introduce other important material evidence that would probably change the judgment, with a proper excuse for not having submitted it before the notary, in the exercise of my supervisory authority, I might properly allow a rehearing for that purpose. But no such showing is made, and I am asked to set aside the judgment and proceedings, and dismiss the contest, upon the technical grounds above stated. The claim that your judgment should be arrested, because the notary personally delivered the testimony to the local officers, instead of seal ing and mailing it, as contemplated by the rules of practice, is without merit for the same reason-namely, it is not shown that any of the rights of claimant were prejudiced thereby. The evidence reached the office without alteration; it was duly considered and judgment rendered thereon, and I shall not disturb it for the sole reason that the record was received from the hands of the notary, instead of the postmaster.

The testimony has been examin ed, and in my opinion clearly sustains your judgment.

There was a motion made before your office to consolidate this case with that of C. R. Bushnell v. William L. Earl, which motion does not seem to have been acted upon by your predecessor. It is hereby overruled.

. The judgment appealed from is affirmed.

RAILROAD GRANT-ADJUSTMENT.

FLORIDA CENTRAL AND PENINSULAR R. R. Co.

(UN REVIEW.)

The right to the grant conveyed by the act of May 17, 1856, has not been forfeited by any act of the Florida R. R. Co. or its successors, and the State has by no act of its legislature denied to said company the benefits of said grant, and it is therefore the duty of the Department to adjust said grant in accordance with the provisions of said act.

Secretary Smith to the Commissioner of the General Land Office, July 7,

1893.

A motion has been filed by the Hon. Wilkinson Call, asking that the action of the Department, on February 15, 1893, approving certain lists of lands to the State of Florida on account of the grant made to said State to aid in the construction of a railroad" from Amelia Island on the Atlantic to the waters of Tampa Bay, with a branch to Cedar Keys on the Gulf of Mexico," by the act of May 17, 1856, be revoked and set aside.

I thereupon directed that action upon said approved lists be suspended until I could examine into the matter complained of. I have since heard oral argument in support of said motion, and after a full

and careful consideration of the whole question, I see no reason to revoke the action of my predecessor.

I have also examined carefully every act passed by the State of Florida to which attention was called in the argument on said motion, and, in my judgment, most of the acts referred to have no application to the issues involved in this controversy. Upon an examination of the acts of the legislature of Florida that bear upon this question, I do not find that any declaration has been made by said State that the company was not entitled to the benefits of the grant of May 17, 1856, nor that any action was taken by said State attempting in any manner to impair the rights of the road thereunder, which became vested upon the filing of its map of definite location in 1857.

By reference to the several decisions made by this Department upon the issues now involved, it will be seen that the right of this road to the grant under the act of May 17, 1856, has never been questioned. Secretary Chandler, in his decision of April 29, 1876, refused to allow the company to file a map of definite location of the road after the expiration of the time within which, by the terms of the grant, the road was required to be completed. But when the question came before Secretary Schurz, it was upon the application of the company to file a copy of the original map of definite location, made in 1857, and filed with the Commissioner of the General Land Office, which was allowed. on January 28, 1881. His decision was affirmed by Secretary Teller in his decision of January 30, 1884 (2 L. D., 561); by Secretary Lamar on August 30, 1886 (5 L. D., 107); and by Secretary Noble on March 2, 1893 (16 L. D., 217)—all holding that the right to the grant conveyed by the act of May 17, 1856, has not been forfeited by any act of the Florida Railroad Company or its successors, and that the State of Florida has by no act of its legislature denied to said company the benefits of said grant, but has through its executive recognized the rights of said company thereunder, and that it is therefore the duty of the Department to adjust the grant in accordance with the provisions of said act. Every question presented by Senator Call in the argument upon this motion appears to have been fully considered and passed upon by my predecessors; and the several acts which he refers to and cites in support of his position that no location was ever made within the lifetime of the grant, and that no grant of this land was ever made by the State to the Florida Railroad Company, and that the State of Florida by continuous legislation since 1866 has repeatedly denied to the Florida Railroad Company any of the benefits of this grant, were fully considered by my predecessors in their several decisions, and a contrary conclusion reached.

No additional fact has been submitted, nor any law referred to, that was not considered by the Department in the decisions heretofore rendered; and, as I find no error in the conclusion reached, I must deny the motion, and direct that the order of April 10, 1893, suspending the approval of said lists, be revoked.

SOUTH OKLAHOMA v. COUCH ET AL.

Motion for review of departmental decision of February 14, 1893, 16 L. D., 132, denied by Secretary Smith, July 7, 1893.

RAILROAD GRANT-WITHDRAWAL ON GENERAL ROUTE.

COLE v. NORTHERN PACIFIC R. R. Co.

Section 6 of the grant of July 2, 1864, to the Northern Pacific railroad company provides for but one legislative withdrawal on the filing of a map of general route, which becomes at once effective on the approval of said map, and exhausts the legislative will with respect to such preliminary withdrawal, and precludes the subsequent exercise of executive authority to make a further withdrawal for such purpose on a second or amended map of general route.

The map approved August 13, 1870, designated the general route of said road through the Territory of Washington, and authorized the only withdrawal therefor. The later withdrawal based on the amended map of February 21, 1872, was without authority of law, and inoperative as against the subsequent acquisition of settlement rights.

During the pendency of a motion for review before the Department the General Land Office is without jurisdiction to make any disposition of the lands involved. Secretary Smith to the Commissioner of the General Land Office, July 7,

1893.

On August 2, 1888, the Department rendered a decision in the case of the Northern Pacific Railroad Company v. Guilford Miller (7 L. D., 100), affirming the decision of your office refusing to cancel the homestead entry of Miller, for the SE. of Sec. 21, T. 15 N., R. 42 E., Walla Walla, Washington. After said decision was rendered, the case of Charles Cole v. Northern Pacific Railroad Company, then pending before the Department on appeal of Cole from the decision of your office rejecting his application to make homestead entry of the SE. 4 of Sec. 19, T. 16 N., R. 44 E., Spokane Falls, Washington, was decided-the Department holding that the facts are in all essential respects similar to those in the case of Northern Pacific Railroad Company v. Guilford Miller, and for the reasons therein given reversed the decision of your office.

Similar decisions were made in eighty other cases against the same company, reversing the action of your office rejecting the respective applications, and holding that all of said cases are controlled by the decision in the case of Guilford Miller.

No motion for review was filed in the case of Miller, and the decision of the Department, so far as it affects his rights, as against the railroad company, has become final. But in the case of Cole and in the other cases above mentioned motions for review were filed within the time prescribed by the rules, which have since been pending in the Depart ment undetermined.

The grounds of error alleged in said motion are as follows:

1. That the Secretary erred in holding that said lands, at the date of the several applications, were public lands open to entry; and

2. That the Secretary erred in holding that the withdrawal of lands theretofore made by the Department was null and void and without effect.

As all of these cases are controlled by one or the other principles ruled in the case of Guilford Miller, counsel for the railroad company ask that said decision, so far as it controls the cases now pending on review, may be reconsidered and overruled.

A correct solution of the issues herein presented depends mainly upon a proper construction of the 6th section of the act making the grant to said company.

The act of July 2, 1864 (13 Stat., 365), incorporating the Northern Pacific Railroad Company, granted to said company, to aid in the construction of a line of road between certain points designated in said act, every alternate section of public land not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of the road within the territories, and ten alternate sections per mile within the states, that were free from certain conditions therein named at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office

And whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lien thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.

In the 6th section it was further enacted:

That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and ot the act entitled "An act to secure homesteads to actual settlers upon the public domain," approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.

In construing this section, the essential conclusions reached by the Secretary are: (1) That said section provided for a legislative withdrawal of lands within the granted limits upon the filing of a map of general route, which became operative upon the approval of the map, without any other act on the part of the executive authorities, and that the

legislature having definitely expressed the terms upon which a preliminary withdrawal should be made, and the conditions and extent of such withdrawal, its will must be taken to have been exhaustively expressed, and any other withdrawal is without legal force or effect; and (2) That said section having expressly provided for a withdrawal of lands within the granted limits, upon the filing of an approved map of general route, and directing that the pre-emption and homestead laws shall be extended over all other lands along the line of said road, is a mandate effectually prohibiting the exercise of executive authority to withdraw lands within indemnity limits; and (3) That the lands within an Indian reservation created by a treaty, prior to the grant, and falling within the limits of the grant, passed to the company in fee, subject to the Indian right of occupancy, which the government will at its pleasure extinguish, and therefore afford no basis of claim to select other lands in lieu thereof.

That the statute itself, by operation of its own force upon the filing and the approval of a map of general route, immediately withdrew from sale, entry, or pre-emption-except by the company-all the odd sections within the prescribed limits not affected by the exceptions contained in the act, and that such withdrawal derives no force or efficacy from the order of the executive, is so well settled by the decisions of the courts and of this Department that it is unnecessary to discuss the question. Buttz v. Northern Pacific Railroad Company (119 U. S., 71); Southern Pacific Railroad Company v. Orton (6 Sawyer, 178); Trepp v. Northern Pacific Railroad Company (1 L. D., 382); Hayes v. Parker et al. (2 L. D., 554); Northern Pacific Railroad Company (Copp's L. L. 1st Ed., 377).

The correctness of this proposition being manifest, the Secretary concludes that a withdrawal upon general route, having been once made by force of the statute itself in accordance with the legislative will, independent of any act of the executive, there was no authority in the Secretary to revoke such withdrawal and to substitute another therefor.

It is unnecessary to discuss at length this principle, and I might dismiss this branch of the subject with a simple reference to the reasons assigned in the Guilford Miller case, but, upon further investigation, I find that case is supported not only by the decisions of the courts, but by those of this Department, and I fail to find any ruling of the Department in direct conflict with it.

The case of Buttz v. Northern Pacific Railroad Company, supra, is authority in support of this view. That case involved the right to an odd section in the Territory of Dakota, lying within the forty mile limits, as shown by map of general route filed in the General Land Office, February 21, 1872. This was the only approved map of general route designating the proposed location of the said road through that territory. The court, after observing that the act not only contemplated