It is contended by appellant that said section 16 was reserved for Indian purposes in such manner as to authorize the selection of indemnity in lieu thereof by the State. No authorities are cited in support of this contention. By the express terms of the executive order under which said "contingent location" was made by Martin the same was not to become a valid reservation for Che-Ka-chyo, under said treaty, unless the same was subsequently sanctioned by Congress, and it is apparent from the acts of Congress herein before referred to that Congress as early as 1837 not only refused to sanction the "contingent locations" made by Martin, but expressly repudiated them and declared them to have been made without legal authority, and after the passage of the act of September 4, 1841, supra, no authority of law, for the further suspension from sale or other disposition of lands covered thereby, existed. Moreover, the Secretary of the Treasury, in an opinion rendered August 26, 1844, held that "these contingent locations or contingent reservations were unauthorized and illegal in the beginning, they have never been sanctioned, they have been expressly denounced and declared by the Congress to be illegal and without authority, they have never been reserved by any law or proclamation of the President of the United States. They were subject to the claims of settlers for pre-emption, they were subject to sale at the pleasure of the government, they were liable to selections which the State of Mississippi was authorized to make of 500,000 acres by act of September 4, 1841." It is therefore quite clear that the "contingent location" made by Martin for Che-Ka-chyo did not operate to reserve or appropriate said section 16 so as to prevent the title thereto vesting in the State under and by virtue of the acts of Congress relating to school lands in said State.

By section 12 of the act of March 13, 1803, supra, section 16 in each township in the Mississippi Territory was "reserved" from sale for the support of schools within the same." December 10, 1817, the Territory of Mississippi was admitted as a State; on June 19, 1834, the plat of the survey of said township was approved; and by act of May 19, 1852, supra, the legislature of the State of Mississippi was authorized “to sell and convey in fee simple or lease for a term of years all or any part of the lands theretofore "reserved" and appropriated by Congress for the use of schools within said State. For the purposes of this case it is unnecessary to determine at what particular time the complete title to said section 16 vested in the State, but it is apparent that the provisions of the foregoing act of 1852 constituted, in legal effect, a grant and operated to transfer to the State any interest in said lands then remaining in the United States and that the absolute title to said section 16, in place, was ever thereafter vested in the State and remained therein or in its grantees or lessees at date of the erroneous selection, approval and certification

of the indemnity lands in lieu thereof, as hereinbefore set forth. Under such circumstances two further questions are presented for consideration: First, has the Department jurisdiction to revoke its former approval of the lands so erroneously selected by and certified to the State? Second, was the State by such erroneous selection, approval and certification of indemnity lands thereby divested of title to the base land, said section 16? Your office held that the approval and certification of the indemnity selection, based on section 16 aforesaid, was absolutely null and void, and that the State thereby acquired no right, title or interest in the lands so selected, approved and certified. This ruling appears to have been based upon the case of Weeks 7. Bridgeman (159 U. S., 541), the act of August 3, 1854 (Sec. 2449 U. S. Revised Stat.), and the following departmental authorities: Manser Lode Claim (27 L. D., 326); State of Nebraska (28 L. D., 358); Edwin F. Frost et al. (26 L. D., 239); Scott v. State of Nevada (ibid., 629), although said authorities were not expressly cited. In the case of Weeks v. Bridgeman, supra, the court, after stating the status of the land certified, to which one Brott had a subsisting adverse claim, referred to section 2449 Revised Statutes and said, since the land certified “was not subject to disposition as part of the public domain” on October 25, 1864, the action of the land department in including it within the lists certified on that day "was ineffectual" and that "as against Brott the certification had no operative effect." The court further said: "The distinction between void and voidable acts need not be discussed. It is rarely things are entirely void and without force and effect as to all persons and for all purposes and incapable of being made otherwise." An examination of the departmental decisions hereinbefore referred to will also disclose that in every instance the land erroneously certified was, at date of certification, embraced within an existing entry, grant or reservation, or was otherwise appropriated, and hence not of the character" granted or intended to be granted for indemnity purposes, and under section 2449 Rev. Stat. and Weeks 2. Bridgeman, supra, the certification in such cases was held to be ineffectual to pass title. But, in the opinion of the Department, the cases cited do not constitute authority for the action taken by your office in the case at bar. The land selected by and certified to the State in the case under consideration was, at date of selection and certification, free from subsisting claim or other appropriation, and was then of the character" granted and intended to be granted for indemnity purposes, and hence the approval and certification under such circumstances does not fall within the nullifying provisions of Sec. 2449 Rev. Stat.. nor within the ruling made in Weeks v. Bridgeman, supra. It is well settled that selection, approval, and certification passes title to the lands so selected and certified as completely as if transferred by patent, Frasher v. O'Connor (115 U. S., 102); and in

the case of Moore v. Robbins (96 U. S., 530) the court held that "a patent for public land, when issued by the land department, acting within the scope of its authority and delivered to and accepted by the grantee passes the legal title to the land. All control of the executive department of the government over the title thereafter ceases,” and the court added, "but when fraud or mistake or misconstruction of the law of the case exists, the United States, or any contesting claimant for the land, may have relief in a court of equity." In the case of Germania Iron Co. v. United States (165 U. S., 383) the court said: "By inadvertence and mistake a patent in this case has been issued and -the effect of such issue is to transfer the legal title and remove from the jurisdiction of the land department the inquiry into and consideration of such disputed questions of fact." The only apparent exception to the foregoing rule is where the instrument purporting to convey title is void on its face or when its invalidity is disclosed by reference, in the instrument itself, to matters of which judicial cognizance should be taken. In the case at bar the land erroneously certified belonged to the United States, was of the "character" granted for indemnity purposes and free from adverse claim or appropriation, and the Department in its approval of said selection was acting within the scope of its authority in such matters. No error was apparent on the face of the approved list or record pertaining thereto such as would impart notice of any infirmity in the title; the selection, approval and certification were, on the face of the proceedings, regular and prima facie valid, the same being defective only by reason of the erroneous assignment of an improper basis therefor. Under such circumstances clearly the legal title to the lands so selected, approved and certified passed to the State and the Department was thereafter without jurisdiction to revoke or cancel the selection so erroneously approved and certified, and the action of your office in holding said selection for cancellation was accordingly without authority. Butler v. State of California (29 L. D., 127); Hendy et al v. Compton et al. (9 L. D., 106).

The remaining question for détermination is as to whether the State was divested of its title to said section 16, in place, by reason of its erroneous selection and acceptance of indemnity therefor. In this connection it is contended by appellant that the selection by the State of indemnity for said section 16 was, under the provisions of the act of February 28, 1891 (26 Stat., 796), a “waiver" of its right to said section in place. This contention, however, can not be sustained, because the selection and certification in the case at bar was prior to the passage of said act, and the selections which are authorized and declared to be a "waiver" by that act relate exclusively to cases where said section 16 or 36"are mineral land or embraced within a military, Indian or other reservation." State of California (28 L. D., 57). In the case under consideration said section 16 was neither mineral in character nor

embraced within any reservation whatever, but was and had been always in place and the State had at least held the absolute title thereto from May 19, 1852, until July 30, 1888 (date of selection of indemnity), with power to sell and convey the same in fee simple or lease for a term of years, as the legislature of said State might deem best (act of May 19, 1852, supra). An examination of the case of State of California v. Gomez (17 L. D., 287) shows that the facts appearing therein brought said case within the provisions of the second section of the act of March 1, 1877 (19 Stat., 269), the express provisions of which revested in the United States the title to the base lands in lieu of which selection was made. But it must be. noted that the provisions of this act apply only to the State of California, and it was also found in said case that the base land had not been sold by the State "while within its disposable power." The case of D. C. Powell (6 L. D., 552), cited in the above case, also came within the provisions of the act of March 1, 1877, supra, and in the following cases therein cited: 6 L. D., 71; 7 L. D. 270; 8 L. D., 394, the base lands were settled upon at date of survey and were otherwise appropriated at date when right of selection was exercised. In the case of Henderson v. Moore (12 L. D., 390) the base as shown by existing survey was covered by Lake Warner and the State agreed to accept and did accept indemnity in lieu of loss shown by such survey and afterwards the State's grantee was not allowed to take the base lands shown to be in place by a subsequent survey and upon which entry had been allowed, but in said case the right of selection was exercised prior to the resurvey and the State's grantee had attempted to acquire title to the base lands by deed from the State executed after certification and acceptance of the indemnity. In the case at bar, if the State can not now claim title to said section 16 it must be upon the broad principle of estoppel, in the absence of any statutory provision applicable to said case; but conceding that by selecting and accepting indemnity the State was thereby divested of title to said section, it could only operate to divest the State of whatever title the State then had thereto. If the State at any time while holding the absolute title to said section, from May 19, 1852, to July 30, 1888, conveyed or leased the land for a term of years, such conveyance or lease is binding upon the United States, and no act on the part of the State, after parting with title or executing a lease, could, under the doctrine of estoppel or waiver, in any manner affect the title of the State's grantee or lessee to said section 16. It is set forth by Reid, in his appeal herein, that in making said several applications to locate soldiers' additional entries upon the W. of said section 16, he was acting in behalf of himself and co-owners, who have for many years claimed said land by virtue of title derived from the State of Mississippi, claiming said section 16 under the school grant to said State, and controversy having arisen

regarding the the status of said land, said applications were made by Reid to protect said title of himself and co-owners previously acquired from the State.

The act of May 19, 1852, supra, not only authorized the legislature of said State to sell and lease lands theretofore reserved for use of schools within said States, and ratified sales previously made by authority of the legislature, but also contained the further provision that said lands should in no case be sold or leased without the consent of the inhabitants" of the township or district for which they were originally reserved and set apart. In pursuance of the provisions of said act the State provided, by appropriate legislation, for the leasing of said lands, and also for the sale thereof upon consent of the inhabitants of the respective townships being first obtained by a majority vote of the qualified electors of the township in which the land was situated. By Sec. 4160 of the code adopted by the legislature of said State in 1892 it was provided that the indemnity lands approved to the State August 22, 1890, which include the lands erroneously certified as hereinbefore set forth, should be allotted to the respective townships entitled thereto and that thereafter said lands should be dealt with in all respects as other sixteenth section lands.” Under the circumstances, considering the length of time title to said lands has been outstanding in the State, it is apparent that both the lands erroneously certified and said section 16 are, in all reasonable probability, incumbered by rights of third parties which in equity ought not now be disturbed and which in law could not now be divested.

In the opinion of this Department, therefore, the State ought to be required to designate a new basis for the lands erroneously certified, within a time to be fixed by your office, and in default thereof account should be taken of the excess of land so erroneously certified to the State and the government protected against any loss by reason thereof in the further adjustment of the State's school grant. Delaney e. Watts et al. and Miller v. Silva (8 L. D., 480); Butler e. State of California (29 L. D., 610).

Your decision in so far as it rejected the applications of Reid to make soldiers' additional entries upon the W. of said section 16 is accordingly affirmed; but said decision is otherwise modified as hereinbefore directed.