These are the several issues made by the appeal of the State.

The State of California acquired the right to indemnity for school sections under the seventh section of the act of March 3, 1853 (10 Stat., 244), and the sixth section of the act of July 23, 1866 (14 Stat., 218), which provides that said act of March 3, 1853, "shall be construed as giving to the State of California the right to select for school purposes other lands in lieu of such sixteenth and thirty-sixth sections as were settled upon prior to survey, reserved for public uses, covered by grants made under Spanish or Mexican authority, or by other private claims, or where such sections would be so covered, if the lines of the public surveys were extended over such lands, which shall be determined whenever the township lines shall have been extended over such land, and in case of Spanish or Mexican grants, when the final survey of such grants shall have been made."

In the grant of school sections to other States, indemnity is allowed therefor where such sections have at the date of survey "been sold, or otherwise disposed of."

Without stopping to discuss the exact scope and meaning of the quoted language in those grants wherein it occurs, suffice it to say, that no similar language is found in the grant of school lands to California. To this State the right of indemnity is given only for such sixteenth and thirty-sixth sections as were settled upon prior to survey, reserved for public uses, or covered by Spanish or Mexican grants or other private claims.

It is evident that this section does not give to the State indemnity for the sixteenth and thirty-sixth sections, where such sections are found to be swamp and overflowed lands, because said lands are not embraced in any of the classes provided for. They are not "private claims," nor "lands reserved for public uses," but they are lands inuring to the State under a prior grant.

This question was submitted to the Attorney General by Secretary Schurz, who, on March 4, 1878, transmitted to this Department his opinion that the words, "reserved for public uses," employed in the indemnity provision of the act of July 23, 1866, do not cover lands granted to the State by the swamp land act, but refer solely to reservations made for the purposes of the general government. In this opinion the Attorney General refers to the fact that the bill as originally drawn provided by its sixth section indemnity for such sixteenth and thirty-sixth sections, as were settled upon prior to survey, reserved for public uses, covered by swamp lands or grants made under Spanish or Mexican authority," etc. On the recommendation of the Committee on Public Lands, the Senate amended the sixth section of the bill by striking out the words "swamp lands, or," and the bill was enacted as thus amended.

It is urged by counsel for the State, in their argument that this opinion of the Attorney General has been followed by this Department in a

hesitating way without any direct affirmance, and as they believe without sufficient consideration.

They insist that the action of the Senate in eliminating the words swamp lands from the act as originally drawn does not warrant the inference by the Attorney General, that it was the deliberate intention of the Senate to refuse the State indemnity for sections sixteen and thirty six that should be found swamp and overflowed; but that the inference is just as fair and much stronger that the words were stricken out, because, in the judgment of the Committee and Senate, they were surplusage.

It seems to me clear that this act of the Senate could have signified no other purpose than that inferred by the Attorney General. But, independent of this, I am satisfied, from the language of the act of July 23, 1866, that the words "reserved for public uses," as employed in the sixth section of said act, did not embrace within its meaning lands that passed to the State under the swamp grant. The State took under the swamp grant an absolute title to all lands of that character, and such lands were not at the date of the school grant "lands reserved for public uses," but lands that had been absolutely disposed of. So that I feel obliged to hold that the State of California is not entitled, as other States are, under the language of the various acts providing for indemnity to make selections in lieu of swamp lands merely because they are swamp and overflowed.

But the State claims that under the statutes directing surveys in California, townships were made fractional by reason of the existence of swamp and overflowed lands, notoriously and obviously such, in the same manner, and with the same effect as in other States resulted from surveys being fractional by bodies of water, whether fresh or salt, of such character as to be meandered; and so likewise furnished a legal basis for indemnity selections. It is contended that this results from the act of February 26, 1859, which provides:

And other lands are also hereby 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.

And the fourth section of the act of July 23, 1866, which provides:

The commissioner shall direct the United States surveyor-general for the State of California to examine the segregation maps and surveys of the swamp and overflowed lands made by said State; and where he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward to the general land office for approval: Provided, That in segregating large bodies of land, notoriously and obviously swamp and overflowed, it shall not be necessary to subdivide the same, but to run the exterior lines of such body of land. 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 general land office, representing and describing what land was swamp and overflowed under the grant, according to the best evidence be can obtain.

If under these statutes townships were made fractional by the surveys, it is claimed the same consequences must result that follow from their being fractional for any other reason. It is the fact, as I understand it, that many townships were actually so surveyed as fractional and the surveys approved; swamp and overflowed land having been meandered and the surveys closed upon the meandered lines thereof by fractional lots, in the same manner as if, instead of being partly under water, it had been wholly so. A fractional township such as is referred to in the act of 1859, must, I suppose, mean a township fractional as surveyed. It is only of government surveys that the term is so employed; one of the causes for fractional divisions is the fact that land is under water; and in the case of California, the law directs the segregation of land which is only so much under water as. to be "swamp and overflowed and unfit for cultivation."

I should be less disposed, perhaps, to accept this argument, if it were an original question open to direction, and but for the fact that it has once been adopted by the Department, and the rule established accordingly upon which these certifications were made to the State for indemnities selected; since which action many years have elapsed. To now apply a different rule must necessarily unsettle titles to a serious degree, or, at least, compel purchasers from the State on the faith of a title passed from the United States to buy their lands again. It would also involve the infraction of the general principle that when a title has passed from the United States by certification, the jurisdiction of the Department terminates; unless the act of 1877 hereinafter mentioned gives a jurisdiction not otherwise existing.

Another consideration which gives a very strong equitable support to the claim of the State, is that the grant, in execution of which these indemnities are selected, was made for the purpose of aiding the State in the maintenance of public schools, a cherished object in the legisla tion of the United States, and, unless this interpretation be given, the State will be denied a right of selection to make good deficiencies which every other State, enjoying such a provision, has under the laws the benefit of. I think the fact mentioned in the opinion of the AttorneyGeneral, herein before referred to, in respect to the omission of the words "swamp lands" in the act of 1866, may not improbably be accounted for by supposing that the Senate understood that in that same act it was provided that swamp lands, in considerable bodies, should be treated as lands covered with water, so that a township made fractional by the existence of such land, would afford a basis for selection of indemnity lands. Under such circumstances, I do not feel authorized to affirm with such confidence as to warrant the reversal of former judgments by my predecessors in office, that their view of the law was wrong. In

deed, I do not hold that opinion. It is, perhaps, a doubtful question, on which disagreement in judgment might well exist. It ought to be plain and undeniable that a mistake was made in order now to overturn the former judgment and action.

But if this interpretation of the acts of 1859 and 1866, so long ago adopted and so long subsisting, be thought incorrect, it could only be corrected in the exercise of a jurisdiction to be derived from the act of 1877. That act was construed by the supreme court in the case of Durand v. Martin (120 U. S., 366) and the language employed by the court is comprehensive enough to hold it to confirm to the State all certifications made before its passage of lands in lieu of such sixteenth and thirty-sixth sections as were regarded as wanting by reason of the townships being made fractional from such surveys.

Omitting the title and enacting clause, that act reads as follows:

That the title to the lands certified to the State of California, known as indemnity school selections, which lands were selected in lieu of sixteenth and thirty-sixth sections, lying within Mexican grants, of which grants the final survey had not been made at the date of such selection by said State, is hereby confirmed to said State in lieu of the sixteenth and thirty-sixth sections, for which the selections were made.

Sec. 2. That where indemnity school selections have been made and certified to said State, and said selection shall fail by reason of the land in lieu of which they were taken not being included within such final survey of a Mexican grant, or otherwise defective or invalid, the same are hereby confirmed, and the sixteenth or thirty-sixth section in lieu of which the selection was made shall, upon being excluded from such final survey, be disposed of as other public lands of the United States: Provided, That if there be no such sixteenth or thirty-sixth section, and the land certified therefor shall be held by an innocent purchaser for a valuable consideration, such purchaser shall be allowed to prove such facts before the proper land office, and shall be allowed to purchase the same at one dollar and twenty-five cents per acre, not to exceed three hundred and twenty acres for any one person: Provided, That if such person shall neglect or refuse, after knowledge of such facts, to furnish such proof and make payment for such land, it shall be subject to the general land-laws of the United States. Sec. 3. That the foregoing confirmation shall not extend to the lands settled upon by any actual settler claiming the right to enter not exceeding the prescribed legal quantity under the homestead or pre-emption laws: Provided, That such settlement was made in good faith upon lands not occupied by the settlement or improvement of any other person, and prior to the date of certification of said lands to the State of California by the Department of the Interior: And provided further, That the claim of such settler shall be presented to the register and receiver of the district land-office, together with the proper proof of his settlement and residence, within twelve months after the passage of this act, under such rules and regulations as may be established by the Commissioner of the General Land Office.

Sec. 4. That this act shall not apply to any mineral lands, nor to any lands in the ity and county of San Francisco, nor to any incorporated city or town, nor to any tide, swamp, or overflowed lands.

The supreme court said of this enactment:

This statute was, in our opinion, a full and complete ratification by Congress, according to its terms, of the lists of indemnity school selections which had been before that time certified to the State of California by the United States as indemnity school selections, no matter how defective or insufficient such certificates might originally have been, if the lands included in the lists were not of the character of any of those mentioned in section 4, and if they had not been taken up in good faith by a homestead or pre-emp

tion settler prior to the date of the certificate. The history of the times, which is exemplified by the facts of this case, shows that such must have been the intention of Congress. In the second section cases were provided for in which the selection failed: 1, because the school section in lieu of which indemnity was claimed and taken was not actually within the limits of a Mexican grant; and, 2, because it was 'otherwise defective or invalid.' This language is certainly broad enough to include every defective certificate; and, in order that the United States might be protected from loss, it was provided that if the sixteenth or thirty-sixth section, in lieu of which the selection was made, should be found outside the Mexican grant, the United States would accept that in lieu of the selected land, and confirm the selection. If, however, there was no such sixteenth or thirty-sixth section, and the land certified was held by an innocent purchaser from the State for a valuable consideration, such purchaser would be allowed to purchase the same from the United States at the rate of one dollar and twenty-five cents per acre, not exceeding three hundred and twenty acres for any one person.

The statute relates only to such selections as had been certified to the State, and, taken as a whole, it meets the requirements of all the cases of defective selection which could be so certified. These are: 1. Cases where the State was entitled to indemnity, but the selection was defective in form; 2. Cases where the original school sections were actually in place, and the State was not entitled to indemnity on their account; and 3. Cases where the State was not entitled to indemnity, because there never had been such a section sixteen or thirty-six as was represented when the selection was made and the official certificate given. As to the first of these classes, the certificate was simply confirmed because the State was entitled to its indemnity, and nothing was needed to perfect the title but a waiver by the United States of all irregularities in the time and manner of the selections. As to the second, the selection was confirmed, and the United States took in lieu of the selected land that which the State would have been entitled to but for the indemnity it claimed and got. In its effect this was an exchange of lands between the United States and the State. And as to the third, in lieu of confirmation, bona fide purchasers from the State were given the privilege of perfecting their titles by paying the United States for the land at a specified price. Under these circumstances, it was a matter of no moment to the United States whether the original selection was invalid for one cause or another. If the State was actually entitled to indemnity, it was got, and the United States only gave what it had agreed to give. If the State claimed and got indemnity when it ought to have taken the original school sections, the United States took the school sections and relinquished their rights to the lands which had been selected in lieu. And if the State had claimed and sold land to which it had no right, and for which it could not give school land in return, an equitable provision was made for the protection of the purchaser by which he could keep the land, and the United States would get its value in money. In this way all defective titles, under the government certificates, would be made good without loss to the United States.

The language of this act is, as the court says, broad enough to cover every defective certificate; and the court have expressly decided, so far as language can express such a decision, that it must have effect as a ratification to the full extent of the meaning of these words. It is said, on the other hand, that such a certification as is now in question must be regarded as not defective, but as void; because there was no rightful base for a selection, inasmuch as there was in fact a thirty-sixth and sixteenth section in townships so made fractional by swamp lands which the State took under the swamp land grant, and in lieu of which no right of selection existed. But it is to be observed that the act does not stop with speaking of certifications merely defective, but adds also