tion as such, and examining the qualifications of the respective members who compose it.

The word "corporation" is but a collective name for the corporators or memhers who compose an incorporated association; and where it is said that a corporation is itself a person, or being, or creature, this must be understood in a figurative sense only.

(See Morowetz on Corp., Sec. 1; also Sec. 227.)

In those cases where an observance of the rule at law that a corporation is a distinct and separate entity, may operate to conceal the real interest of the individual members, and those interests may be contrary to the policy of the law, equity will disregard the fiction.

So the idea that a corporation may be a separate entity, in a sense that it can act independently of the natural persons composing it, or abstain from acting, where it is their will that it shall, has no foundation in reason or authority, is contrary to the fact; and, to base an argument upon it, where the question is, as to whether a certain act was the act of the corporation, or of its stockholders, cannot be decisive of the question, and is therefore illogical; for it may as likely lead to a false, as to a true result.

(State er rel. v. Standard Oil Co., 49 Ohio St., 137, 178.)

In the case at bar the question involved is one solely between the government and the applicant, and the government has the same right to inquire into all the facts as would the sovereign state which brought the corporation into being, if the question were one between it and the corporation respecting an evasion or infringement of the policy of the law. In such cases the

courts are not so powerless that they may not prevent the success of ingenious schemes to evade or violate the law. There can be no immunity for evasion of the policy of the State by its own creations.

(Ford v. Milk Shippers' Ass'n, 155 Ill., 166, 180.)

It is well established that where concerted action has been taken by the stockholders of a corporation in their individual capacity. tending to affect the rights, duties or obligations of the corporation itself, and inquiry into the result of such action becomes material, the courts will look to the acts of the individual shareholders as the acts of the corporation.

As between the corporation and those with whom it deals, the manner of its exercise usually is material, but as between it and the State, the substantial inquiry is only what that collective action and agency has done, what it has, in fact, accomplished, what is seen to be its effective work, what has been its conduct. It ought not to be otherwise.

(People v. North River Sugar Refining Co., 121 N. Y., 582, 622.)

In the case under consideration the question involved is the same, viz: What has in fact been accomplished, though the positions are reversed and the inquiry here concerns the acts of the corporation as affecting the rights of the individual members.

In the decision last cited the court held (p. 625) that a corporation was not necessarily, and under all circumstances, entitled to exercise the same rights as an individual. The Supreme Court of the United States, speaking through Mr. Justice Brewer, has affirmed this doctrine in the following language:

A corporation, while by fiction of law recognized for some purposes as a person and for purposes of jurisdiction as a citizen, is not endowed with the inalienable rights of a natural person.

.

(Nor. Sec. Co. v. U. S., 193 U. S., 197, 362.)

Neither is a corporation, when the policy of the law is involved, to be considered, in all cases, as possessed of all the legal rights of a natural person, especially in those cases where by combining the rights of a person, as an individual, and his rights as a component member of a corporation, it tends to confer a double benefit contrary to the spirit of the law granting but one right:

for it is one thing for the State to respect the rights of ownership and protect them out of regard to the business freedom of the citizen, and quite another thing to add to that possibility a further extension of those consequences by creating artificial persons to aid in producing such aggregations. (People v. North River Sugar Ref. Co., supra, p. 625.)

With this power of the courts so firmly settled, it is difficult to see upon what grounds the contention of appellant may rest, when urged to question this authority of the Department to inquire into the real facts surrounding, and the direct effect of, the allowance of an application to enter and eventually acquire title to a portion of the public domain.

The Department is clearly of opinion, for the reasons herein stated, that the rule announced in the case of Jacob Switzer Co. (33 L. D., 383) should, in the interests of good administration, be adhered to.

In relation to the proof of incorporation offered by appellant, the Department is of opinion the same is sufficient, under the provisions of section 297, California Civil Code, and the same should be accepted. In all other respects, the decision appealed from is hereby affirmed.

SURVEY-WITHDRAWAL-SCHOOL LAND-SETTLEMENT RIGHTS—ACT OF AUGUST 18, 1894.

ENSIGN . STATE OF MONTANA.

The provision of the act of August 18, 1894, authorizing the survey, on application in behalf of the State, of any unsurveyed townships of public lands therein, and the withdrawal thereof from the date of the application until the expiration of sixty days from the filing of the township plat, with a view to satisfy the public land grants to the State, authorizes and requires the withdrawal of all of the lands in the townships for the survey of which application is made on behalf of the State.

5194 Vol. 34-05 M- -28

The act of February 28, 1891, amending section 2275 of the Revised Statutes, protects all rights acquired by settlements made prior to survey in the field upon sections sixteen or thirty-six, reserved for school purposes, but where a township is ordered surveyed on application in behalf of the State, under the act of August 18, 1894, and the lands are withdrawn for the purposes specified therein, such settlements only as were made prior to the withdrawal are protected as against the State.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) May 23, 1905. (E. J. H.)

The above entitled case is before the Department upon the appeal of the plaintiff, Edgar S. Ensign, from your office decision of November 28, 1904, sustaining the action of the local officers in rejecting his homestead application tendered upon the filing of the township plat of survey, on April 26, 1903, for the NW. of Sec. 36, T. 11 N., R. 19 W., Missoula, Montana, land district, for conflict with the rights of the State under its school land grant.

Ensign alleged settlement on the land March 14, or 15, 1902, and that he had resided thereon continuously ever since. This was prior to survey in the field, but it appears that upon application of the Governor of the State for the survey thereof, the township was withdrawn from settlement, entry, or other disposition adverse to the State, on July 17, 1899, under the provisions of the act of August 18, 1894 (28 Stat., 394), and that due notice thereof was published as required by said act.

It is claimed on behalf of Ensign that your office erred in holding that all of the land in said township was withdrawn from settlement, entry or other disposition adverse to the State, under the act of 1894, supra; that such attempted withdrawal is in conflict with section 2275 of the Revised Statutes, as amended by the act of February 28, 1891 (26 Stat., 796), which amended section protects settlement rights made prior to survey in the field upon reserved school sections 16 and 36; and that Ensign was entitled to make homestead entry of the land applied for under said amended section 2275.

Said act of 1894, in substance, authorizes the governors of the several States named therein, which list includes Montana, to apply to the Commissioner of the General Land Office for the survey of any township or townships of public lands remaining unsurveyed in said States, and for the withdrawal of said lands, “with a view to satisfy the public land grants made by the several acts admitting the said States into the Union;" and provides that upon such application being made, the Commissioner of the General Land Office shall notify the surveyor-general thereof, who shall proceed to have such survey made," and the lands that may be found to fall within the limits of

such township or townships, as ascertained by the survey, shall be reserved upon the filing of the application for survey, from any adverse appropriation by settlement or otherwise except under rights that may be found to exist of prior inception, for a period to extend from such application for survey until the expiration of sixty days from the date of the filing of the township plat of survey in the proper district land office, during which period of sixty days the State may select any of such lands not embraced in any valid adverse claim, for the satisfaction of such grants," etc.

The language of the foregoing quotation from the act of 1894, clearly authorizes and requires the withdrawal of all of the lands in the townships, for the survey of which application has been made, to enable the State to satisfy the several grants of public lands made by the act admitting said State into the Union, and in the case of all of said States one of the grants for which the lands were to be thus reserved" from any adverse appropriation by settlement or otherwise, except under rights that may be found to exist of prior inception,” was the school land grant of sections 16 and 36 in the several townships.

Under the act of 1891, settlements made upon sections 16 and 36 prior to survey in the field are protected, but under the subsequent act of 1894, where a township has been ordered surveyed upon application of the Governor of the State, and the lands therein withdrawn for the purpose specified, such settlements only as were made prior to the withdrawal are protected as against the State. The provisions of the later act control, and as Ensign does not claim settlement prior to the withdrawal, his application must be rejected. Your office decision is accordingly affirmed.

SECOND HOMESTEAD ENTRY-ACT OF APRIL 28, 1904.

Cox v. WELLS (ON REVIEW).

The act of April 28, 1904, known as the Kinkaid Act," authorizes a second or additional homestead entry of so much land, within the limits defined in the act, as added to that embraced in the first entry shall not exceed six hundred and forty acres, regardless of the fact that the entryman may have relinquished his first entry for a valuable consideration.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.)

February 7, 1906.

(E. P.)

July 29, 1904, Levi P. Wells made homestead entry of the NE. of Sec. 1, T. 34 N., R. 11 W., O'Neill land district, Nebraska, against

which Peter G. Cox, on August 24, 1904, filed affidavit of contest, charging, in effect, that Wells had, on May 29, 1892, made homestead entry of the SE. 4 of the SW. 4 of Sec. 26 and the N. of the NE. and the NE. 1 of the NW. 1 of Sec. 35, T. 33, R. 8, O'Neill land district, Nebraska, which he relinquished for a consideration, and was not therefore qualified to make another homestead entry. This affidavit was rejected by the local officers on the ground that it did not state a cause of action, it being by them held, in effect, that Wells's former entry having been lost prior to the passage of the act of June 5, 1900 (31 Stat., 267), the circumstances surrounding such loss could not be inquired into. Cox appealed, and your office, by decision of December 29, 1904, sustained the action of the local officers. On further appeal by Cox, however, the Department, by decision of June 26, 1905 (33 L. D., 657), held that the said act of June 5, 1900, supra, was modified by the act of April 28, 1904 (33 Stat., 527), which provides, in effect, that any person thereafter applying to make a second homestead entry, he having failed to complete his former entry, must show that the former entry was not relinquished for a consideration, and that, as Wells's second entry was made after the passage of this act, the charge was sufficient. A hearing was therefore directed to be ordered on said charge.

The attention of the Department is now, by your office letter of January 29, 1906, for the first time directed to the fact that the land embraced in Wells's second entry is within the limits subject to disposition under the act of April 28, 1904 (33 Stat., 547), known as the "Kinkaid law," which, after authorizing homestead entry by one person of not more than six hundred and forty acres situated within certain defined limits, provides that “a former homestead entry shall not be a bar to the entry under the provisions of this act of a tract which, together with the former entry, shall not exceed six hundred and forty acres.”

Considering the fact that the land in question is within the limits described in the act last mentioned and that the combined area embraced in Wells's first and second entries does not exceed the maximum quantity allowed to be entered under the act, in connection with the herein quoted provisions of the act, the Department is of opinion that it is immaterial whether Wells relinquished his first entry for a consideration or not, and hence that the charge stated does not constitute a cause of action. Therefore the order for a hearing issued in accordance with the directions contained in departmental decision of June 26, 1905, is hereby directed to be revoked.