same limitations prescribed above as to the lands that may be leased only, but all leases made under the provisions of this act shall be subject to the approval of the Secretary of the Interior, and all investments made or securities purchased with the proceeds of sales or leases of land provided for by this act shall be subject to like approval by the Secretary of the Interior.

The territorial act of March 16, 1899, supra, constitutes the Governor, Solicitor-General, and Commissioner of Public Lands of the Territory a board for the leasing, sale, general management, and control of all public lands granted to said Territory, and section 12 thereof provides" that all lands to be leased shall first be appraised by the board."

The territorial act of March 20, 1901, supra, amends section 12 of the act of March 16, 1899, by striking out the paragraph quoted, and by adding thereto authorization to the board to sell the down, mature, and large growth timber on any of the sixteenth and thirtysixth sections of said land granted as school lands," and providing specifically the manner of sale, but does not provide that these sales shall be subject to the approval or supervision of the Secretary of the Interior or any other federal officer.

Your office states that there are now pending therein a number of leases awaiting reports of appraisal before submission for approval, and requests instructions as to whether the territorial act of March 20, 1901, "obviates the necessity of requiring reports of appraisal of lands leased prior to its enactment."

In an opinion rendered by the Assistant Attorney-General for this Department, June 5, 1900 (15 Assistant Attorneys-General's Opinions, 234), it was held, in view of the provision in section 12 of the act of March 16, 1899, above cited, "that the appraisal of the lands to be leased is a necessary prerequisite to such leasing and to the approval of the lease by the Secretary of the Interior."

In this view, the leases on file in your office cannot be approved without proof of the appraisal of the leased lands before the execution of the leases. Appraisal being a necessary prerequisite to the leasing of the lands, if these lands were not appraised before the leases were executed, then the leases were invalid from the beginning, and the repeal of the law in force at the date of the execution of the leases would not make them valid. It is probably true, and may be conceded for the purposes of this opinion, that the territorial legislature might have given validity to the leases executed in violation of that provision of the act of March 16, 1899, requiring an appraisement of the land as a condition precedent to the leasing thereof, but it has not done so either in terms or by necessary implication, and the presumption of law is that such effect was not intended. There is nothing in the act of March 20, 1901, which permits an interpretation giving to it a retroactive operation or which warrants the conclusion that it was

intended to apply to other than future contracts for the leasing of these lands. In other words, the language used does not include contracts then existing for the leasing of these lands, and in the interpretation of a statute language may not be imported into it to give validity to past transactions. I have therefore to advise you that the leases on file in your office cannot be approved without proof of appraisal before they were executed.

The lands that may be leased only" referred to in section 10 of the act of June 21, 1898, supra, embrace sections sixteen and thirty-six granted for the use of common schools, and the "lands to the extent of two townships in quantity" granted for university purposes. These lands are referred to in section 10 as "reserved" lands, and the word reserved as there used does not refer to a condition created by that act, but to the lands which had been previously reserved by the act of July 22, 1854, supra. There were no reservations of land made by the act of June 21, 1898. This act made a grant in presenti of lands for the support of common schools and for university purposes, among which were sections sixteen and thirty-six and the two townships which had been previously reserved. See Territory of New Mexico (29 L. D. 364).

There is no express authority given to the Territory in the granting act to sell sections sixteen and thirty-six or the two townships reserved for university purposes. These lands are there referred to as "reserved for public schools," as "reserved for university purposes," and as lands that may be leased only," as contradistinguished from those lands granted by said act, which may be either leased or sold. The provision in section 10 making it unlawful to cut, remove, or appropriate in any way any timber growing upon the lands leased under the provisions of this act," is inconsistent with unrestricted right of sale, whether it refers to the grantee or the lessee, or both, and can only be held to apply to such of said lands as may be “leased only." Of such are sections sixteen and thirty-six. There is no authority in the granting act to sell these sections, such sales being impliedly inhibited. It results as matter of law that there is no authority to sell the standing timber thereon, it being part of the realty, and your office is directed to notify the proper officers of the Territory that, in the opinion of this Department, so much of the territorial act of March 20, 1901, as authorizes the sale of standing timber on sections sixteen and thirty-six is in violation of the spirit of the granting act, and that it will be my duty at the proper time to call the attention of Congress to said territorial act and to recommend that it be disapproved by that body, in the exercise of the authority conferred by section 1850 of the Revised Statutes. If, in the meantime, it be brought to the attention of your office that the territorial authorities shall have taken steps to carry said act into effect, the Department

should be advised thereof, to the end that the Secretary of the Interior may exercise such authority as may be vested in him by law to prevent the cutting and removal of timber from these lands.

INDIAN LANDS-RAILROAD RIGHT OF WAY-SECTION 5, ACT OF FEBRUARY 18, 1888.

OPINION.

The right of dissent accorded by section five of the act of February 18, 1888, from the statutory allowance to the tribe or nation provided for by said act on account of right of way granted, is limited to a dissent by the general council of either the nation or tribe named, and there is no authority for the acceptance of a dissent by the principal chief of such nation or tribe; nor is the Department of the. Interior authorized to extend the time within which such dissent may be certified.

Assistant Attorney General Van Devanter to the Secretary of the Interior, January 8, 1902. (F. W. C.)

I am in receipt, by reference from the Acting Secretary under date of the 4th instant, of a letter from the Commissioner of Indian Affairs, dated December 31, last, transmitting a communication from the principal chief of the Choctaw nation in the matter of the allowance to said nation on account of the right of way granted by act of Congress approved February 18, 1888 (25 Stat., 35), to the Choctaw, Oklahoma and Gulf Railroad Company, in which letter the principal chief of said nation states that the general council will not convene before the first of October next and for that reason he assumes the right to dissent from the statutory allowance of $50 per mile, as provided for in section 5 of said act of February 18, 1888, for that portion of the road shown upon the map of definite location approved by this Department on November 29, last. In said reference my opinion is desired as to "whether said dissent of the principal chief can be accepted as within the provisions of said section 5, and also whether said section may be construed to allow the general council, at its regular session, the right to dissent from said statutory allowance, without regard to the time when the maps of the railroad company are filed in the Department and approved."

In said section 5 of the act of February 18, 1888, it is provided:

That if the general council of either of the nations or tribes through whose lands said railway may be located shall, within four months after the filing of maps of definite location as set forth in section six of this act, dissent from the allowance hereinbefore provided for, and shall certify the same to the Secretary of the Interior, then all compensation to be paid to such dissenting nation or tribe under the provisions of this act shall be determined as provided in section three for the determination of the compensation to be paid to the individual occupant of lands, with the right of appeal to the courts upon the same terms, conditions, and requirements as therein provided.

It will be noted that the right of dissent from the statutory allowance of $50 per mile to the nation or tribe through whose lands the said railway may be located, is limited to a dissent by the general council of either of the nations or tribes, and I am of opinion that the mere fact that such general council may not in regular course be in session within the time limited in the act for the certification of a dissent from the statutory allowance, will not authorize the acceptance of a dissent by the principal chief of such nation or tribe, nor is this Department authorized to extend the time within which such dissent may be certified.

Approved, January 8, 1902:

E. A. HITCHCOCK,

Secretary.

ABANDONED MILITARY RESERVATION-JURISDICTION-WITHDRAWAL.

ALLEN H. Cox (ON RE-REVIEW).

So long as the title to public land remains in the government, the land department, and the Secretary of the Interior as the head of that department, are authorized to try and determine the rights of claimants therefor; and this power of necessity carries with it the power and involves the duty of determining whether such title remains in the government or has been granted away from it.

An authoritative order by the proper executive department of the government, directing the withdrawal of public lands from disposition, is, while in force, a bar to the appropriation of the land under the public land laws.

Withdrawals of public lands may be made for present public uses, or disposition in a special way, or in anticipation of future uses or disposal.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) January 10, 1902. (G. B. G.)

This is a motion by Allen H. Cox, for himself and thirteen other persons, asking a review of departmental decision of October 15, 1901 (31 L. D., 114), involving certain lands in the abandoned Fort Hays military reservation, State of Kansas. Said decision referred to the acts of July 5, 1884 (23 Stat., 103), and August 23, 1894 (28 Stat., 491), providing for the disposal of abandoned military reservations, and set out certain executive orders affecting the disposal of the lands in controversy, notably the order of March 22, 1895, withdrawing the lands in said reservation from settlement and entry," the order of June 13, 1899, vacating the order of March 22, 1895, and containing the explanatory statement that the action therein taken would open to "settlement" all of the lands in said reservation, except those covered by improvements, and the order of August 24, 1899, again withdrawing said lands from disposition under the acts mentioned. And upon a study of said acts and executive orders it was held that these lands 6855-Vol. 31-01-13

were open to settlement, but not to entry, between June 13, 1899, and August 24, 1899; that an application to enter said lands, presented at the local office between said dates, did not initiate a claim sufficient to except the land applied for from the grant of said reservation to the State of Kansas made by the act of March 28, 1900 (31 Stat., 52), and your office was directed to take steps in accordance with the decision to clear the record of all entries allowed of lands in the reservation resting alone upon applications presented at the local office between said dates.

This decision was rendered upon the petition of the State of Kansas asking the review of a former departmental decision herein of June 26, 1900 (30 L. D., 90), wherein it had been held that the lands within said reservation were subject to both settlement and entry between June 13, 1899, and August 24, 1899, and that the homestead application of Cox for a tract of land therein presented between said dates was the initiation of a valid claim to the land applied for, and defeated to that extent the grant to the State. Cox and his associates in the pending motion claim under homestead entries allowed pursuant to the Department's said decision of June 26, 1900.

It is urged in the pending motion that the departmental decision of October 15, 1901, was and is void for want of jurisdiction in the Department to render it, in that the decision of June 26, 1900, became final under the rules of the Department, and the State of Kansas was bound thereby; that the "departmental orders attempting to suspend the operation of the acts of July 5, 1884, and August 23, 1894," were nugatory and void, and did not withdraw said lands from the operation of said acts of Congress; and, generally, that the decision of October 15, 1901, was contrary to law and the well-established rules of the Department.

So long as the title to public land remains in the government, the land department and the Secretary of the Interior, as the head of that department, are authorized to try and determine the rights of claimants therefor, and this power of necessity carries with it the power and involves the duty of determining whether such title remains in the government or has been granted away from it. The present case arose upon the application of Cox to enter a tract of land lying within the limits of the said abandoned Fort Hays military reservation, the rejection of that application by the local officers, and the appeal of Cox therefrom.

The State of Kansas had not been heard and was not a party to the proceeding. The Department's decision of June 26, 1900, was rendered in an ex parte proceeding, and while that decision referred to the grant to the State made by the act of March 28, 1900, the claim of Cox might have been denied without reference to that act, because that claim rested upon a homestead application for land in reservation at the date of its presentation. A motion for review of that decision