1886, was that suit be instituted to set aside patents issued to the Missouri, Kansas and Texas Railway Company for even sections in its indemnity limits, (1) where they overlap the granted limits of the Leav enworth, Lawrence and Galveston road, and (2) where they overlap the indemnity limits of said road, in so far as they lay in Allen County, Kansas.

The case above referred to involved the title to odd sections only, lying in the common indemnity limits, and in no manner referred to the even sections. This is stated in the bill and admitted in the answer, upon which the issues were joined. The Leavenworth, Lawrence and Galveston road had relinquished all claim to such sections to the Missouri, Kansas and Texas Company and that company took patents for the same and assigned them to the Kansas City, Lawrence and South Kansas road, the successor of the Leavenworth, Lawrence and Galveston. The remaining pertinent facts of that case are as follows:

An act of Congress, approved March 3, 1863, granted to the State of Kansas, for the purpose of aiding in the construction of the Leavenworth, Lawrence and Galveston railroad, and the Atchison, Topeka and Sante Fé railroad, with a branch down the valley of the Neosho River, in said State, "every alternate section of land designated by odd numbers, for ten sections in width on each side of said road and each of its branches." The act also provided for indemnity for lands lost, by selections from the odd sections in a strip ten miles wide on each side of said roads. The Atchison, Topeka and Santa Fé R. R. Co. did not build said branch, but, on March 9, 1866, assigned all its interest and right in the same to the Union Pacific Railroad Company, Southern Branch (afterwards known as the Missouri, Kansas and Texas R. R. Co.). The act of July 26, 1866, made a similar grant to said State, for the purpose of aiding the U. P. R. R. Co., Southern Branch, also extending down the valley of the Neosho and through the same lands, providing however that indemnity might be taken "from the public lands of the United States" nearest to the granted sections. Under this latter act the road was constructed, and near the southern boundary of Allen county crossed the Leavenworth, Lawrence and Galveston road (of which the Kansas City, Lawrence and South Kansas road is the successor). Hence the conflict in question between the indemnity limits of the two roads. Such being the facts, it was insisted by counsel that the lands in question became appropriated by the act of 1863 to the building of the southern branch of the Atchison, Topeka and Santa Fé R. R., and that the grants of 1863 and of 1866, instead of being made by Congress in aid of one and the same road, are different and conflicting grants, and that the earlier grant prevents the Missouri, Kansas and Texas R. R. Co. from realizing the bounty of Congress on that subject, because there is in the latter grant an express reservation of any lands granted previously for railroad purposes, as follows: "Provided, that any and all lands heretofore reseryed to the United States by any

act of Congress . . .

of internal improvement be and the same are hereby reserved to the United States from the operations of this act." But the court found that the Missouri, Kansas and Texas Company had become possessed by assignment of all rights under the act of 1863; that Congress was aware of this fact; that the two acts are to be taken and construed in pari materia; that the only object was the building of one road, and that Congress "intended by the latter act to ratify and make good the right which the Union Pacific R. R. Co., Southern Branch, already had to the same lands, for the purpose of building that road." This reasoning can not apply to the even sections, for none of the acts authorized the selection of even sections, except the act of 1866. So far from militating against the said recommendati on, the language of the court foreshadows a favorable decision in the case in question, for after stating the argument based on the above quoted proviso the court says: "If the Atchison, Topeka and Santa Fé R. R. Co. had built a line of road along the same general course and through the same lands, twenty miles in width, that the Missouri, Kansas and Texas R. R. Co. has occupied with its road, and asserted a claim to these lands, or to any of them, the argument would be almost irresistible." Now, this language describes just the status of the la nds in question, as far as they lie in the granted limits of the Leavenworth, Lawrence and Galveston Co. That company did build its road "through the sa me lands," and asserted a claim to them. Whether the language of the court applies to the sections in the common indemnity limits, does not seem necessary to determine. It is sufficient to say that the even sections were not under discussion at all. I can find no reason in said decision for modifying the former recommendation.

RESIDENCE-PUBLIC OFFICIAL.

LEON E. LUM.

The residence of a public official is presumptively consistent with the law creating

the office.

1

Acting Secretary Muldrow to Commissioner Sparks, December 17, 1886. I have considered the case of Leon E. Lum, involving pre-emption cash entry for the N. of the NW. and the N. of the NE. † of Sec. 4, T. 134, R. 27, St. Cloud, Minnesota, containing 153.22 acres, on appeal from the decision of your office, dated July 19, 1885, holding said entry for cancellation.

It appears that the facts are as follows: Lum made his settlement January 5, 1883, erecting a frame building, twelve by fifteen feet. Some two or three months afterwards, he built a log house, eighteen by twenty-two feet, and a stable twelve by twenty-six feet. There was a

floor in the house, and both the house and barn had a board roof covered with tar paper. After final proof, he dug a well and curbed it up, adding a board partition to the house, two doors and a window. The stable was enlarged to twenty-six by thirty-eight feet. About two acres of land were broken, and planted with potatoes, turnips and other vegetables. The improvements were worth $250 or thereabouts. Lum paid the double minimum price for the land, $2.50 per acre.

It appears that Lum never actually established a residence upon the land. It does not appear in the record that the claimant ever slept on the land, while it does appear that William Seeley, a witness on behalf of the claimant, had the use of the house and barn as a logging camp for "a part of the summer and the winter of 1884."

Mr. Lum's attempt to establish and prove a residence is moreover inconsistent with his position as city attorney at Brainerd, which from the records it is proved that he held. The seventh section of article seven of the Constitution of the State of Minnesota, amended November 3, 1868, reads as follows:

"Every person who by the provisions of this article shall be entitled to vote at any election, shall be eligible to any office, which now is or hereafter shall be, elective by the people in the district wherein he shall have resided thirty days previous to such election, except as otherwise provided in this constitution, or the constitution and laws of the United States."

For these reasons I affirm your decision of July 19, 1885, and direct that the entry be canceled.

PRIVATE CLAIM-JURISDICTION—INDEMNITY SCRIP.

JOHN SHAFER.

When the jurisdiction of a court of limited and special authority appears upon the face of its proceedings, its action cannot be collaterally attacked for mere error or irregularity.

The jurisdiction appearing, the same presumption of law arises that it was rightly exercised, as prevails with reference to the action of a court of superior and general authority.

In a claim for indemnity scrip under the third section of the act of June 2, 1858, it must appear that the alleged basis for indemnity was not embraced among the claims expressly excepted from confirmation.

Secretary Lamar to Commissioner Sparks, December 15, 1886.

By the treaty of Paris, signed on the 30th of April, 1803, and ratified on the 21st of October in the same year, France ceded the Louisiana territory to the United States (8 Stat., 200). Congress thereupon passed the acts of April 25, 1812 (2 Stat., 713), and March 3, 1819 (3 id., 528), providing for ascertaining and adjusting the titles and claims to lands in that part of the said territory which lies east of the Mississippi River and the Island of New Orleans, and west of the River Perdido.

Pursuant to these acts of Congress this part of said territory was divided into two land districts, between which Pearl river was the boundary; and for each of which districts commissioners for land claims were appointed. In obedience to these laws the Commissioners, Crosby and Skipwith, of the St. Helena district of Louisiana, on the 24th of July, 1821, made their report aud recommended for confirmation a list of settlement claims in their district. In said list and numbered 190, is found the claim of John Shafer. This report is now published in Volume 3, American State Papers-Green's Edition-page 447.

These claims were confirmed by the acts of Congress approved May 8, 1822 (3 Stat., 707), and August 6, 1846 (9 id., 66). The confirmation under the third section of the act of 1822 is in the following language:

"The persons embraced in the lists of actual settlers, or their legal representatives, not having any written evidence of claim reported as aforesaid, shall, when it appears by the said reports, or by the said lists, that the land claimed or settled on had been actually inhabited or cultivated by such person or persons in whose right he claims, on or before the fifteenth day of April, 1813, be entitled to a grant for the land so claimed or settled on as a donation: Provided, . That no lands shall be thus granted which are claimed or recognized by the preceding sections of this act, or by virtue of a confirmation under the said act of 1819."

And the concluding part of the act of 1846 provides: "But this confirmation shall in no manner affect prior rights, and shall only amount to a relinquishment on the part of the United States."

At a succession sale of the estate of the deceased confirmee, had on the 19th of March 1872, in pursuance of a decree of the parish court in and for the parish of St. Helena, Louisiana, this inchoate claim was purchased by John G. Cole and Company, of said parish, in whose name an application was made to the surveyor-general of Louisiana, on the 29th of the following June, for indemnity scrip under the third section of the act of June 2, 1858 (11 Stat., 294).

For some reason or other, which does not appear in the record before me, the scrip was not prepared by the surveyor-general, and nothing further appears to have been done in relation to the same for more than ten years, when the surveyor-general reported that this claim together with some others was suspended under the ruling in the well known case of Joshua Garrett (2 C. L. L., 1005).

In the course of official business the case came before your office where a final decision against the right of said Cole and Company to receive scrip for this claim under the said act of 1858 was rendered January 29, 1884. The grounds upon which said decision was based are, First, That inasmuch as there were certain restrictions on this claim, and certain provisos in the confirmatory acts of Congress, therefore no certificates of location ought to issue until the actual or approx. imate locus of the land claimed by Shafer should be shown. This was following the rule in the case of Madam Bertrand (Land Office Report

for 1879, p. 215). Second, That even were it ascertained that certifi cates should issue on this claim, the parties applicant therefor have not shown themselves to be entitled to them, because the ruling in the "Garrett" case (supra) had not been complied with.

From said decision an appeal was brought here, and the questions involved in the case have been very carefully considered, counsel for appellants having been heard orally and also by brief. The main grounds urged in the appeal against the decision below, are, that the case upon which it is based, namely the "Bertrand" case, and the "Garrett" case are erroneous expositions of the law in relation to such matters, and for that reason they should be overruled.

.Now, the "Garrett" case was overruled by this Department on the 17th of September last, in the case of Lettrieus Alrio (5 L. D., 158); but as the succession proceedings in the matter of this claim were had in a differently constituted court and under a somewhat different judicial system, from those in the "Alrio" case, I have examined this question anew, as to its applicability to the present case.

The first question to be considered thus becomes: Are the purchasers of said claim at the judicial sale aforesaid the legal representatives of the said John Shafer?

As already stated, the proceedings in the matter of the succession of John Shafer were had in 1872. They were therefore under, and in conformity to the judicial system of Louisiana, as it existed under the State constitution of 1868. For be it remembered that the act of 1858 recognizes as the legal representative of a confirmee in the particular case him, who, under local law, is the owner of the claim.

Article 73 of the Constitution provides: "The judicial power shall be vested in a supreme court, in district courts, in parish courts, and in justices of the peace." Article 87. "... All successions shall be opened and settled in the parish courts; and all suits in which a succession is either plaintiff or defendant may be brought either in the parish or district court, according to the amount involved."

A further examination of the statutes of the State discloses the fact, which is conceded here by the appellant, that the parish court of St. Helena is a court of special and limited jurisdiction, as that term is generally understood and used. Now, it is well settled in jurispru dence, that the judgment of a court of limited jurisdiction can be inquired into only so far as the inquiry relates to the facts necessary to confer jurisdiction, but no inquiry can be made beyond the jurisdictional facts. (Wells on Res Adjudicata and Stare Decisis, 341-3; and Secombe v. Railroad Company, 23 Wall., 108). And in the case of Comstock v. Crawford (3 Wall., 396), the court say, with reference to the general question before me for consideration:

"It is well settled that when the jurisdiction of a court of limited and special authority appears upon the face of its proceedings, its action cannot be collaterally attacked for mere error or irregularity. The