complete title was vested in the State to the same on the third of March, 1853, and that Congress thereafter had no power to provide a way for a different disposition of any such lands. On the other hand it is claimed, on behalf of the mining and town site companies, that the grant, though in words de præsenti, was in fact a grant in the nature of a float, taking effect to vest title upon no specific tracts until survey, and that, until such survey, Congress had power to make other and different disposition of the land.

Power of Congress to alter, etc., grant.

The power of Congress to change, modify, alter, or repeal the grant in question at any time prior to the date when title vests in the State, will not, I think, be questioned, and it is equally clear that after title has once vested, Congress has no further power to alter, modify, or change the grant. It is evident, therefore, that, with reference to this branch of the case, it is only necessary to inquire whether title to sections 16 and 36 vested in the State prior to the act of July 26, 1866. If it did, then Congress had no power to dispose of the land in the manner pointed out in that act; if it did not, then the title of the mineral claimants is good and patents must issue to them for the tracts claimed.

In my opinion, the sixth section of the act of 1853 should be construed as a grant to the State in præsenti, in the nature of a float, taking effect upon specific tracts when the Same are surveyed by the United States, and not before. The grant is in words, de præsenti, but until survey there are no tracts or parcels of land in existence answering to the calls of the grant. A beneficial interest under it can only ensue to the State when the United States, in extending the lines of the public surveys, sets apart certain tracts and designates them as sections 16 and 36. It will not be denied that Congress had the legal power, no matter what may be said of the political obligation of the government, to provide that this land should never be surveyed, or that in surveying it a different method should be adopted than that now in use, and no such tracts as sections 16 and 36 be set apart. Would not the passage of such an act have operated to entirely defeat the grant to the State? The grant calls for certain tracts by recognized technical desig

nations. No such tracts could be found, and the State would be without remedy to compel the government to create them. A like effect would be produced by a refusal of the executive officers of the government to extend the surveys. The State would be indefinitely without beneficial interest in the grant. Of course the happening of the contingency I have mentioned could hardly for a moment be apprehended, for the United States is, in good faith to the State, and in the performance of its political obligations, bound within reasonable time, in the extension of the public surveys, to set apart the tracts granted; but I refer to it to show the nature of grant in the State and its liability to defeat before survey.

I think the grant is in nature the same as that usually made by Congress to railroad companies to aid in the construction of their roads. These grants are generally for a certain number of sections, designated by odd numbers on each side of the road, with a provision for indemnity selection, in case any of such sections shall have been sold or otherwise disposed of prior to the definite location of the line. The highest judicial authority (Railroad v. Smith, 9 Wall. 99; Railroad v. Fremont Co., 9 Id. 90), has repeatedly held that these grants did not vest any right in the companies to specific sections until the line of the road was definitely fixed on the face of the earth. The grant to California by the act of 1853 is similar. It is for certain sections designated by numbers, the precise location of which can not be definitely ascertained until survey. The grant in both becomes certain upon the happening of a contingency; in the former by definite location, in the latter by survey. In the railroad cases, the Supreme Court holds that title to specific tracts vests only on the happening of this contingency that makes the grant certain as to location. Why should not the same rule be applied to the grant to the State, and the title held to be vested upon the happening of the contingency that makes that grant certain as to location?

In the case of Gaines et al. v. Nicholson, 9 How. 365, passing upon the right of the State of Mississippi to school sections under an act (2 Stat. 229), reserving section sixteen in each township for the support of schools, and two

subsequent acts providing for indemnity to the State for loss of same by reason of interference with foreign grants and for leasing such lands for the support of schools, the Supreme Court said: "The State of Mississippi acquired a right to every sixteenth section by virtue of these acts on the extinguishment of the Indian right of occupancy, the title to which in respect to the particular sections became vested, if vested at all, as soon as the surveys were made and the sections designated."

The case of Cooper v. Roberts, 18 How. 173, although cited and relied upon by counsel for the State, seems not to sustain their position, but rather follows and affirms the principles enunciated in Gaines v. Nicholson.

The United States, in her compact with the Territory of Michigan, on her admission to the Union as a State, ratified July 25, 1836, appropriated to the State section sixteen in each township for the benefit of schools. The land in controversy was surveyed in the summer of 1847, and designated as section sixteen. The right of the State to the same was contested by certain mining claimants asserting rights under a purchase of the government of lead mines, under the act of March 1, 1847, to whom a patent had issued, reserving the right of the State. The court first examined the history of the usual grants to the States, upon their admission to the Union, for the benefit of schools, showing that these gifts were the result of a cherished policy on the part of the government for the encouragement of popular education, and declaring that the compact with the States did not except mineral lands from the operation of the grant. The court then said: "We agree that until the survey of the township and the designation of the specific sections, the right of the State rests in compact, binding, it is true, the public faith, and dependent for execution upon the political authorities. Courts of justice have no authority to mark out and define the land which shall be subject to the grant. But when the political authorities have performed this duty, the compact has an object upon which it can attach, and if there is no legal impediment, the title of the State becomes a legal title." The court then passed to the consideration of the question whether any such "legal impediment" was created by the act of 1847, and decided

that there was not, for the reason that said act expressly excepted section sixteen from its operation. The court then further inquired whether the execution of a lease to the mineral claimants by the Secretary of War, with the right of renewal upon the lessee's compliance with certain conditions, upon which lease the claimants, having continued in possession, and complied with conditions, were allowed to make entry under the act of 1847, was a legal impediment preventing the title from vesting in the State, and held that it was not such an impediment, for the reason that the claim of the company was not perfect under the lease, the act of 1847, and the act of September, 1850 (9 Stat. 472). The court said: "Hence had there been a legal impediment to the execution of the compact with Michigan, enacted either by the second section of the act of 1847, which separated, for some purposes, the mineral from the public lands, or by the privileges granted to the lessees or their assigns, in the third section of that act, it was removed by the repealing clause of the act of 1850, and the non-compliance with the conditions on which the privileges depended."

It is thus seen that even in the case of a compact between the United States and the State of Michigan, duly ratified by the State (a much stronger case than that of the simple grant, by an ordinary act, to the State of California), the Supreme Court recognized the power of Congress, by subsequent legislation, to interpose a legal impediment to the title to school sections vesting in the State upon survey. There was no intimation that this power of Congress was doubted by the court. It was plainly recognized in every inquiry, and the title of the State was affirmed on the sole. ground that no such impediment existed.

In the case of Kissell v. Saint Louis Public Schools (18 How. 19), in discussing the right of the school commissioners of Saint Louis to certain out-lots, town lots, etc., reserved for the use of schools by the act of June 13, 1812 (2 Stat. 148), and the confirmatory act of January 27, 1831 (4 Stat. 435), which said lots were to be surveyed under the provisions of the first mentioned act, the court said: "Our opinion is that the school lands were in the condition of Spanish claims after confirmation by the United States, without having established and constructed boundaries

made by public authority, and which claims depended for their specific identity on surveys to be executed by the government. The case of West v. Cochran, 17 How. 413, lays down the dividing line between the executive and judicial powers in such cases, to wit: that until a designation, accompanied by a survey or description, was made by the surveyor-general, the title attached to no land, nor had a court of justice jurisdiction to ascertain its boundaries."

In the case of Van Valkenberg v. McCloud, 21 Cal. S. R., 330, the Supreme Court of California, in construing the five hundred thousand acre grant to the State, under the act of Congress of September 4, 1841 (5 Stat. 453), held that selections could be made thereunder prior to the survey of the land, subject to subsequent change to conform to the government lines, but this decision was overruled in the subsequent cases of Terry v. Megerle, 24 Cal. 624; Grayson v. Knight, 27 Cal. 507; and Middleton v. Lowe, 30 Cal. 596. In the latter case, referring to the decision of Grayson v. Knight, the question being one relating to the right of the State to sections 16 and 36, under the act of 1853, the court said: "The reasons operating to prevent the State or her vendee from acquiring a title by the aid of selection made, as in that case before the congressional survey, are equally cogent to show that title to any particular parcel of the lands granted for the purposes of public schools, does not vest in the State until such survey has been made. * * It thus appears that the grant to the State has not attached to the land in controversy (section 36), both because of the exception in the act of Congress in favor of private grants, and because the lands have not been surveyed by the United States."

*

The case of Higgins v. Houghton, relied upon by counsel to sustain the claim of the State, seems rather, upon a careful examination, to sustain an opposite view of the law from that contended for. The case involved a question as to the right of the State under the act of 1853 to sections 16 and 36, and the court said: "We consider that in the grant to California of March 3, 1853, the power of locating the quantity granted, 1,280 acres, in effect in two parcels in every township, was reserved by the government, and as fast as townships thereafter were surveyed and sectionized,