219 U.S. Argument for Plaintiff in Error. being pointed out, will be specifically enforced, as that which might otherwise be uncertain is made certain by the act of selecting. Lingeman v. Shirk, 42 N. E. Rep. (Ind.) 34, 35; Carpenter v. Lockhard, 1 Indiana, 434; Baldwin v. Kerlin, 46 Indiana, 426; Cheney v. Cook, 7 Wisconsin, 413; Washburne v. Fletcher, 42 Wisconsin, 152; Roehl v. Hammexer, 114 Indiana, 311, 315; Colerick v. Hooper, 3 Indiana, 316; Williamson v. Johnstone, 20 Kentucky, 253; Owing's Exrs. v. Morgan, 7 Leigh (Va.), 548; Ernshwiller v. Tyner, 54 Ohio St. 214. As to when the right of selection must be exercised, the act under review is silent. In land grant cases, whenever the railroad company has shown a loss the Land Department has permitted a lieu selection, no matter how long a time after the loss. Gulf Island R. R. Co. v. United States, 22 L. D. 560. The two parties to the contract are the relinquisher and the United States, not the relinquisher and the land officials. Their rejection of a selection does not conclude the question that title did not pass, because, after their jurisdiction ceases, the courts will announce as a matter of law whether title will pass. Kern Oil Co. v. Clarke, 30 L. D. 561; Bishop on Contracts, 2d Enlarged Ed., § 330; Page on Contracts, § 48; Pennoyer v. McConnaughey, 43 Fed. Rep. 196; Olive Land Co. v. Olmstead, 103 Fed. Rep. 573; Farnum v. Clarke, 84 Pac. Rep. 168. Inasmuch as the relinquisher's right to make a lieu selection vested prior to the repeal, Congress was without power to divest the right; and the action of the Land Department in cancelling the selection and patenting the selected land to another was a taking of property without due process of law. Fletcher v. Peck, 6 Cranch, 87; See Story on Constitutional Law, § 1391; McGee v. Mathis, 4 Wall. 143; Citizens' Assn. v. Topeka, 20 Wall. 663; Davis v. Gray, 16 Wall. 232; State v. Wilson, 7 Cranch, 166; Telfener v. Russ, 145 U. S. 522; Montgomery v. Kas Argument for Plaintiff in Error. 219 U.S. son, 16 California, 189; Gulf Island R. R. Co. v. United States, 22 L. D. 560; 23 L. D. 565; 12 L. D. 547, and 9 L. D. 237. The prohibitions contained in Amendment V of the Constitution against taking property without due process of law or compensation, apply to vested, contractual rights, and are not confined to judicial proceeedings, but are a restraint on every department of the Government. They apply as well to the Land Department as to Congress. Sinking Fund Cases, 99 U. S. 700, 718, 719, 720; and see United States v. Union Pac. Ry. Co., 160 U. S. 34; Houston & Tex. Cent. Ry. Co. v. Texas, 170 U. S. 261; Cornelius v. Kessel, 128 U. S. 456. A revocation of the approval of the Secretary of the Interior by his successor in office is an attempt to deprive the plaintiff of its property without due process of law, and is void. Noble v. Union River Logging Co., 147 U. S. 165. Where an entryman or selector has done everything required to perfect his right, but fails to attain it through an erroneous construction of the law by the Land Department, which patents the land to another, the latter can, in equity, be held as his trustee, and compelled to make a conveyance of the legal title. Johnson v. Towsley, 13 Wall. 72; Silver v. Ladd, 7 Wall. 219; Stark v. Starr, 6 Wall. 402. The Land Department was not required to complete its administration of a land grant statute within a designated time, and the same rule applies here. Humbird v. Avery, 195 U. S. 506; Lars Winquist, 4 L. D. 324; United States v. Burlington, 98 U. S. 198. The uniform construction of the Land Department should not be changed. Bate Refrig. Co. v. Sulzberger, 157 U. S. 34; Ranch San Rafael, 4 L. D. 482; Germania v. James, 89 Fed. Rep. 817; Shreve v. Cheesman, 32 U. S. App. 676, 689; United States v. Winona & St. P. R. R. 219 U.S. Argument for Defendant in Error. Co., 67 Fed. Rep. 948; Olcott v. Supervisors, 16 Wall. 678; United States v. Alabama Ry. Co., 142 U. S. 615; St. Paul, M. & M. Ry. Co., 8 L. D. 255, 263; Masterson's Case, 7 L. D. 577; Minor v. Marriott, 2 L. D. 709; Instruction of September 15, 1889, L. D. 145; Weaver's Case, 35 L. D. 553; McDonald's Case, 36 L. D. 205; Douglass v. Pike, 101 U. S. 687; Kean v. Calumet, 190 U. S. 460; Cooley, Const. Lim., 7th ed., p. 86. The Land Department decides whether title vested at all or not. If its decision is based upon an erroneous construction of the law and not upon a question of fact the courts are open to litigants after the Department has decided the case one way or the other. Thayer v. Spratt, 189 U. S. 346. The repeal of an act does not affect any right which has accrued under it. Trippet v. State, 149 California, 521. The act of June 4, 1897, was a remedial act and should be liberally construed, as should also the clause in the repealing act which was intended to preserve the rights of pending cases. Mr. S. D. Luckett and Mr. Chas. R. Pierce for defendant in error: The act of June 4, 1897, 30 Stat. 34, extended an invitation to exchange lands. Until the offeree relinquishes the base land, selects the lieu land, complies with all of the valid reasonable regulations, and the exchange is approved, there is no change in the legal or equitable status of either tract, and no obligation arises on either side to continue with the arrangement. An exchange may be initiated by filing a deed and selection and in no other way. Moses Land Co., 34 L. D. 458; Hyde's Case, 28 L. D. 284, 286; Tevis' Case, 29 L. D. 576. A full application under the act of June 4, 1897, is asessential as an application for entry. See 28 L. D. 472. The act of June 4, 1897, was an exchange act. Hyde v. Argument for Defendant in Error. 219 U. S. Shine, 199 U. S. 62, 80; United States v. Conklin, 177 Fed. Rep. 55; Pacific Livestock Co. v. Isaacs, 96 Pac. Rep. 460, 464. An exchange is a mutual grant of equal interests. Windsor v. Collinson, 52 Pac. Rep. 26, 27; Harlin's Heirs v. Eastland, 3 Kentucky (Hardin), 590, 593; Speigle v. Meridith, 22 Fed. Cas. 910; Wilcox v. Randall, 7 Barb. 633, 638; Hartwell v. Devault, 32 N. E. Rep. 789; Long v. Fuller, 21 Wisconsin, 121. An exchange is an executed contract. Preston v. Keene, 14 Pet. 133; Lessieur v. Price, 12 How. 59, 74; Brennan v. Ford, 46 California, 7. The Land Department did not err in construing the act of June 4, 1897, as an offer of exchange. While the decisions of the Land Department are not binding on the courts, they should not be overruled except where they are clearly erroneous. Hastings & Company v. Whitney, 132 U. S. 357; Leonard v. Lennox, 181 Fed. Rep. 760; Wis. Cent. R. R. Co. v. Price County, 133 U. S. 496; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301; United States v. McClure, 174 Fed. Rep. 510; United States v. Conklin, 177 Fed. Rep. 55. Arizona v. Perrin, 83 Pac. Rep. 361, distinguished. The act of March 3, 1905, 33 Stat. 1264, repeals the Forest Reserve Act of June 4, 1897, 30 Stat. 34, and rejects all uncompleted attempts or proposals to comply with said act, with the three exceptions spoken of in the repealing act. The power of Congress over public lands is plenary, and the Land Department had no authority to accept selections after March 3, 1905, not within the exceptions in the repealing act. Moses Land Co., supra; Roughton v. Knight, 103 Pac. Rep. 844. There is at the most only a moral obligation on the part of Congress to act. See Sen. Res., March 19, 1906, and circular 35, L. D. 8; Tevis's Case, supra. The most claimed by the plaintiff is an inchoate right to select. Such a right, when recognized, is only a float until selection is definitely made and approved, and until such approval Congress cannot be presumed to have parted with its power to dispose of the land. Wis. Cent. R. R. Co. v. Price County, 133 U. S. 496, 512; Sjoli v. Dreschel, 199 U. S. 564; Sioux City & St. P. R. R. Co. v. C., M. & St. P. R. R. Co., 177 U. S. 406; Hutchins v. Lowe, 15 Wall. 77. It requires very clear language in the acts of Congress before any intention thus to place the public lands of the United States beyond its control by mere settlement of a party with declared intention to purchase could be attributed to its legislation. Rancho San Rafael, 4 L. D. 482; Campbell v. Wade, 132 U. S. 34; Telfener v. Russ, 162 U. S. 174. To hold the defendant a trustee for the plaintiff, he must allege that the action of the United States amounted to a double sale of the land, first to the plaintiff and then to the defendant. Carroll v. Safford, 3 How. 441, 460. The sole duty violated by the United States in such cases is the execution of a conveyance to the proper party. Bohall v. Dilla, 114 U. S. 47, 51. The complaint does not state facts sufficient to constitute a cause of action. Marquez v. Frisbie, 101 U.S. 473; Leonard v. Lennox, 181 Fed. Rep. 760, 766. MR. JUSTICE LURTON delivered the opinion of the court. The question in this case is whether the complainant below, and appellant here, has acquired, a vested right to an exchange of a one hundred and sixty-acre tract of land owned by him and situated inside the exterior boundary of a forest-reserve, for a tract of public land of similar area, by reason of acts done in compliance with the terms of that provision of the Forest Reserve Act of June 4, 1897, providing for such exchanges. The Supreme Court of California sustained a demurrer and dismissed his |