complete title in return is secured. If only an unperfected claim is surrendered, the same rights are secured with respect to the new claim that were possessed with respect to the claim surrendered.

After having considered and answered certain contentions by those claiming against the selections, the Department finally summed up its conclusions upon the question as to the time and manner of the vesting of rights under selections based upon said act, as follows (p. 565):

(1) That where a person making selection under the act of June 4, 1897, has complied with all the terms and conditions necessary to entitle him to a patent to the selected land, he acquires a vested interest therein and is to be regarded as the equitable owner thereof.

(2) That the right to a patent under the act, once vested, is, for most purposes, the equivalent of a patent issued, and when in fact issued, the patent relates back to the time when the right to it became fixed and takes effect as of that date.

(3) That questions respecting the class and character of the selected lands are to be determined by the conditions existing at the time when all requirements necessary to obtaining title have been complied with by the selector, and no change in such conditions, subsequently occurring, can affect his rights.

It was further said and held in said decision:

What are the essential requirements of the statute respecting the selection of the lieu land with which one seeking title thereto must comply? Upon relinquishing to the government the tract in the forest reservation, he must make selection of the tract desired in exchange therefor. The act so expressly declares. But what showing must he make with respect to the selected tract? The statute authorizes selection only of "vacant land open to settlement." To be vacant, the land must not be occupied by others. To be open to settlement, it must not be known to be valuable for minerals, or reserved from settlement for any other reason. In so far as the existing conditions appear from the land office records, that is, whether the selected tract is of lands to which the settlement laws have been extended, and whether the same is free from record appropriation, claim, or reservation, no showing by the selector in respect thereto need be made for the reason that the officers of the government can and must take notice of the public records. But as to conditions the existence or non-existence of which can not be determined by anything appearing upon the public records and as to which the officers of the government must depend entirely upon outside evidence, that is, whether the selected tract is occupied by others or known to be valuable for minerals, it is manifestly necessary that the required evidence should be furnished by the selector. The officers of the government can not be expected to know whether land selected under the act is vacant and not known to be valuable for minerals, and in these respects subject to selection. . . .

Nor can selections be lawfully accepted until there is a showing that the selected land is vacant and not known to be valuable for minerals. No other lands are subject to selection, and no selection can be regarded as complete until these essential conditions are made to appear. They do not appear from the public surveys. In this case the lands were surveyed in 1854. Whether since that date they have been continuously, or at any time, vacant, or occupied, and whether at any time known to be valuable for minerals, and if so, whether stripped of their minerals and worked out, are matters not shown by the land office records.

The right to a patent is not acquired in any case until the proofs are such that patent could be issued upon them if nothing were shown to the contrary. As long as anything remains undone which it is essential should be done by the selector in order to entitle him to a patent, the right thereto does not vest.

That a non-mineral affidavit should accompany the selection is not seriously questioned by appellant. It is just as essential that it should be accompanied by a vacancy or non-occupancy affidavit. Appellant's contention that the word "vacant," as used in the statute, means public lands which are not shown by the records of the local office or General Land Office to be claimed, appropriated, or reserved, can not be accepted. Portions of the public lands may be occupied, and for that reason be not subject to selection, and yet there be no mention of their occupancy in the records of the land department. It frequently occurs that persons desiring to secure title to lands under the homestead law, settle upon and occupy the same, for months and even years, before placing their claims of record. By the act of May 14, 1880 (21 Stat., 140, Sec. 3), such settlers are given the same time to file their claims and place their entries of record as was originally given to settlers under the pre-emption law (Secs. 2264 and 2265, R. S.). But for various causes it frequently occurs that the time is allowed to pass without entry, and the occupancy is continued by the claimants with the hope and expectation of making entry at some future date. And, as was said by the supreme court in Tarpey v. Madsen (178 U. S., 215, 221):

"It is a matter of common knowledge that many go on to the public domain, build cabins and establish themselves, temporarily at least, as occupants, but having in view simply prospecting for minerals, hunting, trapping, etc., and with no thought of acquiring title to land. Such occupation is often accompanied by buildings and enclosures for housing and care of stock, and sometimes by cultivation of the soil with a view of providing fresh vegetables. These occupants are not in the eye of the law considered as technically trespassers. No individual can interfere with their occupation, or compel them to leave. Their possessory rights are recognized as of value and made the subjects of barter and sale."

It is thus seen that mere occupancy of the public lands, while creating no right as against the government (Camfield v. United States, 167 U. S., 518; Frisbie v. Whitney, 9 Wall., 187; Yosemite Valley Case, 15 Wall., 77), is recognized as creating valuable possessory rights in the individual occupants as against all other persons. Unquestionably Congress has the power to protect rights of the character indicated, and it was evidently the intention to furnish such protection as against persons making selection under the act in question; otherwise the word "vacant," as used in the act, would be meaningless. Its use was not necessary to except from selection lands claimed, appropriated or reserved as shown by the land office records. The words "open to settlement" fully and more appropriately exclude lands in that condition. They are not open to settlement. In the Shaw-Kellogg case, supra, the supreme court, referring to the words "vacant land," as used in the act of June 21, 1860, held, as we have seen, that the grantees under that act "were not at liberty to select lands already cccupied by others." The Department knows of no reason why the same ruling should not be applied to the act of 1897.

It was found that the printed form of affidavit used by Clarke in making the selections in question, while in some respects different from the form prescribed by the departmental regulations, contained both non-mineral and non-occupancy averments; that the non-occupancy averments had been stricken out before the affidavits were verified or filed, and the result thereof was that the selections were not accompanied by any showing whatever respecting the state of vacancy or occupancy of the land at the time of selection. For this reason the affidavits were held to be insufficient and the selections to be imperfect. The existing occupancy and known value of the land for mining purposes having been admitted at the argument and by the record, it

was further held, in view of such admission, that the required proofs could not then be supplied, and the selections were accordingly rejected.

No exception is taken in the motion for review to the holding of the former decision as to the time when the selector's rights become vested, if at all; or as to the time with respect to which, by the conditions then existing, the class and character of the selected land are to be determined; or as to the effect of the vesting of rights under selections and the issuance of patents for the selected land. The errors assigned as to other parts of the decision are, briefly stated, as follows:

1. In defining the words "vacant land," used in the act of June 4, 1897, to mean unoccupied land, and in holding that land, to be subject to selection under the act, must not be occupied by others.

2. In holding that proof of the vacancy or non-occupancy of the land at the time of selection must be furnished by the selector, and that such proof can not be furnished, after the selection has been filed, to take effect as of the date of such filing, when in the mean time the selected land has come to be occupied by others who have, by discovery and development work, demonstrated that it is valuable mineral land.

On application by Clarke, oral argument upon the questions presented by the motion for review was granted, and notice thereof given to all parties interested. Counsel on both sides participated in the oral argument, and also filed lengthy and exhaustive printed briefs in support of their respective contentions.

It is a familiar rule of construction that the words of a statute are to be read and understood in their primary or ordinary sense, and according to their usual import and common acceptation, unless to so construe them would be clearly repugnant to the legislative intention, or would lead to manifestly incongruous or absurd results. (Sutherland on Statutory Construction, Sec. 248; Sedgwick on Construction of Statutory and Constitutional Law, pp. 219-20; Potter's Dwarris, p. 203; Black on Interpretation of Laws, pp. 125 et seq.)

In its primary or ordinary sense, vacant means empty; unfilled, unoccupied; as a vacant or empty box; a vacant or unfilled office; a vacant or unoccupied house or lot.

It is contended, however, that the word vacant, as used with respect to the public lands, had, prior to the act of June 4, 1897, by executive, legislative, and judicial construction, acquired a special, restricted, and technical meaning, the equivalent of "not taken or appropriated of record," and was so used in said act, and not in the sense of unoccupied, as held in the decision under review.

Counsel have referred to portions of the annual reports of the Commissioner of the General Land Office, to certain regulations and decisions of the land department, and to acts of Congress and judicial decisions, in all of which the word vacant was employed prior to the

passage of the act of 1897. These have all been carefully examined. In some of them the word appears to have been used in its primary or ordinary sense. In others it has been used in the special or restricted sense contended for. In still others, it seems to have been used in both the primary and special senses; that is, as intended to embrace lands neither occupied nor appropriated of record. In some it is not clear in what sense the word is used, whether in its primary, special, or double meaning.

It is not true, as contended, that it has been uniformly used by the supreme court in the sense of "not taken or appropriated of record." This is shown by the following cases:

In Atherton . Fowler (96 U. S., 513, 518-9), decided at October term, 1877, the court, speaking of a controversy which arose under the pre-emption law, said:

Among the things which the law required of a pre-emptor, and the principal things required of him to secure his right, were: 1. To make a settlement on the land in person. 2. To inhabit and improve the same. 3. To erect a dwelling-house thereSect. 2259, Rev. Stat.

on.

At the moment the land on which the hay in this case was cut became liable to pre-emption, the whole of it was, by the various persons claiming under Vallejo, 1, settled on by them in person; 2, inhabited and improved by them; and, 3, it had dwellings erected on it by them.

Unless some reason is shown, not found in this record, these were the persons entitled to make pre-emption, and no one else. But suppose they were not. Does the policy of the pre-emption law authorize a stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they were settled, and by these acts acquire the initiatory right of pre-emption? The generosity by which Congress gave the settler the right of pre-emption was not intended to give him the benefit of another man's labor, and authorize him to turn that man and his family out of their home. It did not purpose to give its bounty to settlements obtained by violence at the expense of others. The right to make a settlement was to be exercised on unsettled land; to make improvements on unimproved land. To erect a dwelling-house did not mean to seize some other man's dwelling. It had reference to vacant land, to unimproved land; and it would have shocked the moral sense of the men who passed these laws, if they had supposed that they had extended an invitation to the pioneer population to acquire inchoate rights to the public lands by trespass, by violence, by robbery, by acts leading to homicides, and other crimes of less moral turpitude.

In Hosmer . Wallace (97 U. S., 575, 579-80), decided at October term, 1878, the court said:

To create a right of pre-emption there must be settlement, inhabitation, and improvement by the pre-emptor, conditions which cannot be met when the land is in the occupation of another. Settlement, inhabitation, and improvement of one piece of land can confer no rights to another adjacent to it, which at the commencement of the settlement is in the possession and use of others, though upon a subsequent survey by the government it prove to be part of the same sectional subdivision. Under the pre-emption laws, as held in Atherton v. Fowler (96 U. S., 513), the right to make a settlement is to be exercised on unsettled land; the right to make improvements is to be exercised on unimproved land; and the right to erect a dwelling-house is to be exercised on vacant land; none of these things can be done on land when it is occupied and used by others.

The word vacant was clearly used by the court, in these cases, in the sense of unoccupied and not in the sense of "not taken or appropriated of record." It has not been shown, and can not be, that, prior to June 4, 1897, the word, as applied to the public lands, had acquired an exclusive, special or restricted, and technical meaning, the equivalent of "not taken or appropriated of record." Under established rules of construction, the word, in the act of 1897, must be given its primary or ordinary meaning, unless the subject matter or language of the act clearly shows that it was intended to be understood as referring only to the status of land as shown by the land office records, or unless to give to it its primary or ordinary meaning would lead to incongruous or absurd results.

There is nothing in the language of the act or in the nature of the subject to which it relates to show that the word "vacant" was used necessarily and exclusively to describe lands "not taken or appropriated of record." On the contrary, as stated in the decision under review, the use of this word was not necessary to except from selection lands claimed, appropriated, or reserved as shown by the land office records. The words "open to settlement" fully and more appropriately exclude lands in that condition. Nor can there be any reasonable objection to the construction of the word in its primary or ordinary sense of unoccupied, on the ground that such construction might lead to incongruous or absurd results.

The chief purpose of the act of 1897 was to provide a means whereby the government might acquire the title and control of lands covered by private ownership or claim within the limits of forest reservations, with the view to promoting the objects for which the reservations were established, and whereby the owners or claimants of such lands might obtain in exchange therefor other lands outside the reservations, with the view to relieving themselves of the disadvantages resulting from the withdrawal from settlement and other disposition of the public lands surrounding them. It was provided that lands so held might be exchanged for an equal quantity of vacant land open to settlement" outside the reservations. The owners or claimants of lands within a forest reservation, if they desired to avail themselves of the proffered exchange, were required to relinquish to the government the lands so owned or claimed by them, and they were to make selection of the lands to be taken in exchange. Except where otherwise specially provided, and subject to the conditions that only lands vacant and open to settlement could be taken, it was the purpose to permit the selections to be made anywhere within the limits of the public domain. With this vast area from which to make selections, it can not reasonably be claimed that a construction of the word ** vacant” such as is contended for in the motion for review is necessary to the