1. Under the acts of Congress entitling the State of New Mexico
to waive its rights to any place section which has passed to it as
school land and subsequently has been included within a public
reservation
Page 255 U. S. 368
of the United States, and to select other public land of equal
acreage in lieu, the state, having made such waiver and selection
in due form, complying with all conditions precedent, acquires a
vested right to the selected land which cannot lawfully be
cancelled or disregarded by the Land Department upon the ground
that the base land has since been eliminated from the reservation.
P.
255 U. S.
370.
2. The provision making such a selection "subject to the
approval of the Secretary of the Interior" does not postpone the
vesting of the right of the state until the Secretary approves, but
empowers and requires him to determine judicially the lawfulness of
the selection as of the time when it was made. P.
255 U. S.
371.
3. Where the Secretary of the Interior and the Commissioner of
the General Land Office refused approval of such a lieu selection
because, after it was made, the base tract was eliminated from the
reservation,
held that the proper injunctive relief, in
the courts of the District of Columbia, was to direct that the
selection be disposed of in due course without regard to such
elimination, rather than to forbid its cancellation or annulment.
P.
255 U. S. 373.
49 App.D.C. 80, 258 F. 80, affirmed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a suit by the State of New Mexico to enjoin the
Secretary of the Interior and the Commissioner of the General Land
Office from cancelling or annulling a lieu land selection of that
state under a mistaken conception of their power and duty. A
hearing on the bill and answer resulted in a decree for the state,
which the court of appeals affirmed, 258 F. 980, 49 App.D.C. 80,
and the defendants appealed to this Court.
Page 255 U. S. 369
There was no controversy or difference in the Land Department
about any question of fact, but only in respect of the time as of
which the officers were authorized and required to determine the
validity of the selection.
Congress granted to New Mexico for the support of common schools
designated sections of land in each township, subject to specified
exceptions, with a provision enabling and entitling the state to
select other lands in lieu of those excepted, and with a further
provision whereby, in the event any of the designated sections,
after passing under the grant, should be included within a public
reservation, the state was to be entitled to waive its right to
them and select instead other land of equal acreage.
See
California v. Deseret Water, etc., Co., 243 U.
S. 415. All lieu lands were to be selected "under the
direction and subject to the approval of the Secretary of the
Interior." Act June 21, 1898, c. 489, §§ 1, 8, 30 Stat. 484; Act
March 16, 1908, c. 88, 35 Stat. 44; Act June 20, 1910, c. 310, §§
6, 10-12, 36 Stat. 557; Act Feb. 28, 1891, c. 384, 26 Stat. 796,
amending §§ 2275, 2276, Rev.Stats.
Congress granted to New Mexico for the support of common schools
designated sections of land in each township, subject to specified
exceptions, with a provision enabling and entitling the state to
select other lands in lieu of those excepted, and with a further
provision whereby, in the event any of the designated sections
after passing under the grant should be included within a public
reservation, the state was to be entitled to waive its right to
them and select instead other land of equal acreage.
See
California v. Deseret Water, etc., Co., 243 U.
S. 415. All lieu lands were to be selected "under the
direction and subject to the approval of the Secretary of the
Interior." Act June 21, 1898, c. 489, §§ 1, 8, 30 Stat. 484; Act
March 16, 1908, c. 88, 35 Stat. 44; Act June 20, 1910, c. 310, §§
6, 10-12, 36 Stat. 557; Act Feb. 28, 1891, c. 384, 26 Stat. 796,
amending §§ 2275, 2276, Rev.Stats.
Some of the tracts in place after passing under the grant were
included within a public reservation called the Alamo National
Forest. Afterwards, on March 9, 1915, the state filed in the local
land office a selection list waiving its rights to one of these
tracts and selecting in its stead other land of like area lawfully
subject to selection. The list conformed to the directions given by
the Secretary of the Interior and was accompanied by the requisite
proofs and the proper fees. Notice of the selection was duly posted
and published, proof of publication was submitted, and the
publisher's charge was paid. In other words, the waiver and
selection were regularly presented, and all was done by the state
that needed to be done by it to perfect the selection. The notice
did not bring forth any protest or objection, and in due course the
local land officers forwarded the list and supporting proofs and
papers to the General
Page 255 U. S. 370
Land Office, with a certificate stating that there was no
adverse filing, entry, or claim to the land selected and that the
list had been accepted and approved by them. The list remained
pending in that office until May 16, 1916, when the Commissioner
directed that the selection be cancelled solely on the ground that,
in the meantime, on April 3, 1916, the base tract -- the one right
to which was waived -- had been eliminated from the reservation by
a change in its boundaries. The state appealed to the Secretary of
the Interior, and he affirmed the Commissioner's action. Both
officers proceeded on the theory that the validity of the selection
was to be tested by the conditions existing when they came to
examine it, and not by those existing when the state made it -- in
other words, they conceived that, although the selection was lawful
when made, they could and should disapprove it and direct its
cancellation by reason of the elimination of the base tract from
the reservation a year later.
The courts below rejected that view, and held that those
officers were required to give effect to the conditions existing
when the selection was made and that, if it was valid then, they
were not at liberty to disapprove or cancel it by reason of the
subsequent change in the status of the base tract. In our opinion,
the courts were right. The provision under which the selection was
made was one inviting and proposing an exchange of lands. By it,
Congress said in substance to the state: if you will waive or
surrender your titled tract in the reservation, you may select and
take in lieu of it a tract of like area from the unappropriated
nonmineral public lands outside the reservation. Acceptance of such
a proposal and compliance with its terms confer a vested right in
the selected land which the land officers cannot lawfully cancel or
disregard. In this respect, the provision under which the state
proceeded does not differ from other land laws which offer a
conveyance of the title to those who accept and fully comply with
their terms.
Page 255 U. S. 371
In the brief for the officers, it is frankly and rightly
conceded to be well settled that
"a claimant to public land who has done all that is required
under the law to perfect his claim acquires rights against the
government and that his right to a legal title is to be determined
as of that time,"
and also that this rule
"is based upon the theory that, by virtue of his compliance with
the requirements, he has an equitable title to the land; that, in
equity, it is his, and the government holds it in trust for
him."
See Lytle v.
Arkansas, 9 How. 314,
50 U. S. 333,;
Stark v.
Starr, 6 Wall. 402,
73 U. S.
417-418;
Ard v. Brandon, 156 U.
S. 537,
156 U. S. 543;
Payne v. Central Pacific Ry. Co., 255 U.
S. 228. But it is said that, as the selection is
"subject to the approval of the Secretary of the Interior," no
right can become vested, nor equitable title be acquired thereunder
unless and until his approval is had, and therefore that the rule
just stated is not applicable here. To this we cannot assent. The
words relied upon are not peculiar to this land grant, but are
found in many others. Their purpose is to cast upon the Secretary
the duty of ascertaining whether the selector is acting within the
law in respect of both the land relinquished and the land selected,
and of approving or rejecting the selection accordingly. The power
conferred is "judicial in its nature," and not only involves the
authority, but implies the duty,
"to determine the lawfulness of the selections as of the time
when the exertion of the authority was invoked by the lawful filing
of the list of selections."
Weyerhaeuser v. Hoyt, 219 U. S. 380,
219 U. S. 388;
Daniels v. Wagner, 237 U. S. 547,
237 U. S. 557
et seq.; Payne v. Central Pacific Ry. Co., supra. This
view of it has been enforced where the Secretary, misconceiving his
authority and the rights of the selector, erroneously declined to
approve, and cancelled selections lawfully made.
St. Paul &
Sioux City R. Co. v. Winona & St. Peter R. Co.,
112 U. S. 720;
Daniels v. Wagner, supra. And it should be observed that
this view has been recognized and applied by the Land Department,
although not
Page 255 U. S. 372
with uniformity. In the case of Gideon v. McDonald, 30 L.D. 124,
which involved a lieu land selection and a state of facts much like
those now before us, it was said by the Secretary of the
Interior:
"When the selection was filed, the land embraced in the
accompanying deed of relinquishment and reconveyance was within the
limits of the forest reserve and a proper basis for a selection
under said act, and the land selected by McDonald in exchange was,
according to the records of your [Commissioner's] office, of the
character subject to such selection and free from other claim or
appropriation. By this deed of relinquishment and reconveyance to
the United States of his own land situate within the boundaries of
the forest reserve, and by his selection of the lieu land, McDonald
accepted the standing offer or proposal of the government contained
in the act of June 4, 1897 and complied with its conditions,
thereby converting the mere offer or proposal of the government
into a contract fully executed upon his part, and in the execution
of which by the government he had a vested right. After McDonald
had fully complied with the terms on which the government by said
act had declared its willingness to be bound, no act of either the
executive or legislative branch of the government could divest him
of the right thereby acquired. Your [Commissioner's] office will
therefore carefully examine the papers and records pertaining to
this selection and, if it is found to be otherwise free from
objection, the fact of the elimination from the boundaries of the
forest reserve of the lands in lieu of which the selection is made,
after full compliance by the claimant with the lieu land act and
regulations will not prevent approval of the selection."
In
California v. Deseret Water, etc., Co., supra, which
involved a like waiver and selection alleged to have been lawfully
made and to be awaiting action by the Secretary, the United States,
in a brief presented by leave of the court, took the position that,
by the waiver, it acquired such an
Page 255 U. S. 373
equitable right in the base tract as prevented a condemnation of
the tract as the property of the state. The state court held the
waiver and selection of no effect, and this Court reversed that
decision.
We conclude that an injunction was rightly awarded, but that it
will be better suited to the occasion if it be confined to
directing a disposal of the selection in regular course, unaffected
by the elimination of the base tract from the reservation. With
this modification, the decree is
Affirmed.