South and North Alabama Railroad Company.

ification, this subjection to a springing interest in another, had also ceased. I cannot conceive that the act of 1869 revived any right of any sort in the petitioner; and it seems to me necessary to establish this in order to lay a basis for a conclusion that the respective titles of the two companies run back to a common origin. From 1866 to 1871 the rights of the petitioner were not in esse, and any subsequent revival of those rights was granted subject, of course, to all vested interests that had intervened since their cesser. Such a vested interest had intervened in behalf of the Chattanooga Company. I therefore entirely concur in your opinion upon this question.

You ask whether the certificate for the lands which is to be sent from the Department of the Interior to the State of Alabama should be, in form, to the State simply, or to the State for the benefit of a particular railroad, to aid which they are given.

In the opinion given by yourself upon these questions, which accompanies the communication to this Department, it is said (Ms., p. 9) that it has been the uniform practice in railroad-grants, from the time such grants were first made until the present, to certify them to the State for the use of the particular company found to have the best claim.

Questions as to forms of business intercourse between the Departments and States, as it seems to me, are best decided by uniform practice in numerous cases, extending, as here, over more than twenty years. I therefore am of opinion that, of the two forms proposed, the latter is to be preferred.

The question submitted upon this point is special, and perhaps requires no other reply than the above. It is pertinent, however, to prevent misapprehension, for me to say, here, that in my view, under the act of 1854, (10 Stat., 346,) and those of 1856, 1869, and 1871, above, no certificate in any form is required.

My attention has been called to this point by arguments on the part of counsel who represent the petitioner.

Upon consideration, it seems that the act of 1856 did of itself convey a fee-simple to the State of Alabama. Its words, material here, are: "Be it enacted, &c., That there be, and is hereby, granted to the State of Alabama, for the pur

South and North Alabama Railroad Company.

pose of aiding in the construction of railroads, [specifying them, every alternate section of land designated by odd numbers for six sections'in width on each side of each of said roads. The lands hereby granted to said State shall be disposed of by said State only in manner following, that is to say, that a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads are completed, then another quantity of land hereby granted, &c., may be sold, and so from time to time," &c.

No other provisions in the statute bear upon the point before us; those which require an exclusive application of the proceeds of such lands to the particular road to aid which they are given, bearing not upon the time at which the estate vests in the State, or upon the quantity of interest that so vests, but only upon the question whether the State takes a beneficial interest or merely one as trustee, which is of no importance in a discussion as to whether it takes a fee by mere virtue of the statute or not. There is here no attempted repeal of the statute, as in the case of Rice vs. Railroad Company, (1 Black, 368,) where the Supreme Court decided that the repeal there suggested was effective, because the statute repealed conferred no beneficial interest upon Minnesota.

I have, in this connection, looked over some forty statutes giving lands to States for railroads, canals, &c., or giving them to companies directly, passed in and since 1846, and found in the 9th, 10th, 11th, 13th, 14th, 15th, and 16th vol. umes of the Statutes at Large. Those statutes, as regards the point under discussion, fall into two distinct classes: 1, such as impose no duty upon any officer of the United States in connection with the reports required from the States as to the progress of the work aided; and, 2, those which do. In general, the earlier statutes are of the former class, and the later in date are of the second; marking, perhaps, an improvement in the details of such grants.

The earliest acts which I have cited are two in behalf of the Territories of Iowa and Wisconsin, (9 Stat., 77, 82,) whose

South and North Alabama Railroad Company. admission as States was then progressing. The grants were to take effect upon their admission, the lands to be selected by the governor, and sales thereof to be made according to the progress of the work, as certified by the governor to the President. In this case, I apprehend that the fee-simple vested in the States, by the force of the act itself, upon the admission, and that no action was required of the President except that of receiving, and, perhaps, of transmitting to the proper office, the information given by the governor as to the progress. He was not to sanction or to verify such certificate, or to make independent inquiry as to the progress. Congress made the governor its agent to examine into such progress, and his report would not be questioned as an authority for further sales. If he has made a false report, it should have been a matter to be passed upon by Congress alone.

In 1850 an act was passed (9 Stat., 466) granting lands, for railroad purposes, to Illinois, Alabama, and Mississippi. They were to be disposed of as the work progressed; but no report or certificate or other communication was required to or from the States, or any officer of the United States.

In 1852 an act was passed (10 Stat., 9) granting lands, for railroad purposes, to Missouri. It is the first of a series hav. ing features nearly identical with that under consideration. It required a certificate of progress by the governor to the Secretary of the Interior, as authority for further sales. It required no action by the latter in connection with such certificate. Of course, it was implied that he would avail himself of the information, and file the paper which contained it; but he was not responsible for its truthfulness, or in any other way for what the State did with the lands, or with their proceeds.

In 10 Stat., 155, 11 Stat., 16, 17, 18, 20, 21, and 195, are to be found acts (that in 11 Stat., 17, being the one under consideration) which are substantially copies of the one last mentioned; and in 10 Stat., 35, 13 Stat., 519, 14 Stat., 30, 86, and 409, and 15 Stat., 169, 340, are seven others which, upon the point before us, come under the same principle.

In all of the above eighteen statutes, it seems that the only action in relation to the title to the lands (except what in

South and North Alabama Railroad Company.

some cases was required to fix a float, which of course is not relevant here) upon the part of the United States, was the passage of the act. I find myself unable to perceive in them any authority for any certificate, patent, or other writing, to proceed from any other agent of the United States in connection with that title. The act, and that alone, is the conveyance, and that conveys the fee.

There is, however, a class of statutes granting lands, most of which have been passed in and since 1865, which are in general only instructions to officers of the United States to execute title upon some future event specified therein.

One such act is that of 1854, (10 Stat., 302,) giving lands to Minnesota Territory for a railroad, in which, after words of absolute grant, it is said (in another section) "no title shall vest in said Territory, nor shall any patent issue until twenty miles of the road is completed," &c. This is the act that was before the Supreme Court in the case in Black's Reports cited above. It is unnecessary to draw attention to its striking difference from the act before us.

Then comes an act of 1865, (13 Stat., 520,) giving lands, for railroads, to Michigan. This provides that the lands granted shall be disposed of only as follows: "When the governor of the State of Michigan shall certify to the Secretary of the Interior that any ten consecutive miles upon the route of either of said roads is completed in a good and substantial manner as a first-class railroad, then the Secretary of the Interior shall cause a certificate or certificates to issue to said State for one hundred sectious of land for the benefit and use of said company," &c., and so from time to time. Here we find what is not to be found in one of the statutes cited above, a direction to the Secretary of the Interior to take action upon receiving the governor's certificate, that is, to issue a counter-certificate, &c.

It is observable that this statute is an amendment to one of the statutes (11 Stat., 21) in the first class above. The manner in which it varies the provisions of the former act upon the point before us is striking. It is the first act in reference to railroad-grants containing such a direction to the Secretary that has met my eye, and it has given the rule thereupon as to almost all of such acts passed since.

The next act containing such grants (13 Stat., 256) is also

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a similar amendment to the one in the first class above, (11 Stat., 195,) requiring, however, the Secretary to issue patents instead of certificates.

Then follow, with like provisions, 14 Stat., 80, 83, 87, 95, 338, and 549, and 16 Stat., 94, besides the following statutes which grant lands directly to railroad companies: 14 Stat., 236, 239, 289, 294, and 16 Stat., 576 and 579.

It comports with the high respect I entertain for those whose opinions hereupon may differ from mine, for me to say that a perusal of the above legislation has made a very strong impression upon me, to the effect that it contains two distinct classes of statutes, in the former of which, for the purpose of vesting the fee in the lands granted, no act upon the part of any agent of the United States is contemplated other than the passing of the statute itself. In its later legislation (among which, as above, are two cases in which it has found within its power, and so has reformed upon this point, acts which belonged to the former class) Congress has changed, and probably improved upon, its earlier forms of giving. Very probably if its attention had been drawn in 1869 and 1871 to the details of the act of 1856 before us, it would also have reformed them to the same purpose. However, it has not.

I therefore agree with the conclusions expressed by Attorney-General Black in his opinion of June 7, 1857, addressed to your predecessor, Mr. Thompson, (9 Opin., 41,) and hold that the act of 1854 (10 Stat., 346) does not apply to the case under consideration.

The expression "that there be, and is hereby, granted to the State of Alabama" conveys, prima facie, a fee-simple, and there is no subsequent language in the statute to qualify this effect, at all events to qualify it beyond the successive conditions of certificates by the governor of the completion of sections of twenty continuous miles (after the first twenty) of such road; whereupon the power of disposition vests for such successive portions, by virtue of the statute alone, and without any acknowledgment by the Secretary of his receipt. of such certificates, or of any other action of his whatever; just as in the case of acts giving lands to Territories upon their admission as States, and the numerous cases in the books