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March 7, 1921



White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: Van Devanter

[ 255 U.S. Page 368]

 MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This is a suit by the State of New Mexico to enjoin the Secretary of the Interior and the Commissioner of the General land Office from canceling or annulling a lieu land selection of that State under a mistaken conception of their power and duty. A hearing on the bill and answer resulted in a decree for the State, which the Court of Appeals affirmed, 49 App. D.C. 80; 258 Fed. Rep. 980, and the defendants appealed to this court.

[ 255 U.S. Page 369]

     There was no controversy or difference in the land department about any question of fact, but only in respect of the time as of which the officers were authorized and required to determine the validity of the selection.

Congress granted to New Mexico for the support of common schools designated sections of land in each township, subject to specified exceptions, with a provision enabling and entitling the State to select other lands in lieu of those excepted, and with a further provision whereby, in the event any of the designated sections after passing under the grant should be included within a public reservation, the State was to be entitled to waive its right to them and select instead other land of equal acreage. See California v. Deseret Water, etc., Co., 243 U.S. 415. All lieu lands were to be selected "under the direction and subject to the approval of the Secretary of the Interior." Acts of June 21, 1898, c. 489, §§ 1, 8, 30 Stat. 484; March 16, 1908, c. 88, 35 Stat. 44; June 20, 1910, c. 310, §§ 6, 10-12, 36 Stat. 557; February 28, 1891, c. 384, 26 Stat. 796, amending §§ 2275, 2276, Rev. Stats.

Some of the tracts in place after passing under the grant were included within a public reservation called the Alamo National Forest. Afterwards, on March 9, 1915, the State filed in the local land office a selection list waiving its right to one of these tracts and selecting in its stead other land of like area lawfully subject to selection. The list conformed to the directions given by the Secretary of the Interior and was accompanied by the requisite proofs and the proper fees. Notice of the selection was duly posted and published, proof of publication was submitted and the publisher's charge was paid. In other words, the waiver and selection were regularly presented and all was done by the State that needed to be done by it to perfect the selection. The notice did not bring forth any protest or objection, and in due course the local land officers forwarded the list and supporting proofs and papers to the General

[ 255 U.S. Page 370]

     Land Office with a certificate stating that there was no adverse filing, entry or claim to the land selected and that the list had been accepted and approved by them. The list remained pending in that office until May 16, 1916, when the Commissioner directed that the selection be canceled solely on the ground that in the meantime, on April 3, 1916, the base tract -- the one the right to which was waived -- had been eliminated from the reservation by a change in its boundaries. The State appealed to the Secretary of the Interior and he affirmed the Commissioner's action. Both officers proceeded on the theory that the validity of the selection was to be tested by the conditions existing when they came to examine it and not by those existing when the State made it -- in other words, they conceived that although the selection was lawful when made they could and should disapprove it and direct its cancellation by reason of the elimination of the base tract from the reservation a year later.

The courts below rejected that view and held that those officers were required to give effect to the conditions existing when the selection was made and that, if it was valid then, they were not at liberty to disapprove or cancel it by reason of the subsequent change in the status of the base tract. In our opinion the courts were right. The provision under which the selection was made was one inviting and proposing an exchange of lands. By it Congress said in substance to the State: If you will waive or surrender your titled tract in the reservation, you may select and take in lieu of it a tract of like area from the unappropriated nonmineral public lands outside the reservation. Acceptance of such a proposal and compliance with its terms confer a vested right in the selected land which the land officers cannot lawfully cancel or disregard. In this respect the provision under which the State proceeded does not differ from other land laws which offer a conveyance of the title to those who accept and fully comply with their terms.

[ 255 U.S. Page 371]

     In the brief for the officers it is frankly and rightly conceded to be well settled that "a claimant to public land who has done all that is required under the law to perfect his claim acquires rights against the Government and that his right to a legal title is to be determined as of that time"; and also that this rule "is based upon the theory that by virtue of his compliance with the requirements he has an equitable title to the land; that in equity it is his and the Government holds it in trust for him." See Lytle v. Arkansas, 9 How. 314, 333; Stark v. Starrs, 6 Wall. 402, 417-418; Ard v. Brandon, 156 U.S. 537, 543; Payne v. Central Pacific Ry. Co., ante, 228. But it is said that as the selection is "subject to the approval of the Secretary of the Interior" no right can become vested, nor equitable title be acquired, thereunder unless and until his approval is had, and therefore that the rule just stated is not applicable here. To this we cannot assent. The words relied upon are not peculiar to this land grant, but are found in many others. Their purpose is to cast upon the Secretary the duty of ascertaining whether the selector is acting within the law, in respect of both the land relinquished and the land selected, and of approving or rejecting the selection accordingly. The power conferred is "judicial in its nature" and not only involves the authority but implies the duty "to determine the lawfulness of the selections as of the time when the exertion of the authority was invoked by the lawful filing of the list of selections." Weyerhaeuser v. Hoyt, 219 U.S. 380, 388; Daniels v. Wagner, 237 U.S. 547, 557, et seq.; Payne v. Central ...

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