But it is said that the appellant was rightfully on the railroad company's right of way; that he had the express sanction of Congress to be there; and that when the hour of noon of April 22 arrived he had, as an American citizen, possessing the qualifications named in the homestead laws, the right to enter upon any tract within the Territory for the purpose of making it his homestead. While he may have had all the qualifications prescribed by the general homestead law, he did not have the qualifications prescribed by this statute; and there is nothing to prevent Congress, when it opens a particular tract for occupation, from placing additional qualifications on those who shall be permitted to take any portion thereof. That is what Congress did in this case. It must be presumed to have known the fact that on this right of way were many persons properly and legally there; it must also have known that many other persons were rightfully in the Territory-Indian agents, deputy marshals, mail carriers and many others; and if it intended that these parties, thus rightfully within the Territory on the day named, should have special advantage in the entry of tracts they desired for occupancy, it would have been very easy to have said so. The general language used in these sections indicates that it was the intent to make the disqualifications universally absolute. It does not say any person who may wrongfully enter," etc., but "any person who may enter "-"rightfully or wrongfully" is implied.

In Donnell . Kittrell (15 L. D., 580), and Golden v. Cole heirs (16 L. D., 375), it was held that one who has entered, by mistake, and who went outside on discovering that he had crossed the line, was not disqualified from making homestead entry; and in the case of Standley v. Jones (16 L. D., 253) the Department took yet another step, and held that one who was within the Territory knowingly, but subsequently went outside and was not in the Territory at the hour of opening, was a legal and competent homesteader.

This Department has held in the cases of Townsite of Kingfisher v. Wood et al. (11 L. D., 330); Guthrie townsite v. Paine et al. (12 L. D., 653); Blanchard v. White et al. (13 L. D., 66); Oklahoma City townsite v. Thornton et al. (13 L. D., 409); Winans v. Beidler (15 L. D., 266); Hagan . Severns et al. (15 L. D., 451); South Oklahoma v. Couch et al. (16 L. D., 132), that one who was within the Territory at the hour of noon April 22, 1889, and who took advantage of such presence to secure a homestead, was forever disabled from making a homestead entry within the Territory.

In these cases it was intimated that if no advantage had been taken by those who had thus entered Oklahoma Territory prior to the time set by law, they would not have been disqualified. This question was not presented by the cases then decided, and such intimations were obiter dicta and without the force and effect of a decision, but in the case of Taft v. Chapin (14 L. D., 593), decided June 3, 1892, Secretary Noble said:

One who was lawfully within the Territory of Oklahoma at the passage of the act of March 2, 1889, and so remains until the lands are opened to settlement and entry, but does not take advantage of his presence as against others to enter upon and occupy land, is not by such presence in said Territory disqualified to enter land therein.

The act says: "Any person who may enter", not "one who wrong. fully enters." The words and the act show that the intention of Con

gress was to prevent any and all persons from making or acquiring any title to the land, who were within the Territory when the hour of opening came. This is the evident interpretation placed upon this legisla tion by the Supreme Court, for Justice Brewer gives the exception where the strict letter of the law would not apply, making it the same as this Department has held in the cases first cited.

It may be said that if this literal and comprehensive meaning is given to these words, it would follow that any one who, after March 2, and before April 22, should chance to step within the limits of the Territory, would be forever disqualified from taking a homestead therein. Doubtless, he would be within the letter of the statute; but, if at the hour of noon, on April 22, when the legal barrier was, by the President destroyed, he was in fact outside of the limits of the Territory, it may perhaps be said that if within the letter, he was not within the spirit of the law, and, therefore, not disqualified from taking a homestead.

In this case, the contestant was within the Territory at noon, on April 22, 1889, and his presence there is a bar to his ever acquiring title to any lands therein.

It thus follows that the doctrine laid down in Taft v. Chapin is contrary to the decision of the supreme court in the case of Smith v. Townsend, wherein, in the last clause of his opinion, the learned justice uses the following language:

It is enough now to hold that one who was within the territorial limits at the hour of noon, of April 22, was, within both the letter and the spirit of the statute, disqualified to make a homestead therein.

Therefore the case of Taft v. Chapin is hereby overruled.

As Turner was within the Territory of Oklahoma at the hour of noon, April 22, 1889, he clearly comes under the class of those who are forever disqualified from making homestead entry, and acquiring title to land in Oklahoma.

It thus follows that your decision is correct, and the same is hereby affirmed.

The contest of Turner is dismissed, and the entry of Cartwright will be allowed to remain intact.

RAILROAD GRANT-STATE SELECTION.

CAMPBELL v. JACKSON.

Lands within the primary limits of a railroad grant, and withdrawn for the purposes thereof, are not subject to selection under the grant made to the new States by section 8, act of September 4, 1841, and no rights are acquired by an application to select, made when the lands are not subject thereto.

Secretary Smith to the Commissioner of the General Land Office, October 17, 1893.

On the 19th of April, 1892, Mary J. Campbell applied at the local land office in San Francisco, California, to make homestead entry for the NE. of Sec. 21, T. 21 S., R. 10 E., M. D. M., alleging residence 1600-VOL 17—27

and occupation since May 10, 1891, and that she had one hundred and forty acres of the tract under cultivation.

Her application was rejected, for the reason that on the 4th of February, 1890, Henry Jackson, of San Francisco, had applied to locate school land warrant No. 320, issued by the State of California for one hundred and sixty acres of land, upon the tract in question, in part satisfaction of the grant made to said State by section 8 of the act of September 4, 1841, (5 Stat., 453).

Jackson's application was accepted on the 5th of September, 1890, "subject to future examination and adjudication."

From the action of the local officers, Mrs. Campbell appealed to your office. Their decision was affirmed by you on the 6th of September, 1892, and a further appeal brings the case to the Department.

The question in the case is: Were the lands in question subject to selection under the grant to California, as a new State, by the act of September 4, 1841?

That act granted to the several States named therein, and to each new State that should thereafter be admitted into the Union, five hundred thousand acres of land, to be selected within their limits respectively, and located on any public land, except such as is, or may be, reserved from sale by any law of Congress, or proclamation of the Presi dent of the United States."

On the 27th of July, 1866 (14 Stat., 292), Congress granted to the Southern Pacific Railroad Company certain lands to aid in the construction of a railroad from the States of Missouri and Arkansas to the Pacific Coast. The land in question was within the primary limits of said grant, and after the withdrawal under such grant, these lands were "reserved from sale by an act of Congress," and were therefore not subject to selection in satisfaction of the grant of 1841, so long, at least, as the railroad grant remained in force.

That grant remained in force until the 29th of September, 1890, when Congress passed "An act to forfeit certain lands heretofore granted for the purpose of aiding in the construction of railroads, and for other purposes." (26 Stat., 496). By that act, the United States resumed the title to

all lands heretofore granted to any State, or to any corporation, to aid in the construction of a railroad opposite to, and coterminus with, the portion of any such railroad not now completed, and in operation, for the construction or benefit of which such lands were granted; and all such lands are declared to be a part of the public domain.

It is clear, therefore, that from the date of the withdrawal under the grant to the Southern Pacific Railroad, until the passage of the forfeit ure act of September 29, 1890, the land in question was "reserved from sale by a law of Congress," and for that reason was not subject to selection under the grant of 1841, to the State of California.

The only application to select the land under that grant, was that of Jackson, presented at the local office on the 4th of February, 1890, and

accepted, "subject to future examination and adjudication," on the 5th of September, of the same year. Both these dates were prior to the passage of the forfeiture act of September 29, 1890.

It is a rule well settled by the Department, that an application to enter land, which is not subject to entry at the time the application is made, confers no rights upon the applicant. This was held in Goodale v. Olney (13 L. D., 498), and in Maggie Laird, on page 502 of the same volume. In the latter case it was said that an appeal from the rejection of such an application, would not have the effect to cause the application to attach on the cancellation of the previous entry. See, also, Rumbley v. Causey (16 L. D., 266).

The same rule would prevail in the case of a selection by a State, and it must be made to appear, that at the time the State applied to select the land, it was subject to such selection. Otherwise, no rights would be secured by the application.

In the case of George B. Shadbolt, and thirty-seven others, v. St. Paul, Minneapolis and Manitoba Railroad Company (14 L. D., 613), it was held that no rights were acquired by the presentation of an application to enter lands that are withdrawn for railroad purposes, and that on the subsequent restoration of such land to the public domain, a new application would be necessary to protect the interest of such applicant. In support of this position, the case of Shire, et al. v. Chicago, St. Paul, Minneapolis and Omaha Railway Company (10 L. D., 85), was cited, which held that no rights, either legal or equitable, as against a railroad grant, are acquired by settlement upon lands withdrawn by executive order for the benefit of such grant. See, also, William Ray Durfee (15 L. D., 91).

The land in question not being subject to selection at the time the application to select was made, it is unnecessary to consider the question as to whether Jackson was, or was not, legally authorized to select land on the part of the State, in satisfaction of the grant of 1841.

The decision appealed from is reversed, and Mrs. Campbell will be allowed to make homestead entry for the land, as of the date of her application, if otherwise qualified.

MEADS v. GEIGER.

Motion for review of departmental decision of April 12, 1893, 16 L. D., 366, denied by Secretary Smith, October 17, 1893.

RAILROAD GRANT-RESERVATION-ACT OF MARCH 3, 1887.
UNITED STATES v. GRAND RAPIDS AND INDIANA R. R. Co.

The executive order of May 16, 1855, withdrawing certain lands for the purposes of a contemplated Indian reservation was made with due authority, and lands embraced therein at the date of the subsequent grant to this company were excepted therefrom, even though released from such withdrawal prior to the definite location of the road. The case of United States v. McLaughlin, 127 U. S., 428, cited and distinguished.

Directions given for a demand under the act of March 3, 1887, for the reconveyance of all lands, situated as those herein, that have been certified on account of this grant..

Secretary Smith to the Commissioner of the General Land Office, October 17, 1893.

. I have considered the appeal by the Grand Rapids and Indiana Railroad Company, from your decision of April 14, 1888, holding for cancellation certain selections made by said company during the years 1873 and 1881, for lauds in townships 34 and 35 north, range 4 west, Grayling land district, State of Michigan.

These lands are within the primary limits of the grant made by the act of June 3, 1856 (11 Stat., 21), to aid in the construction, among other roads, of that since known as the Grand Rapids and Indiana Railroad.

The 1st section of said act of June 3, 1856 (supra), after making the grant of certain described sections, provides:

That any and all lands reserved to the United States by any act of Congress for the purpose of aiding in any object of internal improvement, or in any manner for any purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.

By order of May 16, 1855, more than a year before the passage of said act, the President of the United States, upon the recommendation of the Commissioner of Indian Affairs, ordered the withdrawal from market of the public lands (inter alia), in the townships before mentioned, for Indian purposes, upon the condition that "no peculiar or exclusive claim to any part of the land so withdrawn can be acquired by said Indians, for whose benefit it is understood to be made, until after they shall by future legislation be invested with the legal title."

On July 31, 1855, a treaty was made with the Ottawa and Chippewa Indians of Michigan, by which certain townships were set apart as a permanent reservation.

This treaty was proclaimed by the President on September 10, 1856 (see Revision of Indian Treaties, p. 613), but the withdrawal and reservation mentioned in the treaty did not embrace the townships in question.