right for eighty acres of land was duly assigned by his widow, and subsequently divided into two parts, each for forty acres, which were used as bases for the following entries:

(1) The application of Oscar Keeline, transmitted June 12, 1902, for 35.96 acres, Sundance, Wyoming, allowed March 31, 1904, final certificate No. 668, patent issued December 2, 1904.

(2) The application of Albert L. Colthrop, transmitted March 14, 1902, for 40.43 acres, Devils Lake, North Dakota, allowed April 19, 1904, final certificate No. 9093, patent issued December 31, 1904.

The applicant herein, John S. Morton is the admitted owner of the remaining right for 4.04 acres acquired from said Keeline, and the only question presented by this appeal is his right to enter 7.60 acres in accordance with the rule of approximation.

In the case of William C. Carrington (32 L. D., 203) the Department directed the preparation of a circular of instructions announcing that in all future entries under said section

the rule of approximation will be applied only when the entire additional right originally due to the soldier, his widow, or orphan children, is offered as a basis for the entry.

This circular was issued August 7, 1903 (32 L. D., 206), and contained the following instructions additional to the foregoing:

If part of the right is located upon a tract of land agreeing in area with such right surrendered or located, then this circular will not prevent the application of the rule of approximation as to the remainder, if offered in its entirety as a basis for the entry.

If the right has been divided, and a part located and entry allowed therefor, before the date of this circular, the rule of approximation may be applied as to the outstanding and unused portion of such right, in the manner and to the extent above directed as to the additional right originally due.

In the case of Guy A. Eaton (32 L. D., 644) it was held that:

One application of the rule of approximation is allowed to each original right of soldiers' additional homestead entry, and where the right is divided, the rule may be applied only in the location of one portion thereof.

Following the views expressed in the case of Vernon B. Matthews (8 L. D., 79), and in the opinion of date June 30, 1900 (30 L. D., 105), the Department is of the opinion that the allowance of Colthrop's said application for 40.43 acres, instead of 40 acres, should be regarded as coming within the rule de minimis non curat lex, and not as an application of the rule of approximation, which was not considered in connection therewith.

It thus not appearing that the rule has been heretofore invoked in connection with this soldiers' additional right, and since the present application exhausts the right, it is believed that the rule of approximation may properly be applied herein, the right being for 4.04 acres, and the excess being only 3.56 acres.

If no other valid objection appear the application will be allowed, your said decision being hereby reversed.

DESERT LAND ENTRY-CORPORATION-QUALIFICATIONS OF MEMBERS.

J. H. MCKNIGHT COMPANY.

It is within the power and is the duty of the land department to require a corporation, seeking to acquire title to a desert land entry as assignee of the original entryman, to show that the individual members composing the corporation are not disqualified under the desert land law to hold and acquire title to such entry.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 19, 1906.

(J. R. W.)

The J. H. McKnight Company, a corporation, assignee of Gustavus Adolph Roensch, appealed from your decision of June 8, 1905

to show the extent to which each individual member of said corporation has exhausted his right under the desert land law, and that the members of said corporation do not hold in the aggregate by assignment or otherwise more than 320 acres of such desert or arid land; and upon failure

the assignment of said Roensch to said company will stand rejected.

It is argued that:

The only terms and limitations" applying to or affecting such taking and holding, can be none other than the terms and limitations of the desert-land law itself... . that "no person or association of persons shall hold by assignment or otherwise, prior to the issue of patent, more than three hundred and twenty acres of such arid or desert land." Sec. 7, act of March 3, 1891, 26 Stat., 1095.

It is then argued, at great length and citation of a great mass of authority, that a corporation is in law "a person" and "citizen" of the State wherein it is organized, and as such is entitled to enter such land, to the limit allowed, irrespective of the holdings of its constituent members or stockholders.

There can be no question that the object and purpose of the limitation in the act was to prevent the entry of large areas of public lands by few or by one person. This being the purpose of the provision, it is obviously the duty of the land department so to interpret and administer the law as to effectuate the purpose, and not to permit the evasion and nullification of the law by mere legal fiction.

A corporation is "a person" only by legal fiction for convenient. administration of justice. It was held by Lord Mansfield in Morris v. Pugh (3 Burr, 1243) that:

Fictions of law hold only in respect to the ends and purposes for which they were invented. When they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth.

A corporation is by fiction of law a citizen of the State in which it is created for purposes of the administration of justice and the removal of suits to or jurisdiction of the federal courts, but it is not a citizen within, the meaning of that clause of the constitution which guarantees that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Paul v. Virginia (8 Wall., 168); Ducat v. Chicago (48 Ill., 172; 10 Wall., 410); Tatem . Wright (23 N. J. L., 429). The fiction of relation of a patent or other muniment of title to the date of the entry, or act of inception of the proceeding out of which it resulted, is allowed to operate only "for the security and protection" of justice, and not so as to work injustice. Gibson v. Chouteau (13 Wall., 92, 101); Bear Lake Irrigation Co. v. Garland (164 U. S., 1, 23); Hussman ». Durham (165 U. S., 144, 148). Legal fictions are sufficiently transparent that they are penetrated by the light of real fact when justice requires it, or they are seen to be invoked to defeat the policy of the law.

A case recently came before the Department wherein one who had exhausted his right to appropriate public lands had recourse to the device of organizing a corporation in which he held four hundred and ninety-eight shares, and two other persons held one share each. Jacob Switzer Company (33 L. D., 383). The Department held that the real person was not well hidden behind the fictitious one. The subject was fully considered in Silsbee Town Company (34 L. D., 430), and the same result was reached.

66

The court looked through the fiction in McKinley . Wheeler (130) U. S., 630, 636), and followed its decisions in Bank of the United States. Devereaux (5 Cr., 61, 87), and Society for Propagation of the Gospel. New Haven (8 Wheat., 464, 491), in so doing. In United States v. Trinidad Coal Company (137 U. S., 160) the court held that a corporation is in legal fiction “ a person," that it is in fact, and when necessary to enforce the policy and purpose of a law will be regarded as it is in fact, an aggregation and association of natural persons, and is within the inhibition of section 2347 of the Revised Statutes, inhibiting an association of persons from acquiring more coal lands than therein limited. The opinion (ib., 169) holds that:

The reasons that suggested the prohibitions in respect to “ associations of persons" apply equally to incorporated and unincorporated associations. But the purpose of the government would be defeated altogether, if it should be held that corporations were not “associations of persons" within the meaning of the statute, and subject to the restrictions imposed upon the latter by sections 2347 and 2350. It is unreasonable to suppose that Congress intended to limit

the right of entering coal lands to one hundred and sixty acres in the case of an individual, and to three hundred and twenty acres in the case of an unincorporated association, and leave the way open for an incorporated association to acquire public coal lands without any restriction whatever as to quantity. The language of the statute, to say nothing of the policy which underlies it, does not require or permit any such interpretation of its provisions. The words" association of persons are often, and not inaptly, employed to describe a corporation. An incorporated company is an association of individuals acting as a single person, and by their corporate name. As this court has said, "private corporations are but associations of individuals united for some common purpose, and permitted by the law to use a common name and to change its members without a dissolution of the association." Baltimore and Potomac R. R. Co.v. Fifth Baptist Church (108 U. S., 317, 330.)

It is useless further to pursue the discussion. There is no limit to the number of corporations that may be formed by one person, holding nearly the entire interest, associating with himself two others having only nominal interests. If, under each of such unlimited number of corporate organizations and adopted names a new right is acquired to appropriate public lands, then the policy and purpose of the law is violated, the limitation is nullified, and no limit exists as to the area of land that one individual can acquire, save the total area of the public lands and the means the individual can command. Manifestly this is urging a legal fiction, in the words of Lord Mansfield," to an intent and purpose not within the reason and policy of the fiction." The Department will not sanction it. Your decision is affirmed.

ARID LAND-WITHDRAWAL-ACT OF JUNE 17, 1902.

OPINION.

All entries of lands withdrawn under the provisions of the act of June 17, 1902, are subject to the conditions imposed by section 3 thereof, and a revocation of the withdrawal operates to remove those conditions and leaves the entries in the same situation as entries made prior to the withdrawal, and such conditions can not, by force of a second withdrawal, be reimposed upon such of the entries made during the period of the first withdrawal as had not been perfected at the date of the second withdrawal.

Assistant Attorney General Campbell to the Secretary of the Interior, February 20, 1906. (E. F. B.)

By order of the Department, dated April 20, 1903, lands within the irrigable area of the contemplated Okanogan irrigation project in the State of Washington, were withdrawn from entry, except under the homestead law, under authority of section 3 of the reclamation act of June 17, 1902 (32 Stat., 388), which provides that all entries made under the homestead law, of lands within the limits

of such withdrawal and during such withdrawal, shall be subject to all the provisions, limitations, charges, terms, and conditions of the

act.

While this withdrawal was in force, certain entries were allowed of lands within its limits. Subsequently (July 8, 1904) the withdrawal was revoked, but afterward (August 23, 1905) the lands were again withdrawn for use in the construction and operation of the irrigation works under what is commonly known as the first form of withdrawal.

A letter from the Director of the Geological Survey relative to such withdrawal, with a report from the Commissioner of the General Land Office thereon, has been referred to me for opinion" as to whether the entries made while the land was withdrawn under the second form, from April 20, 1903, to July 8, 1904, are now subject to limitations and restrictions of the reclamation act and should be so treated in the classification of the irrigable lands under the project."

As long as the withdrawal continued in force, the lands covered thereby were subject to entry only under the conditions imposed by the reclamation act. Those conditions attached by force of the statute to each and every entry allowed during the period of the withdrawal. The revocation of the withdrawal of its own force subjected the lands to entry and disposal under the general land laws free from all conditions except such as are imposed by those laws and with equal force removed the conditions prescribed by the reclamation act that had attached to entries made during the withdrawal.

After the revocation of the withdrawal and while the lands formerly covered thereby were subject to disposal under the general land laws, all entries of such lands whether made during the period of withdrawal or after the revocation thereof, could have been perfected free from the conditions and limitations prescribed by the third section of the reclamation act. The question now presented is whether those conditions can, by force of a second withdrawal, be re-imposed upon such of the entries made during the period of withdrawal as had not been perfected during the restoration of the lands to entry and disposal under the general land laws.

That such conditions cannot be imposed upon entries that were made after the revocation of the withdrawal, is too plain to admit of controversy. If the revocation of the withdrawal of its own force subjected the lands to disposal under the general land laws and with equal force removed the conditions that had attached to the entries made during the period of withdrawal, the logical result must be that these entries are to be treated as having been made prior to any withdrawal.