issued thereunder, and in consequence was at the time of said decree fully entitled to a patent, the lands embraced in such small-holding claim must be held to have been disposed of or granted by the United States within the meaning of the provisions in sections 8 and 14, hereinbefore quoted, and to be excepted from the operation and effect of the decree of confirmation. It is apprehended that your office will find no difficulty in applying the rule here announced to the small-holding claims of the kind referred to in your office letter. The matter is one in which the holder of the confirmed grant is interested and entitled to be heard: and your office will therefore, before disposing of any such small-holding claim, afford the claimant to the confirmed grant due opportunity to be heard. SCHOOL LAND-INDEMNITY SELECTION-SWAMP LAND. The act of March 3, 1853, granting sections sixteen and thirty-six in each township State of California, 15 L. D., 10, and State of California v. Moccettini, 19 L. D., 359, overruled. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) May 26, 1902. (G. B. G.) This is the appeal of the State of California from your office decision of August 3, 1901, holding for cancellation the State's selections Nos. 3520 to 3527, inclusive (R. and R. No. 466), embracing 4910.65 acres of land, in lieu of certain sections sixteen and thirty-six which were granted to the State as swamp lands by the act of September 28, 1850 (9 Stat., 519). These selections were avowedly made under the act of March 3, 1853 (10 Stat., 244), section 6 of which declares that all public lands in the State of California, whether surveyed or unsurveyed, shall be subject to pre-emption, "with the exception of sections sixteen and thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township," and section 7 of which provides: That where any settlement, by the erection of a dwelling house or the cultivation of any portion of the land, shall be made upon the sixteenth or thirty-sixth sections, before the same shall be surveyed, or where such sections may be reserved for public uses or taken by private claims, other lands shall be selected by the proper authorities in lieu thereof; the act of February 26, 1859 (11 Stat., 385), appropriating lands to compensate deficiencies for school purposes where sections sixteen and thirty-six have been settled upon with a view to pre-emption before the survey of the lands in the field, and where said sections are fractional in quantity, or where one or both are wanting "by reason of the township being fractional, or from any natural cause whatever," and providing that the lands so appropriated shall be selected and appropriated in accordance with the principles of adjustment and the provisions of the act of May 20, 1826 (4 Stat., 179); the act of July 23, 1866 (14 Stat., 218), section 6 of which provides, among other things, that the act of March 3, 1853, supra, "shall be construed as giving the State of California the right to select for school purposes other lands in lieu of such sixteenth and thirty-sixth sections, as were settled upon prior to survey, reserved for public uses, covered by grants made under Spanish or Mexican authority, or by other private claims;" and the act of February 28, 1891 (26 Stat., 796), amending section 2275 of the Revised Statutes to read as follows: Sec. 2275. Where settlements with a view to pre-emption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them, have been or shall be granted, or pledged for the use of schools or colleges in the State or Territory in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected by said State or Territory, in lieu of such as may be thus taken by pre-emption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said State or Territory where sections sixteen or thirty-six are mineral land, or are included within any Indian, military, or other reservation, or are otherwise disposed of by the United States: Provided, Where any State is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any Territory, notwithstanding the same may be mineral land or embraced within a military, Indian, or other reservation, the selection of such lands in lieu thereof by said State or Territory shall be a waiver of its right to said sections. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said State or Territory to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever." And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the State or Territory shall be entitled to select indemnity lands to the extent of two sections for each of said townships, in lieu of sections sixteen and thirty-six therein; but such selections may not be made within the boundaries of said reservations: Provided, however, That nothing herein contained shall prevent any State or Territory from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein; but nothing in this proviso shall be construed as conferring any right not now existing. The action of your office is put upon the ground that the State is not entitled to indemnity for sections sixteen and thirty-six where such sections had been granted to the State as swamp lands, and the case of the State of California (15 L. D., 10), and the circular of instructions issued by your office to registers and receivers, October 10, 1893, which received the approval of the Department December 19, 1893 (17 L. D., 576), are relied on in support of the conclusion reached. The State contends: First. That the swamp-land grant being for another and distinct purpose and thereby wholly distinguished from the later grant to California in aid of common schools, sections 16 and 36, found to fall within the swamp-land grant, are in fact and law lands "otherwise disposed of" and for which indemnity is expressly provided by the act of February 28, 1891, supra. Second. The act of February 26, 1859, now Section 2275 U. S. Revised Statutes, and the act of February 28, 1891, amendatory thereof, are each and all applicable to the State of California, both by express terms and clear intendment, and the Department has long so applied these statutes to and for the benefit of the school-land grant made to California. Third. The former decision holding contra is erroneous, and neither on principle nor as controlling precedent sustains the Commissioner's present ruling. There is nothing in the indemnity clause of the act March 3, 1853, nothing in the acts of February 26, 1859, and July 23, 1866, and nothing in section 2275 of the Revised Statutes prior to its amendment, which justifies these selections. If, therefore, the State is entitled to this indemnity, it is by reason of the act of February 28, 1891, supra, and especially that clause of this act which appropriates and grants other lands of equal acreage where sections sixteen and thirty-six "are otherwise disposed of by the United States." In the case of the State of California (15 L. D., 10, 18-19), it was held that the act of February 28, 1891 did not give additional indemnity rights-its indemnity provisions merely enunciated existing laws. If, as above shown, the act of 1859 (section 2275) is not applicable in its indemnity school provisions to California, it can not be said that the section, as amended, applies to that State, unless the State is specially designated. As above seen, to apply the amended section to California and award indemnity for lands "otherwise disposed of" would result in giving the State indemnity for sections sixteen and thirty-six when swamp. It would be to give the State indemnity for a class of lands already donated to the State. The principle upon which indemnity is given to a State is for a loss; it is not given for that which the State has already received. Moreover, it is not presumed that Congress intended a grant of lands for California in excess of existing provisions for other States; and I do not feel justified in so holding on the authority contended for. I therefore conclude that the clause, "or otherwise disposed of by the United States," found in section 2275, as amended, does not authorize new or future selections in California on the basis of sections sixteen or thirty-six when swamp. There is much in this that is erroneous. Section 2275 of the Revised Statutes was the then existing general law governing the selection of school indemnity lands. The act of July 23, 1866, construing and enlarging the indemnity provisions of 6855-Vol. 31-01-22 the act of March 3, 1853, was a special act, applying alone to the State of California. This section and this act, therefore, constituted the "existing laws" governing the selection of school indemnity lands in the State of California. These gave the right to indemnity in instances (1) where sections sixteen and thirty-six had been settled upon before the survey of the land in the field, with a view to preemption; (2) where said sections are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever; and (3) where they are reserved for public uses, or are covered by private land claims. The act of February 28, 1891, extended the indemnity right so as to embrace, in addition to those prescribed by the then existing law, instances (1) where sections sixteen and thirty-six are mineral land, and (2) where they "are otherwise disposed of by the United States." It was manifestly erroneous, therefore, to hold that the indemnity provisions of said act merely enunciated existing law, since no law then in existence permitted indemnity for mineral land or for lands which had been disposed of by the United States, otherwise than in the ways mentioned. But the conclusion reached by the Department in that case seems to have been based upon the assumption that section 2275 of the Revised Statutes was a codification of the act of February 26, 1859, that this act had no application to the State of California, that therefore said section 2275 did not apply to that State, and that of necessity the act of February 28, 1891, amending said section, is without application. The premise upon which this reasoning is based is altogether erroneous. Section 2275 was a codification of the act of May 20, 1826 (4 Stat., 179), as well as the act of February 26, 1859. These were both general acts. There is nothing in the act of 1859 upon which to base an argument that it was not intended to apply to the State of California. It is true that the act of March 3, 1853, providing for the survey and disposal of public lands in California provides that in segregating large bodies of land notoriously and obviously swamp and overflowed it shall not be necessary to subdivide the same, but only to run the exterior lines thereof, and it seems to have been concluded from this that, inasmuch as the indemnity granted by the act of February 26, 1859, could only be claimed after the survey of sections sixteen and thirty-six, the act did not apply to California. Of this it is enough to say that though it be conceded that there were instances where the act would be without operative effect, it does not follow that the act did not apply to said State. But, aside from all this, it is now well settled that the act of February 28, 1891, is a general act, and, specifically, that it applies to the State of California. In the case of the State of California (23 L. D., 423), it was held that the State was entitled under said act to select school land indemnity for sections sixteen and thirty-six lost to the State by reason of their mineral character, and to the extent that the said case of the State of California (15 L. D., 10) was in conflict with this view it was expressly overruled. And it was further held, generally, that in passing said act Congress intended that it should be applicable to all publicland States alike, and "intended that it should operate as a repeal of all special laws theretofore passed, in so far as they conflicted with its provisions." The same view was taken by the Department in the later case of the State of Wyoming (27 L. D., 35). See also State of Florida (30 L. D., 187), and Johnston v. Morris (72 Fed. Rep., 890). It results that, if the sections sixteen and thirty-six designated as bases for these selections "are otherwise disposed of by the United States," within the meaning of this language as used in the act of February 28, 1891, the selections should be approved. Whether this language means disposed of in a different manner than therein before mentioned, or "otherwise" than contemplated by the granting act, is not material. In either case it necessarily means, that if sections sixteen and thirty-six have at the date of survey been disposed of by the United States, the State shall be entitled to indemnity. There is nothing in the conditions surrounding these lands which justifies imputing to Congress a different intention from that which seems to be clearly expressed. The conditions in California are unique. This territory was acquired from Mexico by the treaty of February 2, 1848 (see 9 Stat., 922). It was admitted to the Union as a State September 9, 1850 (9 Stat., 452), and without an antecedent territorial government. No reservation or grant of school lands was made by the enabling act, and none existed at the date of the swampland grant of September 28, 1850. That grant applied to the State of California, and operated as of that date to transfer to the State all of the swamp and overflowed lands therein, including sections sixteen and thirty-six. This was surely a disposition by the United States of all such lands. Wright v. Roseberry (121 U. S., 497). The school grant (supra) does not except these lands; they were intended, therefore, as part of the school grant, and would have been such but for the fact that they were not then the property of the United States. Congress intended that the State should have all of the swamp and overflowed lands within its limits, and imposed upon the State the duty of reclaiming these lands. It also intended that the State should have the sixteenth and thirty-sixth sections in every township therein for the support of schools. And the fact that in some instances these grants conflicted furnishes no sufficient argument for the conclusion that the State should not have indemnity for lands lost to its school grant by reason of such conflicts. This view finds support in the decision of the supreme court of the United States in the case of the Winona and St. Peter Railroad Company v. Barney and others (113 U. S., 618). In that case the court had under consideration the grant made by the act of March 3, 1857 (11 Stat., 195), to the Territory of Minnesota, to aid in the construction of certain railroads. The indem |