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July, 1830, and proclaimed on the twenty-fourth of February, 1831, (7 St. 328,) certain lands were ceded and relinquished to the United States, “to be assigned and allotted, under the direction of the presi. dent of the United States, to the tribes now living thereon, or to such other tribes as the president may locate thereon for hunting and other purposes." The north line of this cession is described in the treaty as follows: “Beginning at the upper fork of the Des Moines river and passing the source of the Little Sioux and Floyds rivers to the fork of the first creek, which falls into the Big Sioux or Calamet on the east side.” The lands north of this line were occupied by the Sioux, and those south were held by the United States for the purposes set forth in the treaty. Whether the lands in controversy in this suit are sitdated north or south of this boundary line depends on whether the east branch or the Lizard made the upper fork of the Des Moines, as understood by the parties when the treaty was concluded. If the Lizard, then all are north of the line; if the east branch, all, or nearly all, are south.

On the twenty-eighth of July and the fifth of August, 1851, treaties were negotiated with the Sioux, by which they surrendered all their title to lands in Iowa. The ratification of these treaties, in the form they were originally made, was not advised by the senate, but on the twenty-third of June, 1852, certain amendments were proposed, on the acceptance of which the president was authorized to conclude the treaties “as amended." The amendments were agreed to by the Indians on the fourth and eighth of September, 1852, and the ratification of the treaties was duly proclaimed on the twentyfourth of February, 1853.

The grant to Iowa under the act of 1846 was of "one equal moiety, in alternate sections, of the public lands, (remaining unsold and not otherwise disposed of, incumbered, or appropriated,) in a strip five miles in width on each side of said river, to be selected," etc., and the odd-numbered sections were afterwards selected. A question arose as to the extent of this grant, and as early as February 23, 1848, the commissioner of the general land-office certified to the officers of the state that, in the opinion of "his office," the state was “entitled to the alternate sections within five miles of the Des Moines river throughout the whole extent of that river within the limits of Iowa.” The state claimed that the grant extended from the mouth of the river to its source. Notwithstanding the opinion of the land. office and the claim of the state, a proclamation was issued by the president on the nineteenth of June, 1848, ordering into market some of the lands which lay above the Raccoon Fork. This led to a protest on the part of the officers of the state, and a correspondence between the representatives of the state in congress and the secretary of the treasury, whose department then had charge of the public lands, which resulted in the announcement by the secretary, on the second of March, 1849, of his opinion that the grant extended from the mouth to the source of the river, not, however, including any lands in the state of Missouri. In accordance with this opinion, instructions were issued from the general land-officers to the land-offi- * cers in Iowa, on the first of June, 1849, "to withhold from sale all the lands situated in the odd-numbered sections within five miles on each side of the river above the Raccoon Fork." This, however, did not settle the matter, and conflicting opinions were announced at various times by different officers of the executive departments of the government. Finally, on the twenty-second of February, 1851, the state officers formally notified the secretary of the interior, to whose department the charge of the public lands had before that time been assigned, of the demand by the state of “all the odd sections of land within five miles of the Des Moines river above the Raccoon Fork." After this the whole matter was brought before the president and cabinet, and the decision arrived at by them is indicated in the following letter of the secretary of the interior:


“ WASHINGTON, October 29, 1851. “SIR: I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month.

“I have considered and carefully reviewed my decision of the twenty-sixth July last, and in doing so find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country, and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the state, I am willing to recognize the claim of the state, and to approve the selections without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my approval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the state of Iowa above the Raccoon Fork, as far as the surveys have progressed or may hereafter be completed and returned.

"Very respectfully, etc., etc.,

“A. H. H. STUART, Secretary. "The Commissioner of the General Land-Office."

In obedience to these instructions, lists were made out as the surveys progressed, and submitted to the secretary for his approval. His last approval, before the passage of the railroad grant of 1856, was on the seventeenth of December, 1853. The lands now in controversy were not surveyed at that time, and were not included in this or any of the lists previously made.

It is undoubtedly true, as was said in Leavenworth, etc., R. Co. v. U. S. 92 U. S. 743, that, “in the absence of words of unmistakable import,” it will not be presumed that congress has made a grant of lands to which the Indian title has not been extinguished; but there


are, nevertheless, instances, as in the case of the Pacific railroads, where this has been done. Confessedly, however, in this case the congressional grant of 1846 did not include the lands now in controversy.

Whatever reservation there was to interfere with the railroad grant of 1856 grew out of what was done by the executive officers of the government after the act of 1846 was passed, and while its effect was in doubt. That the state claimed all the alternate sections within five miles of the river, on each side, and as far north as the state line, is not denied. That the intention of the president and his cabinet was to make the reservation as broad as the claim, is, to our minds, perfectly apparent from the language of the instructions of the secretary of the interior to the commissioner of the general landoffice in his communication of the twenty-ninth of October, 1851. His words are: “I am willing to recognize the claim of the state, and approve the selections without prejudice to the rights, if any there be, of others, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary." He then directed lists of selections to be prepared, and*submitted for his approval, as the surveys were completed and returned. At this time all the Indian title that could, by any possibility, interfere with the grant, as claimed by the state, was in the process of extinguishment. Treaties which were to have that effect had already been negotiated with the Indians, and were waiting ratification by the United States. There could hardly have been a doubt in the minds of any of the parties that long before any judicial determination of the matters in dispute every vestige of Indian title would be gone. Hence, to leave “the question of the construction of the statute"—that is to say, the effect of the grant"entirely open,” all the lands within the limit, surveyed or unsurveyed, and, as we think, incumbered by an Indian title or unincum. bered, were reserved from sale until the “action of the judiciary.” This reservation was in force when the act of 1856 was passed, and it is the reservation which this court has held prevented the grant under that act from attaching to the lands within the limits of the river grant, as claimed by the state. The act of 1862 afterwards, in express terms, granted to the state, for the use of its grantees, "the alternate sections, designated by odd numbers, lying within five miles of said river, between the Raccoon Fork and the northern boundary of the state.” At this time there was no Indian title in the


of the grant, and if the reservation was good as against the railroad companies in 1856, the title of the Des Moines Valley Railroad Com. pany, the grantee of the state, was perfected.

2. As to the east branch. Much of what has been said about the Indian title applies to this objection. The state claimed the lands along the river, and the reservation as promulgated was of what was claimed. No one now supposes the east branch was in fact the Des Moines river. It is undoubtedly true that at some time some officers of the government, as well as some officers of the state, supposed the branch was tho main river, and acted accordingly, but that does not change the geographical fact that what was taken for the river was only a branch. The lists of selections along the branch, and their approval by the secretary, were mistakes, which the record shows were corrected in the final. settlements between the state and the United States by allowances in account. The same may be said of the marks on the plats sent out from the general land-office to the local land-officers. They were clerical mistakes, growing out of an imperfect knowledge of the geography of the country. They did not change the reservation, but only gave wrong information as to what

There is no question of estoppel as a consequence of the mistake involved. The railroad grant of 1856 was subject to the reservation for the river grant. There is no pretense of fraud any. where, and the record does not show that the conduct of the appellants or their grantors has been in any way influenced by the plats or the unauthorized selections and certificates. They knew, or ought to have known, that the reservation was confined to the river lands, and that the branch was not the river. Hence the reservation is to bave effect according to its terms, and not according to any mistaken interpretation which may at some time have been given to it.

Wo find no error in the record, and the judgment is affirmed.

it was.

(109 U. 8. 244)

LOUISVILLE & N. R. Co. v. PALMES, Collector, eto.

(November 19, 1883.)



As the exemption of railroad companies from taxation, created by the eighteenth In deciding whether a judgment of the supreme court of state gives effect to a

section of the act of January 6, 1855, passed by the general assembly of Florida, “to provide for and encourage a liberal system of internal improvements” in that state, was not assignable, the right to such exemption was not acquired by the Pensacola Railroad Company by the conveyances in this case, and could not be by it transferred to the Louisville & Nashville Railroad Company; and as the legislature, after the adoption of the state constitution of 1868, could not create a railroad corporation capable in law of acquiring and holding property free from taxation, no exemption was conferred by the act of 1872 on the Pensacola & Louisville Railroad Company, or by the act of 1877 on the Pensacola Railroad Company, the successor of the Pensacola & Louisville, which the latter company could transfer to the Louisville & Nashville Railroad Company, that company acquired no such privilege, and the act of March 5, 1881, imposing a tax on that company, is not unconstitutional as impairing the obligation of

an existing contract. A fact impossible in law cannot be admitted by demurrer.


law of the state which, in violation of the constitution of the United States, impairs the obligation of a contract, this court will decide, independently of the decisions of the state courts, whether there is a contract and whether its obligation is impaired; and if the decision of the question as to the existence of the alleged contract requires a construction of state constitutions and laws, the court will not necessarily be governed by the previous decisions of the state courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property.


In Error to the Supreme Court of the State of Florida.
John L. Cadwalader, for plaintiff in error.
E. A. Perry, for defendant in error.

MATTHEWS, J.. This is a writ of error bringing into review a de. cree of the supreme court of Florida, dismissing a bill in equity filed by the plaintiff in error, which sought to enjoin the defendant, a collector of revenue under the laws of Florida for the county of Es. cambia, from collecting, by a sale of property levied on for that purpose, certain taxes claimed by him to be due from the complainant.

The ground of our jurisdiction is, as stated and shown in the record, that in the cause wherein the decree complained of was rendered there was drawn in question the validity of a statute of the state of Florida, to-wit, “An act entitled an act for the assessment and collection of revenue,” approved March 5, 1881, wherein and whereby certain taxes for state and county purposes were impused upon the line of railroad extending from the city of Pensacola, in the state of Florida, to the northern boundary of the state of Florida, in the direction of Montgomery, Alabama, of which railroad the plaintiff in error is in possession and is owner; the validity of this statute being questioned on the ground that it was repugnant to the constitution of the United States, in that it impaired the obligation of a contract, and the decision of the supreme court of Florida being in favor of its validity.

The contract, the obligation of which it is alleged has been thus impaired, and of which the plaintiff in error claims the benefit, is as. serted to arise as follows:

The general assembly of the state of Florida passed an act, wirich took effect January 6, 1855, entitled "An act to provide for and encourage a liberal system of internal improvements in tlie state,” the preamble to which recites that

“The constitution of the state declares that a liberal system of internal ima provements, being essential to the development of the resources of the country, shall be encouraged by the government of this state, and it shall be the duty of the general assembly, as soon as practicable, to ascertain by law proper objects of improvements in relation to roads, canals, and navigable streams. and to provide for a suitable application of such funds as may be appropriated for such improvements."

The act then proceeds to create an internal improvement fund to aid in the construction of certain described railroads, and other works of internal improvement, by means of corporations organized or to de

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