If we will but realize that the existing law was not created, but only emphasized-its effect not extended, but only insured-by the legislative declaration here referred to, the full force of the reasoning and the fundamental basis thereof becomes doubly apparent. The Secretary and the court were merely stating that, without congressional enactment authorizing the same, the right accorded by law to acquire title to public lands could not be infringed or restricted.

The last case referred to was critically reviewed in Southern Pacific Co. v. Bell (183 U. S., 675), where the court clearly and emphatically determined against the existence of any arbitrary-otherwise "discretionary"-power to withdraw lands from the operation of the laws relating to the disposition thereof.

But the real question is not whether the indemnity lands lay within or beyond the 40-mile limit, but whether the withdrawal can operate upon indemnity land at all. It makes no difference in principle whether the indemnity lands are within or beyond the 40-mile limit, which is not a limit of withdrawal but of survey, and the whole argument in Hewitt v. Schultz is directed to the question whether it is within the power of a Secretary of the Interior to withdraw indemnity as well as place lands from settlement. *

*

*

As said by Mr. Secretary Lamar: "It is manifest that the said act gave no especial authority or direction to the Executive to withdraw said lands, and when such withdrawal was made it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior and in the exercise of his discretion." The power of the Secretary to withdraw lands is exercised for the purpose of carrying out the grant to the railroad, and to prevent lands covered by said grant from being taken up by settlers before the road is completed and the patents issued to the company; but clearly that power can not be exercised to withdraw lands which are beyond the intended limits of the grant. It was said by Secretary Smith to have been exercised for many years, but the right of this asserted power on the part of the Executive is involved in obscurity. (Northern Pacific R. R. v. Davis, 19 L. D., 87, 88.)

If the command of the statute were to withdraw from the market, instead of survey, all odd-numbered sections within the 40-mile strip, the position of the railroad company in this case would be impregnable; but as the withdrawal only extends to the lands "hereby granted," we must look elsewhere to ascertain the meaning of those precise words. There is good reason for withdrawing lands within the place limits, since these lands already belong to the railroad company, as soon as they are identified by the location of the line, while lands within the indemnity limits may never be required at all, and in most cases are required only to a limited extent. Undoubtedly the company acquires title to both classes of lands by the third section of the granting act; but it acquires a title to lands within the place limits by a present grant while to land within the indemnity limits, only by a future power of selection. In both cases the statute is the origin of the title, but in the one case it gives instantaneously; in the other, it is a mere promise to give in the future, and requires the action of the railroad to perfect it. The words "hereby granted" evidently refer to the former.

Treating this case as a reargument of the question involved in Hewitt v. Schultz, and it practically comes to that, we still adhere to the principle there announced. There was no order in the act to withdraw any lands from settlement or sale, but such withdrawal seems to have been made in pursuance of the practice of the Interior Department and for the purpose of preventing lands granted to the railroad company from being taken up by settlers before the completion of the line and the final issuance of patents. As was said by Mr. Secretary Lamar in the Atlantic and Pacific Railway Co. (6 Land Dec., 84, 88): “Waiving all questions as to whether or not said granting act took from the Secretary all authority to withdraw said indemnity limits from settlement, it is manifest that the said act gave no special authority or direction to the executive to withdraw said lands; and when such withdrawal was made it was made by virtue of the general authority over such matters possessed by the Secretary of the Interior and in the exercise of his discretion; so that were the withdrawal to be revoked, no law would be violated or contract broken." But as the power to withdraw extends only to the "lands hereby granted," and all other lands, except those hereby granted, remain open to settlement, we are thrown back upon section 3 to determine what are the lands "hereby granted

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It is true that, prior to this selection being made, many of these indemnity lands may be taken up, and an insufficient amount left for the railroad (and we do not deny

the force of the dissenting opinion in Hewitt v. Schultz in that connection), but we think this possibly serves rather as a basis for a further action by Congress, such as was made in the Northern Pacific case by the joint resolution of May 31, 1870 (16 Stat., 378), than as a reason for withdrawing from settlement a vast amount of land which the railroad may never have occasion to require.

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In view of the constant trend of population toward the western Territories, it is a serious matter to withdraw these enormous tracts from settlement and hold them, as it were, in mortmain against the protest of those who stand ready to enter upon and possess them.

*

We are therefore of opinion that the act of July 27, 1866, did not authorize the withdrawal by the Secretary of the Interior of the indemnity lands; that such lands remained open to homestead and preemption entry, and that patents issued to settlers within such indemnity limits, based upon the entries made prior to the selection by the railroad company, approved by the Interior Department, were valid as conveyances of the land as against the selection by the railroad company.

The President is not a legislative executive-his power with regard to legislation (excepting only the right of veto) is entirely affirmative he is commanded to "faithfully execute" the law. Upon being confronted with the duty of determining upon a course of executive action his first inquiry must be, "What is my duty or authority as discoverable from the expressed or implied mandate of the law." While liability to abuse of power is not a strong argument against its existence, neither does the fact that beneficial results may follow a given course form a basis for asserting that such course is authorized.

The President, in common with every other officer of the United States, is a creature of the law, subordinate and not superior thereto; his power to withdraw lands from disposition, like every other official act, must find justification in the source from which all authority must emanate the law. The foregoing authorities show that it can find no such justification; hence, it has no existence.

But while this minority is unable to agree that the Executive has present power to withdraw lands generally from the operation of the fand laws without express or implied authority of Congress, it still believes that with proper limitations this authority should be conferred; therefore it stands upon the recommendation that this bill should be passed with the following amendments:

First. Such an amendment as would agree to the withdrawal for "public purposes" in such manner as would construe "public purposes" to be purposes for governmental use; and, second, that such withdrawals should automatically cease with the expiration of the Congress to which they should be reported.

2d Session.

No. 613.

EARTHQUAKE IN COSTA RICA.

LETTER

FROM

THE SECRETARY OF STATE,

TRANSMITTING

A COPY OF A NOTE FROM THE MINISTER OF COSTA RICA, EXPRESSING THE GRATITUDE OF HIS GOVERNMENT FOR THE EXHIBITION OF GOOD WILL OF THE UNITED STATES ON THE OCCASION OF THE CALAMITY AT CARTAGO.

JUNE 9, 1910.-Referred to the Committee on Foreign Relations and ordered to be printed.

JUNE 8, 1910.

SIR: Referring to public act No. 174, House bill No. 25646, approved May 13, 1910, entitled "An act for the relief of earthquake sufferers in Costa Rica," I have the honor to inclose herewith, for your information, a copy of a note from the minister of Costa Rica, in which he expresses the profound gratitude of the Government of Costa Rica for the various proofs of consideration and good will given by the legislative and executive branches of the Government of the United States, the American National Red Cross, and the American people, in the hour of sorrow and grief which the calamity at Cartago has occasioned.

I am, sir, your obedient servant, The PRESIDENT OF THE SENATE.

P. C. KNOX.

LEGATION OF COSTA RICA,
Washington, May 25, 1910.

Mr. SECRETARY: I have the honor to inform your excellency that the Government of Costa Rica, duly appreciating the contents of your excellency's note of the 11th instant, addressed to this legation, and deeply impressed by the various proofs of consideration and good will further received from the legislative and executive powers, the American National Red Cross, and directly from the people of the

United States of America, has instructed me to convey to all of them, through your excellency's worthy medium, the most sincere expression of profound gratitude for such noble acts in the hour of sorrow and grief which the calamity at Cartago has occasioned.

In complying with said instruction I have the honor to add that Costa Rica will never forget the kind regard with which the great Government of the United States has always honored her.

Be pleased, Mr. Secretary, to accept the renewed assurances of my highest and most distinguished consideration. J. B. CALVO.

His Excellency PHILANDER CHASE KNOX,

Secretary of State of the United States.

AGRICULTURAL ENTRIES ON COAL LANDS.

Mr. DIXON presented the following

CONFERENCE REPORT ON BILL (H. R. 13907) TO PROVIDE FOR AGRICULTURAL ENTRIES ON COAL LANDS.

JUNE 11, 1910.-Ordered to be printed.

The committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate to the bill (H. R. 13907) to provide for agricultural entries on coal lands having met, after full and free conference have agreed to recommend and do recommend to their respective Houses as follows:

That the Senate recede from its amendment numbered 1, page 1, and agree to an amendment in lieu thereof as follows:

Page 1, line 5, after the word "been," insert the words withdrawn or.

That the House recede from its disagreement to the amendment of the Senate numbered 2, page 2, and agree to the same with an amendment as follows:

Reinsert the matter stricken out by the Senate amendment, and in lieu of the matter inserted by the Senate amendment insert the following at the end of section 1, page 2:

Provided, That those who have initiated nonmineral entries, selections, or locations in good faith, prior to the passage of this act, on lands withdrawn or classified as coal lands may perfect the same under the provisions of the laws under which said entries were made, but shall receive the limited patent provided for in this act.

And agree to the same.