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waived the question which it now wishes to present here.

The motion to dismiss the writ of error is granted.

title had passed by approval of Secretary under act of 1849, or issuing of a patent under act of 1850.

6. Public lands

58-Grant of swamp lands made without reference to mineral character. Act March 2, 1849, and Act Sept. 28, 1850 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et WORK, Secretary of the Interior, v. STATE seq.]), made unrestricted grants of swamp

(269 U. S. 250)

OF LOUISIANA.

and overflowed lands to states in præsenti, without reference to their mineral character,

(Argued Oct. 6, 1925. Decided Nov. 23, 1925.) since there was no settled policy of reserving

No. 5.

1. Injunction 75-Suit to restrain Secretary of the Interior from putting into effect order requiring state to establish nonmineral character of land, or have claim rejected, held not one to establish title to land or adjudicate its character.

Suit to restrain Secretary of the Interior from putting into effect an order requiring a state to show that swamp lands claimed under Act March 2, 1849, and Act Sept. 28, 1850 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et seq.]), were nonmineral in character, or have its claim rejected, is not one to establish title to land, nor to adjudicate character of land, but to restrain Secretary from rejecting claim independently of merits, on an alleged unauthorized ruling of law illegally requiring it to show nonmineral character of lands as a condition precedent to its claim. 2. Injunction 75-Secretary of the Interior may be enjoined from carrying into effect illegal order respecting public lands.

If order of Secretary of the Interior requiring state to prove nonmineral character of swamp lands claimed under Act March 2, 1819, or have its claim rejected, is illegal and in excess of his authority, Secretary may be enjoined from carrying such order into effect. 3. Injunction

114(3)-Suit to restrain Secretary of the Interior from putting into effect order respecting public lands not one against United States and it is not indispensable party.

Suit by state to restrain Secretary of the Interior from putting into effect order requiring state to show nonmineral character of land or have claim rejected is not one against United States, though it still retains title to lands, and it is not an indispensable party.

4. Injunction 114(3)-Homestead entrymen not indispensable parties in suit to restrain Secretary of the Interior from putting into effect order respecting public lands.

In suit to restrain Secretary of the Interior from putting into effect order requiring state to show nonmineral character of land or have its claim rejected, homestead entrymen who have settled on such lauds are not indispensable parties.

5. Public lands 58-Grant of swamp lands made in præsenti.

Grant of swamp lands by Act March 2, 1849, and Act Sept. 28, 1850 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et seq.1), were in præsenti, and gave states an inchoate title to such lands, that became perfect as of dates of acts when identified as required, and legal

minerals at time when swamp land grants were made, and no settled or uniform course of departmental construction reserving mineral lands was shown.

7. Public lands 58-Order requiring states to establish nonmineral character of swamp lands held unauthorized.

Order of Secretary of the Interior requiring state to establish nonmineral character of swamp lands granted by Act March 2, 1849, and Act Sept. 28, 1850 (Rev. St. § 2479 et seq. [Comp. St. § 4958 et seq.]), or have their claims rejected, exceeded authority conferred on him by the acts, and attached condition to prosecution of claims by state without warrant of law, since such grants were made without reference to their mineral character.

8. Injunction 75 - Injunction restraining Secretary of the Interior from making any disposition of swamp lands, or taking any steps other than necessary to final recognition of state's rights, held erroneous.

In suit to restrain Secretary of the Interior from putting into effect order requiring states to establish nonmineral character of swamp lands under Act March 2, 1849, and Act Sept. 28, 1850 (Rev. St. § 2479 et seq. [Comp. St. 8 4958 et seq.]), or have claims rejected, injunction in part restraining Secretary from making any disposition of lands, or taking any steps other than necessary to final recognition of state's rights, is erroneous, since Secretary may not be restrained from determining character of land as swamp and overflowed in any appropriate manner, which determination is essential before state establishes right to land.

District of Columbia.
Appeal from the Court of Appeals of the

Suit by the State of Louisiana seeking a restraining order and mandatory injunction against Albert B. Fall, Secretary of the Interior. After appeal to the Court of Appeals, Hubert Work was substituted as defendant. A decree awarding an injunction was affirmed (53 App. D. C. 22, 287 F. 999), and defendant appeals. Modified and affirmed.

Mr. Harry L. Underwood, of Washington, D. C., and the Attorney General, for appellant.

*251

*Messrs. S. L. Herold, of Shreveport, La., and F. W. Clements, of Washington, D. C., for the State of Louisiana.

Mr. Justice SANFORD delivered the opinion of the Court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(46 S.Ct.)

This is a suit in equity brought by the State | 92; Cross Lake Club v. Louisiana, 224 U. of Louisiana against the Secretary of the In- S. 632, 635, 32 S. Ct. 577, 56 L. Ed. 924. terior in the Supreme Court of the District The material facts shown by the bill and of Columbia, seeking a restraining order and exhibits are: The lands in question, with othmandatory injunction relating to its prosecu-ers, were surveyed in 1871 by a deputy surtion of a swamp land claim under the Acts of March 2, 1849, c. 87, 9 Stat. 352, and September 28, 1850, c. 84, 9 Stat. 519. A motion by the Secretary to dismiss the bill was overruled; and upon his election to plead no further, a decree was entered awarding an injunction. This was affirmed by the Court of Appeals of the District. Fall v. Louisiana 53 App. D. C. 22, 287 F. 999.1 This appeal was allowed in April, 1923.

By the Act of 1849 (sections 1, 2), there was "granted" to the State of Louisiana, to aid it in the reclamation of the swamp and overflowed lands therein, "the whole of those swamp and overflowed lands,2 which may be or are found unfit for cultivation"; and it was provided that, upon the request of the Governor, the Secretary of the Treasury [afterwards the Secretary of the Interior 3] an examination of all such lands to be made by deputies of the surveyor general: "a list of the same to be made out, and certified by the deputies and surveyor general, to the Secretary, * who shall approve the same, so far as they are not claimed or held by individuals; and on that approval, the fee simple to said lands

should cause

shall vest in the said State."

*252

* *

veyor general. They were identified and returned as swamp and overflowed lands by his plat of survey, which was filed and approved by the Surveyor General. At that time they were not known to contain minerals of any character. In 1901 the register of the state land office requested that they be listed and approved to the State as swamp lands. Various homestead entries were thereafter made in the local Land Office; some, if not all, of which were allowed, subject to the swamp land claim of the State. In 1910 they were included in a Petroleum Withdrawal made by a Presidential order under the Pickett

Act.

*253

Finally, in 1919, after *various intermediate proceedings, the Commissioner of the

General Land Office, in an administrative de

* are

cision, "found from the field notes of the sur-
vey of 1871 that the lands
character, inure to the State under its grant,
swamp or overflowed, and, if nonmineral in
and may be patented pursuant thereto when
the record has been cleared of adverse
claims." And he thereupon ruled that unless
the State should, within a specified time, ap-
ply for a hearing-in which the homestead
entrymen might participate-and show that
the lands were non-oil and non-gas in charac-
ter, its claim would be rejected and the lands
held for disposition under the public land
laws. On an appeal by the State, the Secre-
tary affirmed this decision; and he later de-
nied a motion by the State for a re-hearing
the grounds of his decision being that miner-
al lands did not inure to the State under the
swamp land grants; that the mineral char-

*By the Act of 1850 (sections 1, 2, 4) there was "granted" to the State of Arkansas, for a like purpose, "the whole of those swamp and overflowed lands, made unfit thereby for cultivation," which then remained unsold; and it was provided that the Secretary of the Interior should make out and transmit to the Governor accurate lists and plats of such lands "and, at the request of said Gov-acter of land claimed as swamp and overernor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State." It was further provided that "the provisions of this Act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands * may be situated." The general provisions of this Act were carried into section 2479 et seq., of the Revised Statutes (Comp. St. § 4958 et seq.).

We assume, without deciding, that, in accordance with the practice of the Land Department, the claims of Louisiana to the swamp and overflowed lands may be allowed under either the special Act of 1849 or the general Act of 1850. See Louisiana v. Garfield, 211 U. S. 70, 76, 29 S. Ct. 31, 53 L. Ed.

In the Court of Appeals the present appellant was substituted for his predecessor against whom the suit had been brought.

Except those fronting on rivers, etc., previously

surveyed under an Act of 1824.

Act of March 3, 1849, c. 108, 9 Stat. 395, creating the Department of the Interior.

flowed was open to investigation until the inchoate title of the State had been perfected by the Secretary's approval under the Act of 1849 or the issue of a patent under the Act of 1850; that these lands had been impressed with a prima facie mineral character by the petroleum withdrawal; and that the State had been accorded due opportunity to show that they were not mineral bearing, failing in which its claim must stand rejected. 48 Land Dec. 201, 203.

The bill, which was then filed, alleged that the Secretary had exceeded his authority and jurisdiction in making the unlawful requirement imposing upon the State the burden of showing that the lands had no minerals and denying its right to them because it had not undertaken to discharge the burden thus illegally put upon it; and prayed that he be enjoined from taking further action in enforcement of this ruling and be required to vacate and set it aside.

Act of June 25, 1910, c. 421, 36 Stat. 847 (Comp. St. §§ 4523-4525).

[1] 1. It is urged that the trial court was without jurisdiction to entertain the bill, up

*254

44 S. Ct. 168, 68 L. Ed. 375, in which it was sought to enjoin the issuing of a patent to a person to whom the Department had adjudged the right to the land, are clearly distinguishable.

2. This brings us, on the merits, to the consideration of the question whether the order exceeded the authority conferred upon the Secretary, and attached to the prosecution of the claim of the State, without warrant of law, the condition that it must show that the lands are not mineral in character.

on the grounds that it was *prematurely brought, before the Secretary had exercised his jurisdiction to determine the character of the lands and while the claim was still in the process of administration; and that both the United States and the homestead entrymen were necessary and indispensable parties. These objections are based upon a misconception of the purpose of the suit. It is not one to establish the title of the State, [5] The grants of swamp lands made by as in Louisiana v. Garfield, supra, and New the Acts of 1849 and 1850 were in præsenti Mexico v. Lane, 243 U. S. 52, 37 S. Ct. 348, and gave the States an inchoate title to such 61 L. Ed. 588, nor one to quiet its title, as in lands that became perfect, as of the dates Minnesota v. Lane, 247 U. S. 243, 38 S. Ct. of the Acts, when they had been identified 508, 62 L. Ed. 1098. The bill does not seek as required and the legal title had passed by an adjudication that the lands were swamp the approval of the Secretary under the Act and overflowed lands or to restrain the Secre- of 1849 or the issuing of a patent under the tary from hearing and determining this ques- Act of 1850. This has long been the settled tion but merely seeks an adjudication of the construction of the Act of 1850. Rogers Loright of the State to have this question deter- comotive Works v. Emigrant Co., 164 U. S. mined without reference to their mineral 559, 570, 17 S. Ct. 188, 41 L. Ed. 552; Little character, and to require the Secretary to v. Williams, 231 U. S. 335, 339, 34 S. Ct. 68, set aside the order requiring it to estab-58 L. Ed. 256.

lish their nonmineral character or suffer [6] Each of these Acts made a broad and the rejection of its claim. In short, it is unrestricted grant of the swamp lands. Neimerely a suit to restrain the Secretary ther contained any exception or reservation from rejecting its claim, independently of mineral lands. of the merits otherwise, upon an unau- It is urged that such a reservation should thorized ruling of law illegally requiring be read into the grants by reason of a setit, as a condition precedent, to show that the tled policy of the United States of withholdlands are not mineral in character. ing mineral lands from disposal save under laws specially including them. There was, however, no such settled policy in 1849 and 1850 when the swamp land grants were

[2-4] It is clear that if this order exceeds the authority conferred upon the Secretary by law and is an illegal act done under color of his office, he may be enjoined from carrying it into effect. Noble v. Union River Railroad, 147 U. S. 165, 171, 172, 13 S. Ct. 271, 37 L. Ed. 123; Garfield v. Goldsby, 211 U. S. 249, 261, 262, 29 S. Ct. 62, 53 L. Ed. 168; Lane v. Watts, 234 U. S. 525, 540, 34 S. Ct. 965, 58 L. Ed. 1440; Payne v. Central Pacific Railway, 255 U. S. 228, 238, 41 S. Ct. 314, 65 L. Ed. 598; Santa Fé Pacific Railroad v. Fall, 259 U. S. 197, 199, 42 S. Ct. 466, 66 L. Ed. 896; Colorado v. Toll, 268 U. S. 228, 230, 45 S. Ct. 505, 69 L. Ed. 927. A suit for such purposes is not one against the United States, even though it still retains the legal title to the lands, and it is not an indispensable party. Garfield v. Goldsby, supra, pages 260, 262 (29 S. Ct. 62); Lane v. Watts, supra, page 540 (34 S. Ct. 965). Neither are the homestead entrymen indispensable parties. Lane v. Watts, supra, pages 537, 540 (34 S.

*255

Ct. 965). *In this latter respect the cases of Litchfield v. The Register, 9 Wall. 575 (19 L. Ed. 681), in which it was sought to enjoin the Department from acting upon pending applications to prove pre-emption rights to the land, New Mexico v. Lane, supra, in which it was sought to set aside an entry made by one who had purchased and paid for the land and to enjoin the issuing of a patent to him, and Brady v. Work, 263 U. S. 435,

256

But

made. Prior to that time, it is *true, it had
been the policy in providing for the sale of
the public lands, to reserve lands containing
"lead mines" and "salt springs." United
States v. Gratiot, 14 Pet. 526, 538, 10 L. Ed.
573; United States v. Gear, 3 How. 120,
131, 11 L. Ed. 523; and Morton v. Nebraska,
21 Wall. 660, 668, 22 L. Ed. 639. Such mines
and springs appeared upon the surface of the
land, and were peculiarly essential to the
public needs of the early communities.
there was, at that time, no established pub-
lic policy of reserving mineral lands general-
ly. This is emphasized by the fact that the
general Act of 1841,5 which gave pre-emption
rights to settlers on the public lands, merely
excepted lands "on which are situated any
known salines or mines." Section 10. And
while the Act of September 27, 1850, provid-
ing for the disposal of public lands in the
Territory of Oregon to settlers, expressly ex-
cepted "mineral lands," it is manifest that
this one local Act, approved the day before
the Swamp Land Act of 1850, was insuf-
ficient to establish a settled public policy in
reference to the reservation of mineral lands
prior to the latter Act. And the fact that im-
mediately after the subject of mineral lands

Act of September 4, 1841, c. 16, 5 Stat. 453.
9 Stat. 496, c. 76.

(46 S.Ct.)

It is clear that, as there was no settled public policy in reference to the reservation of mineral lands prior to the Acts of 1849 and 1850, there is no substantial ground for reading such a reservation into the broad and unrestricted grants of swamp and overflowed lands made to the States, in præsenti, by these Acts, especially since such lands were not then generally known to contain valuable minerals, and when unfit for cultivation were commonly regarded as having value only after reclamation-the purpose for which both of these grants were made the *discovery of their oil and gas having been made at a much later date.

*257

had been thus brought to the attention of that a provision in the Act of 18539 for the Congress, it did not except mineral lands sale of public lands in California, granting from the grant of swamp lands to the sev- certain sections to the State for school pureral States, indicates that no reservation of poses, was not intended to cover mineral such lands was intended. lands, the decision was not based upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, on the ground that the discovery in 1849 that California was rich in precious metals, bringing its mineral lands to the attention of Congress, had led to the adoption in reference to that State of a local policy, plainly manifested in other provisions of the Act making specific exceptions of mineral lands by which, unlike the ordinary laws for disposing of public lands in agricultural States, the mineral lands in that State were uniformly reserved from sale, pre-emption and grants for public purposes (pages 172-175). In the Sweet Case it was held that the provision of the Utah Enabling Act of 1894,10 granting to the State certain sections of the public lands for the support of common schools, with no mention of mineral lands, was not intended to embrace land known to be valuable for coal. The grounds of this decision were that long prior to the Act there had been established a settled policy in respect to mineral lands, evidenced by the mining laws and other statutes, by which they were withheld from disposal save under laws especially including them; and that read in the light of such laws and settled public policy the Act did not disclose a purpose to include such lands in the school

This conclusion, even apart from the peculiar character of swamp and overflowed lands, is fortified by the decision in Cooper v. Roberts, 18 How. 173, 179, 180, 15 L. Ed. 338, in which it was held that a provision in the Michigan Enabling Act of 1836,7 that certain sections of the public land should be granted to the State for the use of schools, became a legal title to such sections when they were surveyed and marked out; and that, no statute prior to the Enabling Act having contained any reservation of mineral lands other than those containing salt springs or lead mines, the later Act of 18478 providing for the sale of the mineral lands in the State should be construed as not withdrawing such lands within the school sections from the compact with the State.

The same conclusion was also reached in an unreported opinion given by the Acting Attorney General (the then Solicitor General) to the Secretary of the Interior in September, 1916, in which, citing Cooper v. Roberts in support of his views, he said: "There was no exception of mineral land from the swamp land grant made to the State of Louisiana and prior to that time the only reservation of minerals made by the Federal Government in any of its legislation affecting the public lands related to lands containing salt springs, lead mines and contiguous tracts. The policy of reserving minerals generally was not established until after the swamp land grant was made to Louisiana."

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This conclusion is not in conflict with the later decisions relating to school lands in Mining Co. v. Consolidated Mining Co., 102 U. S. 167, 26 L. Ed. 126-followed in Mullan v. United States, 118 U. S. 271, 6 S. Ct. 1041, 30 L. Ed. 170-and United States v. Sweet, 245 U. S. 562, 38 S. Ct. 193, 62 L. Ed. 473. In

*258

the Mining Co. Case, in which it was held

Act of June 23, 1836, c. 121, 5 Stat. 59.
Act of March 1, 1847, c. 32, 9 Stat. 146.

grant, since, although couched in general
terms adequate to embrace them if there
were no statute or settled policy to the con-
trary, it contained no language explicitly
known to be mineral in character, from the
sections, where
withdrawing the school
operation of the mining laws, or certainly
showing that Congress intended to depart

*259

from its long prevailing policy of dispos*ing
of mineral lands only under laws specially
including them; this conclusion being forti-
fied by the further considerations that when
the grant was made, Utah was known to be
rich in minerals and salines; that while some.
of the other grants contained in the Act ex-
pressly included saline lands, none included
mineral lands; that the Committees of Con-
gress upon whose recommendation the Act
was passed, construed it as not embracing
mineral lands; that the Land Department
had uniformly placed the same construction
upon it; and that Congress had, by a later
Act of 1902, acted upon that construction
(pages 567, 572, 573 [38 S. Ct. 193]). Obvious-
ly, this decision does not apply to the con-
struction of the swamp land grants made at
a time when there was no settled policy as
to the reservation of mineral lands, and

Act of March 3, 1853, c. 145, 10 Stat. 246. 10 Act of July 16, 1894, c. 138, 28 Stat. 107.

where the other circumstances upon which the decision was based are lacking.

There is here no such uniform and long settled departmental construction of the Swamp Land Acts. It is not claimed that the Land Department construed them as excluding mineral lands or considered the question of the mineral character of swamp lands until quite recently. As late as October 1, 1903, the Secretary instructed the Commissioner that all pending selections under the swamp land grants to the State of Louisiana would be approved or patented to the State under the grants of 1849 or 1850, in all cases where the lands were shown by the field notes of survey or by affidavits filed at the time of selection, to have been swamp lands at the date of the grant. 32 Land Dec. 270, 276, 278. The first holding by the Department that mineral lands did not pass under the swamp land grants appears to have been made in 1917, more than sixty years after the passage of the Acts, in an unreported ruling.11 This was followed by like departmental decisions in 1918, 46 Land Dec. 92, and 46 Land Dec. 389,

*260

396-in *which the contrary view expressed by the Attorney General was put aside as being obiter and in 1920, 47 Land Dec. 366, shortly before the decision involved in the present case. We cannot regard these recent decisions of the Department-apparently departing from its previous well-established practice, and rendered, except in one instance, in connection with the long delayed adjustment of the claims of Louisiana-as establishing a settled and uniform course of departmental construction that is persuasive as an aid in the construction of the Acts.

[7] We conclude that the Swamp Land Acts granted to the States the swamp and overflowed lands, rendered unfit for cultivation, without reference to their mineral character; and that in requiring the State to establish the nonmineral character of the lands in question the Secretary exceeded the authority conferred upon him by the Acts and attached this condition to the prosecution of the claim of the State without warrant of law.

[8] 3. A question remains as to the effect of the decree awarding the injunction. This, after commanding the Secretary to vacate the ruling operating to withhold title from the State for many reason dependent upon the mineral character of the lands or to require that their nonmineral character be shown contained the following supplemental clause: "And further restraining him, and them 12

11 Cited in 46 Land Dec. 389, 396. 12 His successors and agents.

from making any disposition of said described lands or from taking any action affecting the same save such immediate steps as are necessary to the further and final recognition of plaintiff's rights under the Acts of March 2, 1849 (9 Stat. 352) and September 28, 1850 (9 Stat. 519), to the end that evidence of title may be given to plaintiff as by said acts provided and required."

*261

If, as urged, the effect of this supplemental clause is to divest the United States of title to the lands and leave the Secretary to do nothing but furnish the State evidence of title in final recognition of its asserted rights, the decree in this respect is plainly erroneous, aside from any question as to the scope of the bill or the necessary presence of the United States as a party. The State has not as yet finally established its right to the lands, and the administrative processes necessary thereto are not complete. The Secretary, it appears, has not as yet determined that they were swamp and overflowed lands. The finding of the Commissioner that they were "swamp or overflowed" was not brought in question before the Secretary, and his decision involved no approval of such finding, but related merely to the ruling of the Commissioner requiring the State, independently of this finding, to establish the nonmineral character of the lands. The Secretary, in the exercise of the administrative duty imposed upon him, is necessarily required, before furnishing evidence of title under either of the Acts, to determine whether the lands claimed were in fact swamp lands; and he may not be restrained from investigating and determining this in any appropriate

manner.

The decree is inartificially framed. We think that the supplemental clause which we have quoted, in effect requires the Secretary to recognize that the State has already established its right to the lands and to do nothing further in reference to them except to furnish it evidence of title in final recognition of such established right, and restrains him from investigating and determining, without reference to the mineral character of the lands, whether they were in fact swamp and overflowed lands, before giving final recognition to such right as the State may establish under either of the Acts and issuing to it any evidence of title. The decree is accordingly modified by striking out this supplemental clause. Thus modified it should stand.

Decree modified and affirmed.

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