In analyzing this statute it will be noticed that the even sections along the granted limits to railroads are called "reserved sections;" that it speaks only of lands "heretofore reserved;" and that in enumerating the claims under foreign grants it speaks of French and Spanish grants, and makes no mention of Mexican grants, while the acts of 1851 and 1852 particularly specify Mexican grants.

If it had been intended that this legislation should apply to the State of California, some portions of which were almost literally covered with Mexican grants, how does it happen that no mention is made of them by name?

It would have been the most natural thing in the world to have named them specifically, and the fact that they are entirely omitted in the specifications of foreign grants, is very strong evidence that the State of California was not in the mind of the law-makers when this act was passed.

There were no reservations in California theretofore reserved. There was at that date no statute authorizing pre-emption claims in California. There were reservations outside of California theretofore created by statute for said act to operate upon. Such were the acts of 1805, 1806, and 1807, (2 Stat., 325, 391, 440,) the acts of March 3, 1803, March 31, 1808, February 15, 1811. (2 Stats., 232, 480, 617.) The acts of March 26, 1804, April 21, 1806, (2 Stats., 279, and 395,) protected from sale the tracts duly claimed and identified and embraced in the report of the Commissioner "till after the final decision of Congress thereon," and a similar provision applied to the State of Missouri, act of July 9, 1832. (4 Stat., 567.) A like provision applied to Louisiana, act of March 3, 1811. (2 Stat., 662.)

These considerations satisfy my mind that Congress did not intend that the said act of March 3, 1853, should apply to the State of California. It did immediately thereafter, and on the said 3d of March, 1853, pass an act which did unequivocally apply to the State of California, and which was entitled "An act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes." (10 Stat., 244.) This was the first act under which original rights could be acquired in the public lands of that State as against the United States.

Its language is utterly inconsistent with the idea that Congress understood that lands within the claimed limits of a foreign grant were reserved lands. The 6th section provides: "That all the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections sixteen and thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township, and with the exception of lands appropriated, under the authority of this act, or reserved by competent authority, and excepting also the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the pre-emption laws," etc.

If the word "reserved" had been understood as including lands claimed under a foreign grant, the clause that immediately follows, "and excepting also the lands claimed under any foreign grant or title," would have been omitted. It was unnecessary and useless. The fact that it was inserted is satisfactory proof that it was deemed material, and that without it "lands claimed under any foreign grant" would not have been excluded, in the opinion of the law-making power, from pre-emption filings.

Congress, in its legislation in regard to the public lands of California, seems to have studiously avoided using the word "reserved" in such a manner as to make it reasonable to construe it as including lands claimed under a foreign grant.

In the very important act of July 23, 1866, "to quiet land titles in California," (14 Stat., 218,) it provided for the confirmation of certain selections made by the State, but provided that no selection should be confirmed "to any lands which have been reserved for naval, military, or Indian purposes by the United States, or to any mineral lands, or to any land held or claimed under any valid Mexican or Spanish grant."

And this has not been accidental. It has all along understood the use of words, and has been able to express its meaning clearly in regard to Mexican claims. In its legislation for New Mexico, it provided, touching Mexican grants, that "until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or otherwise disposed of by the Government, and shall not be subject to the donations granted by the provisions of this act." (10 Stat., 309, sec. 8.)

The grants to the railroads running to the Pacific were intended to be liberal in character. Especially is this true of the grant of 1864. It should receive a reasonable construction, and not be frittered away by nicely drawn distinctions. Giving it such a construction, I am unable to declare that the lands in controversy were excepted from the grant. I prefer rather to follow the decision of the circuit court of the United States in California, in the case of Sanger v. Sargent, and of the Supreme Court of that State in the Central Pacific R. R. v. Yollard, both recently made, and hold that they are included in the grant, and thereby return to the ruling that prevailed for many years in this Department, and was changed by my immediate predecessor, and followed by me upon the authority of the opinion of Attorney-General Akerman.

I reverse your decision as to all of the defendants except M. H. Boothby, and as to him I affirm the same, and here with return the papers transmitted with your letter of Dec. 3, 1874.

Very respectfully,

C. DELANO, Secretary.

To the Commissioner of the General Land Office.

No. 435.

SUTTON v. SIOUX CITY AND ST. PAUL R. R. CO. Appeal from Commissioner's decision holding Sutton's entry for cancellation. The records of the General Land Office show that at the date of definite location, the tract in contest had been selected by the State as swamp land under the act of Sept. 28, 1850, and it is claimed that this selection, which was cancelled subsequently to the definite location, removed the land from the operation of the grant.

Held-That the act of 1850 was a grant to the State in presenti, taking effect, if at all, at the date of its passage, upon all lands then swamp and overflowed.

The fact that the selection was cancelled shows that the land was not of that character at the date of the act. It was not, therefore, affected by the act, and being unappropriated at the date of the definite location, it inured to the grant.

Decision by the Secretary, Sept. 10, 1874.

No. 436.

GOODNO v. LEAVENWORTH, LAWRENCE AND GALVESTON R. R. CO.

The land in controversy is within indemnity limits of the grant to said Company by act of March 3, 1863. May 5, 1863, a withdrawal was made for the benefit of the road under this grant. The diagram transmitted to the local officers, upon which the withdrawal was made, did not embrace the tracts in question, differing in this respect from that retained in the General Land-Office. On the 25th May, 1866, the tracts in question were entered with A. C. S., by one Rowley. The line of road was definitely located Nov. 15, 1866. On the 13th March, 1869, the entries by Rowley were cancelled by the Land-Office, on the ground that the land was included in the withdrawal of 1863. Rowley did not appeal, but withdrew his scrip and relocated it.

Held-That the locations of Rowley, with A C. S., of the tracts in question, were regular in their inception, and at the time of definite location of the road, constituted valid subsisting claims. As such they clearly excepted the land from the grant. Upon subsequent erroneous cancellation, the tracts reverted to the Government and became subject to entry.

Decision by the Secretary, March 31, 1874.

No. 439.

TITLE V-STATE SELECTIONS.

I. CALIFORNIA.

CIRCULAR.

Selections for school purposes in the State of California.
GENERAL LAND OFFICE, August 21, 1862.

REGISTERS AND RECEIVERS, Land-Offices, California.

GENTLEMEN :-The object of this circular-letter is to secure uniformity of action in making selections for school purposes under the following acts of Congress:

The 6th section of the act of March 3, 1853, entitled "An Act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes," grants to the State of California sections 16 and 36 in each township for school purposes, and the 7th section of the same act provides: "That when any settlement, by the erection of a dwelling house or the cultivation of any portion of the lands, shall be made upon the 16th and 36th sections before the same shall have been surveyed, or where such sections may be reserved for public uses, or taken by private claims, other land shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the act of Congress approved the 20th of May, 1826, entitled 'An Act to appropriate lands for the support of schools in certain townships not before provided for,' and which shall be subject to approval by the Secretary of the Interior." See Statutes at Large, Vol. X., pages 246 and 247.

The act of the 26th of February, 1859, U. S. Statutes at Large, Vol. XI., page 385, provides: "That where settlements, with a view to preemption, have been made before the survey of the lands in the field, which shall be found to have been made on sections 16 and 36, such sections shall be subject to the pre-emption claim of such settlers; and if they, or either of them, shall have been reserved or pledged for the use of schools or colleges in the State or Territories in which the lands lie, other lands of like quantity are hereby appropriated in lieu of such as may be patented to pre-emptors; and other lands are also hereby appropriated to compensate deficiencies for school purposes where said sections 16 and 36 are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever: Provided, That the lands appropriated by this section shall be selected and appropriated in accordance with the principles of adjustment and the provisions of the act of Congress of May 20,

1826, entitled 'An Act to appropriate lands for the support of schools, in certain townships not before provided for.""

Under the provisions of the foregoing act of 1859, where said sections 16 and 36 are fractional in quantity, or where either of them are wanting by reason of the township being fractional, or from any natural cause whatever, the State will be entitled to other lands as indemnity for such deficiencies, to be selected and appropriated in accordance with the principles of adjustment and the provisions of the act of Congress of May 20, 1826, viz: For each fractional township containing a greater quantity of public land than three-quarters of an entire township-that is, more than 17,280 acres, the State will be entitled to two sections, or 1,280 acres.

For each fractional township containing a greater quantity of public land than one-half, and not more than three-quarters of a townshipthat is, more than 11,520 acres and less than 17,280 acres, the State will be entitled to one and a half section, or 960 acres.

For each fractional township containing a greater quantity of public land than one-quarter, and less than one-half of a township-that is, more than 5,760 acres and less than 11,520 acres, the State will be entitled to one section, or 640 acres.

For each fractional township containing a greater quantity of public land than one entire section, and less than one-quarter of a townshipthat is, more than 640 acres and less than 5,760 acres, the State shall be entitled to a half section, or 320 acres.

The law directs that the selection shall be made by the Secretary of the Interior, and the following rules are prescribed for your govern

ment:

1st. Where the lands have not been offered at public sale, the selections are to be made prior to said sale. The school agents may recommend the selections, and it may be proper for you to give notice to such agents that, prior to a certain day, to be fixed by you, recommendations will be received from them for school selections for certain townships, which townships will be specially designated in said notice. You will bear in mind, however, that no expense whatever will be incurred in the publication of such notice. If the school authorities, after service of notice, should fail to make any recommendations, you will report your own selections.

2d. The quantity of school land selected for any township is to be located within the limits of such township, provided a sufficient quantity of good agricultural land exists therein. If you are satisfied that a sufficient quantity of good land cannot be found therein, the selection is to be made in the nearest adjacent township wherein good land exists.

3d. Where a portion of section 16 or 36 exists in a township, an additional quantity of land only is to be selected as will, with the existing portions of said sections, make up the full quantity to which the township is entitled under the law.

4th. The selection of a section, three-quarters of a section, or half section, for any one township are to be made in one body of land if practicable; if not, in separate "quarter sections." A less quantity than one quarter section is not to be taken. Fractional sections are to be excluded except in cases where a portion of the section 16 or 36 exists in the township and selection has to be made of the balance of the quantity of land to which such township is entitled, and where the quantity cannot be located on a quarter or half-quarter section; in such