viding the claimant has performed the acts which bring his claim within the confirmatory provisions of the act. Whether a patent issued under such circumstances will be good, void, or voidable, is not for me to decide, as that is a question which the courts alone have authority to determine. I am of opinion that patents must issue on all claims confirmed by this act, and if wrong or injury results therefrom the party injured must seek redress in the proper judicial tribunal. The plain duty of an executive officer is to execute the laws as he finds them, not to refuse or neglect to execute laws which Congress has enacted because he may not agree with the law-making power as to their policy or validity. The intention of Congress that patents shall issue on all claims confirmed by this act is clearly expressed, and this application must therefore be rejected. Very respectfully, C. SCHURZ, Secretary. The provisions of the act of April 21, 1876, apply to the Iowa railroad grants. In every case arising un der this act the Interior Department must be governed by the facts. It is not the duty of this de partment to pass upon the constitutionality of this law and its effects on what are claimed to be vested rights. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of the Cedar Rapids and Missouri River Railroad Company vs. Gurdon Colton, involving the N. W. of section 18, township 85, range 43 west, formerly Council Bluffs, now Des Moines land district, Iowa. This tract is within the six-mile limits of the route as established under the act of May 15, 1856, and outside of the twenty-mile limits of the road as constructed under the act of June 2, 1864. Colton made homestead entry for the tract September 13, 1870. Under date of March 27, 1877, you held that the entry was confirmed under the first section of the act of April 21, 1876. An appeal from this decision has been taken by the company. Elaborate arguments have been filed by counsel on each side, in which the provisions of the acts of May 15, 1856, and June 2, 1864, are discussed. This case comes before me under the first section of the act of April 21, 1876, which provides "that all pre-emption and homestead entries in compliance with any law of the United States, of the public lands, made in good faith by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after their restoration to market by order of the General Land Office, and where the pre-emption and homestead laws have been complied with and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed and patents for the same shall issue to the parties entitled thereto." The facts in the case are as follows: The tract was withdrawn from entry for the purpose of adjusting the railroad grant, by letters from your office dated June 16, 1864, and June 7, 1865. It was restored to entry by order of the General Land Office November 1, 1867. Under this restoration Mr. Colton made his entry. Counsel for appellants urge that this tract inured to the grant to said company June 2, 1864; that it therefore could not be legally restored, and that any action by the land department, attempting such restoration, was illegal and void. They also urge that the provisions of the act of 1876 are not applicable to the Iowa land grants. I am unable to arrive at such a conclusion. The act is not limited to particular grants, but is general in its nature. It provides that where entries have been made in compliance with any law of the United States, in good faith by actual settlers, on the public lands within the limits of any land grant, prior to the receipt of the notice of withdrawal at the local office, or after their restoration to market by order of the General Land Office," and where the law has been complied with, the entries shall be confirmed. 66 This department must be governed by the facts. At the time Colton made his entry the tract was "public land," within the meaning of the statute. If there was any doubt on this point, I should be governed by the opinion of the Attorney General, dated August 4, 1876, in which he says: "The question is not whether lands in that situation are in general public lands, but whether, from the context and other means of interpreting the above statute, it appears that Congress there intended by the phrase 'public lands' to designate the lands so situated. I think it plain that Congress, in the above act, used that phrase in a special sense, virtually being lands within the limits of any land grant prior to the time when notice of withdrawal is received at the local land office," &c. No argument can obliterate the fact that the land was reserved from homestead and pre-emption entry by the Land Department, under orders dated June 16, 1864, and June 7, 1865; neither can any argument do away with the fact that the land was restored to entry by order of the General Land Office. The records establish these facts beyond a doubt. I am not called upon at this time to determine the question whether your predecessor had the authority to thus restore the lands, or what the effect of his action was. I cannot be oblivious to the condition of affairs that resulted in the passage of the act under which it is asserted that the entry in question is confirmed. The arguments which were urged in favor of the measure are well known. This department, however, must be governed by the act itself. In my opinion it is susceptible of a reasonable construction, and I do not think it will be seriously contended that it is my duty to usurp the prerogative of the judicial branch of the government and determine the question of the constitutionality of the law and its effect upon what are claimed to be vested rights. As before stated, the tract entered by Colton was public land within the meaning of the statute, the entry was made in compliance with a law of the United States upon land restored to market by order of the General Land Office, and appears to have been made in good faith by an actual settler, who has submitted proof of his compliance with the law. Your decision is therefore affirmed, and the papers transmitted with your letter of August 18, 1877, are herewith returned. Very respectfully, C. SCHURZ, Secretary. Although a grant of lands was made to the company by the act of July 27, 1866, the lands upon which it would operate were not identified until the date of the passage of the joint resolution of June 28 1870, authorizing the company to construct its road upon the line designated on the map filed in the Interior Department January 3, 1867, and that the rights of all parties who were actual settlers June 28, 1870, were saved. Qualified settlers prior to June 28, 1870, may be allowed to make entry under the homestead law, but such entries must date from the date of application, and the claimant must comply with the provis ions of law from such date. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of Samuel Tome et al., involving the right to enter lands in the Visalia land district, California. The lands for which applications are made are within the limits of the grant to the Southern Pacific Railroad Company, made by the act approved July 27, 1866, and are embraced within limits of the withdrawal of March 22, 1867, which withdrawal was based upon the maps of the line of road filed by the company in this department January 3, 1867. The homestead applications were made October 4 and 17, 1876, and the pre-emption filings were tendered October 11, 1876, alleging settlement July 18, 1876, except in the case of Samuel Doyle, who alleges settlement October 1, 1871. The local officers rejected all the applications for the reason that the lands were embraced within the limits of the withdrawal for the company. You approved this action, which was in accordance with the decision of my predecessor, Mr. Secretary Delano, dated April 23, 1875, in the case of Alfred Queen, wherein it was held that the grant became effective at the date of filing the map of the line of road, viz, January 3, 1867. In view of the conflicting decisions of this department relative to the question of the grant to said company, I submitted a statement of the facts to the Attorney General in connection with certain questions. In his reply, a copy of which I herewith transmit, it will be observed that he is of the opinion that, although a grant of lands was made to the company by the act of July 27, 1866, the lands upon which it would operate were not identified until the date of the passage of the joint resolution of June 28, 1870, authorizing the company to construct its road upon the line designated on the map filed in this department, January 3, 1867, and that the rights of all parties who were actual settlers at that date were saved. I concur in this opinion. In the future adjudication of cases it becomes necessary to ascertain what effect is to be given to the joint resolution above mentioned, which reads as follows: "That the Southern Pacific Railroad Company of California may construct its road and telegraph line, as near as may be, on the route indicated by the map filed by said company in the Department of the Interior on the third day of January, eighteen hundred and sixty-seven; and upon the construction of each section of said road, in the manner and within the time provided by law, and notice thereof being given by the company to the Secretary of the Interior, he shall direct an examination of each such section by commissioners to be appointed by the President, as provided in the act making a grant of land to said company, approved July twenty-seventh, eighteen hundred and sixty-six, and upon the report of the commissioners to the Secretary of the Interior that such section of said railroad and telegraph line has been constructed as required by law, it shall be the duty of the said Secretary of the Interior to cause patents to be issued to said company for the sections of land conterminous to each constructed section reported on as aforesaid, to the extent and amount granted to said company by the said act of July twenty-seven, eighteen hundred and sixty-six, expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictions provided for in the third section of said act." (16 Stat., 382.) * # * It will be observed that when a section of road has been completed as required by law, it shall be the duty of the Secretary of the Interior to cause patents to be issued to the company for the sections of land coterminous to said constructed sections of road, "expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictions provided for in the third section of said act." Among the conditions and restrictions contained in the said third section are the following: "That there be, and hereby is, granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof." * * * While the joint resolution identifies the land upon which the grant was to operate, I am of the opinion that the conditions of the grant remain the same as provided in the original act, except that the rights of all actual settlers at the date of its passage are saved. In other words, the grant is to be adjusted in the same manner as though the filing of the map in this department on January 3, 1867, was an act authorized by law, except that the rights of persons who were actual settlers on the 28th of June, 1870, are to be protected. In my opinion, this is the only consistent interpretation that can be given to the joint resolution. Thereby settlers upon the public lands obtain their rights and the company receives the benefit of its grant. It would be impossible to adjust the grant under the provision of the joint resolution without reference to the terms of the original act, and in my opinion all the provisions of the original act should be followed, as there is nothing in the terms of the joint resolution to indicate a variation in the conditions of the same, except so far as the protection of the rights of actual settlers is involved. Cases which may arise in the future should be adjudicated in accordance with these principles, and the applications of parties who were actual settlers prior to June 28, 1870, and who were duly qualified to make entries of public lands under the laws of the United States, should be received and determined upon their merits. In the case under consideration, settlement is not alleged by the respective claimants until after the date of the passage of the joint resolution of June 28, 1870, and the applications must be rejected. Should it appear, however, that any of the parties who apply to make homestead entries, were actual settlers at the date above mentioned, or that the land was covered by a valid claim at the date of filing the map, any subsequent application alleging such settlement or reservation, should be determined upon its merits. In this connection I will state, that, as no right under the homestead law can be initiated prior to date of entry, and as no homestead entry could be made by reason of the withdrawal, technically no one could obtain any right under the homestead law to lands within the limits of said withdrawal. In view of the proviso, however, to the joint resolution, saving the rights of all actual settlers, I am of the opinion that said settlers should be allowed to enter the lands under the homestead law; the entries, however, must date from the date of application, and the claimants must comply with the provision of the law from said date. The papers transmitted with your letter of October 4, 1877, are herewith returned. Very respectfully, C. SCHURZ, Secretary. A party who made settlement upon the lands involved in the foregoing case prior to the passage of the joint resolution of June 28, 1870, is protected in his right thereby. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of James A. Coughran vs. the Southern Pacific Railroad Company, involving the right to the N. W. of S. W. of section 9 and N. E. of N. E. of section 17, township 16 south, range 26 east, Visalia, Cal., on appeal from your decision of June 11, 1877. It appears from the record that Coughran filed declaratory statement for the land in question, together with the E. of S. E. of section 8, same township and range, February 6, 1871, alleging settlement February 10, 1867. Your office, under date of April 23, 1874, rejected his claim to the land in the oddnumbered sections, but awarded him the tract in the even-numbered sections. This decision was affirmed by my predecessor January 27, 1875, and Coughran made entry for the land in section 8, August 24, 1875. Coughran was an actual settler upon the land at the date of the passage of the joint resolution June 28, 1870, and, under the provisions of said resolution, should have been permitted to enter the same. (See my decision of this date in the case of Samuel Tome et al.) You are hereby instructed to allow Mr. Coughran to make entry for the said N. W. of S. W. of section 9 and the N. E. of N. E. of section 17, township 16 south, range 26 east. The papers transmitted with your letter of October 11, 1877, are herewith returned. Very respectfully, C. SCHURZ, Secretary. Where the tract in question was covered by a homestead claim at the date of withdrawal for railroad purposes, and a subsequent entry was permitted under the Boyd ruling, such subsequent entry is confirmed by the act of April 21, 1876, a compliance with the homestead law being shown. An unimpeached homestead entry will be considered valid until canceled. DEPARTMENT OF THE INTERIOR, SIR: I have considered the appeal of Andrew J. Stainbrook, from your decision of November 19, 1877, refusing to reinstate his homestead entry on the S. W. 4 of section 33, township 19, range 8 east, Salina, Kans. This tract is within the limits of the grant for the Atchison, Topeka and Santa Fé Railroad, the definite location of which was made June 30, 1869, and the notice of withdrawal was received at the local office November 3, 1869. The entry was made November 21, 1871, and canceled for conflict with the railroad grant, September 24, 1873. The evidence shows that Stainbrook complied with the terms of the homestead law from date of entry until August, 1874. This, together with the time for which he should receive credit for military service would constitute the five years' residence required by law, and he makes application for the reinstatement of his entry under the provision of the act of April 21, 1876, the second section of which confirms entries made under the decisions and rulings of the Land Department upon lands covered at the date of withdrawal by valid homestead or pre-emption claims. The records show that the tract in question was covered by the homestead entry of John W. Randall, made October 21, 1863. He abandoned the land in 1868, and his entry was canceled October 12, 1871, and on the 21st of the following month the tract was entered by Stainbrook. In your letter rejecting the application you state that by the decision of the honorable Secretary of the Interior, of April 28, 1871, in the case of Boyd vs. Burlington and Missouri Railroad Company, it was held that if a homestead entry was valid and subsisting at the date of definite location, and subsequently abandoned, the tract covered thereby was excepted from the grant and became again subject to entry. The proof on which Randall's claim was canceled showed that he abandoned long prior to the date of the attachment of the right of the company; hence Stainbrook's entry was allowed in direct opposition to the rule laid down in the Boyd decision." * * * Under this decision two points are presented for consideration: First, what is the correct interpretation of the phrase "under the decisions and rulings of the Land Department," as it is used in the section of the act of April 21, 1876; and, second, what was the rule established by the "Boyd" decision? It is well known that various rulings have been in force in the Land Department at different times relative to the effect of a claim, either under the pre-emption or homestead law, to lands within the limits of a railroad grant at the date of the definite location of the road, or at the date of withdrawal for railroad purposes. Entries which were allowed under one ruling were canceled under a subsequent and different ruling. It was to remedy the effects of this evil that the act of April 21, 1876, was passed, and the same should receive a reasonable and just construction. I am of the opinion that under the provisions of this act all entries made either in pursuance of special instructions, or in accordance with the rulings in force at the date of said entries, are confirmed. In the case of Boyd rs. The Burlington and Missouri River Railroad Company, decided April 28, 1871, my predecessor held that a homestead claim at the date of definite location of the road, excepted the land covered thereby from the operation of the grant. His language on this point is, "If the homestead claim has attached at the time the line of the road is definitely located, then the railroad is excluded. It would seem to be immaterial what became of the claim after that, whether it was perfected or abandoned.” There can be no doubt about the interpretation which should be given to this lan company by the said act of July twenty-seven, eighteen hundred and sixty-six, expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictions provided for in the third section of said act." (16 Stat., 382.) * It will be observed that when a section of road has been completed as required by law, it shall be the duty of the Secretary of the Interior to cause patents to be issued to the company for the sections of land coterminous to said constructed sections of road, expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictions provided for in the third section of said act." Among the conditions and restrictions contained in the said third section are the following: "That there be, and hereby is, granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof." While the joint resolution identifies the land upon which the grant was to operate, I am of the opinion that the conditions of the grant remain the same as provided in the original act, except that the rights of all actual settlers at the date of its passage are saved. In other words, the grant is to be adjusted in the same manner as though the filing of the map in this department on January 3, 1867, was an act authorized by law, except that the rights of persons who were actual settlers on the 28th of June, 1870, are to be protected. In my opinion, this is the only consistent interpretation that can be given to the joint resolution. Thereby settlers upon the public lands obtain their rights and the company receives the benefit of its grant. It would be impossible to adjust the grant under the provision of the joint resolution without reference to the terms of the original act, and in my opinion all the provisions of the original act should be followed, as there is nothing in the terms of the joint resolution to indicate a variation in the conditions of the same, except so far as the protection of the rights of actual settlers is involved. Cases which may arise in the future should be adjudicated in accordance with these principles, and the applications of parties who were actual settlers prior to June 28, 1870, and who were duly qualified to make entries of public lands under the laws of the United States, should be received and determined upon their merits. In the case under consideration, settlement is not alleged by the respective claimants until after the date of the passage of the joint resolution of June 28, 1870, and the applications must be rejected. Should it appear, however, that any of the parties who apply to make homestead entries, were actual settlers at the date above mentioned, or that the land was covered by a valid claim at the date of filing the map, any subsequent application alleging such settlement or reservation, should be determined upon its merits. In this connection I will state, that, as no right under the homestead law can be initiated prior to date of entry, and as no homestead entry could be made by reason of the withdrawal, technically no one could obtain any right under the homestead law to lands within the limits of said withdrawal. In view of the proviso, however, to the joint resolution, saving the rights of all actual settlers, I am of the opinion that said settlers should be allowed to enter the lands under the homestead law; the entries, however, must date from the date of application, and the claimants must comply with the provision of the law from said date. The papers transmitted with your letter of October 4, 1877, are herewith returned. Very respectfully, C. SCHURZ, Secretary. A party who made settlement upon the lands involved in the foregoing case prior to the passage of the joint resolution of June 28, 1870, is protected in his right thereby. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of James A. Coughran vs. the Southern Pacific Railroad Company, involving the right to the N. W. of S. W. 4 of section 9 and N. E. of N. E. of section 17, township 16 south, range 26 east, Visalia, Cal., on appeal from your decision of June 11, 1877. It appears from the record that Coughran filed declaratory statement for the land in question, together with the E. of S. E. † of section 8, same township and range, February 6, 1871, alleging settlement February 10, 1867. |