flict was filed, and a legislative withdrawal made thereon, prior to the location of the branch line, and that the withdrawal continued in force at the date of the passage of the forfeiture act. You conclude that within the conflict every alternate odd-numbered section should be reserved for the branch line, and the remaining odd sections restored to the public domain, under said section 6; and suggest that the company be called upon to elect which of such alternate odd-numbered sections it will take in satisfaction of the moiety for its branch line. All of this meets my approval. The company urges that, as the main line had not been definitely located between wallula and Portland, the lands within the withdrawal on general route for that distance cannot be treated as granted lands, and are, therefore, not subject to said provisions as to moiety lands within the overlapping limits. This contention cannot be maintained. In the first place, there was a grant along said route, which lacked only action on the part of the company to consummate. Furthermore, the reading of the entire act leaves no room to doubt that a forfeiture along said stretch of the main line was contemplated, and the lands so forfeited are described in the first section of the act as 'granted' lands. If this be not true, there has been no forfeiture at all on that part of the line, a conclusion which even the company does not maintain. It is equally apparent that the word 'granted,' in said section 6. is used in the same sense as in section 1, and therefore refers to the lands upon which the forfeiture operates. These are the lands withdrawn along said line. You will accordingly notify the company to indicate within thirty days from notice what alternate oddnumbered sections it will elect to take. If the company elect to take sections 1, 5, 8, 13, etc., of the various townships, then sections 3, 7, 11, 15, etc., will remain to the government, and be restored to the public domain, or vice versa. Should the company fail to make its election within said time, then your office will act in that capacity in its stead." Thereafter, on the 30th of December, 1890, the commissioner notified the railroad company of the construction the secretary had given the act of forfeiture, and the company was directed to elect which of the alternate odd-numbered sections it would take. In accordance with this order, the railroad company stated that, whereas it had theretofore sold to parties purchasing in good faith large tracts of land, both in the odd-numbered sections and in the alternate odd-numbered sections situated within the overlapping limits of the reservation of lands on the line of the general route of that portion of said main line extending from Wallula, Wash., to Portland, Or., which part of its main line had never been constructed, and on which the line of said railroad had never been definitely fixed, and many of the tracts were of greater area than 320 acres, and the purchasers had settled upon and im

proved the lands, and were occupying the same as homes, and had spent large sums of money in improving the same, therefore, to facilitate the adjustment of the grant, and to protect fully said purchasers and settlers in their homes and improvements, but not thereby waiving or abandoning any right or claim the company had to all the odd-numbered sections under the act of congress, such selections were made in accordance with the order, and the company elected the moiety to which it was entitled under the order of the commissioner after filing its protest as mentioned. The defendants, in 1892, entered upon said section 15, and at the time each of said defendants was duly qualified to make entry of public lands under the laws of the United States, and such entry was made in pursuance of notice from the land department of the United States authorizing the same, and on the 8th day of August, 1893, patents were duly issued and delivered to each of said defendants for the land so entered by him, and each of said defendants is now in possession of the land so patented to him. judgment was in favor of defendants.

The

1. The section of land in controversy Involves the question of title to several thousand acres of land in Yakima and Klickitat counties upon which qualified persons have been authorized by the land department of the United States to settle and improve homes. Counsel for the respondents here for the first time has raised the question that the patents from the United States issued to each of the respondents are conclusive against the appellant in an action at law, and cannot be collaterally attacked. The contention of appellant upon the procedure is that the patents issued to respondents are void, for the reason, as alleged, that the lands in controversy were granted by congress to the Northern Pacific Railroad Company prior to their issuance to respondents by the land department, and this form of action seems to be authorized by the highest authority. Railroad Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98; Burfenning v. Railroad Co., 163 U. S. 321, 16 Sup. Ct. 1018; Doolan v. Carr, 125 U. S. 624, 8 Sup. Ct. 1228, and cases cited; Riley v. Welles, 154 U. S. 578, 14 Sup. Ct. 1166. The procedure in this state (section 5500, Ballinger's Code; section 529, 2 Hill's Code) authorizes an action for possession of real estate, and to quiet title, and remove a cloud. Reichenbach V. Railway Co., 10 Wash. 357, 38 Pac. 1126. Section 5508, Ballinger's Code (section 531, 2 Hill's Code), provides that plaintiff shall set forth in his complaint the nature of his claim or title to the property, and that defendant may set up a legal or equitable defense to plaintiff's claim, and the superior title, whether legal or equitable, shall prevail; and section 5509 (section 532) of the same Code requires the defendant to set out his title. The case having been heard upon an agreed statement of facts, respondents cannot here avoid any

relief which the stipulated facts show appellant is entitled to. They are in the same position as if evidence had been admitted without objection to prove the facts, though not included in the pleadings.

2. The solution of the controversy depends upon the construction of the grant of lands by congress to the Northern Pacific Railroad Company. The case of Oregon & C. R. Co. v. U. S. (decided in the circuit court of appeals for the Ninth circuit) 23 C. C. A. 15, 77 Fed. 67, is cited by counsel for appellant in support of its contention that, because the Northern Pacific Railroad Company filed no definite map of location for its main line down the Columbia river, under the original grant of July 2, 1864, or the subsequent grant under the joint resolution of May 31, 1870, therefore the lands within the limits granted to it remained thereafter public lands of the United States, and thus, when the definite location of the Cascade Branch of the Northern Pacific Railroad Company was made to Yakima, June 29, 1883, the grant to the branch line attached, and the section in controversy here was in place of and identified as property originally granted for the construction of the branch line; but it seems to have been decided by the circuit court of appeals in the case cited that the act of July 2, 1864, -the original grant to aid in the construction of the Northern Pacific Railroad,-did not in itself operate as a withdrawal or appropriation of the public lands within the prescribed limits of the route, and by reason of the failure of the company to file a sufficient map of general location opposite lands subsequently traversed by the Oregon & California Railroad Company prior to the grant made to the latter company the grant to the Northern Pacific Company never took effect as to such lands, and the title thereof passed to the Oregon & California Company. But in that case the facts shown were that the grant to the Oregon & California Railroad Company was made subsequent to that to the Northern Pacific Railroad Company, on the 2d of July, 1864, and before any map of the general route of the Northern Pacific line had been filed, and before any general withdrawal had been directed under the terms of the granting act. But the conclusion of the majority of the court awarding the lands to the Oregon & California Railroad was dissented from by Mr. Justice McKenna, who maintained by cogent reasoning and citation of authority that at the date of the grant to the Oregon & California Company the right of locating its road so as to take the lands in question existed unimpaired in the Northern Pacific Company, and continued to exist until the act of forfeiture in 1890; in consequence of which the lands did not pass to the Oregon & California Company, but were restored by the act of forfeiture to the United States. It may be observed that the decision of the circuit court of appeals is upon very different facts from the case now under considera

tion. The grant of lands to the Northern Pacific Railroad Company from the point now involved to Puget Sound in the original act of July 2, 1864, and also the subsequent grant of May 31, 1870, was for a main and a branch line. In the grant of May 31, 1870, as said by Mr. Secretary Lamar in Railroad Co. v. McRae, 6 Land Dec. Dep. Int. 400, and approved by the court, "the designations of the lines of the road were changed. That which, by the granting act, was known as the 'branch line' (via the valley of the Columbia river to a point at or near Portland, in the state of Oregon) was changed to 'main road' or 'main line,' and that which had been designated as 'main line' (across the Cascade Mountains to Puget Sound) was changed to 'branch line.' So, by the joint resolution of 1870 (May 31st), the company was authorized to locate and construct its main line via the Columbia river, through some point at or near Portland, Or., to a suitable point on Puget Sound, with the privileges, grants, and duties provided for in its act of incorporation." The grant was in præsenti. The language is, "that there be, and hereby is, granted." The construction and effect of such words of grant have often been considered by the supreme court of the United States. "In the recent case of St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 5, 11 Sup. Ct. 389, Mr. Justice Field, speaking for the court, said: 'As seen by the terms of the third section of the act, the grant is one in præsenti; that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, pre-emption, or other disposition previous to the time the definite route of the road is fixed. The language of the statute is, "that there be, and hereby is, granted" to the company every alternate section of the lands designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but when once identified the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in præsenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route. This is the construction given to similar grants by this court, where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44, 60; Leavenworth, L. & G R. Co. v. U. S., 92 U. S. 733; Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 491; Railroad Co. v. Baldwin,

103 U. S. 426.'" U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152. Under the joint resolution of May 31, 1870, the Northern Pacific Railroad Company located the general route of its main line by way of the Columbia river to Puget Sound. It was said in U. S. v. Southern Pac. R. Co., supra: "The distinction between the line of definite location and the general route is well known. It was clearly pointed out in the case of Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. 100. The act under consideration in that case was that of July 2, 1864 (13 Stat. 365), making a grant to the Northern Pacific Railroad Company. The third section of that act, as the third of this, made the grant, and provided for the line of definite location. Section 6 authorized the fixing of the general route, and its language in respect to that matter is the same as that of section 6 of the act before us. It reads: "That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry,' etc. Referring to this matter, it was said in the opinion in that case, on pages 71 and 72, 119 U. S., and page 107, 7 Sup. Ct.: "The act of congress not only contemplates the filing by the company, in the office of the commissioner of the general land office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not at that time been reserved, sold, granted, or otherwise appropriated, and are free from pre-emption, grant, or other claims or rights, but it also contemplates a preliminary designation of the general route of the road, and the exclusion from sale, entry, or pre-emption of the adjoining odd sections within forty miles on each side, until the definite location is made. * * * When the general route of the road is thus fixed in good faith, and information thereof given to the land department by filing the map thereof with the commissioner of the general land office or the secretary of the interior, the law withdraws from sale or pre-emption the odd sections to the extent of forty miles on each side. The object of the law in this particular is plain. It is to preserve the land for the company to which, in aid of the construction of the road, it is granted. * "The important

question is here suggested, for what purpose was the withdrawal made of the sections on each side of the main line, as shown upon the map of general route? And the obvious answer seems to be, for the construction of the main line of the railroad from the point of junction with the Cascade Branch, near Ainsworth, via the Columbia river, to Puget Sound. Then these lands were, by law, reserved for that purpose, and such reservation continued thereafter until the act of forfei

ture of 1890. In the case of U. S. v. Southern Pac. R. Co., supra, the title to lands in the overlapping routes between that company and the Atlantic & Pacific Railroad Company was considered by the cot. The Atlantic & Pacific road having failed to build its road according to the conditions of the grant to it, congress declared its lands to be forfeited, and restored to the public domain, and it was held that the claim of the Southern Pacific could not attach, upon this forfeiture, to the land along the overlapping routes, for the forfeiture was in terms for the benefit of the government, and it was apparently not the intention of congress, in its grants to the Atlantic & Pacific in 1866 and the Southern Pacific in 1871, that any lands granted to the Atlantic & Pacific should go to the Southern Pacific Company in case the former grant failed to take effect. This was the rule with the overlapping lands of grants to all railroad companies, and it was held that the elder grant was controlling, without reference to priority of location. The court there oòserved, in answer to the contention of the Southern Pacific Company, that when the Atlantic & Pacific Company failed to construct its road, and congress forfeited the same, the forfeited lands became public lands of the United States, and thereafter the grant to the Southern Pacific attached. 66 There can be no question, under the authorities heretofore cited, that if the act of forfeiture had not been passed by congress the Atlantic & Pacific could yet construct its road, and that, constructing it, its title to these lands would become perfect. No power but that of congress could interfere with this right of the Atlantic & Pacific. No one but the grantor can raise the question of a breach of a condition subsequent. Congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited. It enacted that they be restored to the public domain. The forfeiture was not for the benefit of the Southern Pacific. It was not to enlarge its grant as it stood prior to the act of forfeiture. It had given to the Southern Pacific all that it had agreed to in its original grant; and now, finding that the Atlantic & Pacific was guilty of a breach of a condition subsequent, it elected to enforce a forfeiture for that breach, and a forfeiture for its own benefit." U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 160. And the same principle is declared in St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334. It was there determined that in grants of land to aid in building railroads the title to the lands within the primary limits within which all the odd or even sections are granted relates, after the road is located according to law, to the date of the grant; and in cases where these limits, as between different roads, conflict, or encroach on each other, priority of date of the act of congress, and not priority of location of the line of road, gives priority

of title: And it was also held: "When the acts of congress in such cases are of the sa:ne date, or grants are made for different roads by the same statute, priority of location gives no priority of right; but where the limits of the primary grants, which are settled by the location, conflict, as by crossing or lapping, the parties building the roads under those grants take the sections within the conflicting limits of primary location in equal undivided moieties, without regard to priority of location of the line of the road, or priority of construction." As has already been observed, there was a grant of lands to two distinct lines to be constructed by the Northern Pacific Railroad Company. The construction of these lines, designated as "main" and "branch," in their objects and purposes were as if the grants had been made to two companies, rather than one; but the grant to both the main and branch line was of the same date, and the claim to land within the overlapping limits of each line when constructed seems to fall directly within the rule announced in St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., supra; that is, had both the main and branch lines been constructed in conformity to the terms of the granting acts, each line would have taken the land within the conflicting limits of primary location in equal undivided moieties, without regard to priority of location or priority of construction. But the main line was not constructed. Yet for 20 years the land granted for such construction was reserved by legislative withdrawal for the specific purpose of such construction, and by the forfeiture act of 1890 the lands reserved for the aid of the main line were distinctly declared to be returned to the United States. It would seem obvious, therefore, that by the act of forfeiture the United States became the owner of the equal undivided moiety of the lands within the conflicting limits of the primary location of the main and branch lines, and that the secretary of the interior correctly construed the forfeiture act of 1890. The selection of the section of land in controversy having been made under such construction, and the patents issued to the respondents in conformity therewith, complete title was vested in respondents. The judgment of the superior court is affirmed.

SCOTT, C. J., and DUNBAR, ANDERS, and GORDON, JJ., concur.

(19 Wash. 674)

BACON et al. v. CITY OF TACOMA. (Supreme Court of Washington. Aug. 22, 1898.)

CITY WARRANTS-ENFORCEMENT-MANDAMUS. Mandamus is the proper remedy where the treasurer refuses payment of city warrants, though he claims that the warrants have been 54 P.-39

paid or are forgeries; provision for trial of questions of fact in such proceeding being made by Laws 1895, p. 117, § 21.

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by G. H. Bacon and another, copartners as Bacon & Ells, against the city of Tacoma. Judgment for defendant. Plaintiffs appeal. Affirmed.

Edward E. Cushman, Francis W. Cushman, and Chas. Ethelbert Claypool, for appellants. W. H. Pritchard and Walter M. Harvey, for respondent.

ANDERS, J. The plaintiffs and appellants brought this action to recover the amount alleged to be due upon three certain warrants of the city of Tacoma. It is alleged as to each warrant that it was issued and delivered on September 18, 1893, for value received, by the duly-authorized agents and officers of the city, and that it was presented for payment on September 21, 1893, to the treasurer of said city, and indorsed by him, "Not paid for want of funds"; that no payments have been made thereon, though plaintiffs have often demanded payment of the defendant; that the city has sufficient money in its general fund properly applicable for the purpose to pay the several warrants and accrued interest thereon. It is further alleged, on information and belief, that the refusal of the defendant, its agents and officers, to pay said warrants, is for the reason that there is a dispute as to the facts between plaintiffs and defendant as to whether there is anything due on each of said warrants, defendant claiming it has been paid, and is a forgery, which plaintiffs deny. A general demurrer was interposed to the complaint, and sustained by the court, and, plaintiffs declining to plead further, judgment was rendered against them dismissing the complaint and for costs, from which judgment this appeal was taken.

It appears that the only question argued or considered in the court below was whether plaintiffs had resorted to the proper remedy, the respondent contending that mandamus against the treasurer of the city is the only proper remedy, and that the appellants could not maintain an ordinary action at law to collect the amount of the warrants. And this contention raises the sole question presented to this court for determination. The learned counsel for the appellants, while recognizing the general rule that mandamus is the proper remedy to compel a city treasurer to pay city warrants in the order prescribed by law, nevertheless insist that the fact that the complaint in this case shows that there is a disputed question of fact takes the case out of the ordinary rule of procedure. This contention seems to be based upon what was said upon this proposition in the first opinion of this court in Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 501; but it will be noticed, by reference to that case, that the question

was not there deemed material, and, further, that the court there overlooked the plain provisions of our own late statute upon this question. By the act of March 13, 1895, entitled "An act regulating special proceedings of a civil nature," the proceeding in mandamus is assimilated as nearly as possible to ordinary actions at law. It is deemed a special civil proceeding, and the statute (section 16, p. 117, Laws 1895) provides that the writ of mandate may be issued to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, etc. And section 20 of the act provides that on the return of the alternative writ, or the day on which the application for the writ is noticed, the party on whom the writ or notice is served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. And in section 21 it is provided that if an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had and a verdict certified to the court. A new trial is also provided for, and provision is made as to the mode of proceeding in case no answer be made. The parties to the action are known as plaintiff and defendant, as in ordinary cases. From these provisions, it is manifest that questions of fact may be tried and determined either by the court or by a jury, if a jury is demanded, and such is held to be the law in other jurisdictions. See Ireland v. Hunnel (Iowa) 57 N. W. 715; Jones v. Morgan (Cal.) 7 Pac. 734; Raisch v. Board of Education (Cal.) 22 Fac. 890; Faulk v. Strother (Cal.) 24 Pac. 110; Thomas v. Town of Mason (W. Va.) 20 S. E. 580. That the appellants have mistaken their remedy is shown by the following decisions of this court: Cloud v. Town of Sumas, 9 Wash. 399, 37 Pac. 305; Abernethy v. Town of Medical Lake, 9 Wash. 112, 37 Pac. 306. The case last cited was, like this, an action against a municipal corporation, and in respect to the remedy this court made the following observations: "The complaint shows a settled and allowed claim against the town, and the issuance of slightly irregular warrants, which can, upon demand, be replaced by proper general fund warrants of the same dates. These can be had upon application to the mayor and clerk, and, if they refuse, mandamus will lie to compel the performance of their duty. These warrants the treasurer must pay in the order of their issuance, out of any funds coming into his hands belonging to the general fund, and, if he refuses, a like suit will lie against him. The statutes prescribe how municipal corporations shall pay ordinary con

tract debts, viz. by the issuance of a warrant payable in its order, with interest from date of presentation. But it is not contemplated that the owner of an allowed claim shall sue the corporation generally, upon the original contract, when the clerk or other officer refuses to issue a warrant, nor that the holder of a warrant which the treasurer declines to pay shall get a judgment upon the warrant. Such a judgment, like a judgment upon a claim disallowed, would again be settled by a warrant, and take its turn in the order of payment. The contracting powers of the town have done all they can by the making of the contract and the allowance of the claim; it is the ministerial officers who are now in fault, and the plaintiff must move them to action before he is entitled to any other remedy." In the Cloud Case the plaintiff had advanced moneys to the defendant, taking its warrants therefor, and, on failure of payIment, sued the town to recover the amount advanced, and in the course of its opinion this court said: "If this action can be maintained upon the warrants which have been issued, then a like suit might be maintained upon the warrants issued in satisfaction of this judgment, and so on, without limit. Clearly, the law contemplates no such proceedings. The plaintiff already has the town's evidences of indebtedness, issued to him in regular form, and, if the treasurer should refuse to pay them in their regular order, he can resort to a mandamus to compel such payment. And the questions, if they are further insisted upon, affecting the legality of such warrants, can be tried in that proceeding." And so it may be said here that if the plaintiff should maintain this action, and recover judgment against the city, all he would get in satisfaction of his judgment would be other warrants, such as he now has. And it is therefore apparent that not only this, but any other, action of like character would be entirely futile. If, as it appears from the complaint, the treasurer is of the opinion that the warrants have been paid, or that they are forgeries, the burden is upon him to establish such defense. The city has performed its whole duty in the premises by causing the warrants to be issued and signed by its proper officers, and it does not appear anywhere in the complaint that it is interposing any objections to their payment. It is manifest, therefore, that it should not, in the present status of the case, at least, be harassed by an action of any character whatever. Under the charter and ordinances of the city, it is the legal duty of the treasurer to pay warrants properly drawn, and, if he has any valid excuse for not paying, it is incumbent upon him to set it forth and establish it by sufficient proof. We are of the opinion that the judgment of the court below was right, and it is therefore affirmed.

GORDON and DUNBAR, JJ., concur.