authorizing it to construct its road from Amelia Island, on the Atlantic, to the waters of Tampa Bay, in south Florida, with an extension to Cedar Keys, in east Florida, under the provisions of the internal improvement act.

By act of Congress of May 17, 1856, a grant of lands was made to the State of Florida to aid in the construction of a railroad "from Amelia Island on the Atlantic to the waters of Tampa Bay, with a branch to Cedar Keys, on the Gulf of Mexico," being the precise line designated in the internal improvement act, and in the amended charter of the Florida Railroad Company.

Acting under this authority, the Florida Railroad Company, in 1857, filed in the General Land Office the map of definite location of that part of the main line of said road from Fernandina (Amelia Island) to Waldo, and of the branch line from Waldo to Cedar Keys, and commenced the construction of the road on this part of the line, completing it in 1860. On December 14, 1860, the company filed a map of definite location of the remaining portion of the road from Waldo to Tampa Bay.

Passing upon the question as to the right of the Florida Railway and Navigation Company to the benefits of this grant, as successor of the Florida Railroad Company, Secretary Lamar, in his decision of August 30, 1886, said:

The act of May 17, 1856, granted to the State of Florida, for the purpose of constructing the road aforesaid, six sections per mile on each side of said road, prescribing the manner in which the State might dispose of said lands, and providing that if said road or branch is not completed within ten years, no further sales shall be made and the lands unsold shall revert to the United States. The benefit of this grant was conferred by the State of Florida upon the Florida Railroad Company, whose rights and interests thereunder have been assigned and transferred through its successors to the Florida Railway and Navigation Company. The road was completed to Fernandino via Waldo to Cedar Keys in 1860, and lands inuring for that portion of the road were certified to the State in 1858 and 1860, a map of definite location for such portion having been filed and accepted as the basis of the adjustment of the grant.

Secretary Teller in his decision of January 30, 1884, passing upon the same question, said:

This company was formerly known as the Florida Railroad Company, and by the act of the Florida legislature, made in anticipation of the grant, said company became the beneficiary of the grant. In 1872 the name of the company was changed to the Atlantic, Gulf and West India Transit Company. The route of the road from Amelia Island to Cedar Keys was definitely located in 1857, and the road was constructed in 1860, such construction being that of all of the branch line, and that part of the main line from Fernandina to Waldo.

It will be seen from the extracts above quoted that the Department has directly considered and recognized that the benefits of the grant of May 17, 1856, were conferred upon the Florida Railroad Company, and, acting upon this, the Department, in 1858 and in 1860, certified to the State lands inuring for that portion of the road from Fernandina, via Waldo, to Cedar Keys, which was completed in 1860.

The only question remaining for consideration is as to the right of the Florida Railway and Navigation Company to the benefits of the grant of May 17, 1856, for that part of the road between Waldo and Tampa Bay.

In a speech delivered by Senator Call in the United States Senate, March 3, 1887, and filed with and made part of his application, he says: The fact that the State of Florida had expressly denied to this company (referring to the Florida Railroad Company) the right to the grant of 1856, has never been considered by the Interior Department.

In the same speech he also says:

I had supposed that on the production of the acts of the legislature of Florida and the message of her governor, and the opinion of her attorney-general in December, 1858, that this fact was established; that by an act of sovereign legislation, of full force and effect, the State of Florida did, in 1858, deny to the Florida Railroad Company the benefits of the internal improvement act of 1856, and granted it to another company.

It is evident from what follows, in the speech above referred to, that he has reference solely to that portion of the road from Waldo to Tampa Bay not completed within the ten years required by the act.

This is shown by the ninth ground of objection, embodied in the third general ground, as follows:

That the State of Florida has denied to the Florida Railroad Company the benefits of this grant, and has incorporated and granted to other roads the right of way between Waldo and Tampa, giving to none the benefits of the grant of May 17, 1856.

The act of the legislature of Florida (January 10, 1859), referred to by Senator Call, is the act incorporating the Florida Peninsular Railroad Company, and granting to said company the right of way from a point on the Florida Railroad to Tampa Bay. (Statutes 1858, page 62.)

It is urged by Senator Call that this act denied to the Florida Railroad Company the benefits of the internal improvement act of 1855, by conferring it upon another road, and by necessary implication also denied to the Florida Railroad Company the benefits of the grant of May 17, 1856. He also insists that this was the opinion of the Attorney General of the State, to whom the matter was referred when the bill to incorporate the Florida Peninsular Railroad Company was pending before the legislature.

The question submitted to the Attorney General was whether the "bill to be entitled an act to construct a railroad from a point on the Florida Railroad, in east Florida, to Tampa Bay, under the style of the Florida Peninsular Railroad Company, in any of its provisions does or does not conflict with the chartered rights or privileges of any other company."

He was considering the question with reference to the internal improvement act solely, and makes no reference whatever to the rights of any other road under the act of May 17, 1856. The question was, whether, under the internal improvement act, the Florida Railroad

Company had the exclusive right to build a road between Waldo and Tampa Bay. He says:

While, therefore, the Florida Railroad Company may be entitled to build their road to the waters of Tampa Bay under authority of the amended charter, they are not, in my opinion, entitled to the benefit of the restriction against the building of a lateral road, and hence I conclude there is no provision of the bill referred to your committee which conflicts with the chartered rights of any other company.

The authority of the Florida Railroad Company to build the road from the point of divergence to the waters of Tampa is claimed to be derived from the act to amend the act incorporating the said company, approved 14th December, 1855. There is nothing in this act that I can discover which conflicts with the bill referred to your committee, unless it is determined that all exclusive rights and benefits of the internal improvement act are, by the terms of the said first section, unconditionally conferred on said company. I am, however, inclined to the opinion that the real intent of the first section of the amended act was simply to grant to the Florida Railroad Company the privilege of building their road to the waters of Tampa Bay, and that if they desired the exclusive privileges offered in the internal improvement law, they must conform to the conditions and adopt the course which only secures them to other companies, because to come under the internal improvement law is to come under its conditions as well as its benefits.

But whatever may have been the opinion of the attorney-general, as to the right of the State to grant the right of way from Waldo to Tampa to another road and to confer upon it the benefits of the internal improvement act to the exclusion of any other road, it does not appear that any such bill was passed.

The act granted to the Florida Peninsular Railroad Company the right of way from a point on the Florida Railroad to Tampa Bay, and also the benefits of the "internal improvement fund," to aid in the construction of said road, but it did not deny to the Florida Railroad Company the benefits of the grant of 1856, or of the internal improvement act, or attempt in any manner to impair or affect the rights of any other company. On the contrary, it provided "that the provisions of this act shall not be so construed as to prejudice the chartered rights of any other company."

The internal improvement act of the State of Florida, approved January 6, 1855, provided that so much of the 500,000 acres of land granted to the State for internal improvement purposes by the act of Congress of March, 1845, as remains unsold and of the proceeds of the sale of such lands remaining unappropriated; and also of the swamp lands granted by the act of 1850, and of the proceeds of the sale of such lands that have accrued shall be set apart as a fund to be called the internal improvėment fund of the State of Florida, to be applied according to the provisions of the act.

The act then describes what lines of road were proper improvements to be aided from said fund, among which was the line from Amelia Island to Tampa Bay.

Section 21 of said act provided:

That should the government of the United States grant land to the State of Florida for the purpose of aiding in the construction of the lines of railroad indicated, and their extensions, by general or special act, said lines of railroad shall be entitled to all the benefits and advantages arising from said grant that the State of Florida would be entitled to by the construction of said lines of railway and their extensions.

The Florida Railroad Company was incorporated by an act of the leg. islature of Florida, approved January 8, 1853, and under section 5 of the internal improvement act was entitled to the benefits of that act, being a chartered company authorized to build upon one of the routes laid down in section 4 of said act, having accepted the provisions of the act within three months after its passage.

By act of December 14, 1855, of the legislature of Florida, the charter of the Florida Railroad Company was amended, "so that the said company shall have power to construct the railroad from Amelia Island on the Atlantic, to the waters of Tampa Bay, in south Florida, with an extension to Cedar Keys, in east Florida, under the provisions of an act to encourage a liberal system of internal improvements in this State, approved the 6th day of January, A. D. 1855." This is the precise line designated in the act of May 17, 1856, passed thereafter.

Now, as the 21st section of the internal improvement act provided that the company authorized to construct the road upon any of the lines designated by said act should be entitled to all the benefits and advantages of any grant made by the United States to aid in the construction of said road, there can be no question that the Florida Railroad Company, by the terms of its charter and the provisions of the internal improvement act, was entitled to the benefits of the grant of May 17, 1856, upon complying with its provisions.

The act of May 17, 1856, gave the company ten years in which to complete its road. In pursuance of the requirements of said act, the Florida Railroad Company filed a map of definite location of its road from Fernandina (Amelia Island) to Cedar Keys, via Waldo, in 1857, and completed that portion of the road in 1860. In 1860 the company also filed a map of definite location of the remaining portion of the road from Waldo to Tampa Bay, thereby causing the grant to attach to the specific sections contemplated by the grant along the entire line of the road.

In 1858 the company had contracted for the building of forty miles of the road from Waldo to Tampa Bay, with a continuous extension twelve miles farther, and before the commencement of the war a distance of forty-five miles of the road was graded with culverts and trestles constructed.

At the date of the act incorporating the Florida Peninsular Railroad Company, the right of the Florida Railroad Company under the grant of May 17, 1856, had attached along the entire line of the road,

and having by the terms of that act ten years in which to complete the road, that right could not be divested by the State by incorporating another road with the right to build a lateral line, even if the act pretended to divest the Florida Railroad Company of the rights acquired under the act of May 17, 1856, or of its initial right to this grant under the internal improvement act of January 8, 1855, because the title of the State was that of a mere trustee, and it had no power to divest the rights of the beneficiary which had been attached, having up to that time fully complied with the terms of the grant.

But a reference to the act incorporating the Florida Peninsular Railroad Company shows that it was not intended to impair, or in any manner affect or divest, the rights of the Florida Railroad Company; nor was the grant to the Florida Peninsular Company of the benefits of the internal improvement act inconsistent with the rights previously conferred upon the Florida Railroad Company, or a denial of the benefits of the grant of May 17, 1856.

It is also urged by Senator Call that the grant has expired and that the legislature of Florida made declaration of the fact that the company was not entitled to the benefits of this grant after the expiration of the time required by the act for the construction of the road.

The declaration referred to is the following resolution of the legislature of Florida of 1868 and 1869:

Whereas, by reason of the conflict of arms which prevailed in this State between the years of 1861 and 1865, it became impracticable to proceed with the construction of the roads comprehended in the system of internal improvement adopted by this State, whereby the grant of lands made by the United States in aid thereof, so far as applicable to the unconstructed portion of said system, expired by the operation of the limitation contained in the fourth section of the act of Congress making said grant; and

Whereas, this State is now desirous of promoting the completion of the said system, or so much of the unfinished part as leads from Amelia Island to Tampa Bay: Therefore,

Be it resolved, That our Senators and Representatives in Congress be requested to urge the early passage of an act reviving the grant contained in the act of Congress entitled "An act granting public lands in alternate sections to the States of Florida and Alabama, to aid in the construction of certain railroads in said States," approved May 17, 1856, and that the operation of said act be extended to a term of years from the passage of an act reviving the aforesaid grant; but nothing herein contained shall be construed as a request to grant any lands to companies heretofore chartered by any State of the Union or by any act of Congress.

I see nothing in this resolution to warrant the conclusion arrived at by Senator Call, but, on the contrary, it shows that the State was anxious to have the grant revived for the purpose of completing the road commenced by the Florida Railroad Company. The resolution merely shows that the legislature supposed at the time that the grant had lapsed, but the decision of the Supreme Court of the United States in the case of Schulenberg v. Harriman (21 Wall., 44), rendered shortly thereafter, in construing a grant precisely similar in this respect, corrected this error.

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