further, that no lands designated by the United States as 'mineral' before the passage of this act shall be included within this grant."

The canal was completed and the final certificate of completion given by the governor on June 25, 1875. Prior thereto, and on July 1, 1865, the canal company executed a mortgage of the lands embraced in the first grant; on July 1, 1868, a second mortgage, covering the lands included within the second grant; and on July 1, 1870, a third mortgage, covering all defendant's property. By foreclosure proceedings, the title to all this property became vested in the plaintiff in error. An agent on the part of the state was duly appointed to make the selection of lands covered by these two grants. Among the lands selected by him was the tract in controversy, which was in 1871, and after the second release executed by the governor of the state of Michigan, certified by the land department to the state in part satisfaction of the canal grant. This tract was from 1880 to 1888 assessed to the plaintiff for state, county, township, and other taxes, and such taxes, amounting in the aggregate to $187.26, paid by it.

On March 12, 1888, the defendant settled upon the tract in controversy, and has ever since continued in possession. On May 25, 1888, he applied to the local land office to enter the lands under the pre-emption law, stating in his application that he had lived with his family on the land since the 28th of March prior. This application was rejected on the ground that the land had been selected and certified to the state of Michigan in satisfaction of the canal grant. On March 2, 1889, congress passed an act (25 Stat. 1008), the material portions of which are as follows:

"Sec. 1. That there is hereby forfeited to the United States, and the United States hereby resumes the title thereto, all lands heretofore granted to the state of Michigan by virtue of an act entitled 'An act making a grant of alternate sections of the public lands to the state of Michigan to aid in the construction of certain railroads in said state and for other purposes,' which took effect June 3. 1856, which are opposite to and coterminous with the uncompleted portion of any railroad, to aid in the construction of which said lands were granted or applied, and all such lands are hereby declared to be a part of the public domain;

and pro

"Sec. 2. That nothing * vided further, that this act shall not be construed to prejudice any right of the Portage Lake Canal Company, or the Ontonagon and Brule River Railroad Company, or any person claiming under them, to apply hereafter to the courts or to congress for any legal or equitable relief to which they may now be entitled, nor to prejudice any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies, nor to the prejudice of the right of any person claim

ing adversely to said companies or their assigns, under the laws of the United States.

"Sec. 3. That in all cases when any of the lands forfeited by the first section of this act, or when any lands relinquished to, or for any cause resumed by, the United States from grants for railroad purposes, heretofore made to the state of Michigan, have heretofore been disposed of by the proper officers of the United States or under state selections in Michigan, confirmed by the secretary of the interior, under color of the public land laws, where the consideration received therefor is still retained by the government, the right and title of all persons holding or claiming under such disposals shall be, and is hereby, confirmed: provided, however, that where the original cash purchasers are the present owners this act shall be operative to confirm the title only of such said cash purchasers as the secretary of the interior shall be satisfied have purchased without fraud and in the belief that they were thereby obtaining valid title from the United States. That nothing herein contained shall be construed to confirm any sales or entries of lands, or any tract in any such state selection, upon which there were bona fide preemption or homestead claims on the first day of May, 1888, arising or asserted by actual occupation of the land under color of the laws of the United States, and all such preemption and homestead claims are hereby confirmed.

"Sec. 4. That no lands declared forfeited to the United States by this act shall inure to the benefit of any state or corporation to which lands may have been granted by congress except as herein otherwise provided; nor shall this act be construed to enlarge the area of land originally covered by any such grant, or to waive or release in any way any right of the United States now existing to have any other lands granted by them, as recited in the first section, forfeited for any failure, past or future, to comply with the conditions of the grant. Nor shall the moiety of the lands granted to any railroad company on account of a main and a branch line appertaining to uncompleted road, and hereby forfeited, within the conflicting limits of the grants for such main and branch lines, when but one of such lines has been completed, inure, by virtue of the forfeiture hereby declared, to the benefit or the completed line."

John F. Dillon and Dan H. Bal.. for Lake Superior Ship Canal, Ry. & I. Co. Dou. M. Dickinson, for Cunningham.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The act of June 3, 1856, was a grant in praesenti, and when, by the filing of the map of definite location, the particular tracts were identified, the title to those lands was vested in the state of Michigan, to be dis

posed of by it in aid of the construction of a railroad between Ontonagon and the Wisconsin state line. The lands were withdrawn from the public domain, and no longer open to settlement by individuals for preemption or other purposes. Although there was a provision for the forfeiture of the lands if the road was not completed within 10 years, such provision was a condition subsequent, which could be enforced only by the original grantor, the United States. And until, in some appropriate method, it asserted its right of forfeiture, the title remained in the state of Michigan, or the corporations upon which, from time to time, it conferred the benefit of the grant. Schulenberg v. Harriman, 21 Wall. 44; U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152; U. S. v. Northern Pac. R. Co., 152 U. S. 284, 14 Sup. Ct. 598. The case of Schulenberg v. Harriman, supra, is exactly in point. In that case was considered a land grant to the state of Wisconsin,-a grant with a provision for forfeiture of the lands on a failure to construct the road. After a full consideration of the question, Mr. Justice Field, delivering the opinion of the court, summed up the result in these words: "In the present case no action has been taken, either by legislation or judicial proceedings, to enforce a forfeiture of the estate granted by the acts of 1856 and 1864. The title remains, therefore, in the state, as completely as it existed on the day when the title, by location of the route of the railroad, acquired precision, and became attached to the adjoining alternate sections."

Again, the grant made by the act of June 3, 1856, to the state of Michigan, contemplated separate railroads from Ontonagon to the state line, and from Marquette to the state line. This is obvious from the language of the act. The legislature of the state of Michigan treated it as such, and conferred the grant on two separate corporations. And this distinction has since been recognized again and again, both by the state and United States, down to and including the confirmatory act of congress of March 2, 1889, in which the "Ontonagon and Brule River Railroad Company" is mentioned as one of the companies whose rights were not to be prejudiced by the forfeiture.

Prior to the act of congress of March 2, 1889, there was on the part of the United States no legislative or judicial proceeding looking to a forfeiture of these lands, or a retransfer of them to the United States. Up to that time, therefore, they remained the property of the state of Michigan, to be used by it in aid of the construction of a railroad between Ontonagon and the Wisconsin state line. Whatever changes were made by the state as to the beneficiary of such grant,whatever releases may have been executed by any such beneficiary to the state,-they in no manner operated to retransfer the lands to the United States. It is true that

the governor of the state at one time executed a formal release of them to the United States, but such release was beyond his power. The only authority which he had in the matter was that conferred by the resolution of the legislature of the state of Michigan of February 21, 1867, which described other lands. Indeed, the instrument which the governor executed, in terms, referred to that legislation as his authority, so that no one, after examination, could have been misled.

Further, the grant to the state of Michigan was to aid in the construction of a railroad. Affirmatively, it was declared in the acts of congress that the lands should be applied by the state to no other purpose. Even if there had been no such express declaration, such a limitation would be implied from the declaration of congress that it was granted for the given purpose. As the state of Michigan had no power to appropriate these lands to any other purposes, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do.

The railroad grant, the filing of the map of definite location, and the certification of the lands to the state, were all before the canal grant, so that at that time these lands were identified, separated from the public domain, appropriated to a particular purpose, and not to be considered as within the scope of any subsequent grant by congress, unless in terms made so. General terms in a subsequent grant are always held to not include lands embraced within the terms of the prior grant. Even a patent may be declared void if issued for lands theretofore reserved from sale. This is the settled rule of this court. Wilcox v. Jackson, 13 Pet. 498; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How.* 317; Minter v. Crommelin, 18 How. 87; Easton v. Salisbury, 21 How. 426; Reichart v. Felps, 6 Wall. 160; Morton v. Nebraska, 21 Wall. 660; Shepley v. Cowan, 91 U. S. 330; Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733; Newhall v. Sanger, Id. 761; Sherman v. Buick, 93 U. S. 209; Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Refiving Co., 106 U. S. 447, 1 Sup. Ct. 389; Reynolds v. Mining Co., 116 U. S. 687, 6 Sup. Ct. 601; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228.

From these cases we make these two quotations as clearly setting forth the law applicable to this question. In Smelting Co. v. Kemp, supra, it was said:

"Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of,

or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them; and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed."

And in Doolan v. Carr, supra:

"There is no question as to the principle that where the officers of the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law, as distinguished from suits in equity, subject, however, at all times, to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if those officers acted without authority; if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority,-then their act was void; void for want of power in them to act on the subject-matter of the patent, not merely voidable."

Counsel for plaintiff in error cite several cases in which, power having been given to the secretary of the interior to determine a question of fact, his determination thereof, as expressed by the issue of a patent, was held conclusive. The latest of those cases is Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030, in which the rule was thus stated:

"It is the established doctrine, expressed in numerous decisions of this court, that wherever congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts; and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack."

That case fully illustrates the extent to which the rule goes. The grant to the Northern Pacific was of lands "nonmineral," and it was held that it was a question of fact wheth. er lands were mineral or nonmineral, and that question of fact was for the determina tion of the land department, and, when de termined by it, conclusively settled. But those cases are not pertinent, for here there was no question of fact to be determined. Long prior to any legislation respecting the canal grant, the lands granted to the Ontona gon Company had been identified and set apart. The record thereof was in the office of the land department. By that identifica. tion and certification those lands were absolutely separated from the public domain, and as fully removed from the control of the land department as though they had been already patented to the state. And whether

those lands were or were not returned to the United States, and released from the burden of that grant, was not a question of fact, but one of law, and depended upon the construction to be given to the resolution of the state of Michigan of February 21, 1867.

Much reliance is placed by counsel, in brief and argument, upon the "obvious intent" and the "general understanding." It is said that as indicated by the provisions of the two acts of June 3, 1856, the original plan was the construction of a main line from Fond du Lac* northerly to the state line, and thence, in two branches, to Marquette and Ontonagon, on Lake Superior; that when this plan was changed, and the route from Fond du Lac to the state line abandoned, and a new route, further eastward, substituted in its place, it was to be expected that the original branches would likewise be changed to something to connect with the new main line; that it can not be supposed that congress would contemplate the building of a road from Ontonagon southerly to the Wisconsin state line, with no connections at that place with any other road, and that hence, although only the Marquette line is mentioned in the resolutions of congress and of the state legislature as abandoned, etc., both the Marquette and Ontonagon branches must have been intended. It is insisted that all parties-the railroad companies, the state, and the land department of the United States-so understood the scope of the resolutions, and acted upon that understanding. But it does not follow, because the main line in Wisconsin was moved eastward, that congress deemed it unwise or un necessary to attempt to reach the waters of Lake Superior at Ontonagon. It may have supposed that the aid already granted to the Ontonagon line, and which it did not in terms disturb, was sufficient to insure its construction to a junction with the new main line; or, it may have thought that a line simply opening that part of the state of Michigan to the waters of Lake Superior deserved congressional aid. In the original act granting aid to the state of Michigan, four lines or roads are named in a single sentence. When Congress, by subsequent legislation, selects one only of those lines, and relocates that, it is going very far to say that congress must have intended to abandon one or all of the other three, and to withdraw the aid which it had granted for their construction. Nei ther can it be said that there has been any "general understanding." True, the North western Railway Company, when called upon, executed to the state a release of its interest in the lands granted to aid in the building of the Ontonagon line; but that might well be, because it had no thought of con structing any such line, and had no desire to hold onto a grant which it did not intend to use. It may be conceded that there has been some confusion in the rulings of the department, and in the action of the state offi

cials.

Nevertheless, there has been no uniform interpretation of the condition of things, as is claimed by counsel. On the contrary, there were frequent assertions of right by the state; efforts by it to utilize the grant to the Ontonagon Company in the construction of the proposed road. It cannot be said that there has been general acquiescence in one interpretation. So, after all, as there is no pretense of any proceeding in the way of forfeiture by the United States prior to the act of March 2, 1889, the question must depend upon the scope and effect of the action of the legislature of the state of Michigan; and that, as we have seen, only contemplated a release of the grant so far as it was to aid in the construction of the Marquette & State Line road.

It follows from these considerations that at the time of the passage of the act of March 2, 1889, neither the plaintiff nor defendant had any right or title to the tract in controversy. It, like other lands within the Ontonagon grant, belonged to the state of Michigan, to be disposed of by that state only in aid of the construction of a railroad, and subject to forfeiture by the United States for failure to construct the road.

We come, therefore, to the final question, and that is the true construction of the act of March 2, 1889.

The first section simply declares a forfeiture of the lands opposite to and coterminous with the uncompleted portion of any railroad in aid of which the grant of 1856 was made. So far as the parties to this controversy are concerned, that is the whole sigaificance of the section. As to them, it grants nothing and withdraws nothing. And as, at the time of the passage of the act, neither settler nor company had any right or title to the lands, if this were the only section it would operate simply to resume the title to the United States, clear the lands of all pretense of adverse claims, and add them to the public domain, to be thereafter disposed of as other public lands are disposed of. The second and third sections are the troublesome parts of the act, and it must be conceded that the true construction is not altogether obvious; and yet when the situation, as it existed and as it was known to congress, is considered, the meaning can be satisfactorily discerned. Some of the lands had been selected and certified to the state of Michigan by the officers of the land department in part satisfaction of the canal grant. Some were occupied by settlers claiming the right of pre-emption and homestead, and of these some were lands which had been selected and certified to the state. Possibly, some were claimed by the state or individuals under the swamp-land act, or other acts of congress. Congress knew that these lands, the title to which it was purposing to reFume discharged of all right on the part of the state of Michigan to use them in aid of

the construction of a railroad, were already subject to other and conflicting claims, of no legal validity, yet of a character justifying consideration. Under those circumstances, with the view of securing an equitable adjustment of these conflicting claims, it enacted the second and third sections of this act. It will be more convenient to consider the third section first. That recognizes that certain of these lands had been heretofore "disposed of by the proper officers of the United States or under state selections in Michigan confirmed by the secretary of the interior, under color of the public land laws,” and declares that, if the "consideration received therefor is still retained by the gov ernment," the title of the lands thus disposed of "shall be and is hereby confirmed.” Now, there had been, as appears, state selections in Michigan of a portion of these lands for the canal company, which selections had been confirmed by the secretary of the interior, and such selections were made under color of the acts of congress making the canal grant. This makes a case apparently within the scope of the confirmation. But this is denied, because-First, the selections were under color of special grants to aid in the construction of the canal, and not under color of the general laws in respect to the disposal of public lands; and, secondly, because the government received no consideration therefor, and, of course, cannot be said to still retain that which it never received. This view is, as is claimed, also supported by the proviso immediately following, to wit, "that where the original cash purchasers are the present owners," etc., as though the confirmation was intended to apply to those only who had paid money to the government, and in that way had obtained a claim of title to the lands. There is some force to this contention, but we think it places too narrow a construction upon the language. It does not appear from this record, except inferentially from a letter of the commissioner of the general land office, that there were any selections of lands within the railroad grant made by the state, otherwise than in attempted satisfaction of the canal grant, and we are not aware of any act of congress granting lands to the state of Michigan for any purpose, cash considerations for which were to be paid by the state, or received by the general government; while it does appear that the attention of congress was called to the fact that selections had been made by the state, and confirmed by the secretary of the interior, of lands within this railroad grant for the purpose of satis fying the canal grant. The language must be understood as intended by congress to be applicable to the state of facts as it existed and was known to exist, and not to a state of facts which did not and could not exist. Hence, the term "public land laws," fairly construed, refers, not simply to the statutes

making general disposition of the public domain, but to any laws of congress, special or general, by which public lands were disposed of. So the phrase, "where the consideration received therefor is still retained by the government," is satisfied whenever the conditions of the attempted conveyances have been fully complied with. Thus, if any of the lands had been disposed of by the proper officers of the government to individuals, under the homestead laws, it could properly be held that the consideration received for such conveyances was still retained by the government, although, in fact, no money had been paid, for the consideration which the government had provided for the conveyance of such lands was the actual occupation by the homesteader for the specified period. It will be difficult to discover any equitable reason why a pre-emption claim should be confirmed, and a homestead claim disallowed. In like manner, where a grant was made to the state in aid of the construction of some work of a public or quasi public character, the construction of the work is the consideration of the grant, and when that is accomplished the consideration is received and retained by the government. Here it appears from the testimony that the canal was completed, and therefore the consideration of the grant was received and retained by the government. Any other construction than this would leave the provision as to state selections in Michigan, confirmed by the secretary of the interior, without significance. So, also, the proviso as to original cash purchasers is not to be taken as implying that the confirmation only extends to cash purchases, but as making a further limitation as to some of those in whose behalf the confirmation is proposed, to wit, those who were cash purchasers, and are still owners; the limitation being that as to them the act shall be operative only when, as is said, the secretary of the interior shall be satisfied that they purchased without fraud, and in the belief that they were obtaining valuable title from the United States. In other words, the rule of bona fides was applied to lands still held by the original cash purchaser. This, by implication, excluded from its operation lands held by proper conveyances without notice from the original purchasers. And this is the ordinary limit of the application of the rule of bona fides. It was doubtless deemed unnecessary to make a like provision as to state selections, because fraud could not be imputed to the state. This construction, and this alone, gives operative force to all the clauses of this confirmatory clause, as applied to the actual facts of the case, and should be received as the true construction. By this confirmatory clause, thera fore, the title of the canal company was confirmed as to the lands selected and certified, with the approval of the secretary of the interior, in satisfaction of the canal grant. v.15s.c.-8

The only limitation upon this confirmation is found in the closing sentence of that section. That provides that this confirmation shall not extend to any tracts "upon which there were bona fide pre-emption or homestead claims on the first day of May, 1888, arising or asserted by actual occupation of the land under color of the laws of the Unit-* ed States, and all such pre-emption and homestead claims are hereby confirmed." Evidently, the intent of congress was that, in all cases of a conflict between a selection in aid of the canal grant and the claims of any settler, the confirmation should depend upon the state of things existing at a named date, to wit, May 1, 1888, that date being about 10 months prior to the passage of the act. If at that time there were no bona fide pre-emption or homestead claims upou any particular tract, the title of the canal company was confirmed. If, on the other hand, there was then a bona fide pre-emp tion or homestead claim, arising or asserted by actual occupation of the land under color of the laws of the United States, such preemption or homestead claim was to have preference, and was confirmed. It was the purpose to not leave open to dispute between the parties any question as to the relative equities of their claims, but to fix a precise time, and to describe with particularity the conditions which must exist at that time in order to give the one priority over the other. As there could be no valid transfer of a preemption or homestead claim, it was unnecessary to distinguish between such claimants and their grantees, as was previously done in respect to cash purchasers. The claim of any settler coming within the scope of this clause was declared by it prior to the claim of the canal company, and was also, as against the United States, confirmed. So that, in any dispute which in this case arises, we must look to the condition of things on the 1st of May, 1888, in order to determine whether the defendant's homestead claim, or the certification to the canal company, was confirmed.

Before passing to an inquiry as to this question of fact, it is necessary to refer to those provisions of section 2 which, it is insisted, are inconsistent with that confirmation of the canal selections which we have seen was the purpose of the fore part of section 3. Section 2, after clauses which have no bearing upon this question, names three distinct matters, which it is said are not to be construed as prejudiced by "this act." First, "any right of the Portage Lake Canal, Company, or the Ontonagon and Brule River Railroad Company, or any person claiming under them to apply hereafter to the courts or to congress for any legal or equitable relief to which they may now be entitled." It will be borne in mind that it is "this act,"not the forfeiture, not the confirmation, nor any separate provision of the act, but the act