which was refused by the court. In February, 1886, Karrick V. Z. Riggs, Francis B. Riggs, and William C. Riggs, of New York, filled intervening petitions, alleging ownership of second mortgage bonds, and praying to be admitted as parties entitled to share in the relief prayed for. On December 7, 1887, after final hearing, a decree was filed dismissing the bills. On Nåvember 6, 1889, an appeal was allowed to this court. The principal grounds for relief stated in the bill were illegality in the form and manner of the sale, and fraud and collusion between Dickerson, Yulee, and others, the purchasers, sufficient to vitiate the sale, even if it were valid in form. The charge of illegality in the sale of the railroad is based on two particulars: First, that the power of sale given to the trustees of the internal improvement fund in the act approved January 6, 1855, entitled "An act to provide for and encourage a liberal system of internal improvements in this state," did not authorize a sale, even in event of a default, until after the completion of the railroad in question, and that the said railroad was not completed at the time of the sale; and, secondly, because the persons who officiated as such trustees and made the sale were not lawfully constituted officers of the state, and their action was consequently null and void. The original company was incorporated by an act approved January 8, 1853, entitled "An act to incorporate a company to construct a railroad across the peninsula of Florida, under the style of the Florida Railroad Company." The route of the railroad was thus designated in the second section of the act: "That the said railroad shall commerce in East Florida, upon some tributary of the Atlantic Ocean, within the limits of the state of Florida, having a sufficient outlet to the ocean to admit of the passage of sea steamers, and shall run through the eastern and southern part of the state in the most eligible direction to some point, bay, arm, or tributary of the Gulf of Mexico in South Florida, south of the Suwanee river, having a sufficient outlet for sea steamers, to be determined by a competent engineer, with the approval of a majority of the directors of the said company." Under this proviso, a route was selected beginning at Fernandina, on Amelia Island, and terminating at Cedar Keys, being on a bay of the Gulf of Mexico, and south of the Suwanee river. Afterwards the general improvement act of January 6, 1855, was passed, in the fourth section of which were enumerated certain lines of railroad as proper improvements to be aided in manner provided in said law, and among them "a line from Amelia Island, on the Atlantic, to the waters of Tampa Bay, in South Florida, with an extension to Cedar Key." The fifth section of the act provided that the several railroad companies then orv.15s.c.-34 ganized or chartered by the legislature, or that might thereafter be chartered, any portion of whose routes, as authorized by their different charters and amendments, should be within the lines or routes laid down in section 4, should have the right and privilege of constructing that part of the line embraced by their charter, on giving notice to the trustees of the internal improvement fund of* their full acceptance of the provisions of said act, specifying the part of the route they proposed to construct. The Florida Railroad Company, it is undeniably shown, gave such notice of acceptance, specifying the line from Amelia Island to Cedar Keys as the part of the route which it proposed to construct, and on June 11, 1855, entered into a contract with Joseph Finegan & Co., whereby the latter agreed to construct a railroad from Fernandina, on Amelia Island, to Cedar Keys, in all respects conformable to the requirements of the general improvement act of January 6, 1855. Afterwards. in December, 1855, the legislature authorized the Florida Railroad Company to "construct the railroad from Amelia Island, on the Atlantic, to the waters of Tampa Bay, in South Florida, with an extension to Cedar Key, in East Florida, under the provisions of the act approved January 6. 1855." The line between Amelia Island and Cedar Keys was completed in 1881. The general improvement act of January 6, 1855, authorized companies accepting its provisions to issue first mortgage bonds at the rate of $10,000 per mile, which bonds were to be countersigned by the state treasurer and the trustees. It was further provided that the railroad company should pay to the trustees of the improvement fund 50 per cent. of its net receipts every six months, to be applied by the trustees towards the payment of the interest on the bonds of the. company, and should further pay, after the completion of the road, to the trustees, at least one-half of 1 per cent. on the amount of indebtedness or bond account as a sinking. fund. Upon the failure of any railroad company accepting the provisions of the act to provide interest on the bonds issued by it and the percentage for the sinking fund, it was. made the duty of the trustees, after the expira tion of 30 days from said default or refusal, to take possession of said railroad and all its property, and to advertise the same for sale at public auction to the highest bidder, either for cash or approved security, as they might think most advantageous; the proceeds to be applied to the purchase and can-i celing of outstanding bonds, but the purchasers of the road to be bound to continue the payment of 1 per cent. into the sinking fund until all the outstanding bonds should be discharged. In pursuance of these provisions and of the contracts of June, 1855, the Florida Rail road Company issued and paid over to the contractors and their successors, from time to time as the work progressed, all its first mortgage bonds, secured by a mortgage on its railroad from Fernandina to Cedar Keys, and also a portion of its bonds, secured by a mortgage which was a second lien on the railroad from Fernandina to Cedar Keys, but a first lien on certain town sites and other lands belonging to the company. As heretofore stated, the road from Fernandina to Cedar Keys was completed in 1861, and, the company having failed to pay its interest, the trustees of the internal improve ment fund took possession of the road, and sold it at auction to the highest and best bidder, as provided for in the act of 1855. The contention now is that such sale was void, because the road between Fernandina and Cedar Keys was not the road designated and pointed out, in the various acts of the legislature, as the one on whose completion and after default the trustees were authorized to sell; that the road intended should extend from Fernandina to Tampa Bay. We think that this contention has not been successfully maintained. No doubt, some of the language used in the act of 1853 and in the amendatory act of December, 1855, might be read as indicating or designating Tampa Bay as the western terminus of the railroad, and Cedar Keys as the terminus of a branch or extension. Yet the history of the legislation and of the transactions thereunder satisfactorily shows that such a construction was not put upon the acts of incorporation, either by the company itself, by the contractors who constructed the road, by the trustees of the internal improvement fund, or by the state of Florida. As we have seen, the company, in accepting the benefits of the act of January 6, 1855, designated the road which they intended to build as extending from Amelia Island in the direction of Tampa, as far as a point proper for divergence to Cedar Keys, and from said diverging point to Cedar Keys. In the same letter of acceptance it was further said that, If the amendment to their charter then pending in the legislature (meaning the act of December, 1855) were granted, they would also construct the balance of the road to Tampa. Before the act of December, 1855, was passed, the company contracted for the construction of the road from Fernandina to Cedar Keys, and agreed to pay the contractors with first mortgage bonds upon that road, and these bonds and mortgage were issued accordingly. Subsequently the company made separate contracts for the construction of the route from the diverging point to Tampa, and put a distinct mortgage upon it. The railroad company, upon the completion of its road to Cedar Keys, and the trustees of the improvement fund recognized this as a road completed under the provisions of the act of 1855; the one by paying, and the other by receiving, the interest and the sinking fund charges on the first mortgage bonds from March, 1861, to November 5, 1863, when default was made. The contractors agreed to build the road as an entirety from Fernandina, or Amelia Island, to Cedar Keys, and accepted in payment, and sold to the public, bonds of the company, secured by a first mortgage there on. The trustees of the improvement fund not only recognized these first mortgage bonds as securities coming within the provisions of the act of 1855 by receiving and applying the interest paid them by the company, but at last, in 1866, took possession of the road and franchises, as they were empowered to do in the act, and sold them to parties, who organized a new company. Finally, the state of Florida, by its act of January 18, 1872, recognized the new company as one owning the property formerly be longing to the Florida Railroad Company, and authorized its change of names. The second ground relied on by the appellants, as Invalidating the regularity of the sale, is the allegation that the persons who acted as trustees of the internal improvement *fund, in taking possession of the railroad and selling it, were not legally entitled to act as such; that they were not really officers of the state of Florida. The second section of the act of January 6, 1855, declares that the governor of the state, the comptroller of public accounts, the state treasurer, the attorney general, and the register of state lands, and their successors in office, shall constitute the trustees to act under the provisions of the act. And we are asked to take notice of the historical facts of the Civil War, and that the state government of Florida, in 1866, was declared by the act of March 2, 1867, to be illegal, and that between the outbreak of the Rebellion and the adoption by the people of Florida, in May, 1868, of a new constitution, there was an interim or interregnum, during which there were no state officers in Florida qualified and compe tent to exercise the powers and duties of trustees of the internal improvement fund in accordance with the provisions of the act of 1855. This contention is disposed of by referring to the well-settled doctrine, affirmed in re peated decisions of this court, that "the acts of the several states, in their individual capacities and of their different departments of government,-executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority or the just rights of citizens under the constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society or do a way with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime 279. prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects when they were not hostile in the purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution." Horn v. Lockhart, 17 Wall. 570. In Sprott v. U. S., 20 Wall. 459, the same views were expressed: "The insurgent states merely transferred the existing state organizations to the support of a new and different national head. The same constitutions, the same laws for the protection of property and personal rights, remained, and were administered by the same officers. These laws, necessary in their recognition and administration to the existence of organized society, were the same, with slight exceptions, whether the authorities of the state acknowledged allegiance to the true or false federal power. They were the fundamental principles for which civil society is organized into government in all countries, and must be respected in their administration under whatever temporary dominant authority they may be exercised. It is only when, in the use of these powers, substantial aid and comfort were given, or intended to be given, to the Rebellion, when the functions necessarily reposed on the state for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are void." Without further citation or consideration, we conclude that the act of the trustees in selling this railroad in November, 1866, cannot be impeached for want of power to act. It is next claimed on behalf of the appellants that the sale and conveyance of the railroad were voidable by reason of the alleged fraud and collusion of the defendants Yulee, Dickerson, and their associates, conspiring together to procure the default of the Florida Railroad Company in the payment of its interest, and thus to bring about the sale of the road. We do not feel constrained to enter at length into a discussion of the evidence adduced under this part of the case. We have, however, examined the evidence, and considered it in the light of the verbal and printed arguments on behalf of the appellants; but we are unable to see that the complainants have overcome the direct, positive, and responsive answers of the several defendants. As against those answers, the complainants have adduced very little, if any, satisfactory proof. The weight of the evidence, apart from the evidential character of the answers, is clearly to the effect that the railroad, at the time of the sale, was in a thoroughly dilapidated condition, and that, in view of such condition and of the state of the country, the price realized was not inadequate. The court below, in dismissing the bills, proceeded chiefly on the ground that the complainants had lost whatever rights they might have had by their gross laches. In this view of the case we fully concur. Robert H. Johnson did not file his bill till nearly seven years had elapsed from the time of the sale, and he gives no satisfactory explanation of his delay. Within that time, in May, 1869, a mortage had been issued by the new company to Stewart and Conkling as trustees, and who are parties defendant by intervention. This mortgage was to secure an issue of bonds amounting to $2,300,000, the proceeds of which have gone into the reconstruction and equipment of the railroad. Those trustees and the purchasers and holders of those bonds must be deemed bona fide purchasers, without notice of the claim of the complainants. The other complainants, Corcoran and Riggs, did not come into the case till it had been pending for years. Neither do they or Johnson give any explanation of their long delay. They do not aver any concealment of the facts as they existed at the time of the sale of the road in 1866. They do not aver, much less prove, that they were in ignorance of those facts, or that they were in anywise prevented or impeded from ascertaining the facts or from instituting proceedings. In In Galliher v. Cadwell, 145 U. S. 368, 12 Sup. Ct. 873, this court said: "In Harwood v. Railroad Co., 17 Wall. 78, a delay of five years on the part of stockholders in a railroad company in bringing suit to set aside judicial proceedings, regular on their face, under which the railroad was sold, was held inexcusable. In Oil Co. v. Marbury, 91 U. S. 587, a director of a company who had loaned money to it, and subsequently bought its property at a fair public sale by a trustee, was protected in his title as against the corporation, suing four years thereafter to hold him as trustee of the property for its benefit, it appearing that in the meantime the property had increased rapidly in value. Brown v. County of Buena Vista, 95 U. S. 157, a county was held barred by its laches from maintaining, at the end of 7 years, a suit to set aside a judgment fraudulently obtained against it; and that, too, though it did not affirmatively appear that the supervisors of the county had knowledge of the existence of the judgment until about 20 months before the commencement of the action. * * The cases proceed upon the theory that laches is not, like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced,-an inequity founded upon some change in the condition or relations of the property or the parties." In Johnston v. Mining Co., 148 U. S. 360, 13 Sup. Ct. 585, it was said: "The law is well settled that, certain lands, and require defendants to convey them to complainant. The circuit court sustained a demurrer to the bill, and dismissed the suit. Complainant appealed. The appellant, who was the plaintiff below, claimed to be possessed of the equitable title to certain lands, the legal title to which is in the appellee Frederick T. M. Wenie, by virtue of a patent issued by the United States States January 25, 1890. where the question of laches is in issue, the | sie Wenie, his wife, to establish a trust in plaintiff is chargeable with such knowledge as he might have attained upon inquiry, provided the facts already shown by him were such as to put a man of ordinary intelligence on inquiry. This principle was applied in Foster v. Railroad Co., 146 U. S. 88, 13 Sup. Ct. 28, in a case where a stockholder in a railroad company sought to set aside the sale of a railroad, which had taken place ten years before, when the facts upon which he relied to set aside the sale were of record, and within easy reach. * * Where prop-❘ erty has been developed by the courage and energy, and at the expense, of the defendants, courts will look with disfavor upon claims of those who have lain idle while awaiting the results of this development, will require not only clear proof of fraud, but prompt assertion of plaintiff's rights." We are thus brought to the conclusion that the appellants have not sustained their claim that the action of the trustees in making the sale of the railroad was void, either from a mistake in interpreting the meaning of the statutes or from any want of power as official persons; that they have likewise failed to show by preponderating evidence any fraud or collusion on the part of Dickerson and his associates in their purchase of the Florida Railroad; and, finally, that they are precluded by the long and unexplained lapse of time between the acts complained of and the institution of legal proceedings from maintaining such proceedings as against innocent third parties whose interests have become involved. The decree of the court below dismissing the bills of complaint is affirmed. (157 U. S. 46) FROST v. WENIE et ux. CONSTRUCTION OF STATUTES-REPEAL-VIOLATION 1. Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court-no purpose to repeal being clearly expressed or indicated-is, if possible, to give effect to both. 2. Lands ceded by the Osage Indians to be sold by the United States, and the proceeds held in trust for their benefit, were directed (21 Stat. 143, § 2) to be sold to settlers "having the qualifications of pre-emptors on the public lands." By a subsequent act (Id. 311) congress directed part of the lands belonging to the Ft. Dodge military reservation to be opened for settlement "under the homestead laws. A small fraction of these lands was included within the overlapping limits of the ceded Osage lands. Held, that this latter act, in the absence of an express repeal of the former one, should be construed as not applying to the Osage lands, especially as the opposite construction would violate the trust established by the treaty. Appeal from the Circuit Court of the United States for the District of Kansas. This was a suit in equity by Daniel M. Frost against Frederick T. M. Wenie and Jes *The relief sought by the bill is a decree declaring the legal title to be held in trust for the plaintiff, and requiring the defendant to convey such title to him. The lands in dispute constitute a part of what are known as the "Osage Indian Trust and Diminished Reserve Lands in Kansas," included within what was once the Ft. Dodge military reservation, established June 22, 1868. They are lots 9, 10, 11, and 12 in section 25, township 26 S., of range 25 W., and lots 14 and 15 of section 30, township 26 S., range 25 W., in Ford county, Kan. The appellant made a homestead entry of these lands on the 1st day of October, 1881, at the Larned, Kan., land office. This entry was made under the assumption that the lands had been restored to the public domain by the act of congress approved December 15, 1880, which declared that the Ft. Dodge military reservation was no longer needed for military purposes, and authorized the secretary of the interior to dispose of a part of the lands within that reservation to actual settlers under the provisions of the homestead law. 21 Stat. 311, c. 1. The case turns on the construction of that act, the controlling question being whether congress intended to open to actual settlers under the homestead laws such of the lands, within the limits of the abandoned military reservation, lying north of the railroad track, as were part of the Osage trust lands. The court below held that it did not. The principal ground of the decision was that a different interpretation is not required by the terms of the statute, and would be inconsistent with the treaties between the United States and the Osage Indians, and with the previously declared purpose of congress in reference to the Osage lands. Before looking at the language of the act of December 15, 1880, it will be well to recall the history of these lands, as well as the relations between the United States and the Osage Indians, as shown by treaties and by legislative enactments. One of the articles of the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians, established a reservation in what is now the southern part of Kansas, which those Indians could occupy as long as they chose to do so. 7 Stat. 240. By an act approved January 9, 1837, it was provided: "Section 1. All moneys received from the sales of lands, that have been, or may be hereafter, ceded to the United States by Indian tribes, by treaties providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded by them, respectively, after deducting the expenses of survey and sale, any sums stipulated to be advanced, and the expenses of fulfilling any engagements contained therein, shall be paid into the treasury of the United States in the same manner that moneys received from the sales of public lands are paid into the treasury. Sec. 2. All sums that are or may be required to be paid, and all moneys that are or may be required to be invested by said treaties, are hereby appropriated in conformity to them, and shall be drawn from the treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the president." 5 Stat. 135. In the act of July 22, 1854, establishing the offices of surveyor general of New Mexico, Kansas, and Nebraska, is a provision "that all the lands to which the Indian title has been or shall be extinguished within said territories of Nebraska and Kansas shall be subject to the operations of the pre-emption act of fourth September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned." 10 Stat. 308, 310. By the act of May 20, 1862, the object of which was to secure homesteads to actual settlers on the public domain, it was provided, among other things, that all lands subject to pre-emption entry might be acquired by homesteaders without the payment of cash therefor. 12 Stat. 392. And by the act of June 2, 1862, establishing ■ land office in the territory of Colorado, and for other purposes, it was declared "that all lands belonging to the United States to which the Indian title has been or shall be extinguished shall be subject to the operation of the pre-emption act of September 4, 1841, and under the conditions, restrictions, and stipulations therein mentioned." 12 Stat. 413. On the 29th day of September, 1865, another treaty was made between the United States and the Great and Little Osage Indians. It was amended in 1866, and proclaimed January 21, 1867. By its first article the Indians granted and sold to the United States the lands within the following boundary: "Beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles to the northeast corner; thence west with the northern line thirty miles; thence south fifty miles, to the southern boundary of said reservation; and thence east with said southern boundary to the place of beginning: provided, that the western boundary of said land herein ceded shall not extend further westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the state of Kansas." The consideration for this sale was the agreement of the United States "to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the secretary of the interior may from time to time direct." By the same article of the treaty it was provided that "said lands shall be surveyed and sold, under the direction of the secretary of the interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, including any act granting lands to the state of Kansas in aid of the construc tion of a railroad through said lands, but no pre-emption claim or homestead settlement shall be recognized: and after reimbursing the United States the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the 'civilization fund,' to be used, under the direction of the secretary of the interior, for the education and civilization of Indian tribes residing within the limits of the United States." 14 Stat. 687, 692. The Indians, by the second article of this treaty, ceded to the United States other lands, constituting a tract of 20 miles in width from north to south, off the north side of the remainder "of their previous reservation," extending its entire length from east to west. As to this cession it is provided: "Which land is to be held in trust for said Indians, and to be surveyed and sold for their benefit under the direction of the commissioner of the general land office, at a price not less than one dollar and twenty-five cents per acre as other lands are surveyed and sold, under such rules and regulations as the secretary of the interior shall from time to time prescribe." 14 Stat. 687, 692. "The proceeds of such sales, as they accrue, after deducting all expenses incident to the proper execution of the trust, shall be placed in the treasury of the United States to the credit of the said tribe of Indians; and the interest thereon, at the rate of 5 per centum per annum, shall be expended annually for building houses, purchasing agricultural implements and stock animals, and for the employment of a physician and mechanics, and for providing such other necessary aid as will enable said Indians to commence agricultural pursuits under favorable circumstances: provided, that 25 per centum of the net proceeds arising from the sale of said trust lands, until said percentage shall amount to the sum of $80,000, shall be placed to the credit of the school fund of said Indians; and the interest thereon, at the rate of 5 per centum per annum, shall be expended semi-annually for the |