Union River Logging Railroad Company.

match boxes of the kind mentioned were exempt from duty under what, it seems to me, was a mistaken view of Oberteuffer v. Robertson (116 U. S. R., 499); for when the language of the Supreme Court is applied to the facts of that case, where there was no pretense that the boxes or coverings in question could have been designed for any other purpose than the bona fide transportation of their contents, it is quite evident that the case does not bear the construction placed on it by the learned circuit judge. No question arose in that case as to any ulterior use of the boxes or coverings in controversy, and I can not see that the mind of the court was directed to any such question.

But, however it may be with reference to match-boxes of the sorts mentioned, it seems clear to my mind that such things as boxes or cases for philosophical instruments, made of expensive woods, with useful or ornamental mountings, were not intended to be free of duty.

Very respectfully, your obedient servant,

W. H. H. MILLER.

The SECRETARY OF THE TREASURY.

UNION RIVER LOGGING RAILROAD COMPANY.

Upon the statement of facts submitted respecting the use by the Union River Logging Railroad Company (a corporation formed under the laws of Washington Territory) of Government timber standing along the line of its road: Adrised that such use of the timber was wholly unauthorized, and that proper steps should be taken tosecure indemnity to the Government, and to bring to justice the individuals who have been concerned in violating the law for the protection of its property.

The grant made by the act of March 3, 1875, chapter 152, of a right of way through the public lands, with the necessary land for stations, etc., was meant for railroad companies intending to operate roads as common carriers for the benefit and convenience of the public, and not for the benefit of the companies solely.

Where a railroad made application to the Secretary of the Interior with a view to securing the benefit of the said act of 1875, and its articles of incorporation and map of definite location were approved by the Secretary, but it afterwards appeared that the action of the Secretary was based upon a mistake of fact caused by the representation of the railroad company itself, and that the application was for a purpose

Union River Logging Railroad Company.

not within the statute: Held that it is competent to the Secretary to recall and annul his action approving the line of definite location of the road and entering the same on the public plats.

DEPARTMENT OF JUSTICE,

May 4, 1890.

SIR: I have duly considered your communication of the 30th March, 1889, asking an opinion on the following questions:

(1) Whether judicial proceedings should not be taken by the United States against the Union River Logging Railroad Company, to obtain indemnity for timber depredations committed by that company, and also against certain persons who are or have been officers of said company to punish them for violations of the law for the protection of Government timber.

(2) Whether the action of the Department of the Interior approving the line of definite location of the said company and entering the same on the public plats under section 4 of the act of March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States (18 Stat., 482) should not be set aside, and, if so, whether that can be done by the Department itself on the state of facts set forth in your communication, or whether a judicial proceeding would be more appropriate for the purpose of having it adjudged that the public lands through which the company's line of definite location passes are not subject to the right of way and other privileges and easements granted by the act of March 3, 1875.

As I am not at liberty, under the law, which requires the Attorney-General to give his opinion "upon questions of law" (Rev. Stat. §§ 354 to 357, inclusive), to make a finding of facts, I lay aside the evidence submitted for my consideration, and take as the case for opinion the statements contained in your communication.

In 1883 a corporation styled the Union River Logging Company was formed under the laws of Washington Territory, for the purpose of building, equipping, running, maintaining, and operating a railroad for the transportation of saw-logs, piles, and other timber, and wood and lumber, and to charge

Union River Logging Railroad Company.

and receive compensation and tolls therefor, the line of said. road being intended to run from a point on tide water in Lynch's Cove, at the head of Hood's Canal, in Mason County, and running thence in a general northeasterly direction a distance of about 10 miles to a point at or near the northeast corner of township 24 north, range 1 west, Willamette meridian."

On the 17th of August, 1888, the railroad company filed "supplemental articles of incorporation" in the office of the secretary of the Terrri tory, in conformity to law, providing for "a line of road from a convenient point on tide water, in Lynch's Cove, at the head of Hood's Canal, in Mason County, and running thence in a general northeasterly direction to a convenient point on tide water in Dyes' Inlet, in the county of Kitsap, in said Territory; and also a branch from said line at some convenient point thereon between Lynch's Cove and Dyes' Inlet, and running thence in a general northerly direction to or near the town of Seaback, on Hood's Canal, in the said county of Kitsap; and also a branch from some convenient point on the line of said road between said Lynch's Cove and Dyes' Inlet, and running in a general northeasterly direction to tide water at or near Port Orchard, in the county of Kitsap."

The supplemental articles declared that the object of the company was "to maintain and operate said railroad and branch to carry freight and passengers and to receive tolls therefor, and also to engage in and carry on the general log. ging business, and provide for the cutting, hauling, transportation, buying, owning, acquiring, and selling all kinds of logs, spars, piles, lumber, and timber, as provided for in the original articles of incorporation."

After the filing of these supplemental articles, to wit, in January, 1889, the railroad made application in due form to the Department of the Interior, with a view of securing the benefits of the act of March 3, 1875, and on the 29th of Jauuary, 1889, "the articles of incorporation and maps of defi nite location of said Union River Logging Railroad Company were approved by the Department as being in conformity with the act."

Between 1883, the year of its incorporation, and the pres

Union River Logging Railroad Company.

ent time the company has constructed only 5 miles of road, and it not only has used Government timber standing along the line of the road for the purposes of construction, but it has taken and appropriated that timber for other purposes. There can be no doubt that this use of the timber was wholly unauthorized, and that proper steps should be taken both to secure indemnity to the Government and to bring to justice the individuals who have been concerned in violations of the law for the protection of this valuable property, and when requested I shall promptly give the necessary instructions to begin the proper proceedings for the attainment of those objects.

This disposes of the first question.

The second question requires more consideration.

While the charter of the railroad company, particularly as amended, describes a corporation intended to exercise the public calling of a common carrier of passengers and freight as well as to carry on the logging business, as provided for in the original articles of incorporation, the fact is that the company is and has been exclusively occupied in the logging business, and that all the carrying it does or has been doing is for itself alone and the promotion of its own private business; and it further appears that owing to the absence of population in the region where the road is located it is impossible for the company to do the business of a common carrier, because there is as yet no public there to furnish such business.

There is no room for doubt, I think, that the privileges granted by the act of March 3, 1875, to any railroad company, duly organized under State, Territorial, or Federal authority, of a right of way of 200 feet in width through the public lands, with the necessary lands for stations, shops, etc., together with the right to take earth, stone, timber, and other material from the public lands adjacent to the line of the road of such company, were meant to be extended by Congress to railroad companies intending to operate roads for the benefit and convenience of the public as common carriers, and not for their own benefit, except in so far as that benefit represented a return for their public services. This view is placed beyond doubt by the third section of the

Union River Logging Railroad Company.

act of 1875, which gives the Territorial legislatures power to provide for the condemnation of "private lands and possessory claims on the public lands of the United States" for the benefit of the railroad companies entitled to c'aim the priv leges of the act; and it is almost needless to add that Congress can not be presumed to have had it in contemplation in this statute to authorize the right of eminent domain to be used for the benefit of a merely private or trading corpora tion. This makes it quite unnecessary to inquire whether Congress could authorize the use of the power of eminent domain in any such case.

It is unnecessary to consider whether the benefits of the act of 1875 are open to a railroad company that proposes to be at once a common carrier and a private business corporation, because it is to be taken by me as a fact, that, at the time of its application to the Department of the Interior, the Union River Logging Company had no other intention than that of operating its railroad for the purposes of its own private business, as it had been doing previous to its application.

There can be no doubt that, for the benefit of settlers as well as its own, the Government has the right to have an authoritative declaration made that the public lands through which the line of the railroad in question runs are not subject to the burdens imposed by the act of 1875; and this brings me to the consideration of the question whether the Department of the Interior has the power to make such a declaration and so to aunul or recall its action approving the line of definite location of the railroad and noting the same on the plats of the Land Office in supposed conformity to the fourth section of the act of 1875.

It is manifest that the action of the Department was upon a mistake of fact, caused by the deliberate representation of the railroad company itself, that it intended to engage in the business of a common carrier in reality, and not on paper merely; whereas, as subsequent inquiry has shown, the company not only did not but could not have reasonably had any such intention.

It follows, then, that the application to the Department was for a purpose not authorized by law, and that the action