Senator SUTHERLAND. Then taking your view of this, in which I concur, Congress would have no power to increase the price of the land.

Mr. GARFIELD. I would not say that Congress has no power. Senator SUTHERLAND. Certainly, after the patent has been issued, Congress would have no power.

Mr. GARFIELD. It would not.

Senator SUTHERLAND. If the final receipt is the equivalent of the patent, and the patent is merely evidence of title, then would it not be equally clear that Congress would have no power to increase the price after the final receipt had been issued?

Mr. GARFIELD. In view of some of the decisions of the Supreme Court, I think it is a question open at least to doubt, Senator.

Senator SUTHERLAND. At any rate, I take it from what you said, that even if Congress has the power you would not have favored the idea of increasing the price to those entrymen, assuming the state of facts to be as I have already assumed, after the final receipt had been issued.

Mr. GARFIELD. I agree with that, provided our definition of good faith is the same, and I think it is the same from what we have said here to-day.

Senator SUTHERLAND. Then that brings us to the point that the only reason, as I understand you, that you have in your mind for making the difference as to the price was that the parties were permitted to consolidate their claims under the new law.

Mr. GARFIELD. I did not quite catch your question.

Senator SUTHERLAND. Assuming these facts to be as I have stated, namely, that the entry was made in good faith, that final receipt had been issued, then the parties would get patent under the old law. Mr. GARFIELD. Under the old law.

Senator SUTHERLAND. And if they went to patent under the old law would you not be in favor of Congress increasing the price even if it had power to do so?

Mr. GARFIELD. I had not considered that question because from the executive point of view I certainly would have issued patents under those circumstances.

Senator SUTHERLAND. I will get the state of your mind now. Were you then in favor of Congress doing that; do you think it would be right or proper for Congress to increase the price?

Mr. GARFIELD. It might be under certain circumstances; yes, sir. Senator SUTHERLAND. Can you indicate to me any circumstances under which you think it would be proper.

Mr. GARFIELD. Yes; I think if it were found that under such conditions the interests of the public would be seriously injured, by permitting the property of the Government to be disposed of at a price that seemed to be inadequate, that Congress, if the power rested in it, might properly, under such cases as would protect the public interests-under such circumstances, there should be some compensation made to those who had proceeded under the old law.

Senator SUTHERLAND. By increasing the price of the land to such people, to be paid for land to which people had acquired a vested right.

Mr. GARFIELD. Under the circumstances I have indicated there might be conditions which would justify such an increase, but, as I

say, with proper compensation for any vested right that might have been acquired or any money that might have been expended in the perfection of that right up to that date.

Senator SUTHERLAND. Why were you in favor of increasing the price in this particular case?

Mr. GARFIELD. It was not confined to that particular case, Senator. The reason, I believe, for increasing the price was that under the existing law, applicable to the mainland coal, the Secretary then had the power to reclassify and increase the price, and I believe it ought to have been done. It was impossible under the Alaska law to do so, as the price was a flat $10 an acre.

Senator SUTHERLAND. Were you in favor of increasing the price whether the party had proceeded under the old law or proceeded under the new law; you were in favor of increasing the price in either event?

Mr. GARFIELD. Under the new law, which I advocated, only goodfaith entries could have been consolidated. Therefore they were in no better condition so far as price was concerned under the new law than under the old law, and that was based on what I have stated, that under the conditions at that time it was right to permit the goodfaith locators to consolidate under the law at $10 an acre.

Senator SUTHERLAND. At the flat price?

Mr. GARFIELD. At the flat price of $10 an acre. Yes, sir.

Senator PURCELL. Mr. Garfield, do you understand that before a patent is issued that an entryman has a vested right in that landbefore a patent is issued?

Mr. GARFIELD. Only to the extent I have indicated.

Senator PURCELL. Is it not a fact, Mr. Garfield, that he simply has an inchoate right, which may ripen into a vested right on the performance of certain things?

Mr. GARFIELD. It is what is termed an "equitable" right.
Senator PURCELL. Or an inchoate right?

Mr. GARFIELD. Yes, sir; it is a definition of terms.

Senator PURCELL. That differs from a vested right, does it not? Mr. GARFIELD. Yes, sir.

Senator PURCELL. It is not nearly as strong or as valuable.

Mr. GARFIELD. You are right, in a strict definition of terms. Senator PURCELL. Now, is it not a fact that an entryman does not get a vested right until he receives his patent?

Mr. GARFIELD. That is the final evidence of the completion of the transaction.

Senator PURCELL. Yes. Now, is it not more than that; is it not an actual transfer by the Federal Government to the entryman of its interest in those lands?

Mr. GARFIELD. Yes; but it may be canceled even after that upon showing for fraud.

Senator PURCELL. That is right in a case brought by the AttorneyGeneral, however.

Mr. GARFIELD. Yes, sir.

Senator PURCELL. Yes. The Department of the Interior could bring that action.

Mr. GARFIELD. The Interior Department would initiate the action and present it to the Attorney-General for his action.

Senator PURCELL. Yes. Now, that being true in regard to the patent, that is not true in regard to the issuing of a final receipt.

Mr. GARFIELD. By no means.

Senator PURCELL. You always have control of it, while the final receipt is evidence of title to the entryman. Until patent issues it is in the jurisdiction of the Interior Department.

Mr. GARFIELD. Yes, sir.

Senator SUTHERLAND. Mr. Garfield, of course that is a question of law. I understand it to have been held uniformly that where the purchase price has been paid for the land and the final receipt had been issued that that was the equivalent of the patent, in so far as the homestead entryman in the case of a homestead might sell his land-might mortgage it if he could-and the deed would be good; is that not your understanding of it?

Mr. GARFIELD. No, sir, I think not, Senator. I think that a mortgagee or an assignee taking a title under those circumstances subjects himself to any equitable action that the Government might have against the original entryman, whereas if he takes it after patent issues there is quite a different interpretation of the law.

Senator SUTHERLAND. For fraud occurring prior to the final payment for the land the Government could refuse to issue the patent, or, having issued the patent, it could, for fraud occurring, set it aside, could it not?

Mr. GARFIELD. Prior to the issuance of a patent the Government would not be limited to the proof of fraud to refuse a patent. It might be mistaken. There might have been a mistake. That would not be fraud, but after the issuing of a patent the Government is then limited to the proof of fraud if it seeks to cancel.

Senator PURCELL. Yes; and the court has jurisdiction. Nobody else has jurisdiction but the courts.

Mr. GARFIELD. No one else.

Mr. GRAHAM. In that case I assume the Government's right of action would be limited to the patentee, not extending to an innocent purchaser or mortgagee.

Senator PURCELL. That is not true, however, before patent.
Mr. GRAHAM. That is after patent.

The CHAIRMAN. The rule is, and the Supreme Court has passed on it, that where the case has gone to final entry and the entryman has a final receipt, if up to that time he has complied with all the provisions of the law, and there is no fraud about it, he is the equitable owner of the land, absolutely entitled to a patent. That is the law passed upon by the Supreme Court.

Senator PURCELL. They go, as I understand it, Senator

The CHAIRMAN. And they have no right in that case to refuse them a patent.

Senator PURCELL. But the question is in regard to the title. The title, however, does not pass from the Government until the patent is issued.

The CHAIRMAN. Not the legal title, but he is the equitable owner. Senator PURCELL. Now, when the patent is issued it reverts back to the date of issuing the receipt you speak of, but until that patent issues, the Secretary of the Interior has control of that land and can set aside that receipt.

The CHAIRMAN. No; he can not, unless there is ground for it.
Senator PURCELL. Of course there must be ground for it.

Senator SUTHERLAND. I am not speaking of a legal title, but of a vested right. A man may have a vested right without taking a legal title.

Senator PURCELL. Surely, and they term those titles at least our courts do an inchoate right that may ripen into a vested right on the performance of certain things.

The CHAIRMAN. The Supreme Court had held that when final entry is made and the price paid and receipt issued, and the provisions of law complied with, that the entryman is the equitable owner and absolutely entitled to his patent.

Senator PURCELL. Yes; but there are cases, Senator, in court-and you remember them-where the receipt has been issued, and the entryman has borrowed money on it and he has sold the land to a third party, and yet the Interior Department has set aside that receipt and canceled his entry and thrown the land open to settlement to somebody else.

The CHAIRMAN. That is where the law has not been complied with. I am referring to cases where the law has been absolutely complied with.

Senator PURCELL. But as a matter of fact, the Interior Department always determines, and they determine that fact alone.

The CHAIRMAN. Where the man has absolutely complied with the law in every respect and has his final receipt he is entitled to a patent, and can secure it. It is simply a ministerial act.

Senator PURCELL. But the Interior Department determines the fact whether he has complied with the law or not, and their determination of that fact can not be reviewed by the courts.

The CHAIRMAN. Oh, yes; it can.

Senator PURCELL. Only on the question of law.

The CHAIRMAN. It can be determined. If the man has absolutely complied with the law the Interior Department has no right to withhold the patent.

Mr. PEPPER. Mr. Garfield, I understand that you are in no doubt about this point, that after locators have made applications for patents and have proved up and paid the coal-land price, and have obtained final receipt, and have not as yet obtained a patent in the interval, they have what has been denominated an equitable title, which is a disposable interest under the decision that the chairman has referred to.

Mr. GARFIELD. That is correct.

Mr. PEPPER. Whether or not it is a vested interest depends upon whether or not Congress has not the power to do the thing that you refer to, namely, to make the grant of the patent conditional upon payment of an enhanced price.

Mr. GARFIELD. That is the correct statement.

Senator SUTHERLAND. Would it not be equally true to put that the other way-if it is a vested interest Congress has no power to do it? Mr. PEPPER. Yes, sir; if it is a vested interest, Mr. Garfield, then it imposes, among other things, that Congress could not take the vested property rights or make the retention of it dependent upon the payment of an enhanced price?

Mr. GARFIELD. That is quite right.

Mr. PEPPER. On the other hand, if it is not a vested right such congressional action would be proper.

Mr. GARFIELD. That is right.

Senator FLETCHER. May I ask one question there, Mr. Pepper? Mr. PEPPER. Certainly.

Senator FLETCHER. Do you understand that after the final receipt has issued that the entryman has the right to go on the land and cut the timber from it or remove coal from it?

Mr. GARFIELD. No, sir; he has not.

Mr. PEPPER. Whichever way that question of vested right is determined, I understand you to say that in point of fact you did not at the time we are speaking of contemplate legislation increasing the price to be paid by those who had in good faith proved up their claims and became entitled to patent.

Mr. GARFIELD. That is correct.

Mr. PEPPER. With respect to such entries as might be determined not to have been made in good faith, your position was what?

Mr. GARFIELD. That those could not be consolidated unless they were consolidated and paid for at a price to be fixed by the Secretary upon a revaluation.

Mr. PEPPER. And your understanding of the provisions of the Cale bill and of the amendment suggested by Mr. Ballinger at the hearing is what on this point?

Mr. GARFIELD. That as to the existing locations, whether they were, as defined by the last section, good faith or not, could be consolidated at $10 an acre-the old price.

Mr. PEPPER. Then, as a practical matter, as the Cunningham entries were either entries that had been made in good faith or not, if they were ultimately to be determined to have been made in good faith they might have come in under the old law, notwithstanding the Cale bill?

Mr. GARFIELD. They could.

Mr. PEPPER. On the other hand, if they were ultimately determined not to have been in good faith the entrymen had what right under that bill?

Mr. GARFIELD. Under the Cale bill they would have the right to have consolidated their entries up to 2,560 acres and pay therefor the sum of $10 an acre and subjected themselves to the first provision of the Cale bill.

Mr. PEPPER. Now, then, having these various measures before itand I refer to the three Alaska measures that have been mentionedwhat action, if any, did the department take respecting the Alaska legislation?

Mr. GARFIELD. The action of the department is evidenced by the report which I sent to the Senate Committee on Public Lands, having reference to the Heyburn bill-Senate bill 6805, I believe. The CHAIRMAN. You sent in a substitute bill.

Mr. GARFIELD. I sent in a substitute bill, which substitute bill was afterwards adopted by Congress and signed by the President, and that bill limited the consolidation to the entries that had been made in good faith and for the interest of the original entrymen.

The CHAIRMAN. And that is the measure which is now known as the act of May 28, 1908?

Mr. GARFIELD. It is.

Mr. PEPPER. What, if anything, in March, 1908, did you know about the authorship of the Cale bill?