It is a cardinal rule of construction that statutes must be interpreted according to the intent and meaning and not always according to the letter. Under this rule, if words or phrases employed in a statute are repug uant to other words and phrases that clearly express the intent and meaning of the statute, they should be rejected as mere surplusage. The act of July 4, 1884, refers to the lands acquired from the White Oak Point and Mille Lac bands of Chippewa Indians by the treaty of March 20, 1865. A reference to that treaty shows that no lands lying within the territory known as the White Earth reservation was acquired by the United States from said bands of Indians, but that among the reservations thereby ceded was "Mille Lac," "described in the second clause of the second article of the treaty with the Chippewas of Feb ruary 22, 1855." A reference to the treaty of February 22, 1855, shows that the "Mille Lac" reservation ceded to the United States by the treaty of March 20, 1865, is described as follows: "fractional townships, viz: 42 N., R. 25 W., 42 N., R. 26 W., 42 aud 43 N., R. 27 W., and also the three islands in the southern part of Mille Lac." This is a direct and positive description of the lands referred to by the act of July 4, 1884, and the words, "on the White Earth reservation," being clearly repugnant to the descriptive words above referred to, should yield to words that will best carry into effect the intention of the legislature. Considering further that the White Earth reservation was not created until April 18, 1867, and that it has not been ceded to the United States, but is still a reservation for said Indians, that the 12th article. of the treaty of 1865-by which the Mille Lac Indians ceded the lands embraced in the "Mille Lac" reservation-provided that said Indians. should not be compelled to remove from said ceded lands, so long as they did not in any manner interfere with the person or property of the whites, clearly indicates that it was the intention of Congress to protect these Indians in their right of occupancy of that territory, as stip ulated by the 12th article of the treaty aforesaid. Your decision is affirmed. SCHOOL LAND-STATE SELECTION. STATE OF CALIFORNIA v. SMITH. The State is not authorized to select double minimum laud in lieu of lost school sections. Acting Secretary Muldrow to Commissioner Sparks, April 4, 1887. Edward M. Smith made application to purchase the NW. 4 of Sec. 20, T. 1 N., R. 1 E., S. B. M, Los Angeles land district, California, under act of June 3, 1878, which application was rejected by the local officers, for the reason that said land prior to said application had been selected by the State of California as indemnity in lieu of lost school sections sixteen and thirty-six, from which decision Smith appealed. You reversed said decision, upon the ground that said selection by the State of California was invalid, for the reason (1) That the lands selected are double minimum and such lands can not be selected by the State in lieu of lost school sections; and (2) Because the selection is based upon alleged deficiencies that do not exist. Fronr this decision the State appealed. The deficiencies alleged are as follows: Part of NE. of Sec. 36, T. 6 S., R. 8 W.. 160 40 40 320 You say that the records of your office show that there is no such township as 15 S., R. "6 W.," S. B. M., and that fractional township 6 south has been satisfied. Therefore the only deficiency shown as a basis for the selection of the said NW. 4 of section 20, is part of the NE. 4 of Sec. 36, T. 6 S., R. 8 W.-eighty acres, and part of the SW. of Sec. 16, T. 10 S., R. 4 W.-forty acres; making a total of one hundred and twenty acres. 1 The selection of one hundred and sixty acres for a deficiency of one hundred and twenty acres being unauthorized, the State can not substitute other lands actually lost, or amend by adding other lands to the basis of indemnity, and thus preserve her selection so as to defeat the right of an applicant to purchase said land made prior to substitution, or amendment, because such substitucion or amendment would be virtually a new selection, taking effect only from its date. California r. Haile, (1 C. L. L, 324); Selby v. California, (3 C. L. O., 4); Nebraska v. Dorrington, (2 C. L. L., 647). The principal ground of error alleged by the State is, in holding "that lands double minimum in price can not be selected in lieu of lands single minimum in price." In connection with this alleged error, counsel insist that your office erred in neglecting to state in said decision that in this case the State selected one acre of double minimum as indemnity for two acres of single minimum land lost. If the eighty acres in township 6, and the forty acres in township 10, are the only lands of the alleged deficiency (upon which this selection was based), for which the State is entitled to indemnity, as shown by the decision of your office, their position is not tenable. Counsel do not controvert the statement that there is no such township as 15 S., R. 6 W., S. B. M., and that the deficiency in fractional township 6 south has been satisfied, but merely allege that your office erred in not giving them an opportunity to make good the consideration for the land selected by surrendering their claim, on account of additional school lands lost to the State, or to elect what portion of the land selected they will retain in satisfaction of that part of the indemnity to which the State is entitled. But we may assume in the decision of this case that the intention of the State was to select one acre of double minimum for two acres of single minimum. The seventh section of the act of March 3, 1853 (10 Stat., 244), provides "that where any settlement by the erection of a dwelling house, or the cultivation of any portion of the land, shall be made upon the sixteenth and thirty-sixth sections before the same shall be surveyed, or where such sections may be reserved for public uses, other lands shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the act of Congress approved 20th May, 1826." The act of July 23, 1866 (14 Stat., 210, 6th Sec.), construed this grant as giving to the State of California the right to select indemnity for lost sixteenth and thirty-sixth sections, covered by grants made under Spanish and Mexican authority. Both acts refer to and adopt the terms and methods of selection prescribed by the act of May 20, 1826 (4 Stat., 179). It is unnecessary to refer to these acts further than to show for what lost sections the State is entitled to indemnity. In determining what lands may be selected as indemnity, the act of May 20, 1820, and of February 26, 1859 (11 Stat., 385), control as to the State of California, as well as to all other States. The act of May 20, 1826, merely provided for the appropriation of land for the use of schools in townships and fractional townships, where no land had been theretofore appropriated, and providing for the adjustment of quantity where the township is fractional. The act of February 26, 1859 (R. S., Sec. 2275), under which indemnity school selections have since been made, provided that Where settlements with a view to pre-emption have been made before the survey of lands in the field, which are found to have been made on sections sixteen and thirty-six, those sections shall be subject to the pre-emption claim of such settlers, and if they or either of them have been or shall be reserved, or pledged for the use of schools or colleges, in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented to pre-emptors; and other lands are also appropriated to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. Provided: That the lands by this section appropriated shall be selected and appropriated in accordance with the principles of adjustment and the provisions of the act of Congress of May 20, 1826. This plan of adjustment provided by that act is incorporated in the Revised Statutes as section 2276, and is as follows: The lands appropriated by the preceding section shall be selected within the same land district, in accordance with the following princi 2278 DEC--35 ples of adjustment, to wit: For each township or fractional township containing a greater quanty of land than three quarters of an entire township, one section; for a fractional township containing a greater quantity of land than one half and not more than three quarters of a township, three quarters of a section, etc. At the date of the grant to the State of California all lands in that State were single minimum lands, and the State of California, by providing for the sale of these lands at $1.25 per acre, construed the grant to be a grant of single minimum lands, which construction has been acquiesced in by the Department. Considering that this is a grant of single minimum lands, the question then arises, what lands is the State entitled to select in lieu of lost school sections? The act authorizing the selection of lieu lands provides, that for the lands lost by reason of any of the conditions named in the act, other lands of like quantity shall be selected. Now, if the State is entitled to select lands of like quantity for the lands lost, it follows that she is entitled to select one hundred and sixty acres for every one hundred and sixty acres lost, and the State cannot be restricted to a less quantity. This question as to the authority of the State to select a less quantity of land as indemnity for a greater quantity lost, is presented in the report of the surveyor-general of California, of August 1, 1882, to the gov ernor, quoted in the brief of counsel, which is not controverted by counsel for the State. In said report, after referring to the preparation of maps showing the railroad reservations, he says: This became necessary, not as a matter of general information, but because the Commissioner of the General Land Office has decided that when the State selects indemnity lands within such reserved limits, the land must be regarded as double minimum in price, and the State can not select within the reserved limits, unless it has lost other lands equivalent in price, without agreeing to surrender two acres for one. This was done in some cases before I came into office, but without authority, for the surveyor-general is not allowed to charge more than $1.25 per acre for State land, while to surrender two acres for one would occasion a loss to the school fund of $1.25 per acre in all such cases, unless applicants would voluntarily pay $2.50 per acre. The act of June 22, 1874 (18 Stat., 202), appropriating lands for the support of schools in certain fractional townships in the State of Missouri, according to the provisions of the act of May 20, 1826, by the second section provides: That the lands to which said fractional townships are entitled as aforesaid shall be selected by the Commissioner of the General Land Office out of any unappropriated public land within the State of Missouri, subject to sale or location at one dollar and twenty-five cents an acre. This act is a construction of the act of May 20, 1826, as to the character of lands intended to be granted to the State as indemnity for lost school sections, and as the act of March 3, 1853, and the act of July 23, 1866, granting sections sixteen and thirty-six to the State of California, provide that indemnity for lost sections shall be made in accordance with the act of May 20, 1826, it would seem to apply as well to the State of California, so far as to declare that indemnity lands selected under the act of May 20, 1826, should be lands subject to sale or location at $1.25 per acre. The tract selected lies within the limits of the Southern Pacific Railroad Company, and is embraced in the sections referred to in the act of March 6, 1868 (15 Stat., 39), restoring lands to market along the line of the Pacific railroads and branches, which provides that the even numbered sections along the route of the several roads shall be rated at $2.50 per acre and subject only to entry under the pre emption and homestead laws. Mr. Secretary Cox, by decision of July 5, 1870 (12 L. & R., 223), on application of the State of Nebraska, under the internal improvement grant of September 4, 1841 (5 Stat., 453), refused to allow the State to select even numbered sections within the limits of the Burlington & Missouri River Railroad, upon the ground that under the act of March 6, 1868, such sections were rated at $2.50 per acre, and by that act, which was in force when most of the lands were selected, said sections were subject to entry only under the homestead and pre-emption laws, and that the grant to the State of September 4, 1841, was made before there were any double minimum lands, and hence could not include such lands. While lands within the limits of a railroad grant reserved from the operation of the grant to the road are not strictly speaking lands held in reservation, or appropriated public lands, they are in a certain sense lands reserved to the United States for disposition under the general settlement laws, and this applies to all such lands whether so reserved by the act of March 6, 1868, or by the various grants to railroads, in which such reservations are made. Acting Commissioner Curtis, in his decision of August 24, 1875, (2 C. L. O., 86,) allowed the State of California "to select outside the limits of the roads named in the act of March 6, 1868, as indemnity for lost sections sixteen and thirty-six, other lands equivalent in price and quantity, and when lands are selected, the minimum price of which is $2.50 per acre, each acre so selected shall be taken by the State in satisfaction of two acres the minimum price of which is $1.25 per acre." This conclusion seems to have been arrived at upon the theory that this portion of the public domain is not made exceptional in character, "save in the purpose of compelling it to make double return in money, if sold, or stand for double quantity when demanded in satisfaction of grants of $1.25, public or private." |