. manifested no interest," IN
their individual values, ana ,eN .isp per.
bsne Reker) sought no informauoh az 20
tLt~ resDective locations. The field joln,ly
oooI,ire6 nv all OF them and explored az
he common expense was the only OBJECT
of their solicitude.
The charges. therefore hrs'' mat 'ne
several locations. filings and entries We're
v,,rs,,apt To an understanding and
ooroon,ont entered into by all the claim
ants prior to location 10 combine the SeN
oral claims for the joint use ana peheH'
~ all the claimants; second that each ~
cation. filing and entry was name WIN
tho unlawful purpose and intent uat 'le
titles acquired hereunder should lnure I"
,he use and benefit OF an association or u
cornoration formed 10 be formed by the
sevoraI claimants; third. that no mime oi
coal yvas opened or improved on any oil
,bo several tracts located and entered. are
,ourd to be fully sustained ana the en-
tries are ordered cancelled.
amended TO the decision Of the Com
.,t,gtoner of the General Land Office IL
,ta concurrence If The Secretary Of the
Interior. in the form Of letter 10 H. Z
,I,,ohes counsel for the claimants, In
,yhich the Secretary says in part;
ho,,e carefully considered the printed
n" The records of the cases and the
n,oton and Judgment Of the commission
or In my opinion. the findings ana con-
cIusjons OF the Commissioner are correct
History of the Case.
Ae the cancellation of the Cunningham
Inns Is in a serse. the final chapter IN
,ho famous Ballnger-P inchot controversy
. br,ef review Of the incidents connected
Herewith is apropos.
clarence Cunningham. acting ostehs'oy
os the attorney Of a group OF thirty-three
,ocators. filed I'm July and August i"''
u,,b the local land office at Juneau thirty
,hree claims. OF 16O acres each' 10 coal
lids in Alaska. The usual slow processes
~ the General Land Office were empioyeo
90 investigate the legality OF these Claims
w Richards. Ex-Governor or "yohi'"b'
.os then Commissioner Of the "eheidl
,nd once on September ]. 1914 All
Alaska coal lands other than those on
Itch valid entries had been hled were
,,,,bdrawn from entry by President hoose-
''oI, In october. 1907. the required lee Vi