nity clause of said act gave a right of selection where it appeared that the United States had at the date of the definite location of the roads sold any of the lands granted, or where the right of pre-emption had attached to the same. It was held that this indemnity clause covers losses from the grant by reason of sales and the attachment of preemption rights previous to the date of the act. At page 626 of the

decision the court said:

It is to no purpose to say, against this construction, that the government could not grant what it did not own, and therefore could not have intended that its language should apply to lands which it had disposed of. As already said, the whole act must be read to reach the intention of the law-maker. It uses, indeed, words of grant, words which purport to convey what the grantor owns, and, of course, cannot operate upon lands with which the grantor had parted; and, therefore, when it afterwards provides for indemnity for lost portions of the lands "granted as aforesaid," it means of the lands purporting to be covered by those terms.

The act of March 3, 1853, granting sections sixteen and thirty-six to the State of California, and the act of February 28, 1891, are in pari materia, and should be construed as one act. So construed, it results that the State is entitled to indemnity for said sections where the United States had prior to the school grant "disposed" of these sections.

In the case of the St. Paul, Minneapolis and Omaha Railway Company (6 L. D., 195), it was held by the Department that lands granted to the State of Wisconsin by the swamp-land act were "sold," "reserved," "otherwise appropriated," or "otherwise disposed of" within the meaning of the acts of June 3, 1856 (11 Stat., 20), and May 5, 1864 (13 Stat., 66), granting to said State certain lands designated by odd-numbers to aid in the construction of railroads in that State, and providing for indemnity on account of lands which had been sold, reserved, or otherwise appropriated at the date of the definite location of the road. There is no difference in principle in the case cited and that now under consideration. In both instances the grant on account of which the loss occurred and the grant in which it occurred were made to the State. In the case cited an obligation rested on the State to build the road on account of which the grant was made, and in this case an obligation rested on the State to reclaim the land. The object in each was the same, in that both grants were made for the purpose of internal improvement. It is true of the swamp grant that the obligation resting upon the State was a moral one only, but this is not important. It is submitted by counsel for the State that the theory and purpose of the grant of swamp lands to the State were such that lands were worthless in their natural conditions; that they were an obstacle to the proper growth and a menace to the health of the local communities; that their reclamation by local authority under stimulus of local necessity was a work worth their full value when reclaimed; and they were given to the states for reclamation as valueless in their present condition, and involving their full

value in the work of reclamation.

It is submitted further that the

school grant was for a widely different object, and to attain a widely different end; that it was for "the purposes of public schools in each township," and that the consistent legislation upon this subject shows the congressional intention as to each State to devote the school section solely to the benefit of the schools in that township wherein they were situated.

If there were doubt of the congressional intention as expressed in the act of February 28, 1891, this argument would be worthy of extended consideration. It is enough to say of it, however, that it is well supported by the history of legislation on these subjects. But this case does not need to rest on equitable grounds. The letter of the law, the terms of the acts of March 3, 1853, and February 28, 1891, support the State's main contention. Congress must be presumed to have known when it made the grant of March 3, 1853, that it had already disposed of a large body of lands in the State by the swamp-land grant, and that in all probability some sections sixteen and thirty-six therein had been so disposed of. It must also be presumed to have known when it passed the indemnity act of February 28, 1891, that such sixteenth and thirty-sixth sections in said State as were on September 28, 1850, swamp lands were lost to the school grant, because they had been otherwise disposed of by the United States, and, in granting indemnity for such lands, no exception was made of the State of California. There is no rule of statutory construction which supplies such an exception. The legal effect which follows from the plain language of a statute may not be defeated by construction. On principle and authority the State is entitled to an approval of these lists. The cases of the State of California (15 L. D., 10), and State of California v. Moccettini (19 L. D., 359), are hereby overruled.

The decision appealed from is reversed, with directions to re-examine the lists and submit them for approval, unless other objection appears.

NEW MEXICO-LEASE-PROTEST.

LYONS AND CAMPBELL RANCH AND CATTLE Co. v. STOCKTON.

Under a stipulation in a lease by the Territory of New Mexico that the Board of Public Lands of said Territory shall have the power to at any time try and determine the question whether the lease was procured through false and fraudulent representations, said board has authority, without the intervention of a court, to terminate the lease upon a satisfactory showing that it was so procured. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 29, 1902. (G. B. G.)

This is the matter of the protest of the Lyons and Campbell Ranch and Cattle Company against the approval of lease No. 354 to William J. Stockton, for the N., SW. 4, the W. of the SE. 4 and the NE.

of the SE. of Sec. 36, T. 13 S., R. 21 W., in the Territory of New Mexico.

This lease was submitted to the Department by your office for approval April 25, 1902, but was returned for the further consideration of your office because of the protest of the Lyons and Campbell Ranch and Cattle Company. Your office, upon consideration of said protest, reports that this land was embraced in lease No. 426 to one Thomas Lyons, which was approved by the Department March 2, 1901, that this lease was made by and between The Board of Public Lands of the Territory of New Mexico, party of the first part, and Thomas Lyons, party of the second part, and contained the following clause:

If at any time after the execution of this lease, it is shown to the satisfaction of the party of the first part, or its successors in office, that there has been any fraud or collusion upon the part of the said party of the second part to obtain this lease at a less rental than its value, it shall be null and void at the option of the party of the first part.

It appears from the files of your office appertaining to this matter that from representations made to the Board of Public Lands this land had living or running water upon it, whereas the said Lyons, in his application to lease the same, had represented that there was no living or running water thereon. The board caused an investigation to be made, and Lyons was cited to show cause why his lease should not be canceled under the clause therein above quoted. A showing was made by affidavits, in response to such notice, and upon consideration thereof the board declared the lease canceled, and subsequently leased the land to Stockton, which lease is now before the Department for approval.

Your office expresses the opinion that, inasmuch as the lease as drawn would appear to leave it to the board to determine at any time whether or not any contract actually exists, the condition is so lacking in mutuality as to make it inoperative, and recommends that the approval of the lease to Stockton be withheld.

It was evidently the intention of the parties to this agreement to stipulate that the Board of Public Lands of the Territory should have the power at any time to try and determine, without the intervention. of a court, the question whether the lease had been procured through false and fraudulent representation, and in the event it should appear to the satisfaction of the board that such false and fraudulent repre sentations had been made to authorize the board to terminate the lease. If this was not the intention, then the clause quoted was nothing more than a declaration of the law, because a contract secured through fraud may always be annulled at the option of the party defrauded, though the annulment must ordinarily be secured through civil process.

Whether an agreement between parties to a contract that one of them should have the power to try and determine the question of fraud in its execution is binding need not be considered. That question is not here presented. The Board of Public Lands is the nominal and not the real party in interest. The real party of the first part in this contract is the Territory of New Mexico, and no good reason is suggested why the Territory and its lessee may not agree to submit to the Board of Public Lands, as a board of arbitration, any question arising upon the leasing of these lands, which, in the absence of such an agreement, might have been tried and determined by a court of competent jurisdiction. It is believed that this board had the power to terminate lease No. 426, and the sufficiency of the evidence upon which that action was taken is not a question for review by this Department. Lease No. 354 to William J. Stockton, which has been informally withdrawn from the files of your office incident to consideration of this matter, is herewith returned with the approval of the Department noted thereon.

CONTEST-INDIAN ALLOTMENT-PREFERENCE RIGHT.

COLLINS. HOYT.

Section 2 of the act of May 14, 1880, giving a preference right of entry to a successful contestant, does not extend to contests against Indian allotments.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) (C. J. G.)

May 29, 1902.

Plaintiff in the case entitled Peter M. Collins v. Elijah W. Hoyt, appeals from the decision of your office of December 30, 1901, rejecting his application to enter, under section 2306 of the Revised Statutes, the W. SW.4, Sec. 24, T. 15 N., R. 12 W., Helena, Montana, land district. The application is based on a claimed preference right to make additional entry for this land procured by plaintiff's contest against an Indian allotment covering said land, which resulted in its cancellation.

Section 2 of the act of May 14, 1880 (21 Stat., 140), allowing a preference right of entry to a successful contestant, has been construed not to extend to an Indian allotment where the first or trust patent has been issued. Bryant et al. v. Gill et al. (29 L. D., 68); Lizzie Bergen (30 L. D., 258, 266); and Rule 6, Regulations of April 10, 1901 (30 L. D., 546). There would appear to be no good reason why the same rule should not apply in case of an allotment where the first or trust patent has not been issued; and this, too, regardless of the nature or character of the charges preferred by the contest. It is so held.

Your said office decision is affirmed.

PRIVATE CLAIM-SCRIP-ACT OF JUNE 2, 1858.

GEORGE BAldey.

The necessity for the sale of a decedent's property, whether real or personal, in the State of Alabama, is a jurisdictional fact that must appear upon the face of the record; and an order of sale, by a probate court, founded upon an application which does not allege or show that any legal cause for the sale exists, is a nullity and affords no basis for favorable action in proceedings to secure the issuance of scrip under the act of June 2, 1858.

No lands were granted by the third section of the act of March 3, 1819, which were claimed or recognized by the preceding sections of the act, and it is therefore necessary to identify the land claimed under the third section and to show that it does not conflict with any claim confirmed by the first or second section.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 29, 1902. (E. F. B.)

With your letter of March 25, 1902, you transmit the appeal of George Baldey from the decision of your office of November 26, 1901, denying his application for the issuance of scrip under the act of June 2, 1858 (11 Stat., 294), in satisfaction of the private land claim of Eloise T. Innerarrity, reported by Commissioner Crawford in report No. 6, as claim No. 3, in the register of claims to lands in the district east of Pearl River, "founded on orders of survey (requettes), permission to settle, or other written evidence of claim. . . . which in the opinion of the commissioner ought not to be confirmed." (3 Am. St. Papers, Green, 14.)

Appellant contends that said claim was confirmed by the third section of the act of March 3, 1819 (3 Stat., 528), that it has never been located, surveyed or in any other way satisfied, and that he is the legal representative of said claim, having purchased it from the administrator of the estate of Eloise T. Innerarrity, at a public sale authorized by the probate court in the State of Alabama having jurisdiction thereof.

You rejected the application upon the ground that the probate court had no authority to order the sale of said estate and that the purchaser acquired no title thereunder, for the reason (1) that if Eloise T. Innerarrity acquired any right under the confirmatory act of March 3, 1819, supra, it was a claim to real property which descended to her heirs; (2) that if the claim be considered as personal property it could only be sold for the purposes specified in the statute, and the jurisdictional fact not appearing on the face of the petition, the order of the court was void and of no effect; and (3) because it has not been affirmatively shown that the claim was confirmed, the applicant having failed to identify the land or to show the approximate locus of the claim. The applicant alleges error in all of said rulings.

The third section of the act of March 3, 1819, supra, provides that every person, or his or her legal representatives, whose claim is comprised in the list or register of claims reported by the commissioners,