The joint resolution of July 7, 1898 (30 Stat., 750), recites in the preamble the cession by the government of the Republic of Hawaii to the United States of all rights of sovereignty over the Hawaiian Islands and the absolute fee and ownership of all public, government or crown lands, and all other public property, and then it is declared that said cession is accepted, ratified and confirmed, and said Islands are declared annexed as a part of the territory of the United States. In regard to the public lands it is provided as follows:

The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.

It is further declared that until Congress shall provide for the government of such Islands the civil, judicial, and military powers exercised by the officers of the existing government in said Islands shall be vested in such person and exercised in such manner as the President of the United States shall direct.

These lands became the property of the United States by the terms of the cession and annexation of the Islands and as such may be disposed of only under the direction of Congress. The resolution declaring the annexation specifically says that Congress shall enact special laws for the management and disposition of these lands, but at the same time recognizes the necessity of using a part of such lands for the civil, military and naval purposes of the United States. While there is no specific statutory authority empowering the President to reserve lands of the United States for military purposes, yet the right to direct the use of such lands for public purposes, including military, has been asserted by this Department in numerous instances, and has been expressly recognized by the courts and inferentially by various acts of Congress. In Grisar v. McDowell (6 Wall., 363-381), Justice Field said:

From an early period in the history of the government it has been the practice of the President to order from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.

In

The land involved there had been reserved for military purposes. an opinion rendered October 15, 1853 (6 Op. Att'y Gen., 157), Attorney General Cushing uses the following language:

In general, the decision as to the quantity of land to be reserved for public use, and the places where to be located, rests in the discretion of the President, subject to such regulations as Congress may from time to time make, either as to the particular public use or the quantity capable of reservation therefor, or as to the disposal, for private use, of the whole or any part of that which may have been set apart for public use.

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In his opinion of July 15, 1881 (17 Op. Att'y Gen., 160), Attorney General MacVeagh said:

That the President has power to reserve from sale and to set apart for public uses such portions of the public domain as are required by the exigencies of the public service to be appropriated to those uses is too well established to admit of doubt.

And again he said:

It should be borne in mind that the power of the President here referred to is recognized by Congress (Grisar v. McDowell, supra,). Such recognition is equivalent to a grant. Hence, in reserving and setting apart a particular piece of land for a special public use, the President must be regarded as acting by authority of Congress, and unless this is so restricted as not to extend to land covered by a preemption filing (and I am not aware of any restriction of that sort) I do not see why such land may not be as effectually reserved and set apart by the President thereunder as by direct action of Congress.

In his opinion of July 31, 1889 (19 Op. Att'y Gen., 370), Attorney General Miller, after discussing certain legislation which limited the quantity of land to be included in reservations for military purposes in the Territory of Oregon, said that the validity of the Executive order then under consideration rested not on the statute referred to but on a long-established and long-recognized power in the President to withhold from sale or settlement at discretion portions of the public domain, said:

This power Congress recognizes in the legislation above discussed, which does not grant any such power, but only seeks to restrict one already existing. When Congress creates an exception from a power, it necessarily affirms the existence of such power, and hence the well known axiom that the exception proves the rule.

There can be no doubt as to the general authority of the President to direct the use of such of the lands of the United States as may in his opinion be necessary therefor, for military purposes. The lands here in question are the property of the United States, and under the joint resolution of July 7, 1898, supra, a part of the territory thereof. They are not subject to disposition and sale under the existing laws of the United States relative to public lands, but they are public lands in that they are the property of the government. In fact, they are spoken of in said joint resolution as public lands. The phrase "such lands in the Hawaiian Islands" can refer only to public lands.

That Congress recognized that some of the lands thus acquired by the United States would be reserved for military and other public purposes, is shown by the provision excepting lands so used from the provision that all revenue derived from the public lands should be used solely for the benefit of the inhabitants of said Islands. The President has authority to designate such lands as may be necessary for military purposes not by virtue of any express law relating to the public lands but by virtue of a long recognized power in him, and hence the provision that "the existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands" should not be considered as intended to prohibit the exercise

of this power with respect to these lands. Such a prohibition might and probably would prove a very serious obstacle to the proper conduct of affairs in those Islands during the time that must necessarily elapse before provision can be made by Congress for the government thereof.

After a careful consideration of this matter, I am of opinion, and so advise you, that said lands "can be set aside by the President for the purpose indicated."

Approved, July 17, 1899,

E. A. HITCHCOCK,

Secretary.

RAILROAD LANDS-BONA FIDE PURCHASER—ACT OF FEBRUARY 12, 1896.

RAY ET AL. v. GROSS.

The act of February 12, 1896, amendatory of section 4, act of March 3, 1887, has no application in the matter of issuing patents to bona fide purchasers, or making demand of the company, where the contracts in question are fully completed prior to the passage of said act.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 20, 1899.

(F. W. C.)

The Department is in receipt of your office letter of May 11, last, relating to departmental decision of December 22, 1898, in the case of Ray et al. v. Gross (27 L. D., 707), in which Gross was held to be a bona fide purchaser, through mesne conveyances from the Mobile and Girard Railroad Company, of certain described lands within the limits of its grant, and raising the question as to the amount of the demand to be made of the railroad company upon patenting the land to Gross under the fourth section of the act of March 3, 1887 (24 Stat., 556), under which he had applied for patent.

In this connection you state that Gross, in an affidavit furnished in response to call made by your office, swears that he paid to Charles Ewing, his immediate grantor, at the rate of $2.50 per acre (in cash and its equivalent) for these lands, but that "no money was paid to the railroad company by Abraham Edwards its immediate vendee, nor was any money paid by Charles Ewing to Edwards.

The fourth section of the act of March 3, 1887 (supra) provides:

That as to all lands, except those mentioned in the foregoing section, which have been so erroneously certified or patented as aforesaid, and which have been sold by the grantee company to citizens of the United States, or to persons who have declared their intention to become such citizens, the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land-office, within such time and under such rules as may be prescribed by the Secretary of the Interior, after the grants respectively shall have been adjusted; and patents of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the Secretary of the Interior, on behalf of the United States, shall demand payment from the company which has so disposed of such

lands of an amount equal to the government price of similar lands; and in case of neglect or refusal of such company to make payment as hereafter specified, within ninety days after the demand shall have been made, the Attorney-General shall cause suit or suits to be brought against such company for the said amount: Provided, That nothing in this act shall prevent any purchaser of lands erroneously withdrawn, certified, or patented as aforesaid from recovering the purchase-money therefor from the grantee company less the amount paid to the United States by such company, as by this act required. And provided, That a mortgage or pledge of said lands by the company shall not be considered as a sale for the purpose of this act, nor shall this act be construed as a declaration of forfeiture of any portion of any land-grant for conditions broken, or as authorizing an entry for the same, or as a waiver of any rights that the United States may have on account of any breach of said conditions.

The provisions of this section will govern the disposition of the case under consideration both in the matter of issuing patent to Gross and making demand of the railroad company. The amendment of said section by the act of February 12, 1896 (29 Stat., 6), can have no application, because it does not appear that Edwards and those claiming through him, had "paid only a portion of the purchase price to the company;" on the contrary, the considerations for the transfer from the railroad company to Edwards, from Edwards to Ewing and from Ewing to Gross were all performed, their contracts being fully executed prior to the passage of said act.

You will be governed accordingly.

RIGHT OF WAY-ADDITIONAL STATION GROUND

SANTA FE PACIFIC R. R. Co.

A homestead entry allowed of land in the prior actual use and occupancy of a railroad company in the necessary operation and maintenance of its road, must be held subject to the prior right of use in the company under its application for additional station grounds.

A selection of lands for station purposes, in addition to the granted right of way, must be supported by a showing of the necessity for such additional lands. (Section 2, act of July 27, 1866 (14 Stat., 292.)

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) July 20, 1899.

(F. W. C.)

With your office letter of June 13, 1899, was forwarded the record made at the hearing ordered in accordance with departmental decision of October 15, 1898 (27 L. D., 547), in the matter of the application made by the Santa Fe Pacific Railroad Company, as successor in interest to the Atlantic Pacific Railroad Company, for additional station grounds at Bellemont, Arizona. Said additional station grounds covering 21.52 acres are within the NW. of NW. of Sec. 2, R. 21 N., R. 5 E., Prescott land district, Arizona, as shown upon the map filed in this Department October 20, 1897.

At the time of filing said map, the tract desired for additional station grounds was embraced in the homestead entry of one Charles J.

Barry, made February 10, 1896, covering said NW. NW. 4, Sec. 2, which entry was canceled upon relinquishment November 4, 1897, and on the following day Henry S. Buckner was permitted to make entry of said NW. NW. 4, Sec. 2.

In considering the application for additional station grounds it was held in the case of Santa Fe Pacific R. R. Co. (27 L. D., 322), syllabus:

The right to take additional station grounds under section 2, act of July 27, 1866, can not be recognized in the absence of a satisfactory showing of the necessity for the use of such additional ground.

The grant of necessary lands for station and other purposes, outside of the limits of the general right of way, does not, like the grant of the general right of way, relate back to the date of the act making the grant; hence no rights are acquired, as against an adverse claimant, by an application for additional station grounds tendered in advance of actual use and occupancy and at a time when the lands are appropriated by an existing entry.

Subsequently, upon the showing filed by the company in support of its motion for review of said decision, in which it was alleged that the company was in actual occupancy of the land at the time Buckner was permitted to make entry thereof, a hearing was had

to determine the exact condition of the land at the date of Buckner's entry and the necessities for the occupancy and use of the tract by the company in connection with the operation and maintenance of its road.

Upon the showing made at said hearing, now before this Department, it appears that four or five sidings or tracks had been actually constructed upon and across the land embraced in Buckner's entry prior to November 5, 1897, the same being constructed for use in connection with the tie-treating plant then in course of construction, and it must therefore be held that the company was in actual occupation of the land at the date of Buckner's entry and that he had full knowledge thereof at the time of making the same. The remaining portion of the land covered by the application for additional station purposes, not covered by the tracks, is shown to be necessary for the storage of the ties and timber in process of drying after being subjected to the treatment at the company's plant. Treatment of ties and timber by the process installed at this plant greatly lengthens the period of their use in connection with the maintenance of the railroad and as this tract is shown to be necessary to the successful operation of said plant, a proper use is shown to authorize its taking under the act, and Buckner's entry is therefore held subject to the prior right of use in the company under its application for additional station grounds.

In this connection your office letter transmitting the record made at the said hearing makes a statement relative to the original station grounds at Bellemont, from which it appears that the tract previously claimed is 1200 feet wide, 600 feet on each side of the track, and 6000 feet long, comprising an area of 165 acres. The selection of said station grounds was first shown upon a map filed December 19, 1882, upon which was delineated the constructed line of the Atlantic and Pacific