supreme court in the case of the L., L. & G. R. R. Co. v. United States (92 U. S., 733.)

There a grant was made by the United States to the State of Kansas of land for the purpose of aiding in the construction of a railroad. After the cession of the Osage lands to the United States, the railroad was definitely located through them, and no patents being required, the odd numbered sections within the granted limits were certified to the State for the use of the said road. Subsequently, suit was brought by the United States against said company to recover the title to said lands, and the supreme court held, that the status of the Osage lands was such that they did not pass by a grant which only took effect on public lands. The legal status of these lands having been thus determined by the highest court to be such as would not pass under a grant of public lands, I would be assuming an undue responsibility were I to decide that the same lands are public lands, for the purpose of extending by implication the five per cent grant in the present case. This I decline to do.

In arriving at the conclusion before stated, I am relieved to know that, if the agents of the State of Kansas are not satisfied of its correctness, they can follow the example of the agents of the States of Iowa and Illinois in the Five Per Cent cases, and apply for a mandamus. By this means the questions involved will, by an almost summary method, be brought before the supreme court of the United States, the highest tribunal in the land, and to whose decree all will bow with cheerful acquiescence. But, until such authoritative construction of the law in their favor, I must decline to approve of this claim, as at present advised.

2278 DEC--46

supreme court in the case of the L., L. & G. R. R. Co. v. United States (92 U. S., 733.)

There a grant was made by the United States to the State of Kansas of land for the purpose of aiding in the construction of a railroad. After the cession of the Osage lands to the United States, the railroad was definitely located through them, and no patents being required, the odd numbered sections within the granted limits were certified to the State for the use of the said road. Subsequently, suit was brought by the United States against said company to recover the title to said lands, and the supreme court held, that the status of the Osage lands was such that they did not pass by a grant which only took effect on public lands. The legal status of these lands having been thus determined by the highest court to be such as would not pass under a grant of public lands, I would be assuming an undue responsibility were I to decide that the same lands are public lands, for the purpose of extending by implication the five per cent grant in the present case. This I decline to do.

In arriving at the conclusion before stated, I am relieved to know that, if the agents of the State of Kansas are not satisfied of its correctness, they can follow the example of the agents of the States of Iowa and Illinois in the Five Per Cent cases, and apply for a mandamus. By this means the questions involved will, by an almost summary method, be brought before the supreme court of the United States, the highest tribunal in the land, and to whose decree all will bow with cheerful acquiescence. But, until such authoritative construction of the law in their favor, I must decline to approve of this claim, as at present advised.

2278 DEC--46