1. A suit by a state to restrain the Secretary of the Interior
from rejecting the state's claim under the Swamp Land Acts upon an
unauthorized ruling of law illegally requiring the state, as a
condition precedent, to show that the lands are not mineral in
character, is not objectionable as being premature and as invading
the Secretary's function to adjudicate the title. P. 269 U. S.
2. In such a suit, the United States, and homestead entrymen
claiming the lands, are not indispensable parties defendant.
3. The grants of the Swamp Land Acts of 1849 and 1850 were
and gave the grantee states an inchoate
title that became perfect, as of the dates of the Acts, when the
granted lands had been identified as required and the legal title
had passed by approval of the Secretary under the Act of 1849 or
the issuing of a patent under the Act of 1850. P. 269 U. S.
4. Neither of these act contains any exception or reservation of
mineral lands, and none is to be implied, since, at the time of
their enactment, the public policy of withholding mineral lands for
disposition only under laws specially including them was not
5. The Secretary of the Interior cannot be required by
injunction to recognize a state's title under the Swamp Land Acts
when he has not as yet determined whether the lands claimed were
"swamp or overflowed." P. 269 U. S.
53 App.D.C. 22, 287 Fed. 999, modified and affirmed.
Appeal from a decree of the Court of Appeals of the District of
Columbia affirming an injunction awarded by the Supreme Court of
the District of Columbia against the Secretary of the Interior.
Page 269 U. S. 251
MR. JUSTICE SANFORD delivered the opinion of the Court.
This is a suit in equity brought by the State of Louisiana
against the Secretary of the Interior in the Supreme Court of the
District of Columbia, seeking a restraining order and mandatory
injunction relating to its prosecution of a swamp land claim under
the Acts of March 2, 1849, c. 87, 9 Stat. 352, and September 28,
1850, c. 84, 9 Stat. 519. A motion by the Secretary to dismiss the
bill was overruled and, upon his election to plead no further, a
decree was entered awarding an injunction. This was affirmed by the
Court of Appeals of the District. Fall v. Louisiana,
F. 999. [Footnote 1
appeal was allowed in April, 1923.
By the Act of 1849, there was "granted" to the State of
Louisiana, to aid it in the reclamation of the swamp and overflowed
lands therein, "the whole of those swamp and overflowed lands,
] which may be or
are found unfit for cultivation," and it was provided that, upon
the request of the Governor, the Secretary of the Treasury
(afterwards the Secretary of the Interior [Footnote 3
]) should cause an examination of all such
lands to be made by deputies of the surveyor general:
"a list of the same to be made out, and certified by the
deputies and surveyor general, to the Secretary, . . . who shall
approve the same, so far as they are not claimed or held by
individuals, and on that approval, the fee simple to said lands
shall vest in the said state. "
Page 269 U. S. 252
By the Act of 1850, there was "granted" to the State of
Arkansas, for a like purpose, "the whole of those swamp and
overflowed lands, made unfit thereby for cultivation," which then
remained unsold, and it was provided that the Secretary of the
Interior should make out and transmit to the Governor accurate
lists and plats of such lands
"and at the request of said Governor, cause a patent to be
issued to the state therefor, and on that patent, that fee simple
to said lands shall vest in the said state."
It was further provided that
"the provisions of this Act be extended to, and their benefits
be conferred upon, each of the other states of the Union in which
such swamp and overflowed lands . . . may be situated."
The general provisions of this Act were carried into § 2479
of the Revised Statutes.
We assume, without deciding, that, in accordance with the
practice of the Land Department, the claims of Louisiana to the
swamp and overflowed lands may be allowed under either the special
Act of 1849 or the general Act of 1850. See Louisiana v.
Garfield, 211 U. S. 70
211 U. S. 76
Cross Lake Club v. Louisiana, 224 U.
, 224 U. S.
The material facts shown by the bill and exhibits are: the lands
in question, with others, were surveyed in 1871 by a deputy
surveyor general. They were identified and returned as swamp and
overflowed lands by his plat of survey, which was filed and
approved by the Surveyor General. At that time, they were not known
to contain minerals of any character. In 1901, the register of the
state land office requested that they be listed and approved to the
state as swamp lands. Various homestead entries were thereafter
made in the local Land Office, some, if not all, of which were
allowed, subject to the swamp land claim of the state. In 1910,
they were included in a Petroleum Withdrawal made by a Presidential
order under the Pickett Act. [Footnote 4
] Finally, in 1919, after
Page 269 U. S. 253
various intermediate proceedings, the Commissioner of the
General Land Office, in an administrative decision,
"found from the field notes of the survey of 1871 that the lands
. . . are swamp or overflowed, and, if nonmineral in character,
inure to the state under its grant, and may be patented pursuant
thereto when the record has been cleared of adverse claims."
And he thereupon ruled that, unless the state should, within a
specified time, apply for a hearing, in which the homestead
entrymen might participate, and show that the lands were nonoil and
nongas in character, its claim would be rejected and the lands held
for disposition under the public land laws. On an appeal by the
state, the Secretary affirmed this decision, and he later denied a
motion by the state for a rehearing the grounds of his decision
being that mineral lands did not inure to the state under the swamp
land grants; that the mineral character of land claimed as swamp
and overflowed was open to investigation until the inchoate title
of the state had been perfected by the Secretary's approval under
the Act of 1849 or the issue of a patent under the Act of 1850;
that these lands had been impressed with a prima facie
mineral character by the petroleum withdrawal, and that the state
had been accorded due opportunity to show that they were not
mineral bearing, failing in which its claim must stand rejected. 4
8 Land Dec. 201, 203.
The bill, which was then filed, alleged that the Secretary had
exceeded his authority and jurisdiction in making the unlawful
requirement imposing upon the state the burden of showing that the
lands had no minerals and denying its right to them because it had
not undertaken to discharge the burden thus illegally put upon it,
and prayed that he be enjoined from taking further action in
enforcement of this ruling and be required to vacate and set it
1. It is urged that the trial court was without jurisdiction to
entertain the bill, upon the grounds that it was
Page 269 U. S. 254
prematurely brought, before the Secretary had exercised his
jurisdiction to determine the character of the lands and while the
claim was still in the process of administration, and that both the
United States and the homestead entrymen were necessary and
indispensable parties. These objections are based upon a
misconception of the purpose of the suit. It is not one to
establish the title of the state, as in Louisiana v. Garfield,
and New Mexico v. Lane, 243 U. S.
, nor one to quiet its title, as in Minnesota v.
Lane, 247 U. S. 243
bill does not seek an adjudication that the lands were swamp and
overflowed lands or to restrain the Secretary from hearing and
determining this question, but merely seeks an adjudication of the
right of the state to have this question determined without
reference to their mineral character, and to require the Secretary
to set aside the order requiring it to establish their nonmineral
character or suffer the rejection of its claim. In short, it is
merely a suit to restrain the Secretary from rejecting its claim,
independently of the merits otherwise, upon an unauthorized ruling
of law illegally requiring it, as a condition precedent, to show
that the lands are not mineral in character.
It is clear that, if this order exceeds the authority conferred
upon the Secretary by law and is an illegal act done under color of
his office, he may be enjoined from carrying it into effect.
Noble v. Union River Railroad, 147 U.
, 147 U. S.
-172; Garfield v. Goldsby, 211 U.
, 211 U. S.
-262; Lane v. Watts, 234 U.
, 234 U. S. 540
Payne v. Central Pacific Railway, 255 U.
, 255 U. S. 238
Santa Fe Pacific Railroad v. Fall, 259 U.
, 259 U. S. 199
Colorado v. Toll, 268 U. S. 228
268 U. S. 230
A suit for such purposes is not one against the United States, even
though it still retains the legal title to the lands, and it is not
an indispensable party. Garfield v. Goldsby, supra,
211 U. S.
-262; Lane v. Watts, supra,
pp. 234 U. S. 540
Neither are the homestead entrymen indispensable parties. Lane
v. Watts, supra,
pp. 234 U. S. 537
234 U. S.
Page 269 U. S. 255
In this latter respect, the cases of Litchfield
v. The Register,
9 Wall. 575, in which it was
sought to enjoin the Department from acting upon pending
applications to prove preemption rights to the land, New Mexico
v. Lane, supra,
in which it was sought to set aside an entry
made by one who had purchased and paid for the land and to enjoin
the issuing of a patent to him, and Brady v. Work,
263 U. S. 435
which it was sought to enjoin the issuing of a patent to a person
to whom the Department had adjudged the right to the land, are
2. This brings us, on the merits, to the consideration of the
question whether the order exceeded the authority conferred upon
the Secretary, and attached to the prosecution of the claim of the
state, without warrant of law, the condition that it must show that
the lands are not mineral in character.
The grants of swamp lands made by the Acts of 1849 and 1950 were
and gave the states an inchoate title to
such lands that became perfect, as of the dates of the Acts, when
they had been identified as required and the legal title had passed
by the approval of the Secretary under the Act of 1849 or the
issuing of a patent under the Act of 1850. This has long been the
settled construction of the Act of 1850. Rogers Locomotive
Works v. Emigrant Co., 164 U. S. 559
164 U. S. 570
Little v. Williams, 231 U. S. 335
231 U. S.
Each of these Acts made a broad and unrestricted grant of the
swamp lands. Neither contained any exception or reservation of
It is urged that such a reservation should be read into the
grants by reason of a settled policy of the United States of
withholding mineral lands from disposal save under laws specially
including them. There was, however, no such settled policy in 1849
and 1850, when the swamp land grants were made. Prior to that time,
Page 269 U. S. 256
true, it had been the policy in providing for the sale of the
public lands, to reserve lands containing "lead mines" and "salt
springs." United States v.
14 Pet. 526, 39 U. S. 538
United States v.
3 How. 120, 44 U. S. 131
and Morton v.
21 Wall. 660, 88 U. S. 668
Such mines and springs appeared upon the surface of the land, and
were peculiarly essential to the public needs of the early
communities. But there was at that time no established public
policy of reserving mineral lands generally. This is emphasized by
the fact that the general Act of 1841, [Footnote 5
] which gave preemption rights to settlers on
the public lands, merely excepted lands "on which are situated any
known salines or mines.
" And while the Act of September
27, 1850, [Footnote 6
providing for the disposal of public lands in the Territory of
Oregon to settlers, expressly excepted "mineral lands," it is
manifest that this one local Act, approved the day before the Swamp
Land Act of 1850, was insufficient to establish a settled public
policy in reference to the reservation of mineral lands prior to
the latter Act. And the fact that, immediately after the subject of
mineral lands had been thus brought to the attention of Congress,
it did not except mineral lands from the grant of swamp lands to
the several states indicates that no reservation of such lands was
It is clear that, as there was no settled public policy in
reference to the reservation of mineral lands prior to the Acts of
1849 and 1850, there is no substantial ground for reading such a
reservation into the broad and unrestricted grants of swamp and
overflowed lands made to the states, in praesenti,
these Acts, especially since such lands were not then generally
known to contain valuable minerals, and, when unfit for
cultivation, were commonly regarded as having value only after
reclamation -- the purpose for which both of these grants were made
Page 269 U. S. 257
discovery of their oil and gas having been made at a much later
This conclusion, even apart from the peculiar character of swamp
and overflowed lands, is fortified by the decision in
18 How. 173, 59 U. S.
-180, in which it was held that a provision in the
Michigan Enabling Act of 1836, [Footnote 7
] that certain sections of the public land
should be granted to the state for the use of schools, became a
legal title to such sections when they were surveyed and marked
out, and that, no statute prior to the Enabling Act having
contained any reservation of mineral lands other than those
containing salt springs or lead mines, the later Act of 1847,
] providing for the
sale of the mineral lands in the state, should be construed as not
withdrawing such lands within the school sections from the compact
with the state.
The same conclusion was also reached in an unreported opinion
given by the Acting Attorney General (the then Solicitor General)
to the Secretary of the Interior in September, 1916, in which,
citing Cooper v. Roberts
in support of his views, he
"There was no exception of mineral land from the swamp land
grant made to the Louisiana and prior to that time . . . the only
reservation of minerals made by the Federal government in any of
its legislation affecting the public lands related to lands
containing salt springs, lead mines, and contiguous tracts. The
policy of reserving minerals generally was not established until
after the swamp land grant was made to Louisiana."
This conclusion is not in conflict with the later decisions
relating to school lands in Mining Co. v. Consolidated Mining
Co., 102 U. S. 167
followed in Mullan v. United States, 118 U.
-- and United States v. Sweet,
245 U. S. 562
the Mining Co.
case, in which it was
Page 269 U. S. 258
held that a provision in the Act of 1853 [Footnote 9
] for the sale of public lands in
California, granting certain sections to the state for school
purposes, was not intended to cover mineral lands, the decision was
not based upon the ground that there was at that time any settled
and general policy of reserving mineral lands, but, on the
contrary, on the ground that the discovery in 1849 that California
was rich in precious metals, bringing its mineral lands to the
attention of Congress, had led to the adoption in reference to that
a local policy, plainly manifested in other provisions of the Act
making specific exceptions of mineral lands by which, unlike the
ordinary laws for disposing of public lands in agricultural states,
the mineral lands in that state were uniformly reserved from sale,
preemption, and grants for public purposes (pp. 102 U. S.
-175). In the Sweet
case, it was held that
the provision of the Utah Enabling Act of 1894, [Footnote 10
] granting to the state certain
sections of the public lands for the support of common schools,
with no mention of mineral lands, was not intended to embrace land
known to be valuable for coal. The grounds of this decision were
that, long prior to the Act, there had been established a settled
policy in respect to mineral lands, evidenced by the mining laws
and other statutes, by which they were withheld from disposal save
under laws especially including them, and that, read in the light
of such laws and settled public policy, the Act did not disclose a
purpose to include such lands in the school grant, since, although
couched in general terms adequate to embrace them if there were no
statute or settled policy to the contrary, it contained no language
explicitly withdrawing the school sections, where known to be
mineral in character, from the operation of the mining laws, or
certainly showing that Congress intended to depart from its long
prevailing policy of disposing
Page 269 U. S. 259
of mineral lands only under laws specially including them, this
conclusion being fortified by the further considerations that, when
the grant was made, Utah was known to be rich in minerals and
salines; that, while some of the other grants contained in the Act
expressly included saline lands, none included mineral lands; that
the Committees of Congress upon whose recommendation the Act was
passed construed it as not embracing mineral lands; that the Land
Department had uniformly placed the same construction upon it, and
that Congress had, by a later Act of 1902, acted upon that
construction (pp. 245 U. S. 567
245 U. S.
-573). Obviously this decision does not apply to the
construction of the swamp land grants made at a time when there was
no settled policy as to the reservation of mineral lands, and where
the other circumstances upon which the decision was based are
There is here no such uniform and long settled departmental
construction of the Swamp Land Acts. It is not claimed that the
Land Department construed them as excluding mineral lands, or
considered the question of the mineral character of swamp lands
until quite recently. As late as October 1, 1903, the Secretary
instructed the Commissioner that all pending selections under the
swamp land grants to the Louisiana would be approved or patented to
the state under the grants of 1849 or 1850, in all cases where the
lands were shown by the field notes of survey or by affidavits
filed at the time of selection to have been swamp lands at the date
of the grant. 32 Land Dec. 270, 276, 278. The first holding by the
Department that mineral lands did not pass under the swamp land
grants appears to have been made in 1917, more than sixty years
after the passage of the Acts, in an unreported ruling. [Footnote 11
] This was followed by
like departmental decisions in 1918, 46 Land Dec. 92, and 46 Land
Dec. 389, 396-in
Page 269 U. S. 260
which the contrary view expressed by the Attorney General was
put aside as being obiter
-- and in 1920, 47 Land Dec.
366, shortly before the decision in the present case. We cannot
regard these recent decisions of the Department -- apparently
departing from its previous well established practice and rendered,
except in one instance, in connection with the long delayed
adjustment of the claims of Louisiana -- as establishing a settled
and uniform course of departmental construction that is persuasive
as an aid in the construction of the Acts.
We conclude that the Swamp Land Acts granted to the states the
swamp and overflowed lands, rendered unfit for cultivation, without
reference to their mineral character, and that, in requiring the
state to establish the nonmineral character of the lands in
question, the Secretary exceeded the authority conferred upon him
by the Acts and attached this condition to the prosecution of the
claim of the state without warrant of law.
3. A question remains as to the effect of the decree awarding
the injunction. This, after commanding the Secretary to vacate the
ruling operating to withhold title from the state for many reason
dependent upon the mineral character of the lands or to require
that their nonmineral character be shown, contained the following
"And further restraining him, and them [Footnote 12
] from making any disposition of said
described lands or from taking any action affecting the same save
such immediate steps as are necessary to the further and final
recognition of plaintiff's rights under the Acts of March 2, 1849
(9 Stat. 352) and September 28, 1850 (9 Stat. 519), to the end that
evidence of title may be given to plaintiff as by said acts
provided and required."
If, as urged, the effect of this supplemental clause is to
divest the United States of title to the lands and leave the
Secretary to do nothing
Page 269 U. S. 261
but furnish the state evidence of title in final recognition of
its asserted rights, the decree in this respect is plainly
erroneous, aside from any question as to the scope of the bill or
the necessary presence of the United States as a party. The state
has not as yet finally established its right to the lands, and the
administrative processes necessary thereto are not complete. The
Secretary, it appears, has not as yet determined that they were
swamp and overflowed lands. The finding of the Commissioner that
they were "swamp or overflowed" was not brought in question before
the Secretary, and his decision involved no approval of such
finding, but related merely to the ruling of the Commissioner
requiring the state, independently of this finding, to establish
the nonmineral character of the lands. The Secretary, in the
exercise of the administrative duty imposed upon him, is
necessarily required, before furnishing evidence of title under
either of the Acts, to determine whether the lands claimed were in
fact swamp lands, and he may not be restrained from investigating
and determining this in any appropriate manner.
The decree is inartificially framed. We think that the
supplemental clause which we have quoted in effect requires the
Secretary to recognize that the state has already established its
right to the lands. and to do nothing further in reference to them
except to furnish it evidence of title in final recognition of such
established right, and restrains him from investigation and
determining, without reference to the mineral character of the
lands, whether they were in fact swamp and overflowed lands, before
giving final recognition to such right as the state may establish
under either of the Acts and issuing to it any evidence of title.
The decree is accordingly modified by striking out this
supplemental clause. Thus modified, it should stand.
Decree modified and affirmed.
In the Court of Appeals, the present appellant was substituted
for his predecessor, against whom the suit had been brought.
Except those fronting on rivers, etc., previously surveyed under
an Act of 1824.
Act of March 3, 1849, c. 108, 9 Stat. 395, creating the
Department of the Interior.
Act of June 25, 1910, c. 421, 36 Stat. 847.
Act of September 4, 1841, c. 16, 5 Stat. 453.
9 Stat. 496, c. 76.
Act of June 23, 1836, c. 121, 5 Stat. 59.
Act of March 1, 1847, c. 32, 9 Stat. 146.
Act of March 3, 1853, c. 145, 10 Stat. 246.
Act of July 16, 1894, c. 138, 28 Stat. 107.
Cited in 46 Land Dec. 389, 396.
His successors and agents.