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of California to act as its agent in the matter of effecting the proposed exchange, his present contention is well taken, and therefore the answer to the question submitted depends upon the ascertainment of his authority in the premises under the laws of the State.

Section 3398 of the Political Code of California provides:

The surveyor-general is the general agent of the State for the location in the United States land offices of the unsold portion of five hundred thousand acres of land granted to the State for school purposes, and the sixteenth and thirty-sixth sections granted for the use of public schools, and lands in lieu thereof.

In the adjustment of the grant of school lands to the State of California, the Department has heretofore recognized the State surveyorgeneral as the legally authorized agent of the State, and has treated his official acts in connection with such adjustment as the acts of the State. (6 L. D., 403.)

No question would be raised as to the authority of that officer in the present instance were it not that he is here acting with respect to what is supposed to be a new class of selections. His selection of lands in lieu of school sections embraced in a reservation before the title of the State becomes vested, is recognized as a selection by the State, and, if approved by the Secretary of the Interior, is considered a conclusive. waiver of all right of the State to the basis. But does his authority to select other lands in lieu of a school section confer upon him the requisite authority to act for the State where full title to the school section is vested in the State?

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The grant of authority to this officer by the statute of the State is for the location in the United States land offices . . . [of] the sixteenth and thirty-sixth sections granted for the use of public schools, and lands in lieu thereof."

Are the selections now under consideration lands in lieu of the sixteenth and thirty-sixth sections as such words are used in said statute? In answering this question it must be remembered that the right to lieu lands rests upon the laws of Congress, and not upon the laws of the State, and that in the departmental decision under which these circular instructions were formulated, it is expressly decided that where sections sixteen and thirty-six are included within the limits of a forest reservation, the State is authorized to select other lands in lieu thereof under section 2275, Revised Statutes, as amended, whether the title to such school sections had or had not vested in the State before the establishment of the reservation, it being said in the decision that: indemnity" and "lieu selections" therefore, in the nomenclature of the public land laws, are not used simply to denote a compensatory allowance for lands which have been lost to a grantee, but are also at times employed to include the giving of one tract for another, the right to which is relinquished or waived by the grantee.

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It is believed, therefore, that the conclusion herein reached accords with the intent

of Congress, and is in pursuance of a wise public policy. It gives to the State that which she reasonably asks the right to select the tract herein described in lieu of the equal tract in section thirty-six, which is completely enclosed in the Sierra forest reservation. The selection, when approved, will operate as a waiver by the State of its right to the tract used as a basis.

The Department having determined that selections like those under consideration are lieu selections that will, when approved by the Secretary of the Interior, operate as a waiver of the State's right to the basis, it seems that the general authority conferred upon the surveyor-general by the State statute amply covers the case in hand. The phrase "lands in lieu thereof" as used in that statute certainly relates to any lands taken, by authority of the laws of Congress, in the place of sections sixteen or thirty-six. The taking of other lands by the State in place of such sections where, after the title has vested in the State, they are included within the limits of a forest reservation, being fully authorized by section 2275, as amended, the authority of the surveyor-general, under the State statute, to act on behalf of the State is manifest.

I therefore answer your question in the affirmative.
Approved:

E. A. HITCHCOCK,

Secretary.

MINERAL LAND-NON-MINERAL CLASSIFICATION-ACT OF FEBRUARY

26, 1895.

HOLTER ET AL. . NORTHERN PACIFIC R. R. Co.

A decision by the General Land Office ordering a rehearing will not as a general rule be disturbed on appeal, but the Department has full authority to set aside such a decision whenever it is deemed proper and right to do so.

In case of a protest filed under the fifth section of the act of February 26, 1895, against the classification of land under said act, the Department will apply substantially the same rules, in determining the character of the land, that the classification commissioners are directed by said act to apply.

The rules prescribed by said act differ from those applied by the Department in ordinary contests involving the character of land in that mining locations made in any section of land are declared by said act to be prima facie evidence of the mineral character of the forty-acre subdivision embracing the same.

Secretary Hitchcock to the Commissioner of the General Land Office. (W. V. D.) January 26, 1901.

(W. A. E.) The Department has considered the record in the case of A. M. Holter et al. . Northern Pacific Railroad Company, on appeal by both parties from your office decision of July 21, 1900, remanding said case for a rehearing.

This case arises under the act of February 26, 1895 (28 Stat., 683), entitled "An act to provide for the examination and classification of

certain mineral lands in the States of Montana and Idaho."

The lands

to be examined and classified under this act are those lying within the primary and indemnity limits of the grant to the Northern Pacific Railroad Company in the States named. Sections three and five of said act read as follows:

SEC. 3. That all said lands shall be classified as mineral which by reason of valuable mineral deposits are open to exploration, occupation, and purchase under the provisions of the United States mining laws, and the commissioners in making the classification hereinafter provided for shall take into consideration the mineral discovered or developed on or adjacent to such land, and the geological formation of all lands to be examined and classified, or the lands adjacent thereto, and the reasonable probabilities of such land containing valuable mineral deposits because of its said formation, location, or character. The classification herein provided for shall be by each legal subdivision where the lands have been surveyed. If the lands examined are not surveyed, classification shall be made by tracts of such extent, and designated by such natural or artificial boundaries to identify them, as the commissioners may determine. Where mining locations have been heretofore made or patents issued for mining ground in any section of land, this shall be taken as prima facie evidence that the forty-acre subdivision within which it is located is mineral land: Provided, That the word "mineral," where it occurs in this act, shall not be held to include iron or coal: And provided further, That the examination and classification of lands hereby authorized shall be made without reference or regard to any previous examination or report or classification thereof.

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SEC. 5. That said commissioners shall, on or before the fifth day of each month, file in the office of the register and receiver of the land office of the land district in which the land examined and classified is situated a full report, in duplicate, in such form as the Secretary of the Interior may prescribe, showing all lands examined by them during the preceding month, and specifying clearly, by legal subdivisions, where the land is surveyed, or otherwise by natural objects or permanent monuments to identify the same, the lands classified by them as mineral lands and those classified as nonmineral; and with said report shall be filed all testimony taken and written communications received by said commissioners relating to the lands embraced in the report. The register and receiver shall file one duplicate of said report in their office, together with all accompanying testimony and papers, and the other duplicate shall be by them forwarded direct to the Secretary of the Interior, and said commissioners shall furnish to the Secretary of the Interior at any time such further or additional report or information as he may require concerning any matters relating to their duties or the performance of the same. Upon receipt of such report the register of the land office shall, at the expense of the United States, cause to be published in a newspaper of general circulation in the county in which the land is located, and in one newspaper published at the capital city of the State in which the lands may be situated, at least once a week for four consecutive weeks, notice of the classification of lands as shown by said report, and any person, corporation, or company feeling aggrieved by such classification may, at any time within sixty days after the first publication of said notice, file with the register and receiver of the land office a verified protest against the acceptance of said classification, which protest shall set forth in concise language the grounds of objection to the classification as to the particular land in said protest described, whereupon a hearing shall be ordered by, and conducted before, the said register and receiver, under rules and regulations as near as practicable in conformity with the rules and practice of such land office in contests involving the mineral or nonmineral character of land in other cases; and an appeal from the decision of the register and receiver shall be allowed to the Commissioner of the

General Land Office and the Secretary of the Interior, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That at such hearings the United States shall be represented and defended by the United States district attorney or his assistant for the judicial district in which the land is situated, unless the Secretary of the Interior shall detail some proper officer of the Department of the Interior for that purpose. The compensation for such service shall not exceed ten dollars per day for each day's actual service before the register and receiver, to be paid out of the fund provided for the examination and classification of said mineral lands.

It appears from the record in the present case that the commissioners appointed under the above act for the Helena, Montana, land district, in their report filed July 5, 1898, as to lands examined during the month of June, 1898, classified the following unsurveyed tracts, with others, as non-mineral:

Beginning at a point three and one half miles west of the north quarter corner Sec. 5, Tp. 10 N., R. 5 W., which point when surveyed will be the N. E. corner of Sec. 3, Tp. 10 N., R. 6 W., running south one mile, thence east 40 chains, thence south one mile, thence west 40 chains, thence south 40 chains, thence west 20 chains, thence south 40 chains, thence east one mile and 20 chains, thence south three miles, thence west five miles, thence north six miles, thence east four miles to the place of beginning.

The above description is intended to cover, when surveyed, Secs. 3 to 10 incl., the W. Sec. 11, the N. Sec. 15, the SW. Sec. 15, the W. of SE. † Sec. 15, all of 16 to 23 inclusive and all of Sec. 26 to 35 inclusive, Tp. 10 N., R. 6 W., except such lands as are covered by U. S. mineral patents.

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Beginning at a point six miles west of the S. W. corner of Sec. 34, Tp. 11 N., R. 5 W., which point when surveyed will be the S. E. corner of Sec. 33, Tp. 11 N., 6 W., running north one mile, thence west one mile, thence north one mile, thence east 40 chains, thence north one mile, thence west 40 chains, thence north one mile, thence west two miles, thence south four miles, thence east three miles to the place of beginning.

The above description is intended to cover, when surveyed, all of Secs. 17, 18, 19, 20, the W. Sec. 21, all of Secs. 29, 30, 31, 32, & 33, Tp. 11 N., R. 6 W., except such lands as are covered by U. S. mineral patents.

August 16, 1898, Anton M. Holter and Thomas C. Power filed a protest against said classification, in so far as it affects Secs. 3, 5, 6, 8, 9, 10, the W. of Sec. 11, the N. 4, the SW. 4, and the W. of the SE. 4 of Sec. 15, Secs. 16, 21, 22, 23, 26, 27, 28, and 34 of T. 10 N., R. 6 W.; and Sees. 17, 18, 19, 20, the W. of 21, Secs. 29, 30, 31, 32, and 33 of T. 11 N., R. 6 W. These descriptions are from an unofficial

survey.

It was alleged by the protestants that the land covered by their protest is mineral, in character and contains valuable deposits of gold, silver, and other precious metals; that it has no value for agricultural purposes; and that the classification thereof as non-mineral is erroneous.

A hearing was ordered on this protest, and at the appointed time the protestants and the Northern Pacific Railroad Company appeared

by their attorneys. Mr. J. C. English, assistant district attorney of the United States, also appeared and participated in the hearing.

December 15, 1899, the register and receiver rendered their decision recommending that the protest be dismissed. From this action the protestants appealed to your office.

By your office decision of July 21, 1900, the case was remanded for a rehearing, for the reason, as stated, that the record shows that the assistant district attorney of the United States cross-examined the protestant's witnesses and participated in the direct examination of the railroad company's witnesses; that the nature of the questions he propounded and the objections he made to testimony offered by the protestants show that throughout the trial he acted in effect for the railroad company; that it was the duty of the assistant district attorney to insist upon a mineral classification of this land; and that on account of his failure so to do, the case has not had a fair and adequate presentation.

From this action of your office both the protestants and the railroad company have appealed. It is stated in each of the appeals and accompanying arguments that a rehearing will serve no good purpose and will entail considerable additional expense; that a large amount of testimony has already been submitted; and that both the protestants and the railroad company are willing to stand on the record as made.

August 6, 1900, after the case was transmitted on the appeals of the protestants and the railroad company, the Department received from the Acting Attorney General a copy of a report made to the Department of Justice, on July 26, 1900, by William B. Rodgers, United States Attorney for Montana, as to the action taken by his office with reference to the present case.

From this report it appears that on April 27, 1898, the Attorney General gave general instructions to the United States Attorney for Montana to appear and represent the interests of the government at all hearings before the local land officers upon protests filed against the classifications made by the several boards of commissioners appointed under the act of February 26, 1895, for the Helena, Bozeman, and Missoula land districts.

July 20, 1898, before the protest in the present case was filed, a special agent of the General Land Office reported that A. M. Holter and T. C. Power (the protestants in this case) had trespassed upon a portion of the land here involved and cut there from fifteen thousand cords of wood, worth $2.50 per cord. October 31, 1898, the same special agent reported (apparently in amendment of his former report) that the Mullen Fuel Company, a corporation, of which Norman B. Holter was president and C. B. Power secretary, had trespassed upon sections 29 and 30, T. 11 N., R. 6 W., and cut therefrom fifteen thousand cords

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