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tutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the secur ity of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis."

In that case, the fifth section of the Act of June 22, 1874 (18 Stat. at L. 187), which authorized the court in revenue cases to require the defendant or claimant to produce his private papers in court, or else the allegations of the government's attorney would be taken as confessed, was held to be unconstitutional and void, as applied to a suit for a penalty or to establish a forfeiture of the goods of the party, because it was repugnant to the Fourth and Fifth Amendments to the Constitution; and it was beld that a proceeding to forfeit the goods was a criminal case within the meaning of the Fifth Amendment. Mr. Justice Miller, in the concurring opinion of himself and Chief Justice Waite in the case, agreed that it was a criminal one, within the meaning of the Fifth Amendment, and that the effect of the Act of Congress was to compe: the party on whom the order of the court was served, to be a witness against himself.

the Penal Code made the constitutional privi-
lege inapplicable, because it indemnified or pro-
tected the party against the consequences of
his previous testimony. The court cited with
approval the case of People v. Kelly, supra.

In Bedgood v. State, 115 Ind. 275, in 1888,
the Supreme Court of Indiana had under con-
sideration the provision of article one, § 14 of
the bill of rights of the constitution of Indiana
of 1851, which provides that "no person in
any criminal prosecution shall be compelled
to testify against himself," and the provisions
of S 1800 of the Revised Statutes of Indiana
of 1881, to the effect that testimony given by a
witness should not be used in any prosecution
against him. On a trial before a petit jury in
a criminal case against others, a woman had
refused to answer a question, on the ground
that the answer might criminate her. The
Supreme Court held that, as the statute pro-
hibited her testimony from being used against
her, it completely protected her, and the judg
ment was reversed because the trial court
had erroneously refused to require her to an-
swer the question.

person shall be "compelled to accuse or furnish
evidence against himself;" or that no man can
"be compelled to give evidence against him-
self;" or that, in all criminal prosecutions,
"every man has the right to not be compelled
to give evidence against himself."

This review of the cases aoove referred to shows that in the constitutions of Georgia, California, and New York the provision is identically or substantially that of the Constitution of the United States, namely, that no person shall be compelled in any criminal case to be a witness against himself;" while in the constitutions of Pennsylvania, Arkansas, Indiana, Massachusetts, Virginia, New Hampshire, and North Carolina it is different in language, and In People v. Sharp, 107 N. Y. 427, 9 Cent. to the effect that "no man can be compelled to Rep. 699, in 1887, the Court of Appeals of give evidence against himself;" or that, in proNew York had under consideration the provis- secutions, the accused "shall not be compelled ion of Article 1. § 6, of the Constitution of to give evidence against himself;" or that "no New York of 1846, that no person shall "be person in any criminal prosecution shall be comcompelled, in any criminal case, to be a wit-pelled to testify against himself," or that no ness against himself," and the provision of 79 of the Penal Code of New York, title 8, chapter 1, in regard to bribery and corruption, which was in these words: "A person offending against any provision of any foregoing section of this code relating to bribery, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment of prosecution." Sharp and others were indicted for bribing a member of the common council, and Sharp was tried But, as the manifest purpose of the constitu separately. It was proved that he had been tional provisions, both of the states and of the examined as a witness before a committee of United States, is to prohibit the compelling of the state senate, and there gave testimony testimony of a self-criminating kind from a which the prosecution claimed was evidence of party or a witness, the liberal construction his complicity in the crime; and that testimony which must be placed upon constitutional prowas offered in evidence by the prosecution. visions for the protection of personal rights The testimony had been given under the com- would seem to require that the constitutional pulsion of a subpoena, and was admitted at guaranties however differently worded, should the trial, against the objection that the disclos- have as far as possible the same interpretation; ures before the senate committee were privi- and that where the constitution, as in the cases leged. The Court of Appeals held that § 79 of ❘ of Massachusetts and New Hampshire, declares

Under the constitutions of Arkansas, Georgia, California, Indiana, New York, New Hampshire, and North Carolina it was held that a given statutory provision made it lawful to compel a witness to testify; while in Massachusetts and Virginia it was held that the statutory provisions were inadequate, in view of the constituticual provision. In New Hampshire, and in New York under the Penal Code, it was held that the statutory provisions were sufficient to supply the place of the constitutional provision, because, by statute, the witness was entirely relieved from prosecution.

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evidence against himself; and it is contended
that the terms of the Constitution of the United
States, and of the constitutions of Georgia, Cali-
fornia, and New York are more restricted.
But we are of opinion that, however this dif-
ference may have been commented on in some
of the decisions, there is really, in spirit and
principle, no distinction arising out of such
difference of language.

that the subject shall not be "compelled to
accuse or furnish evidence against himself;"
such a provision should not have a different
interpretation from that which belongs to con-
stitutions like those of the United States and of
New York, which declare that no person shall
be "compelled in any criminal case to be a wit
ness against himself.' Under the rulings above
referred to, by Chief Justice Marshall and by
this court, and those in Massachusetts, New From a consideration of the language of the
Hampshire, and Virginia, the judgment of the constitutional provision, and of all the author-
circuit court in the present case cannot be sus-ities referred to, we are clearly of opinion that
tained. It is a reasonable construction, we
think, of the constitutional provision, that the
witness is protected "from being compelled to
disclose the circumstances of his offense, the
sources from which, or the means by which,
evidence of its commission, or of his connection
with it, may be obtained, or made effectual for
his conviction, without using his answers as
direct admissions against him.' Emery's Case,
107 Mass. 172, 182.

It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. It is to be noted of § 860 of the Revised Statutes that it does not undertake to compel self-criminating evidence from a party or a witness. In several of the state statutes above referred to, the testimony of the party or witness is made compulsory, and in some either all possibility of a future prosecution of the party or witness is distinctly taken away, or he can plead in bar or abatement the fact that he was compelled to testify.

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates. In this respect, we give our assent rather to the doctrine of Emery's Case, in Massachusetts, than to that of People v. Kelly, in New York; and we consider that the ruling of this court in Boyd v. United States, 116 U. S. 616 [29: 746] supports the view we take. Section 860, moreover, affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.

It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts, and New Hampshire have held that the exonerating statute must be so broad as to give the witness complete amnesty, is that the constitutions of those states give to the witness a broader privilege and exemption than is granted by the Constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself, or furnish evidence against himself, or give

the appellant was entitled to refuse, as he did,
to answer. The judgment of the circuit court
must, therefore, be reversed, and the case re-
manded to that court with a direction to dis-
charge the appellant from custody, on the writ of
habeas cormis.

JOHN H. McNEE, Piff. in Err.,

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PETER J. DONAHUE.

(See S. C. Reporter's ed. 587-602.)

Title to lands in California under acts of Con-
gress of September 4, 1841, and March 3, 1853,
and July 2, 1862-confirmation by first sec-
tion of Act of July 23, 1866-when title to
lands under grant to State of college lands by
Act of July 2, 1862, vested—when title of
State was perfected to school lands-subsequent
patent from government—no trust under Act
of July 2, 1862, which would prevent land
from previous selection-disposition of proceeds
of lands granted.

1.

2.

One who has title to lands in California under the acts of Congress of September 4, 1841, and March 3, 1853, having purchased the same in good faith from the State after they had been selected by it, has a better title than a subsequent title of another under the Act of July 2, 1862, donating lands to the State to establish an agricultural college.

After the confirmation by the first section of
the Act of July 23, 1866, of the lands in contro-
versy selected in place of the school sections the
township in which the selected lands are situated
having been previously surveyed by authority of
the United States, the premises were not subject
to the grant to the State for the establishment of
an agricultural college.

8. No title to lands under the grant to the State of
college lands by the Act of July 2, 1862, vested in
the State until their selection and listing to
the State, which was some years subsequent
to the time at which the title of the United
States to the lands in controversy passed to the
defendant.

4. By the first section of the Act of 1866, as modi.
filed by the second section, the lieu lands selected
in place of the school sections, after the survey of
NOTE.-A8 to pre-emption rights, see note to Unit-

ed States v. Fitzgerald, 10: 785.

That patents for land may be set aside for fraud,

see note to Miller v. Kerr, 5: 381.

As to errors in surveys and descriptions in patents

for lands, how construed, see note to Watts v. Lind

sey, 5: 423.

As to land grants to raûroads, see note to Kansas
Pac. R. Co. v. Atchison T. & S. F. R. Co. 28: 794.

[581

the township, were confirmed,and the title of the State thereto was perfected from the date of the

Act.

If, by a legislative declaration, a specific tract is confirmed to anyone, his title is not strengthened by a subsequent patent from the government. 6. There was no such trust created by the Act making the grant of July 2, 1862, and its acceptance by the State, as to prevent land, which might otherwise have been selected for the establishment of the college intended, from being previously selected by other grantees of the United States of unlocated quantities of lands.

7. Whatever disposition the State might subsequently make of the proceeds of the sale of lands granted by the Act of July 2, 1862, for the establishment of a college, in carrying out the object intended or in defeating it, could have no bearing upon the title acquired by other parties from the sale of the lands.

[No. 121.] Argued and Submitted Dec. 14, 1891. Jan. 11, 1892.

the defendant was entitled to a judgment, that the plaintiff take nothing by his action; that the defendant was entitled at the commencement of the action, and was still entitled, to the possession of the premises, and plaintiff holds the legal title, under a patent was their equitable owner; and that the by the State of California, bearing date June 18, 1882, in trust for the defendant, and should execute and deliver a conveyance of the premises to him. Judgment in conformity with this conclusion was accordingly entered. On appeal to the Supreme Court of the State it was affirmed, and the case is brought to this court, on writ of error, by the plaintiff.

Mr. S. F. Leib, for plaintiff in error:

Whatever title the State took from the United States under the Act of Congress of July 2, Decided 1862, she took in trust and by contract to use the same for the objects specified in said Act.

ERROR to the Supreme Court of the State of California, to review a judgment of that court affirming a judgment of the Superior Court of Santa Clara County, California, in favor of defendant, that defendant was entitled to the possession and was the equitable owner of the lands in question and that plaintiff holds the legal title in trust for defendant and should execute and delivér a conveyance of the land to him. Affirmed.

Statement by Mr. Justice Field:

This is an action for the possession of certain parcels of land in the county of Santa Clara, California, embracing one hundred and six acres and a fraction of an acre, and constituting, according to the United States survey, lots one (1) and two (2), of section twenty-six (26), township six (6) south, range one (1) west, Mount Diablo meridian. It was brought in the Superior Court of that country. The plaintiff in his complaint, alleges ownership of the lands and right of possession on the 16th of June, 1882, and ever afterwards; the wrongful and unlawful entry thereon, on that day, by the defendant, and his exclusion of the plaintiff therefrom, to the latter's damage of five thousand dollars; and that the value for their use and occupation is two thousand dollars a year. He therefore prays judgment for their possession, for the damages sustained, and for the value of their use and occupation until final judg.

ment.

The defendant, in his answer, denies the material allegations of the complaint, and then, as a separate defense, by way of crosscomplaint, sets up various matters upon which he claims to have acquired the equitable title of the premises, and prays that a patent of the State for them to the plaintiff, and upon which he relies for a recovery in this case, may be adjudged null and void, or, that he hold the legal title under it in trust for the defendant, and be decreed to convey the premises to him.

The plaintiff answered the cross-complaint, and the case was tried by the court without ]the intervention of a jury. After finding the facts, it held, as a conclusion of law, that

Cornell University v. Fiske, 136 U. S. 177 (34: 435); Ashburner v. California, 103 U. S. 677 (26: 416); Burchard v. Hubbard, 11 Ohio, 316; Buckingham v. Hanna, 2 Ohio St. 551; Fretelliere v. Hindes, 57 Tex. 392; Jackson v. Mills, 13 Johns. 463; Kelley v. Jenness, 50 Me. 455; Rawle, Covenants (4th ed.) 399.

All presumptions are in favor of the validity of the United States patent to the State in conveying this land as agricultural grant land.

St. Louis Smelt. & Ref. Co. v. Kemp, 104 U. S. 646 (26: 878); Gale v. Best, 78 Cal. 240. The title of the United States did not pass to the State under the assumed state selection. Weaver v. Fairchild, 50 Cal. 360; Rosecrans v. Douglass, 52 Cal. 213.

No title vested in the State by the Act of Congress of July 23, 1866.

Toland v. Mandell, 38 Cal. 41; Wisconsin Cent. R. Co. v. Price County, 133 Ú. S. 511 (33: 694); Chant v. Reynolds, 49 Cal. 217; Hodapp v. Sharp, 40 Cal. 60; Buhne v. Chasm, 48 Cal. 471, 472.

The Land Department has investigated this assumed selection and determined it was not within the terms of confirmation of section 1. Gale v. Best, 78 Cal. 240.

Messrs. Philip G. Galpin and Wilbur G. Ziegler, for defendant in error:

As no title to the lands remained in the government at date of patent, no title passed by it. Patterson v. Tatum, 3 Sawy. 172; Polk v. Wendell, 18 U. S. 9 Cranch, 82 (5: 92).

The exceptions in the Act of July 23, 1868, do not apply to this case; if such existed it should have been established by the plaintiff.

Whitney v. Morrow, 112 U. S. 695 (28: 872). No listing over to the State of these lands as past of the 500,000 acre grar was necessary. Bludworth v. Lake, 33 Cal. 261. Megerle v. Ashe, 33 Cal. 82.

By the passage of the Act of July 23, 1866, the lands as selected were confirmed to the State. Wright v. Roseberry, 121 U. S. 512 (30: 1046). Such right, once vested, is equivalent to a patent issued.

Stark v. Starr, 73 U. S. 6 Wall. 402 (18: 925). The relocation made after the United States survey and before any intervening rights had attached secured the defendant the better right to the premises.

[590]

Young v. Shinn, 48 Cal. 26.
The listing operates to convey the title to the
State as fully as by patent.

Middleton v. Lake, 30 Cal. 597; Finney v.
Berger, 50 Cal. 248; Roberts v. Columbet, 63
Cal. 22.

The plaintiff in error holds the legal title
charged with the trust, and equity will compel
him to convey it.

Rector v. Gibbon, 111 U. S. 291 (28: 432).
A decision as to the proper application of the
funds derived from the sale could in no wise
affect the question as to who is the owner of
the land in controversy.

Murdock v. Memphis, 87 D. S. 20 Wall. 635
(22: 444); The Victory, 73 U. S. 6 Wall. 382
(18: 848); Louisiana v. Board of Liquidation,
98 U. S. 140 (25: 114).

Mr. Justice Field delivered the opinion of the court:

the State of California sections sixteen (16)
and thirty-six (36), of each township, for
the purposes of schools, and providing for
the selection in certain cases of other lands
in their stead, the parcels in controversy
having been selected in part satisfaction of
such school sections. 10 Stat. at L. 244,
chap. 145.

It will facilitate the apprehensica of the
questions presented for determination if the
claims of the defendant be first considered,
and, therefore, to them we now direct our
attention.

The Act of Congress of September 4, 1841,
to appropriate the proceeds of he sales of
the public lands and to grant pre-emption
rights designates in its first section several
states to which ten per cent of the net pro-
ceeds of the sales of the public lands, made
after a certain date, within their limits,
shall be paid. Its eighth section is as fol-
Under the system of procedure in civil lows: And be it further enacted, That
cases which obtains in California an equi- there shall be granted to each State specified
table defense as well as a legal defense may in the first section of this Act five hundred
be set up to an action for the possession of thousand acres of land purposes of inter-
laud. It is required in such case that the nal improvement: Provided, that to each of
grounds of equitable defense be stated sepa- said states which has already received grants
rately from the defense at law. The answer, for said purposes, there is hereby granted no
to that extent, is in the nature of a cross- more than a quantity of land which shall,
complaint, and must contain, substantially, together with the amount such State has al-
the allegations of a bill in equity. It must ready received as aforesaid, make five hun-
set forth a case which would justify a decree dred thousand acres, the selection in all of
adjudging that the title held by the plaintiff the said states to be made within their limits
should be conveyed to the defendant, or that respectively in such manner as the Legislature
his action for the possession of the premises thereof shall direct; and located in parcels
should be enjoined. Wherever the two conformably to sectional divisions and sub-
defenses are presented in this way, the equi- divisions, of not less than three hundred and
table one should, as a general rule, be dis- twenty acres in any one location, on any pub-
posed of before the legal remedy is con-lic land except such as is or may be reserved
sidered. Its disposition may, and generally from sale by any law of Congress or proc-
will, render unnecessary any further pro-lamation of the President of the United
ceeding with the action at law. Gibson v.
Chouteau, 80 U. S. 13 Wall. 92, 103 [20:
534, 5371; Quimby v. Conlan, 104 U. S. 420
[26: 800]; Estrada v. Murphy, 19 Cal. 248,

273.

States, which said locations may be made at
any time after the lands of the United States
in said states respectively, shall have been
surveyed according to existing laws. And
there shall be, and hereby is, granted to each
new State that shall be hereafter admitted
into the Union, upon such admission, so
much land as, including such quantity as
may have been granted to such State before
its admission, and while under a territorial
government, for purposes of internal im-
provement as aforesaid, as shall make five
hundred thousand acres of land, to be selected
and located as aforesaid."

The controversy in this case involves a
consideration of different acts of Congress
granting lands to the State of California.
The question to be determined is to which
of the parties the title of the United States
passed. The plaintiff claims title under a
grant made by the Act of Congress of July
2, 1862 (12 Stat. at L. 503), "donating
public lands to the several states and terri-
tories which may provide colleges for the
benefit of agriculture and the mechanic arts,"
and amendatory and supplementary acts,
contending that the premises in controversy
were selected as part of such lands appor-v. Harrison, 56 U. S. 15 How. 433, 447 [14:
tioned to the State of California and patented
by the State to him.

The defendant claims title to the premises from two sources; one, from the eighth section of the Act of Congress of September 4, 1841, (5 Stat. at L. 453, chap. 16,) granting five hundred thousand acres of lands for purposes of internal improvement, to each new State upon her admission into the Union, alleging that the parcels in controversy are a part of such lands; the other, from the sixth and seventh sections of the Act of Congress of March 3, 1853, granting to

The first clause of this section, it will be
observed, uses the words "there shall be
granted," and not that "there is hereby
granted," and they import, as held in Foley

761, 766], only that a grant shall be made
in future. It was accordingly adjudged in
that case that a patent of Louisiana for lands
selected by her officers from the grant to the
State under the Act of 1841 did not pass the
title to the patentee, the court observing:
"It could not have been the intention of the
government to relinquish the exercise of
power over the public lands that might be
located by the State. The same system was
to be observed in the entry of the lands by
the State as by individuals, except the pay-
ment of the money; and this was necessary

[591

to give effect to the Act, and to prevent con- | The fifth section provided that the location dicting entries."

should secure to the purchaser the right to
the possession of the land until the govern
ment survey, after which the lines of the lo-
cation should be made to conform to the lines
of sections, quarter sections, and fractional
sections of such survey.

The authorities of California gave a different construction to the latter clause of the eighth section of the Act of 1841. The words there used are, "there shall be, and hereby is granted, to each new State," which they treated as a present grant of the quan- In July, 1853, one James T. Ewing purtity designated, and not as the promise of chased of the treasurer of California, under one in the future, construing the concluding this Act, two land warrants, issued by the 92 words, to be selected and located as afore- governor of the State, each for one hundred said, as referring merely to the form of and sixty acres. These warrants, by various selection and the quantity of the several par- transfers, came, in September. 1853, into the cels, and not as limiting the location to lands possession and ownership of one Stephen previously surveyed. And they did not see Franklin, who, during that month, located any policy or interest of the general govern them upon three hundred and twenty acres ment to be subserved by postponing the pos- of land in Santa Clara County, in one body, session and enjoyment of its bounty, so long embracing the premises in controversy. The as conformity was ultimately secured in the land located was sufficiently designated by locations made with the public surveys. In lines, distances, and courses in the field. Doll v. Meador, the Supreme Court of the The entry of the location was made in the State said: "Conformity in the locations office of the clerk of the county, and the lands with the sectional divisions and subdivisions were surveyed by its surveyor, who gave the is required, to preserve intact the general locator a certificate setting forth its bounds system of surveys adopted by the federal gov- and the number of acres it included. The ernment, and to prevent the inconvenience clerk thereupon recorded the certificate in the which would ensue from any departure book of records of school-land warrants in therefrom. When, therefore, any location is his office. The county surveyor afterwards made by the State, previous to the survey of made out a duplicate of the survey and certhe United States, it must be subject to tificate of the location and forwarded them change, if, subsequently, upon the survey be- to the office of the surveyor-general of the ing made, it be found to want conformity State. The location was made in conformity with the lines of such survey. With this with the law of the State. The lands were qualification, and the further qualification unappropriated public lands of the United of a possible reservation by a law of Congress, States, and were vacant, except as occupied or a proclamation of the President, previous by Franklin, the locator, and were located to the survey-which may require further as. part of the 500,000 acres granted to the change, or the entire removal of the location State by the Act of September 4, 1841. -we do not perceive, either in the language Franklin was then in the actual possession of the Act, or the object to be secured, any of the 106.84 acres in controversy, and other limitation upon the right of the State to pro- lands adjacent thereto, making, altogether, ceed at once to take possession and dispose five hundred and seventy-eight acres, which of the quantity to which she is entitled by were cultivated and improved by him as a the grant. It would hardly be pretended single farm. He occupied the whole tract that she would be deprived of the bounty of until 1862, when his interest was purchased the general government, if no surveys were by James Donahue, now deceased, who went ever directed by its authority, or that the en-into possession of the premises and continued joyment of the estate vested in her would be suspended indefinitely, by reason of its inaction in the matter." (16 Cal. 295, 315, 327.) The State legislated upon a similar con- But, notwithstanding that in locating the struction of the latter clause of the Act of state warrants Franklin complied with the Congress. Surveys of the public lands in requirements of the state law, and both he California were not directed by any law of and his successor, James Donahue, continued Congress until the year 1853, and were not in the possession and use of the land, their made to any large extent for years afterwards, claim of title to the 106 acres under the but in May, 1852, in advance of such surveys, location was not recognized by the Land Dethe Legislature of the State passed an Act partment of the general government. A great providing for the sale of the 500,000 acres. number of similar locations were treated in It authorized the governor to issue land war-like manner. The right of the State to make rants for not less than one hundred and sixty, 93] and not more than three hundred and twenty acres, in one warrant, to the amount of the 500,000 acres, and the treasurer to sell them at two dollars per acre, and the purchasers and their assigns to locate them, on behalf of the State, upon any vacant and unappropriated lands belonging to the United States within the State of California, subject to such location, but it declared that no such location should be made except in conform- Under this conflict of opinion between the ity to the law of Congress, in not less than authorities of the State and of the Land Dethree hundred and twenty acres in one body. I partment as to the title to the land located

in their use until his death in 1864 or 1865,
when his interest passed by devise or descent
to his son, the defendant.

any selections in advance of the public sur-
veys of the United States was denied by the
department, upon its construction of the Act
of Congress. And even when official surveys
had preceded the location, the transfer of
any title by the state authorities to the land
located was also denied, the department tak-
ing the position that, until the lands selected
were listed over or patented to the State, no
title passed from the United States.

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