SEC. 15. That so much of the lands belonging to the United States as have been acquired and set apart for the purpose mentioned in "An act appropriating money for the erection of a penitentiary in the Territory of Dakota," approved March second, eighteen hundred and eightyone, together with the buildings thereon, be and the same is hereby granted, together with any unexpended balances of money appropriated therefor, by said act, to the said State of South Dakota, for the purposes therein designated; and the States of North Dakota and Washington shall, respectively, have like grants for the same purpose, and subject to like terms and conditions as provided in said act of March second, eighteen hundred and eighty-one, for the Territory of Dakota, The penitentiary at Deer Lodge City, Montana, and all lands connected therewith and set apart and reserved therefor, are hereby granted to the State of Montana.

SEC. 16. That nienty thousand acres of land, to be selected and located as provided in section ten of this act, are hereby granted to each of said states, except to the State of South Dakota, to which one hundred and twenty thousand acres are granted, for the use and support of agricultural colleges, in said states, as provided in the act of Congress making donations of lands for such purposes.

See infra general provisions to all states.

At time state was organized its representatives in Congress consisted of two Senators and one Representative; hence under the general provisions to all states Act of July 2, 1862, 12 Stat. L. 503, the grant would be equivalent to the grant in this section. This section is in lieu of the grant allowed by the general act.

SEC. 17. That in lieu of the grant of land for purposes of internal improvements made to new states by the eighth section of the act of September fourth, eighteen hundred and forty-one, which act is hereby repealed as to the states provided for by this act, and in lieu of any claim or demand by the said states, or either of them, under the act of September twenty-eight, eighteen hundred and fifty, and section twentyfour hundred and seventy-nine of the revised statutes, making a grant of swamp and overflowed lands to certain states, which grant it is hereby declared is not extended to the states provided for in this act, and in lieu of any grant of saline lands to said states, the following grants of lands are hereby made, to-wit: * 串 To the State of

*

Washington: For the establishment and maintenance of a scientific school, one hundred thousand acres; for state normal schools, one hundred thousand acres; for public buildings at the state capital, in addition to the grant herein before made for that purpose, one hundred thousand acres; for state charitable, educational, penal and reformatory institutions, two hundred thousand acres. That the states provided for in this act shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act. And the lands granted by this section shall be held, appropriated and disposed of ex

clusively for the purposes herein mentioned, in such manner as the Legislatures of the respective states may severally provide.

The ownership of swamp and overflowed lands disclaimed where patented though not granted. Art. 17, Sec. 2, Const., infra; and see Baer v. Moran Bros. 2 Wash. 608.

The grant by this section is for all the institutions of the character named and the Legislature may apportion any part thereof to the university, though that institution was provided for in Sec. 14 of this act. State v. Callvert, 34 Wash. 58.

Land covered and uncovered by the flow and ebb of the tide is not "public land" subject to entry. Baer v. Moran Bros., 2 Wash. 608. Affirmed 153 U. S. 287.

Lands in this grant must be disposed of subject to the limitations contained in section 11 of the Enabling Act. State v. Maynard, 31 Wash. 132.

Under the grant of two hundred thousand acres "for state charitable, educational, penal and reformatory institutions" the state may set aside one hundred thousand acres for the State University. State v. Callvert, 34 Wash. 58.

This grant for capitol purposes is in the nature of a trust imposed upon the state to select the land and apply the proceeds to the payment of claims for the construction of capitol buildings, and a "State Capitol Building Fund" may be created and warrants drawn against such fund though no money is in such fund. Allen v. Grimes, 9 Wash. 424.

Proceeds of sales of land cannot be used, only interest thereon. State v. Maynard, 31 Wash. 132.

SEC. 18. That all mineral lands shall be exempted from the grants made by this act. But if sections sixteen and thirty-six or any subdivisions or portion of any smallet subdivision thereof in any township shall be found by the department of the interior to be mineral lands, said states are hereby authorized and empowered to select, in legal subdivisions, an equal quantity of other unappropriated lands in said states, in lieu thereof, for the use and benefit of the common schools

of said states.

Lands reserved for public schools cannot be taken under the mineral laws of

the United States.

Wheeler v. Smith, 5 Wash. 704.

SEC. 19. That all lands granted in quantity or as indemnity by this act shall be selected, under the direction of the Secretary of the Interior, for the surveyed, unreserved and unappropriated public lands of the United States within the limits of the respective states entitled thereto. And there shall be deducted from the number of acres of land donated by this act for specific objects to said states the number of acres in each heretofore donated by Congress to said territories for

similar objects.

GENERAL PROVISIONS RELATIVE TO TERRITORIAL AND STATE

GRANTS.

I.

LIEU LANDS.

SEC. 2275. R. S. Where settlements with a view to pre-emption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections, or either of them, have been or shall be granted, reserved or pledged for the use of schools or colleges in the state or territory in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected by said state or territory, in lieu of such as may be thus taken by pre-emption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said state or territory where sections sixteen or thirty-six are mineral land, or are included within any Indian, military or other reservation, or are otherwise disposed of by the United States: Provided, Where any state is entitled to said sections sixteen and thirty-six, or where said sections are reserved to any territory, notwithstanding the same may be mineral land or embraced within a military, Indian or other reservation, the selection of such lands in lieu thereof by said state or territory shall be a waiver of its right to said sections. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said state or territory to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the state or territory shall be entitled to select indemnity lands to the extent of two sections for each of said townships in lieu of sections sixteen and thirty-six; but such selections may not be made within the boundaries of said reservations: Provided, however, That nothing herein contained shall prevent any state or territory from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein; but nothing in this provisio shall be construed as conferring any right not now existing. (56 Stat. L. 796; 6 Fed. St. Ann. 462.)

This section was amended to read as above by act of February 28, 1891, chapter 384, 26 Stat. L. 796.

The section originally read as follows:

"SEC. 2275. Where settlements, with a view to pre-emption, have been made before the survey of the lands in the field. which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the pre-emption claim of such settler; and if they or either of them, have been or shall be reserved or pledged for the use of schools or colleges in the state or territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors; and other lands are also appropriated to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, cr where one or both are wanting by reason of the township being fractional, or from any natural cause whatever." Act of February 26, 1859, chapter 58, 11 Stat. L. 385.

See 6 Fed. St. Ann. 462.

This act is based upon the idea that as soon as a valid legal survey has been made in the field of lands of the United States, they are to all intents and purposes surveyed lands and are to be treated as such. Oakley v. Stuart (1878), 52

Cal. 521.

This statute is general in its terms and was intended to be applicable alike to all states and territories receiving grants of school lands. Consequently it follows that the State of California is entitled to make a selection for land lost to the state, provided it is sufficiently established that the land lost is of a mineral character. Johnston v. Morris (C. C. A. 1896), 72 Fed. Rep. 890.

This section clearly shows that it was the intention of Congress that title should not vest in the territory or state before the survey. "When a person settles on the public lands with a view to pre-emption, this section gives him a right to the patent, notwithstanding the land turns out, when surveyed, to be section 16 or 36, or a part thereof. The title and the right to dispose thereof is regarded as in the United States till the survey. If not, why transfer it by patent to the pre-emptor? Those sections or their equivalent in other lands, are regarded as pledged for school purposes. The language of the law is reserved or pledged.' The term 'reserved' is regarded as synonymous in meaning with 'pledged.'" Ferry v. Street (1886), 4 Utah 531, dismissed 119 U. S. 385.

The title to lands selected under this statute does not vest in a state by a mere selection of the land. Any selection by a state is ineffectual to transfer title from the United States to the state, at least unil such selection is approved by the Secretary of the Interior, if not until the certification of such land to the state. Baker v. Jamison (1893), 54 Minn. 17.

When a selection of substituted lands has been made, and that selection approved by the Secretary of the Interior, the land is no longer subject to private entry. And while the land remains subject to such selection and approval no individual can come in and question its validity. Johanson v. Washington (1903), 190 U. S. 179, affirming (1901) 26 Wash. 668.

Settlement is made the initiatory step by the laws of Congress to secure to a party the right of pre-emption. U. S. v. Union Pac. R. Co. (1894), 61 Fed. Rep. 143, affirmed (C. C. A. 1895) 67 Fed. Rep. 974.

The purpose of this section "is evidently to fix the status of such settlers as may prior to survey, without notice of the fact, have fixed their residence, with a view to pre-emption, on said sections, and to give such settlers the privilege of entering such lands under the pre-emption law, and obtaining title thereto; and for all such lands as may be patented to such pre-emptors, other lands, equal in quantity, are reserved to the territory or state for school purposes in lieu thereof. We think this privilege is limited by the language of section 2275, as well as by other provisions of the pre-emption laws, to such settlers as may be found on school lands at the time of the survey of the lands in the field. The right of preemption of such settlers as may have settled on school lands prior to survey being a personal privilege, it follows that sections 16 and 36 of each township are reserved to the territory or state for school purposes, subject only to the personal

rights of such settlers to obtain title to the same under the pre-emption law; and, if they do not choose to assert their rights by filing and entering the land, or subsequently abandon their settlements, the land continues to be reserved to the state or territory for school purposes." A sale by the settlers of their right of possession and improvements does not pass any of their rgihts to the purchaser. Gonzales v. French (1893), 4 Ariz. 77.

A claim of pre-emption is fatally defective where the grantees of the claimant failed to make or file an actual entry in the proper land office. Gonzales v. French (1896) 164 U. S. 338.

Where an entryman who goes to the public land office for the purpose of obtaining public land is required by the receiver to pay the purchase price of the land before allowing his proofs of entry to be filed, the receiver accepts the money as a public officer of the United States, and not as the agent of the entryman; and the payment is to be regarded as one of public money made to the government within the meaning of the law and of the bond given by the receiver for the faithful discharge of the duties of his office. Smith v. U. S. (1898), 170 U. S. 372.

This act, as amended by the act of February 28, 1891, does not authorize any exchange of lands between the federal and state governments, but only the indemnification of the state for the loss of lands to which it was entitled. The act does not give to the state the right to select other lands of equal acreage with the school sections where the latter are included within the exterior boundaries of a forest reservation subsequent to their survey in the field, and the title thereto has thus become vested in the state. Hibberd v. Slack (1897), 84 Fed. Rep. 571.

It seems that this statute does not authorize selections by the state in lieu of swamp lands lost from a school land grant, for that would be giving to the state an indemnity for a class of lands already donated to the tsate, and the principle upon which indemnity is given is for a deficiency and not for that which the state has already received. Johnston v. Morris (C. C. A. 1896), 72 Fed. Rep. 890.

This section does not authorize any exchange of lands between the federal and state governments, but only an indemnification of the state for the loss of lands to which it was entitled. Thus a state has no right to select other lands of equal acreage with the school sections where such sections, after the state has acquired title thereto by survey in the field, are included within the bounds of a forest reservation. Hibberd v. Slack (1897), 84 Fed. Rep. 571.

Certain lands within the ten-mile limits of the Central Pacific railroad, being part of odd-numbered sections granted thereto by the act of July 1, 1862, chapter 120, were, under section 7 of that act, ordered to be withdrawn, and this order was received at the office at San Francisco on the 30th of January, 1865. The map showing definite location of line of said road was filed in the general land office February 13, 1873, and on May 12, 1874, said lands were selected by the railroad company as inuring to it under said grant. But the same lands were se lected by the state of California June 13, 1865, as indemnity for deficiency of school lands granted by acts of March 3, 1853, and February 26, 1859, and a list thereof was certified and approved to the state September 8, 1870. The railroad company applied for patents for these lands. The Secretary of the Interior was advisd that he was not authorized by the general laws or the provisions of the act of July 1, 1862, to issue such patents to the company. (1882) 17 Op. Atty.Gen. 406.

II.

SEC. 2276. R. S. That the lands appropriated by the preceding section shall be selected from any unappropriated, surveyed public lands, not mineral in character, within the state or territory where such losses or deficiencies of school sections occur; and where the selections are to compensate for deficiencies of school lands in fractional town