Chapter XXI
BY reason of the Supreme Court of the United States having rendered a decision granting Ex-Congressman John Newton Williamson a new trial and promulgating a doctrine that amounts to a practical seal of approval on the methods of acquiring Government timber lands by "dummy" process, the case of the United States vs. J. N. Williamson, et al., may be regarded as one of the most important of any in the category of land fraud trials.
On February 11, 1905, the Federal Grand Jury of Oregon returned Indictment No. 2914, charging Williamson (then a representative in the lower house of Congress from the Second Congressional District of Oregon), his partner. Dr. Van Gesner, and United States Commissioner Marion R. Biggs, of Prineville. Crook County, Oregon, with conspiracy to defraud the Government of its public lands, under Section 5440 of the U. S. Revised Statutes.
Williamson and Gesner were extensive sheep owners of Crook County, and it was charged in the indictment that they had been guilty of inducing about one hundred entrymen to file timber claims on a large area of grazing lands in Township 15 South, Range 18 and 19 East, Willamette Meridian, embracing approximately 16,000 acres, for the benefit of the firm, who were to utilize the tract thus acquired as a pasture for their herds. The connection of Biggs with the case grew out of the fact that he was the official before whom the alleged fraudulent proofs were made.
It was set up in the indictment that on June 30, 1902, the defendants had conspired to acquire the lands in question under the Act of June 3, 1878, commonly known as the Timber and Stone law, and in pursuance of this conspiracy had induced the entrymen to commit perjury in making oath that they were taking up the lands for their own use and benefit, and not for speculation, whereas, it was charged that there was an understanding from the outset that the claims were to be transferred to Williamson & Gesner as soon as final title isued. While there was no evidence produced to indicate that any of the claims were ever turned over to Williamson & Gesner, the Government sought to show that the fact that such was the intention on the part of the entrymen constituted an overt act, and was sufficient grounds for conviction, and that it was only necessary to prove an attempted offense of this character in order to" bring the accused within the scope of a conspiracy charge. In fact, it was quite well established that while all the arrangements had been perfected in advance for the transfer of title to the firm, its members were deterred from taking further steps in the direction of completing title on account of the publication of a press dispatch from Washington, indicating that Secretary of the Interior Hitchcock intended to take criminal action against all engaged in the "dummy" process of acquiring lands under the timber laws.
At the trial, one of the witnesses testified that he was employed at a livery stable in Prineville, and that both himself and wife relinquished their filings, without making final proof on the land, at the suggestion of Williamson and Gesner, just before the time arrived for making final proof. It seems, according to the 
testimony of this witness, that Dr. Gesner came to the stable and took the witness to his office, where Williamson was seated, and told him that he could not let him have the money to prove up, and that Dr. Gesner handed him the newspaper containing the reference to Secretary Hitchcock's contemplated crusade against bogus entrymen.
It appears that this information had the effect of causing the two members of the sheep raising him to conclude that it would be unwise to proceed any further in the direction of acquiring the titles, and that all the entrymen were advised subsequently to relinquish their claims. The article in question follows:
HITS THE SHARKS.
SECRETARY HITCHCOCK ON PUBLIC LANDS.
Points To Oregon Cases.
Urges Early Repeal of the Timber and Stone Act, and Penalty for Law-Violators.
Bold Words on the Evil of Fencing the Public Domain by Private Interests—New Irrigation Law, Forest Reserves.
Oregonian News Bureau, Washington, D. C, Nov. 23—The recently discovered timber frauds in Oregon are rather widely exploited in the annual report of Secretary Hitchcock of the Interior Department, and held up as a forceful argument for the immediate revision of the Timber Laws. Although the Secretary cites facts and figures heretofore published in the 'Oregonian', he is gracious enough to omit from his official report the name of the State in which these frauds were discovered. His comments, nevertheless, are so pointed and so explicit that they cannot be mistaken. After showing the phenomenal increase in entries in Oregon under the Timber and Stone Act, in the last quarter, over those of the preceding three months, the Secretary says: 'Should this rate of entry continue during the entire year in that State, it would mean the acquisition, in round numbers, of 600,000 acres of timber lands under the Timber and Stone Act, and if the same activity in that class of entries were extended to the other public land States, then before the expiration of two years practically every acre of unappropriated public timbered lands would have been absorbed, and the successful operation of the Reclamation Act of June 17th last rendered doubtful, if its failure be not absolutely assured, for the reservation of public timbered lands that must of necessity be made to assist in conserving the waters to be impounded by the irrigation systems to be established under that act will be defeated or made so expensive by the purchase of said lands from private owners as to greatly delay the completion of the irrigation systems contemplated by that act.'
The reports of the special agents of this department in the field show that, at some of the local land offices, carloads of entrymen arrive at a time, every one of whom makes entry under the Timber and Stone Act. The cost of 160 acres of land under that Act and the accompanying commissions is $415. As many as five members of a family who, it can be readily shown, never had $2075 in their lives, walk up cheerfully and pay the price of the land and the commissions. Under such circumstances, there is only one conclusion to be drawn, and that is, where a whole carload of people make entry under that Act, the unanimity of sentiment and the cash to exploit it must have originated in some other source than themselves.
In all such cases a rigid inquiry will be instituted, to determine the bona fides of the entry, and if it be ascertained that the entry was not made in good faith, but in the interest of some person or persons other than the entrymen, the entry will be promptly canceled and the proper criminal proceedings instituted against the entrymen.
After three stubbornly-contested trials, a jury composed of John Bain (foreman), J. Marcus Freeman, Thomas G. Farrell, James B. Kirke, Frank Bell, H. Donnerberg, Theobald Kirsch, Worth Huston. Dom J. Zan, J. J. Hembree, Charles Agee, and John E. Bailey, returned the following verdict on the night of September 27, 1905:
The theory of the Government, as evidenced by the testimony brought out at the different trials, was that the defendants Williamson and Gesner were in the sheep business, and that they had a summer range at a place known as the "Horse Heaven" country in Crook County, Oregon, about twenty miles from the town of Prineville, where they resided, and where Dr. Gesner had for many years been a practicing physician. All the odd sections of the township which constituted their summer range were owned by a wagon road company and for a number of years prior to 1902 Williamson and Gesner had leased several of the odd sections of land from it. They owned the land upon which their shearing plant was located at the summer range and did not own any other land in that vicinity. The wagon road company had uniformly refused to sell any of its lands there. In May, 1902, defendants learned that a rival sheep firm by the name of Morrow & Keenan had contracted to lease practically all of the odd sections of land in the township, and they immediately protested to the agent of the wagon road company against its leasing to their rivals, and insisted that they were entitled to have a lease for all of such odd sections of land themselves. The agent of the wagon road company decided, however, that he must stand by his agreement with Morrow & Keenan. Thereupon Williamson & Gesner immediately employed the County Surveyor to run the lines of the different sections of land in the township for the purpose of determining whether or not the springs and small streams of water located therein were upon the odd or even sections. A rough survey demonstrated that the most valuable springs and streams were upon the even sections of land, which still belonged to the United States.In the Circuit Court of the United States for the District of Oregon.No. 2914.
The United States of America
vs.
John Newton Williamson,
Van Gesner and
Marion E. Biggs.Verdict.
We, the jury in the above-entitled cause, find the defendants .J. N. Williamson, Van Gesner and Marion E. Biggs, guilty as charged in the indictment, and recommend them to the leniency of the Court on account of previous good character. (Signed:)
JOHN BAIN, Foreman.
The township constituted the best summer sheep range in that part of Oregon. It was partially covered by scraggly timber, which had no market value at the time, if at all. In many places there were long stretches of splendid grazing land upon which there was not a stick of timber of any account. The defendants, Williamson and Gesner, immediately planned to secure all of the even sections of land which contained springs or running water so as to control this entire summer range. In June, 1902, they applied to the bank of Prineville for a loan of $3,000, which they secured, and a few months later they applied to the bank at The Dalles, Oregon, for a loan of $6,000, which they also got. All of this money was advanced by them to the applicants in payment to the Government for their respective purchases of land. Gesner employed Biggs to attend to the matter of securing applicants for him and of filing them upon the land. Biggs was a practicing attorney and was a United States Court Commissioner at Prineville. According to the prosecution, the evidence showed that forty-five applicants filed upon lands selected for them in the township within a period of about two months.
On Saturday morning, October 14, 1905, Judge William H. Hunt, of Montana, who had presided at the last trial, imposed sentences as follows: J. N. Williamson, to pay a fine of $500 and be imprisoned in the Multnomah County jail ten months; Dr. Van Gesner, to pay a fine of $1,000 and be imprisoned five months, while Biggs got off with the same sentence imposed upon Williamson.
After various appeals, in which the verdict was sustained by the Circuit Court of Appeals, two of the defendants—Gesner and Biggs—submitted to their penalties, while Congressman Williamson appealed his case to the United States Supreme Court on constitutional grounds. Counsel for Williamson protested against the Court passing sentence upon him, and especially to any sentence of imprisonment, on the ground that thereby he would be deprived of his constitutional rights as a Congressman. This was based upon the first clause of Section 6, Article I, of the Constitution, which provides:
Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses, and in going to and returning from the same; and for any speech, or debate in either House, they shall not be questioned in any other place.
Without considering the question of the guilt or innocence of the defendants, all of whom are highly respected citizens of Crook County, it will be seen that the decision of the Supreme Court practically nullifies every effort of the Land Department to prevent the acquisition of timber lands for speculative purposes, and throws down the bars to indiscriminate abuse in that regard. Considered from any standpoint, it was a vicious interpretation of the law, and it is to. the credit of Justice Harlan that he refused to acquiesce in the ruling.
While the Government officials maintain that enough evidence was introduced at the trial of defendants to prove that there was a clear and distinct understanding before the filings were made that the entrymen were to transfer their claims to the firm of sheepmen, and that Mr. Williamson could be convicted without the necessity for the introduction of testimony to show that they were to do so after final proof, it is believed that there will not be any further prosecution of the case, but that the Government will be satisfied to try the Ex-Congressman jointly with Binger Hermann in what is commonly known as the "Blue Mountain Forest Reserve Case." which is scheduled to come up at the next term of the Federal Court in Portland.
The three trials of the trio of defendants were remarkable in several distinct features, the most noteworthy, perhaps, being illustrative of the bulldog tenacity of Francis J. Heney, the Government prosecutor. The juries in the two preceding cases had failed to agree, and Heney was apprehensive that the third trial would result in like failure. The case went to the jury about midnight, and while the body was deliberating upon a verdict. Mr. Heney and Thomas B. Neuhausen, Special Inspector of the Department of the Interior, who had worked up the evidence against the accused, were in consultation in the private rooms of the United States Attorney's office, preparing for a fourth trial, which they intended to press immediately the next morning in the event of another disagreement. While the two zealous officials were in the midst of these deliberations, a messenger brought the news that a verdict of guilty had been returned.
A woman's intuition was the cause of the prosecution again.st Congressman Williamson and his associates. Mr. Neuhausen, while occupying the position as Agent in Charge of Special Agents for Oregon—an office since designated as "Chief of Field Division"—with headquarters at The Dalles Land Office, had received instructions from the Commissioner of the General Land Office to investigate the status of the various entries embraced in the two townships, so many sworn statements, or timber applications, having been filed almost simultaneously as to arouse the suspicions of the authorities in Washington. In the course of his investigations, Mrs. Neuhausen assisted her husband in many ways, her knowledge of the land laws and familiarity with the methods of acquiring title to public lands being of immense benefit to him. While going over the accounts and records of the local Land office, Mrs. Neuhausen made the discovery that the checks in nearly every instance that had been transmitted to the Receiver at The Dalles Land Office as payment for the different tracts, had been issued in the name of Dr. Van Gesner an a Prineville bank, and further inquiry led to the discovery that Dr. Gesner was a member of the sheep raising firm of Williamson & Gesner.
It developed, upon investigation by Mr. Neuhausen, that while the lands were being taken up under the timber act, they were almost invariably bereft of standing timber of any commercial value, and were chiefly valuable for grazing purposes. Putting these circumstances together, he concluded that a fraud of huge dimensions was about to be perpetrated, and succeeded in obtaining confessions from a number of the entrymen, many of whom were employees of Williamson & Gesner, who admitted locating the lands in the interest of the stock raisers. A quantity of photographs were also secured, taken at different points in the two affected townships, nearly all of which indicated that the "timber" on the claims consisted for the most part of sagebrush and other undergrowth. These photographs were introduced in evidence, and formed part of the Government's exhibits in the case.
The defendants were represented in Court by Judge A. S. Bennett and H. S. Wilson, of The Dalles, and George W. Barnes, of Burns, Oregon.
