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and patent covering list No. 3,215 was issued May 5, 1905, and patent covering list No. 3,216 was issued May 20, 1905. The record does not disclose the approval of any one of the three lists by the Secretary of the Interior. While it is not entirely clear from the record what was intended by the first approval of the Commissioner upon each one of the lists, it is obvious that, under the rules of the department and from the other indorsements and entries upon the filing jackets covering each list, such approval could not have been intended to be final and general in its nature, but it must have been confined to certain facts or features of the application. The record discloses the existence of contests and protests long after the first approval in each case, and the further fact that steps were being taken, during the period elapsing between the first approval and the final approval for patent, to determine and define the rights of the railway company. It also appears that on the filing of the supplemental lists, after the lands were surveyed, the original list No. 3,214 contained 88 acres in excess of the base lands. Accordingly, on March 21, 1905, the railway company tendered a deed for 80 acres, additional base lands, and $10 in cash to cover the remaining eight acres excess.

In further illustration of the fact that as late as 1905 the rights of the railway company to the lands described in lists 3,214, 3,215, and 3,216 were only inchoate, and that the exchange of the proffered base lands for the selected lieu lands had not been consummated, and that the offer of exchange by the railway company had not been accepted by the Interior Department, reference may be made to a letter of the Assistant Commissioner, dated September 11, 1905, advising the local officers at Lewiston, Idaho, that the appeal of William McBride, a claimant to some of the lands embraced in list 3,214, had been dismissed, and that "said decision, therefore, has become final, and the case is hereby closed.” And, again, in a letter from the Assistant Commissioner to the local officers at Lewiston, dated February 8, 1905, the writer, referring to list 3,216, advises that the claim of James H. Estes to lands embraced in said list had been finally disposed of, and then says:

“Turning to said lieu selection 3,216 for final examination on its merits prior to patenting same, it is ascertained that the company neglected to furnish complete proof of nonliability for taxes and certificates as to freedom from federal judgments."

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And in the same letter, after discussing the laws of Montana (in which state the base lands are situated) relative to taxes and the liens of taxes and judgments, the writer directs the local officers to "call, therefore, for one certificate covering above basis land, which will, if the facts warrant, serve to extend the above certificate to about the present time.” And, as to judgments in the same letter the writer requires the selector—that is, the railway company—to "furnish certificates of clerks of said courts to the effect, if the facts warrant, that there are no judgments entered nor suits pending, as shown by the records of the respective courts, against any of the grantors (that is, the Northern Pacific Railroad Company and the Northern Pacific Railway Company) herein, that could operate as a lien on the lands since July 19, 1899, when said lands were patented to the company." And the local officers were thereupon directed to serve upon the proper parties a copy of this letter. These are merely illustrations. Others might be given. But, in view of the status of the selections, as indicated by these illustrations, how can it be successfully contended that the right of the railway company became complete or that it had fully acquired the equitable title to the lands referred to in its original lists, until the lands had been surveyed, and the plats thereof had been approved or accepted by the proper representatives of the government, and the railway company had complied with the rules and regulations of the department by filing supplemental or adjustment lists, and also by complying with the requirements as to conveyance to the United States of the title to the base lands, free from liens and incumbrances? Suppose that the railway company, after having been served with a copy of the Assistant Commissioner's letter of February 8, 1905, above referred to, and relating to list No. 3,216, had failed or refused to comply with the requirements of the Commissioner as to furnishing certificates and abstracts, could it be asserted that the company could have compelled the acceptance by the government of the exchange which it had tendered by the filing of its selection lists? It is possible, but I do not decide, that if the officers of the department should arbitrarily and without reason neglect or refuse formally to approve the proffered exchange, the selector having done all that was required of him under the law and the rules and regulations of the department, and it appearing that the base lands and the lieu lands were of the character and in the condition contemplated by the law and regulations of the department entitling the selector to make the exchange, the right of the selector should be held to be complete, and that it should, for some purposes, be regarded as the equitable owner of the selected lands without the approval of the officers of the department. But it is not contended that such conditions existed in this

There is no claim, and, indeed, there is no evidence in the record, that either the selector or the officers of the department carelessly or willfully delayed the final approval and patent of the selections. I have, therefore, concluded to hold that under the circumstances as disclosed by the record of this case the equitable title to the lands selected under the act of March 2, 1899, did not pass to the railway company until the selections were approved by the Secretary of the Interior, and that the equitable title to the lands selected under the act of June 4, 1897, did not pass to the railway company until the selections were approved for patent by the Commissioner of the General Land Office, and that the lands were not subject to taxation prior to approval.

That as a general rule approval of a proper officer is necessary seems to be conceded by counsel for the defendants, for in his brief he uses the following language:

"But it is true, and the defendants concede it to be well settled, that, where the act of Congress has granted to a railway company certain lands in lieu of lands which may have been previously entered, within the place limits, such lieu lands selected by the railway company are not subject to taxation until the selection is approved by the Interior Department.”


Counsel supplements this statement by saying that he has been unable to find that in any case decided by the courts the tax was levied under a law similar to that obtaining in this state.

But I do not think that, under the facts and circumstances disclosed by the record, the case can be taken out of the general rule by any peculiarities of the statutes of Idaho relative to the assessment of property and the collection of taxes thereon. Indeed, the Idaho statutes are not radically different from those found in many, if not most, of the western states. In Wisconsin Railroad Company v. Price County, 133 U. S. 496, 10 Sup. Ct. 341, 33.L. Ed. 687, there was involved the construction of a congressional act similar to the act of March 2, 1899. That action, like this, was brought by the railway company against the county to enjoin the collection of taxes levied upon lands selected by the company, the selection not having been approved by the Secretary of the Interior. Perhaps nowhere is there a more comprehensive, and at the same time more guarded, statement of the principles governing the taxability of lands, the legal title to which is in the United States, than that contained in this decision. After adverting to the familiar law that a state has not the power to tax the property of the United States within its limits, and that usually the possession of the legal title by the government determines both the fact and the right of ownership, Mr. Justice Field, who delivered the opinion of the court, speaks as follows:

“There is, however, an exception to this doctrine with respect to the public domain, which is as well settled as the doctrine itself, and that is that where Congress has prescribed the conditions upon which portions of that domain may be alienated, and provided that upon the performance of the conditions a patent of the United States shall issue to the donee or purchaser, and all such conditions are complied with, the land alienated being distinctly defined, it only remaining for the government to issue its patent, and until such issue holding the legal title in trust for him, who in the meantime is not excluded from the use of the property-in other words, when the government has ceased to hold any such right or interest in the property as to justify it in withholding a patent from the donee or purchaser, and it does not exclude him from the use of the property-then the donee or purchaser will be treated as the beneficial owner of the land, and the same be held subject to taxation as his property. This exception to the general doctrine is founded upon the principle that he who has the right to property, and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to avoid his just share of state taxation."

The grant in that case was to the state of Wisconsin, and the lands so granted were by the state conveyed to the plaintiff company in aid of the construction of a railroad in accordance with the purpose of the act. By the terms of the act, where rights had attached to any of the lands granted, lieu lands were authorized to be selected by agents of the state “subject to the approval of the Secretary of the Interior.” While this language is not precisely the same as that contained in the act of March 2, 1899, the meaning is, in my judgment, substantially the same. In either case the selection must have the approval of the Secretary of the Interior. In discussing the status of the title to lands selected under the provisions of the Wisconsin act, and the taxability of the lands after they had been so selected and prior to the ap

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proval of the selection by the Secretary, Mr. Justice Field uses the following language:

"The approval of the Secretary was essential to the efficacy of the selections, and to give to the company any title to the lands selected. His action in that matter was not ministerial, but judicial. He was required to determine, in the first place, whether there were any deficiencies in the land granted to the company which were to be supplied from indemnity lands; and, in the second place, whether the particular indemnity lands selected could be properly taken for those deficiencies. In order to reach a proper conclusion on these two questions, he had also to inquire and determine whether any lands in the place limits had been previously disposed of by the government, or whether any pre-emption or homestead rights had attached before the line of the road was definitely fixed. There could be no indemnity unless a loss was established. And, in determining whether a particular section could be taken as indemnity for the losses sustained, he was obliged to inquire into the condition of those indemnity lands, and determine whether or not any portion of them had been appropriated for any other purpose, and, if so, what portion had been thus appropriated, and what portion still remained. This action of the Secretary was required, not merely as supervisory of the action of the agent of the state, but for the protection of the United States against an improper appropriation of their lands. Until the selections were approved, there were no selections in fact, only preliminary proceedings taken for that purpose; and the indemnity lands remained unaffected in their title. Until then, the lands which might be taken as indemnity were incapable of identification. The proposed selections remained the property of the United States. The government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced in the courts."

Thereupon the court states that: :

"It follows from these views, that the indemnity lands described in the complaint were not subject to taxation as the property of the railroad company in 1883."

In principle I am unable to distinguish this case from the case at bar, so far as the selections under the act of March 2, 1899, are concerned.

As to the selections under the act of June 4, 1897, counsel for complainant vigorously urges that, before the equitable title passes, the selections must have the approval of the Secretary of the Interior and that such approval being evidenced in the record only by the issuance of the patents, the dates upon which the patents were issued should be accepted as the dates upon which the right of the selector first accrued and upon which the lands first became taxable. As already indicated, I am unable to accept this view. The act of 1897 does not in terms designate the person or officer by whom the selections shalt be approved. While it is true, as contended, that, in the absence of special provisions to the contrary, the Secretary of the Interior has general supervision of the disposition of the public lands, it does not follow that such supervision must in all cases be personally exercised. It is a matter of common knowledge that, under the general rules and regulations promulgated by the Secretary of the Interior, inferior officers perform many functions in the disposition of public lands; and it is also a familiar fact that in cases of private entries of lands under the homestead or other laws, as soon as the final proof is submitted in the local office and payment made by the entryman and final certificate issued as evidence of the acceptance of the proof and the purchase price, the entryman is recognized as being the equitable owner of the lands so entered, with substantially complete dominion over such lands, including the right of alienation; and, after final or patent certificate is thus issued by the local officers, such lands are held to be taxable. It is likewise competent for the Secretary, under general rules, to invest the Commissioner of the General Land Office with authority to approve lieu selections made under the provisions of the act of June 4, 1897, and this, I think, the Secretary has done. Whether the approval of the Commisioner is final and absolute or not is, in my judgment, immaterial. His action may still be subject to review by the Secretary, but nevertheless upon his approval the transaction is consummated. The action of the register and receiver in accepting the proof and issuing final certificate to the entryman, under the homestead laws, may be set aside, but that fact does not alter the general rule that, when they accept final proof and receive the purchase price of the land and issue final certificate, the entryman is to be treated as the equitable owner. Carroll v. Safford, 3 How. 441, 11 L. Ed. 671; Witherspoon v. Duncan, 4 Wall. 210, 18 L. Ed. 339. Paragraph 18 of the rules adopted by the Interior Department for the administration of the forest reserves under the act of June 4, 1897, provides that all applications or selections must be forwarded by the local officers to the Commissioner of the General Land Office for consideration, together with a report as to the status of the tract applied for.

Upon cross-examination, Fred Dennett, Assistant Commissioner of the General Land Office, whose deposition was taken upon behalf of the complainant in this case, stated that, as to the selections made under and by virtue of the act of June 4, 1897, the action of the Commissioner of the General Land Office is final and requires no action by the Secretary. Counsel for the plaintiff argues that in such construction of the law the witness was mistaken, in that under the general provisions of law the Secretary of the Interior has entire supervision of the disposition of public lands. But I do not understand the witness to mean that the action of the Commissioner is necessarily conclusive, or that his action is not, or could not be made, the subject of review by the Secretary of the Interior. I construe his answer to mean only that, under the rules and regulations promulgated by his superior, his approval of the selection, in the absence of an application for review to the Secretary of the Interior by an interested party, is sufficient basis for issuance of patent, and that patent is issued as a matter of course upon the Commissioner's approval. Any doubt as to the correctness of this view is, I think, dispelled by the decision of the Supreme Court in the case of Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 24 Sup. Ct. 860, 47 L. Ed. 1064, where, after quoting department rule No. 18, above referred to, the court says:

"The 'consideration' mentioned in rule 18 is clearly not of the character of a review of a decision already made by the local land officers, but is in the nature of an original consideration of the subject by the General Land Office, to which office the final decision belongs. The applications are to be forwarded, not a decision by the local land office, together with a report (not

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