The Department is of opinion that this land is not subject to the company's selection. The statute above quoted is plain. The body of lands of which the tract in question is a part and to which the statute relates is "open to the operation of the laws regulating homestead entry . . . . and to entry under the town site laws and the laws governing the disposal of coal lands, desert lands, and mineral lands."

These modes of disposal thus specifically indicated were expressly made, exclusive of any other manner of disposition. In other words, these lands are appropriated—that is, set apart for disposition in a particular manner, in pursuance of a defined policy. While such appropriation does not place the lands beyond the power of other disposition by Congress, so long as the law remains unaltered, it controls the action of the Secretary of the Interior, under whose direction the selection in question must be made. State of Utah (30) L. D., 301); Union Pacific Land Company (33 L. D., 487).

In the case of George L. Ramsey, decided by the Department December 23, 1903 (L. & R. 500, p. 19), there was involved an application to select under the act of June 4, 1897 (30 Stat., 36), a tract of land lying within the boundaries of this same ceded reservation. In that case, considering section 3 of the act of May 1, 1888 (hereinbefore quoted), it was said:

Congress thus specifically provided under what laws the lands should be disposed of and in express words prohibited their disposal under any other. Those modes are necessarily exclusive of any other mode of appropriation and the subsequent act of 1897, applicable to the public domain generally, did not take away this inhibition or operate as to lands for disposal of which specific provision had been so made. William C. Quinlan (30 L. D., 268); Joseph S. White (ib., 536); Webb McCaslin (31 L. D., 243).

There is little force in the suggestion of your office, upon which the decision appealed from apparently rests, that inasmuch as the act making the grant to this company in terms commits the United States to the extinguishment of the Indian title to lands within the limits of the grant, therefore it was not the purpose of Congress in extinguishing the Indian title to these lands to deny the company the right to select them in satisfaction of its grant. The obligation of the government to preserve a railway right of selection in indemnity lands would seem to be more fanciful than real. But however this may be, that Congress had the power to exclude the railway company from participating in the benefits arising from the disposition of these lands can not be successfully questioned. That it has done so may not be reasonably disputed.

The decision appealed from is reversed, and the case remanded for proceedings not inconsistent herewith.

MINING CLAIM-EXPENDITURE-IMPROVEMENTS MADE PRIOR TO

LOCATION.

TOUGH NUT No. 2 and OTHER LODE MINING CLAIMS.

Improvements made prior to the location of the mining claim or claims to which their value is sought to be accredited are not available toward meeting the requirements of the statute relative to expenditures.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 11, 1907. (E. P.)

By decision of June 13, 1906 (unreported), the Department affirmed the action of your office, holding for cancellation, to the extent of the Nevada, Main Point, Colorado and Utah locations, mineral entry No. 586, made December 30, 1905, by the Crowned King Mining Company, for the Tough Nut No. 2 and seven other lode mining claims, survey No. 1777, situate in the Prescott land district, Arizona. The basis of said departmental action was that certain buildings, a part of the value of which the claimant sought to have accredited (presumably as common improvements for the benefit of all the claims comprising the group) to the four claims first above named, were not essentially mining improvements and were not shown to have been necessary to the development or operation of the group or to have been erected with that intent and purpose, and hence did not appear to be such improvements as would entitle the claimant to have any part of their value accredited to any of the claims of the group; and that the improvements of a mining character upon the said four claims were not of sufficient value to satisfy legal requirements.

The claimant has filed a motion for review of the decision of the Department, and therewith a showing to the effect that at the time the buildings in question were erected the claims were situated about fifty miles from a railroad and were remote from a center of trade or population, which facts rendered the erection of such buildings necessary to the development of the claims; that the buildings were intended when erected to facilitate the development, and have been used exclusively for the benefit, of the claims. It is contended that in view of this showing the proof should be accepted and the entry passed to patent.

It does not appear from the showing made when these buildings were erected. However, an official map of the United States Geological Survey, prepared from a survey made by it in the years 1900 and 1901, shows that at that time there was a railroad to Myer, Arizona, a point shown on said map to be scarcely twenty miles by wagon road, and about fourteen miles in a direct line, from the town. of Crown King, in the immediate vicinity of which this group of

claims appears to be situated. Considering the fact thus disclosed in connection with claimant's showing that at the time the buildings were erected the claims were about fifty miles from a railroad, it is apparent that the buildings were erected prior to the completion of said survey in 1901. The Nevada, Main Point, Utah and Colorado claims were not located until the year 1903. The buildings must therefore have been erected more than a year prior to the time of said locations. Improvements made prior to the location of the claim or claims to which their value is sought to be accredited are not available toward meeting the requirements of the statute relative to expenditures; and for this reason, without more being said, it must be held that no part of the value of the buildings referred to can be accredited to any of the four claims mentioned.

The decision of the Department is therefore adhered to and the motion denied.

SCRIP-LOCATION-LEGAL REPRESENTATIVES.

JOHN L. HOLLCROFT.

In case the land department is not entirely satisfied as to the legal ownership of scrip, it may require that location thereof shall be in the name of the confirmee, if living, or, if dead, in the name of his legal representatives, and patent will issue accordingly, leaving it to the courts to determine who shall take title thereunder.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 12, 1907.

(E. F. B.)

With your letter of April 18, 1907, you transmitted the appeal of John L. Hollcroft from the decision of your office of November 23, 1906, requiring him to amend his location of the SE. NW. 1, Sec. 2, SE. 1 NE. 1, Sec. 4, and NW. 4 NW. 4, Sec. 8, T. 2 N., R. 15 W., Little Rock, Arkansas, made with certificate of location No. 232, issued August 8, 1859, by the surveyor-general of Illinois and Missouri, to "Reges Loisel or his legal representatives," so that said location may appear in the name of the confirmee.

From the record before the Department it appears that the location was made with the unsatisfied portion of scrip issued to "Reges Loisel or his legal representatives" in satisfaction of the claim confirmed by the act of May 24, 1858 (11 Stat., 531).

There is with the record a certificate by the surveyor-general of Illinois and Missouri, dated August 29, 1859, setting forth the names of the legal representatives of Reges Loisel and their respective interests in the claim, certifying as to their right to locate said certificate. The attention of the Department is not called to any transfer or assignment by either of said persons to the alleged successors in

title under whom the locator claims, but it appears that R. C. Bassett, on February 20, 1904, and J. E. Taylor, on February 22, 1904, executed severally an assignment of said "certificate of location No. 232," to Edwin W. Spalding, of Washington, D. C., who on March 17, 1904, assigned the same to A. J. Mercer, of Little Rock, Arkansas; that the said Mercer commenced proceedings in the Chancery Court of Pulaski County, Arkansas, as against said J. E. Taylor and the unknown heirs of Regis Loisel to quiet title to said scrip and obtained from the court a decree finding that by verbal agreement the title to said scrip passed from the proper parties representing the heirs of Regis Loisel, deceased, and that the complainant derived title from said Taylor and Bassett.

The Department is not entirely satisfied as to the title of the locator to this scrip, but it is not necessary to discuss that question, inasmuch as the rights of the true owners can be fully protected by having the location made and the patent issued in the name of the legal representatives of Regis Loisel. If the court proceedings are conclusive and have confirmed the title in the scrip to Mercer under his assignment through Spalding from Bassett and Taylor, the title issued under the location will inure to the transferee of Mercer.

Your decision is affirmed so far as it holds that the location made with this scrip and the patent to be issued thereon must be in the name of "the legal representatives of Regis Loisel," but under the decision of the Department in the case of Lawrence W. Simpson on review (35 L. D., 609), the land in question is not subject to location. with such scrip and the location must therefore be cancelled.

SURVEYOR-GENERALS' SCRIP—AUTHENTICATION—INNOCENT PUR

CHASER.

INSTRUCTIONS.

It is the province of the land department to determine whether assignments of military bounty land warrants or surveyor-generals' certificates or scrip issued under the act of June 2, 1858, are sufficient, independently of the adjudication of the courts, and where the validity of warrants or certificates and the assignments thereof have been authenticated by the Commissioner of the General Land Office, in the proper exercise of his jurisdiction and authority, and have passed into the hands of innocent purchasers upon the faith of such authentication, and are held or have been located by such purchasers, the question as to the regularity of the assignments should not be re-opened.

Acting Secretary Woodruff to the Commissioner of the General Land (S. V. P.) Office, July 12, 1907. (E. F. B.)

By letter of June 8, 1907, you call attention to locations made with surveyor-generals' scrip, issued under the act of June 2, 1858

(11 Stat., 294). You state that you would proceed to investigate these locations with a view to their cancellation if it be found that the succession proceedings and sales under which the locations were obtained were fraudulent and illegal, were it not for the decision of the Department of April 30, 1907, in the case of Herbert D. Stitt, relative to the assignment of bounty land warrants, in which it was said:

It is the province of your office to determine whether the assignments are sufficient independently of the adjudication of the courts. But in this case the judgment of your office has been exercised by your letter of September 1, 1903, which is practically a certificate of the validity of the assignment upon which third parties have acted. It is not deemed advisable that the question as to the regularity of the assignment of the warrant should be reopened after it has been located by a subsequent assignee and after the land has been purchased upon the certificate issued upon that location.

This principle should as a general rule be applied in all cases whenever certificates or scrip have been obtained and locations made therewith by bona fide purchasers upon the faith of the adjudication and certification of your office as to the validity of the scrip or certificate and the assignment thereof.

In disposing of these cases and in the application of the principles announced in the cases cited in your letter, it is important to distinguish between void and voidable acts, and to discriminate between purely administrative acts and acts that are judicial in their nature. There is a wide distinction between the acts of public officials who transcend their power and authority and the erroneous acts of public officials who misjudge as to such matters. In one case the acts are not the acts of the government; in the other, they are.

The act of June 2, 1858 (11 Stat., 294), under which these certificates issued, imposes upon the Commissioner of the General Land Office the duty of passing upon the validity of the scrip and to authenticate the same by certifying that it has been lawfully issued and is receivable at any land office for the location of land subject to private sale.

The act contemplated that the location of the scrip would be made the action of the surveyor-general and to determine whether the certificate of location had been obtained according to the true intent and meaning of the act, and to the orderly administration of the public land system, and to avoid having lands withheld from entry by the location of scrip that had not been properly obtained it was provided by regulation that the duty imposed upon the Commissioner to review the action of the surveyor-general and to determine whether the certificate of location was obtained according to the true intent and meaning of the act shall be performed prior to location. (Circular of August 26, 1872-Copp's Land Laws, Ed. 1875, 513, 516.)