Page:Speeches, correspondence and political papers of Carl Schurz, Volume 4.djvu/210

176 seem that the safe course for the Department would be to return to its original construction”; but after quoting the conflicting opinions of judges, the Attorney-General says, in the most positive language: “In direct answer to your second inquiry, I am therefore of opinion that the road is entitled to indemnity, provided the lands can be found within the proper limits, for the lands which it may have lost by reason of the fact that lands within the granted limits were sold or preëmpted previously or subsequently to the date of the grant.” And then the opinion concludes in these words: “In view of the interest manifested in the question by you, and on account of their relation to other railroads than the one immediately concerned, I have felt it my duty fully to hear arguments of all other parties who have deemed that rights might be affected by any opinion which should be given in the present case.”

Do you find it still a little remarkable that I should have asked for a legal opinion in this matter, or that, when it had been given with such positiveness and so unusually solemn an assurance of careful consideration, I should have deemed it my duty to follow it? If you do, you will have to find it “still more remarkable” that, subsequently, Justice Miller, of the Supreme Court, in the case of Barney vs. Winona, and St. Peter Railroad Company vs. McCrarys (Report 421), decided, United States District Judge Nelson concurring, as follows:

I am of opinion that, by the true construction of the act of Congress of March 3, 1857, granting lands to the territory of Minnesota, the indemnity clause was intended to include alternate sections within the prescribed limit which had been sold by the United States or lost by preëmption prior to the date of the grant, as well as such as might be sold between that time and the location of the road. And without further comment on the cases of the Leavenworth, Lawrence and Gal-