gress of July 23, 1866 (14 stat., 219), now paragraph 4 of section 2488, U. S. Revised Statutes.

On August 11, 1873, a petition was received from Mr. Robert A. Martin, of Tehama County, California, dated July 27, 1873, praying that the survey of the E. of the NW. 4 and E. of the SW. of sec. 11, Tp. 29 N., R. 4 E., be set aside for the reason that the same was returned as swamp and overflowed land whilst in reality the tracts in question do not possess that character, and he transmitted affidavits in support of his statements. The surveyor-general was directed, under date of August 22, 1873, to investigate the matter and to report the result of his investigation to this office as a basis for further action. The surveyor general did not comply with this order but reported, under date of Sept. 5, 1873, the proceedings which had been had up to that date, from which it appears that on August 4, 1871, soon after the survey was commenced by the deputy surveyor, Mr. Martin addressed a letter to the surveyor general complaining of the segregation; that affidavits in opposition to Mr. Martin's statements were filed with the surveyor general; that an examination in the field was ordered by the surveyor general that the report of the deputy intrusted with such examination sustained the segregation survey; that on July 31, 1872, Mr. Martin again addressed the surveyor general who replied asking Mr. Martin to forward any evidence he desired. The surveyor general reports that Mr. Martin failed to forward any evidence-that no affidavits were received from him, and that in default of such evidence the survey was approved Dec. 3, 1882. It appears from statements subsequently made by Mr. Martin that he transmitted certain statements to the surveyor-general which were not considered, not being in the form. of affidavits.

On Sept. 20, 1873, in reply to a further communication from Mr. Martin to this office he was informed that an examination might be had before the surveyor general if desired at the expense of the parties in interest. Mr. Martin replied under date of Oct. 21, 1873, that he was willing to pay his own share of the expense.

Here the matter seems to have rested until Feb. 12, 1884, when Mr. Martin addressed a letter to the Secretary of the Interior alleging that the survey, and the examiner's report thereon, were both fraudulent; that the land was not swampy and not wet enough to make good grazing land every year without irrigation, and never too wet to produce a good crop of wild grass, clover, etc., and that when the alleged exami nation was made by the deputy who reported the survey as correct the land was covered by deep snow; that the deputy went to the summit of the mountain and looked down into the valley for a few minutes and remarked that if the land was not swampy it ought to be and that this was all the examination that was made. On May 31, 1884, Mr. Martin submitted several affidavits corroborating his statements in respect to the character of the land.

In view of the repeated allegations of fraud in this survey, Mr. John B. Treadwell, special examiner of surveys, was directed on Sept. 11, 1884, to examine the land and make a full report thereon. Mr. Treadwell made a detailed report under date of Dec. 10, 1884, transmitting with his statement a plat of the land with photographic views taken by himself.

In respect to the NE. of the NW. of sec. 11 he specifically reports as follows:

"I have examined this 40 acre tract and failed to find a single acre of swamp and overflowed land. The surface is rolling with deep water course. The land is naturally drained and could not in any sense be classed as swamp and overflowed land."

The E. of the SW. of sec. 11 he reports as "mountain, valley, and meadow land, with good grass in places and a large portion covered with timber (pine, fir and cedar). None of this land can be classed as swamp and overflowed. This land is at an altitude of about five thousand feet, and is inaccessible in the winter as the snows are very deep and remain late in the spring. These meadows are valuable only for dairying purposes and for grazing cattle. The cattle are driven to the Sacramento Valley in the fall returning in the spring after the snow has left."

The S.E. of the N.W. 4 of sec. 11, also claimed by Mr. Martin, was found by Mr. Treadwell to be "timber and grass land."

It was the judgment of the Commissioner that the examination shows conclusively that the deputy surveyor erred in representing said lands to be "swamp and overflowed," and the matter was referred to the surveyor general "for appropriate action."

The application for a review and reconsideration of this action is based upon the proposition that the approval of the segregation map by the surveyor general was a finality, and that the Commissioner had no jurisdiction to inquire into the correctness of the survey. In support of this proposition reference is made to the decision of Mr. Secretary Schurz in the case of the Central Pacific R. R. Co. v. State of California (4 C. L. O. 150).

The Secretary in this decision construed the first and second clauses of the act of July 23, 1866. It is not necessary here to interpret or discuss the construction given to said clauses, because the present case comes under the third clause which provides for a different class of cases from the classes enumerated in the first and second clauses:

The third clause is as follows:

"In case such State surveys are found not to be in accordance with the system of United States surveys, and in such other townships as no survey has been made by the United States, the Commissioner shall direct the surveyor general to make segregation surveys, upon application to said surveyor-general by the governor of said State within one year of such application, of all the swamp and overflowed land in such townships, and to report the same to the Commissioner of the General

Land Office, representing and describing what land was swamp and overflowed under the grant, according to the best evidence he can obtain."

The survey under consideration was a segregation survey made in a township in which "no survey had been made by the United States." The case therefore falls specifically under this provision of the statute. The duties of surveyors general are by law performed under the direction of the Commissioner of the General Land Office, and the supervision of the Secretary of the Interior. (Secs. 441 and 453, R. S.) The proposition that acts of subordinate officers of the land department are final of themselves, and that the Commissioner or Secretary have no power to inquire into or to revise their action, or to modify or reverse their decisions, has often been set up in arguments of counsel, but has never been sustained by the courts. Federal and State decisions have settled the law otherwise. In Barnard's Heirs v. Ashley's Heirs (18) How., 43), it was held that the act of July 4, 1836 (5 Stat., 107), provided for a direct supervision by the Commissioner of the General Land Office over registers and receivers, and therefore that their judgment is not conclusive in a case where proceedings were had before them after that date. In Maguire v. Tyler et al. (1 Black 195) the plenary powers conferred by the act of July 4, 1836, upon the Commissioner of the General Land Office to "supervise all surveys of public lands," including the jurisdiction and power "to adjudge the question of accuracy preliminary to the issuing of a patent," were fully recognized and affirmed, as also were the powers of supervision and appeal of the Secretary of the Interior. In Snyder v. Sickles (98 U. S. 203), in matters of survey wherein the acts of the surveyor general were sought to be regarded as final, the supervisory powers of the Secretary of the Interior over such acts, and his authority to disapprove a survey, were fully considered and affirmed. In cases arising before the act of July 4, 1836, where no appeal from decisions of registers and receivers was provided for, the acts and decisions of such officers are regarded as final only "when they acted within their powers, as sanctioned by the Commissioner, and within the law, and when their decisions were not impeached on the ground of fraud or unfairness." Lytle . Arkansas, (9 How., 333). Though a public grant raises a presumption that every pre-requisite has been complied with, the jury could not safely be instructed that no fraud in a public officer could invalidate it. Patterson v. Jenks, (2 Pet., 216). Fraudulent and unlawful acts of officers under foreign jurisdictions are deemed invalid when brought in question in courts of the United States. U. S. v. Arredondo, (6 Pet. 691). U. S. v. Arredondo, (6 Pet. 691). Villabos v. U. S., (10)

How. 541).

It is a general rule that whatever is done in fraud of law is done in violation of it. The William King, (2 Wheat. 148.)

Fraud will vitiate any, even the most solemn transactions; and asserted title founded upon it, is utterly void. U.S. v. The Amistad, (15 Pet. 518).

The propositions that the correctness of a deputy surveyor's return of the swampy character of lands in a township plat of survey cannot be inquired into by the executive officers of the Government who are charged with the supervision of surveys and the adjudication of the swampland grant, and that the approval of a survey by the surveyorgeneral estops inquiry even in case of fraud, appear untenable when judged by established rules of law, or viewed in the light of the responsibilities and obligations of the executive department.

I find nothing in the act of July 23, 1866, which implies finality of determination of the character of lands by the mere return by a surveyor general of a plat of segregation survey. Congress could undoubtedly have confirmed irregular and even illegal surveys previously made, although such confirmation might amount to an additional grant, but it would require very clear language to justify a conclusion that Congress intended to confirm in advance future irregularities or illegalities, or to make a future executive confirmation of such irregularities or illegalities obligatory, or to invite false and fraudulent surveys by making acts of the surveying officers a finality binding upon the Executive, and compelling the President of the United States to issue patents upon surveys whether false and fraudulent or not.

Segregation surveys made subsequent to the passage of the act of 1866, are by the act to be reported to Commissioner of the General Land Office by the surveyor general, "representing and describing what land was swamp and overflowed, under the grant, according to the best evidence he can obtain." This provision does not import that such return is conclusive against further or better evidence, nor that the Commissioner has not authority to inquire into the correctness of the return or the sufficiency of the evidence. The Commissioner's general authority to perform, under the direction of the Secretary, "all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government," is a part of the law. Is the report of the surveyor general made to him only that he shall carry into effect, without question, without scrutiny, without supervision, the determination of a subordinate officer, or is it made to him in order that in the exercise of his powers and duties consequent upon his su pervisory authority he shall himself judge of the sufficiency and reliability of such report?

The statute itself answers this question.

Sec. 5. It shall be the duty of the Commissioner of the General Land Office to instruct the officers of the local land offices and the surveyor general, immediately after the passage of this act, to forward lists of all selections made by the State referred to in section one of this act and lists and maps of all swamp and overflowed lands claimed by said State, or surveyed as provided in this act, for final disposition and de

termination, which final disposition shall be made by the Commissioner of the General Land Office without delay.

The report of the surveyor general is therefore made, as expressly provided in the statute, for "final disposition and determination" by "the Commissioner." The words "disposition and determination” import adjudication in its fullest sense. To the Commissioner only, (under the general supervisory direction of the Secretary), does the law give jurisdiction to "determine" what lands are swamp lands under the grant. No power, jurisdiction or authority is given to the surveyor general to "determine" anything. He simply "reports." He is bound to report "according to the best evidence he can obtain." That is the extent of his function. The Commissioner "determines" whether the report is sufficient. Such report is therefore not conclusive upon the Commissioner. The plats of survey, if evidence at all, are merely prima facie evidence. The Supreme Court of California has so said.

"The township plats were not offered in evidence to prove that the lands were in fact swamp and overflowed land, nor for any particular purpose expressed at the time of their introduction. The general objection on the ground that they were irrelevant and incompetent was not well taken. If they were admissible for any purpose, they were clearly admissible to prove that the lands had been surveyed by the United States, and as tending to prove that the title had vested in the State, under the provisions of the act of Congress of July 23, 1866." Thompson v. Thornton (50 Cal. 145).

The plats of survey simply "tend to prove" the swampy character of land-they do not prove it. The grant of swamp and overflowed lands to the State of California was of lands that were, at date of grant, "swamp and overflowed and rendered thereby unfit for cultivation." Lands not of that character were not granted. A false return by a deputy surveyor, although approved by the surveyor general, does not constitute a grant.

"Assuming that the register and 'receiver have a jurisdiction to decide on the facts of a pre-emption claim if they undertake to grantland which Congress have declared shall not be granted, their act is void." Wilcox v. Jackson, (13 Pet. 266).

It is apparent that under the act of July 23, 1866, the surveyor general has not a "lawful jurisdiction" to "decide" the facts of the swampy character of land shown by a plat of segregation survey. He merely "reports" the evidence he has. Such report does not of itself give title, nor determine the right of the State to receive title. "Whether the State has even a prospective or inchoate title to swamp lands, depends entirely upon the single question, are they swamp lands within the act of Congress?" If they are not, neither the State nor its officers have any right, power, or authority to sell or convey them." Kile & Thompson, v. Tubbs, (23 Cal., 441.) “Whether a given subdivision of land is within the act is a question of fact to be determined, 7747 LAND-32