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States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purpose aforesaid, from the public lands of the United States, nearest to the tiers of sections above specified, so much land in alternate sections or parts of sections designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or preëmption has attached, as aforesaid, which lands, thus indicated by odd numbers and sections, by the direction of the Secretary of the Interior, shall be held by," etc.

The rejection by the Secretary of the Interior of the selection made in 1883 is fatal to any claim now made to carry back the title of the plaintiff in error to that selection. The right to any land within the indemnity limits of the grant, as has been often decided, depended upon the inquiry whether deficiencies had been established within the place limits, and also whether the lands selected in place of such lost lands were at the time subject to such appropriation. Thus, if either preëmption or homestead rights had been initiated before such selection, the parcels to which such right had attached were not subject to appropriation as indemnity lands. The function of the Secretary of the Interior was therefore judicial and not ministerial. Wisconsin Railroad Company v. Price County, 133 U. S. 496, 512. In the case cited above this court said:

"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. The doctrine, that until selection VOL. CCXVI-37

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made no title vests in any indemnity lands, has been recognized in several decisions of this court. Thus in Ryan v. Railroad Co., 99 U. S. 382, 386, in considering a grant of land by Congress, in aid of the construction of a railroad similar in its general features to the one in this case, the court said: 'Under this statute, when the road was located and the maps were made, the right of the company to the odd sections first named became ipso facto fixed and absolute. With respect to the 'lieu lands,' as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made in the manner prescribed.' And again, speaking of a deficiency in the land granted, it said: 'It was within the secondary or indemnity territory where that deficiency was to be supplied. The railroad company had not and could not have any claim to it until specially selected, as it was for that purpose.'"

In Sjoli v. Dreschel, 199 U. S. 564, 566, this court said:

"That up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the preemption and homestead laws of the United States."

But it is urged that the mere fact that there was no record evidence of the homestead claim when the selections of 1891 were made was enough to give efficacy to that selection and vest the legal title under the patents thereafter issued. But this is answered by what we have already said, namely, that if at that date this land was actually occupied by one qualified under the law, who had entered and settled thereon before that time, with the intent to claim it as a homestead, the land had ceased to be public land and as such subject to selection as lieu land.

We find no error in the judgment of the Supreme Court of Minnesota, and it is

MR. JUSTICE BREWER did not sit in this case.

Affirmed.

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NORTHERN PACIFIC RAILWAY COMPANY v. STATE

OF NORTH DAKOTA EX REL. McCUE, ATTORNEY GENERAL.

ERROR TO THE SUPREME COURT OF THE STATE OF
NORTH DAKOTA.

No. 553. Argued February 24, 25, 1910.-Decided March 14, 1910.

Willcox v. Consolidated Gas Company, 212 U. S. 19, followed to effect that where the state court has found the rate fixed by a state commission on a single commodity to be not confiscatory and has refused an injunction, the decree will be affirmed without prejudice to the right of the carrier to reopen the case if, after adequate trial of the rate, it can prove that it is actually confiscatory and amounts to a deprivation of property without due process of law. 17 Nor. Dak. 223, affirmed without prejudice.

THE facts are stated in the opinion.

Mr. Charles W. Bunn for plaintiff in error.

Mr. Andrew W. Miller, Attorney General of the State of North Dakota and Mr. Guy C. H. Corliss, with whom Mr. T. F. McCue was on the brief, for defendant in error.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a proceeding by the Attorney General of North Dakota, charging the plaintiff in error with continuous violation of a law fixing rates for the carriage of coal within the State, and asking for an injunction. See Nor. Dak. Laws of 1907, c. 51. The railroad answered that the act was void under Art. I, § 8, of the Constitution, the commerce clause; and also under the Fourteenth Amendment, because the maximum rates fixed by it were inadequate and confiscatory. Evidence was taken

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and reported to the Supreme Court, and that court decided that the injunction should issue as prayed. 17 Nor. Dak. 223. The grounds of its decision were that the act referred only to transportation wholly within the State and therefore was not bad under Art. I, § 8, thus removing that question; and that the evidence did not prove that the rates would entail a loss on the carriage of coal, so that it was not necessary to decide whether in that event it would be unconstitutional, if the railroad made a fair profit on its whole business within the State.

The court did however intimate its opinion that if the railroad was able to make a fair profit upon its whole business within the State it might be required to carry a particular commodity at cost or possibly below, and it expressed its opinion so strongly that the counsel for the plaintiff in error treats that doctrine as the ground of decision and the statement as to the insufficiency of the evidence as made only in the light of it and upon rather technical grounds. He argues that the evidence was undisputed, that the facts testified to and the fair inferences from them must be taken as proved, and that on those facts and inferences the constitutional question is raised. The evidence consisted of tables of rates in other States, computation as to the cost of transportation, and expert opinions, all of which were thought to converge to the conclusion that the statutory rates were unreasonable and less than the cost of carriage. But laying technical objections on one side and taking the facts as admitted, the argument for the State showed that there are too many elements of uncertainty in the calculation for us to say, if we could, as.to which we intimate no opinion, that the conclusion is proved, when the Supreme Court of the State says that it is not.

The carriage of coal is a very small part of the railroad's business. The estimate of the cost is admitted to be uncertain, and to depend in part upon arbitrary postulates. It has to be increased considerably above the average cost for freight in order to make out the plaintiff in error's point. We are far from saying that the argument for doing so does not seem to

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us to have considerable probability on its side. We do not say that experiment may not establish a case in the future that would require a decision upon the question of constitutional law. But we can express no opinion upon it now. The great difficulty in the attempt to measure the reasonableness of charges by reference to the cost of transporting the particular class of freight concerned is well known and often has been remarked. It seems to us that the nearest approach to justice that can be made at this time is to follow the precedent of Willcox v. Consolidated Gas Co., 212 U: S. 19, as nearly as may be, and affirm the decree, but without prejudice to the right of the railroad company- to reopen the case by appropriate proceedings if, after adequate trial, it thinks it can prove more clearly than at present the confiscatory character of the rates for coal.

Decree affirmed without prejudice.

Similar decrees will be entered in Nos. 554 1 and 555.2

1 Great Northern Railway Company v. State of North Dakota ex rel. McCue, Attorney General. Argued February 24, 25, 1910. Mr. Charles W. Bunn for plaintiff in error. Mr. Andrew W. Miller, Attorney General of the State of North Dakota, and Mr. Guy C. H. Corliss, with whom Mr. T. F. McCue was on the brief, for defendant in error.

2 Minneapolis, St. Paul & Sault Ste Marie Railway Company v. State of North Dakota ex rel. McCue, Attorney General. Argued March 24, 25, 1910. Mr. Charles W. Bunn for plaintiff in error. Mr. Andrew W. Miller, Attorney General of the State of North Dakota, and Mr. Guy C. H. Corliss, with whom Mr. T. F. McCue was on the brief, for defendant in error.

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