taken under advisement. And afterwards, to wit, May 1st, 1895, at 7:30 p. m., at chambers at Oklahoma City, O. T., pursuant to previous notice, all of the parties being present by their said attorneys, and the judge, being duly advised in the premises, finds that the route of the defendant the Choctaw, Oklahoma & Gulf Railroad Company's located line over the country in controversy, and designated in the petition and answer as 'section four,' is the one selected by the said company after a careful survey of the same, and is the most feasible and practicable route over said section; that said company prepared in due form a map of said definite route of location, and filed the same with the secretary of the interior on the day of December, 1894, and has complied with all the requirements of law to entitle it to construct its railroad over said route; that said section four is wholly within the territory of Oklahoma; that there are no lands held by individual occupants according to the laws, customs, and usages of any Indian nation or tribe within said section four; that so much of said section six of the act of congress of February, 1888, as provides for the approval of the location by the secretary of the interior relates wholly to lands so occupied, and that such approval of the section of the route in question is unnecessary, and not required by law. It is therefore considered, ordered, and adjudged that said temporary injunction be, and the same is hereby, dissolved; to which plaintiff excepts. Plaintiffs are allowed twenty days to prepare and serve a case made. Defendants are allowed to suggest amendments, and case made to be settled on five days' notice to be given by plaintiffs to defendants. Witness my hand, this 1st day of May, A. D. 1895. Henry W. Scott, Judge."

And thereafter, upon the 23d day of May, 1895, a second order was passed in the case in the district court at Tecumseh, in Pottawatomie county, which, omitting the venue and title of the cause, reads as follows: "And now, to wit, on this 23rd day of May, A. D. 1895, it being one of the regular judicial days of the May, 1895, term of the district court of the Third judicial district in and for Pottawatomie county, O. T., this cause came on for final hearing and determination. And the court, after being fully advised in the premises, and after considering said cause, finds that the order of the judge of the district court of the Third judicial district dissolving a temporary injunction on the 1st day of May, 1895, at chambers in Oklahoma City, O. T., and all orders heretofore made, are hereby set aside and held for naught, and it is now ordered, adjudged, and decreed that upon the pleadings, proofs, and findings, by the judge of this court, of law and fact heretofore, which, with the opinion of the judge is ordered made a part of this record, that this action be, and the same is hereby, dismissed; it

being especially intended that the temporary injunction heretofore issued be dissolved and set aside, and that this proceeding be dismissed, with costs. To all of which plaintiffs except, which exception is allowed by the court. And the plaintiffs pray that a new trial be granted, and the court, after being fully advised in the premises, overruled said motion, which motion is in words and figures following, to wit: 'United States of America vs. The Choctaw, Oklahoma & Gulf R. R. Co. et al.: The plaintiff moves the court for a new trial in the entitled cause, and, for cause of new trial, says that the decision is not sustained by sufficient evidence; that the decision is contrary to law. [Signed] Horace Speed, of Counsel for Plaintiff.' To which action of the court the plaintiffs except, which exception is allowed by the court. Plaintiff's thereupon prayed an appeal to the supreme court of Oklahoma territory, which was allowed by the court; and ten days is hereby allowed said plaintiffs to make and serve a case made upon defendants. Five days are allowed for the suggestion of amendments, and case made to be settled five days after service of said case made, or ten days to appeal said cause upon transcript of the record of said cause; said record to be duly signed, settled, and certified as required by law. Done at Tecumseh, Pottawatomie county, O. T., this 23rd day of May, A. D. 1895. H. W. Scott, Judge."

Thereafter, upon the 25th day of May, a motion was filed in the case, by the defendants, to set aside the order of May 23d passed by the district court, and for a new trial, for the following reasons: (1) Because, heretofore, on the 1st day of May, 1895, the judge of the Third judicial district, at chambers at Oklahoma City, Oklahoma territory, made an order dissolving a temporary injunction theretofore issued in said cause, which order was final, and an appealable order, and thereupon, at the request of the plaintiffs, the judge of said court made an order allowing plaintiffs twenty days within which to prepare and serve a case made, which time expired on the 21st day of May, 1895; that plaintiffs, within Isaid time, failed to prepare and serve a case made upon the defendants, and thereupon said order dissolving said injunction became a final judgment of this court, which could not be appealed from, and was a final adjudication of the plaintiff's action for the injunction herein, and the court was without jurisdiction to make the order of May 23, 1895, above referred to, and said order was contrary to law and void. (2) Because there was no trial of the cause on the 23d day of May, 1895, and no evidence whatever offered, and the defendants were not present, and were not represented by counsel, and had no notice whatever that said order would be applied for, and would be granted, and no one was present, except the counsel for the relators herein, and said order was either entered by the court upon its own motion, or upon the suggestion

of counsel for the relators. (3) Because of the happening of certain events and the going into effect of certain laws; that is, the law opening the Kickapoo country to white settlement, and the opening to white settlement of the same, since the making of the order herein on May 1, 1895, as to which defendants desire to file a supplemental answer, and hereby ask leave of the court to file the same. This motion of the defendants was submitted to the court upon the same day, and the following order was made therein: "And now, on this 25th day of May, 1895, come the defendants, and file a motion, supported by affidavit, to set aside the order herein of May 23rd, 1895, which motion is by the court overruled; to which defendants except, and such exceptions are allowed. It is further ordered by the court that the supplemental answer of defendants herein be allowed to be filed of this date, and the same is hereby ordered to be made a part of the record in this case. [Signed] H. W. Scott, Judge."

Thereupon the defendants filed their supplemental answer, which bore indorsement as follows: "Leave granted to file as of May 23rd, 1895, and prior to judgment of said date, this 27th day of May, 1895. [Signed] H. W. Scott, Judge." The supplemental answer sets forth that since the filing of the petition and answer herein, and motion to dissolve the injunction, and since the order of May 1, 1895, dissolving the injunction, the country or tract of lands described in plaintiff's petition as the Kickapoo Indian Reservation has been' opened to homestead settlement by proclamation of the president, a copy of which proclamation is attached, and made a part thereof, and said country, in pursuance of said proclamation, was opened to settlement on the 23d day of May, 1895, and thereupon ceased to be, in any sense, an Indian reservation, or a reservation of any kind; and, further, showed that, since the proceedings heretofore had in this case, the territorial authorities of Oklahoma territory, consisting of the governor, secretary, and auditor of said territory, composing the board of railway assessors for said territory, have recognized defendants' right to the right of way over the 25 miles in controversy by assessing the said right of way, and said company's grade thereon, for taxation for the year 1895. The supplemental answer was verified upon belief by J. W. McLoud, attorney for the defendants.

In bringing the case to this court by petition in error, the plaintiffs make assignments of error as follows: That (1) the court erred in overruling the motion for a new trial, and in rendering judgment dismissing the action; and (2) in holding that the approval of the location of railroad required by the acts of congress, as set out in the complaint, was merely a ministerial act, not involving judgment or discretion on the part of the secretary of the interior, and that, if such acts on the part of the secretary of the interior were unnecessary, or merely ministerial, the loca

tion could be made in 1894 different from the location in 1890, as indicated by the ruling of the secretary of the interior; and (3) in holding that the defendant company could locate its line of railroad through lands allotted to Indians in Pottawatomie county, indicated and described in the bill of complaint, and begin the construction of its road upon that line, without having the approval of the secretary of the interior; and (4) holding that the Kickapoo Indian Reservation was not, at the time the complaint was filed, and the judgment of the court was rendered, Indian country, and that over such reservation, and through the counties of Oklahoma and Pottawatomie, in said territory, and over and across public roads and highways in said counties, the defendant had a right to construct its line, without first having a map of location of said line of railroad approved by the secretary of the interior; and (5) that the defendant could locate its line of railroad as located on section 4, and over the land through which it is located in section 4, under the general laws of the territory of Oklahoma, and need not locate its line according to the provisions of the acts of congress specially authorizing the construction of such railroad, setting out the manner in which, and the conditions under which, such line should be located and constructed, and in holding that section 6 of the act of February 18, 1888, did not apply to approving of the map of the location of the right of way of defendant railroad company at the time its map of location was filed in December, 1894, as aforesaid; and (6) in holding that the act of congress of 1875 granted to railroad corporations the right to construct lines of railroad across the public lands without reference to special legislation, and that such acts governed the mode by which the defendant railroad should acquire its right of way, instead of the special acts providing the method by which said defendant railroad and its predecessor should acquire such rights of way; and (7) in holding that the provisions of the act of congress granting the rights of way to the Choctaw Coal & Railway Company and the defendant company were grants of such rights of way in præsenti, so as to cut out and exclude the rights of the Indians, and others who, after the dates of such acts of congress, were allotted lands or took homesteads over which the line of said railroad company was thereafter located; and (S) in refusing to grant the permanent injunction as prayed in the bill of complaint, and in rendering a final decree upon the findings and conclusions indicated and set out in the order of May 23, 1895.

Richard Olney, U. S. Atty. Gen., and C. R. Brooks, U. S. Atty., for the Territory of Oklahoma, and Horace Speed, for plaintiff. J. W. McLoud and John I. Dille, for defendants.

MCATEE, J. Various motions were filed by the defendant company in this court in

this case after the filing of the petition in error and transcript of record here, upon June 6, 1895. Under the direction of the court these motions were argued orally, and upon printed briefs, in connection with the argument upon the merits of the case, as presented in the transcript of the record, and will be here reviewed.

The defendant railroad company filed its motion on June 24, 1895, in this court, to require the plaintiffs to make a deposit and give security for costs. This motion was based upon rule second of the rules of practice of the supreme court of the territory of Oklahoma, which reads as follows: "No cause shall be docketed, nor process issued thereon (except in cases wherein the territory or the United States is appellant) until the plaintiff in error or appellant shall pay to the clerk, ten dollars advance fees; nor shall any civil cause be docketed until security for costs shall be given, approved by the clerk of the supreme court, conditioned for the payment of all costs for which the plaintiff in error may be liable." The argument admits that in this case no security for costs has been given as provided by the rule. It is, however, contended by the plaintiff in error that compliance with the rule is not necessary, since this is a suit by the United States, and that the United States is not required to pay costs, or to give the security here required, in order to avail itself of the rights and remedies provided by and within the jurisdiction of this court. This contention the plaintiff maintains upon the following sections of the Revised Statutes of the United States, which are a part of the judiciary act passed by congress in 1798, which reads as follows:

"Sec. 1000. Bond in Error and on Appeal. Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.

"Sec. 1001. No Bond Required of United States. Whenever a writ of error, appeal, or other process in law, admiralty, or equity, issues from or is brought up to the supreme court, or circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent

fund of the department under whose directions the proceedings were instituted."

The sections here recited are a part of the procedure provided by congress for the supreme court and circuit and district courts of the United States, which are provided for under article 3, § 1, of the constitution of the United States, as follows:

"Section 1. Supreme and Inferior Courts. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. The judges both of the supreme court and inferior courts, shall hold their offices during good behavior. *

In providing a mode of procedure for the "judicial power of the United States, * vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish," congress did not provide a code of procedure for the territorial courts. So far as congress has legislated with regard to territorial courts, it has legislated under the general powers which congress possesses over, and to provide a government for, the territories, and not under the constitutional authority given to it to ordain and establish one supreme court and inferior courts vested with judicial power for the United States. Insurance Co. v. Canter, 1 Pet. 511; Stacy v. Abbott, 1 Am. Law T. 84; Benner v. Porter, 9 How. Prac. 244. The same conclusion must be drawn from an examination of the context of the sections relied upon. Section 1000 provides that the judge shall take good and sufficient security, except in cases brought up by the United States, or by direction of any department of the government, and in section 1001, next ensuing, it is provided in what cases such security shall not be required; that is, in "issues * * brought up to the supreme court, or a circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under direction aforesaid," etc. The prohibition against requiring security from the United States, or from any party acting under the direction aforesaid, is in cases brought up to the supreme court of the United States, or a circuit court of the United States. The prohibition is not against bringing up the case by petition in error from the district court of a territory to the supreme court of a territory. And while the organic act of this territory provides that its district court "shall have and exercise, exclusive of any court heretofore established, the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States," the writ of error here is not to the supreme court of the United States, or to a circuit court of the United States, but to the supreme court of the territory of Oklahoma. It cannot be con

They were not intended as exertions of that plenary municipal authority which congress has over the District of Columbia and the territories of the United States. They do not contain a word to indicate any such intent. The fact that they require the circuit and district courts to follow the practice of the respective state courts in cases at law, and that they supply no other rule in such cases, shows that they cannot apply to the territorial courts. As before said, these acts have specific application to the courts of the United States, which are courts of a peculiar character and jurisdiction. * * As a general thing, subject to the general scheme of local government chalked out by the organic act, and such special provisions as are contained therein, the local legislature has been intrusted with the enactment of the entire system of municipal law, subject also, however, to the right of congress to revise, alter, and revoke at its discretion. From a review of the entire past legislation of congress on the subject under consideration, our conclusion is that the practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject, as before said, to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves." Hornbuckle v. Toombs, 18 Wall. 648-657. There is in force in the territory of Oklahoma, and relating to appeals on writs of error from a district court of the territory to this court, no provision under which the United States is exempted from the rule of procedure of this court, under which it is provided that "no civil cause shall be docketed until security for costs shall be given," etc. We understand the rule to be that unless such special exemption is provided for, if the United States comes voluntarily into the court, it must do so under similar circumstances and upon the same conditions as if it were a private party, unless, indeed, exemption should be conceded to it upon the ground of sovereignty. U. S. v. Thompson, 93 U. S. 588; U. S. v. Union Pac. R. Co., 105 U. S. 263. And such exemption is not relied upon in this case, since the liability here discussed has been provided against by the requirement made in behalf of the United States, and taken by those who represent the inter

est of the United States, if it has any in the case, by the agreement, filed with the bill of complaint, that the relators should be responsible to the United States for its costs incurred therein. The case of U. S. v. Bryant, 111 U. S. 500, 4 Sup. Ct. 601, has been cited to support the contention of plaintiff that sections 1000 and 1001 relate and are applicable to writs of error from the district courts of this territory to the supreme court of this territory. The case does not support the contention. This was an action at law by the United States in the circuit court of the United States for the Southern district of Alabama, and cannot aid us in reference to the application of those sections to proceedings in the territorial courts.

If the United States should in fact itself be exempt from the application of the rule of court requiring security for costs, we should yet hold that the relators are themselves the real parties in interest, and that, as such, they would not be entitled to the benefit of the exemption thus provided in behalf of the United States. They, being thus the real parties in interest, and having invoked the name and authority of the United States in the bringing of this action, would not be permitted to prosecute it for their own benefit without complying with the rule. In the absence of any special provision, this action must be prosecuted in the name of the real parties in interest, and, if these parties are here with any legal rights, it is by reason of being here in that capacity. Article 4, § 26, Code Civ. Proc. (page 767, St. Okl.); State v. Commissioners of Jefferson Co., 11 Kan. 66; Nixon v. School Dist., 32 Kan. 511, 4 Pac. 1017; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 17. The view here taken was undoubtedly that of the department of justice, in charge of these proceedings, and has been provided against herein, since there was filed in the district court on March 19, 1895, in conjunction with and annexed to the bill of complaint, an agreement and obligation to the United States, which recites that William S. Search, Samuel Clay, Wright Christian, George A. Outcelt, and Edward J. Kelley hereby agree that their names shall be used as relators in the above-entitled cause, and that they will be responsible to the United States for its costs incurred therein. We hold that the defendants in this action are entitled to an order requiring the plaintiff herein to give security for costs, to be approved by the clerk of the supreme court, conditioned for the payment of all costs for which the plaintiffs in error may be liable, before they could require any further proceeding or demand relief herein.

Upon June 24, 1895, the defendant also filed his motion in the cause to strike from the transcript filed in the cause the affidavits of Dunn, Webster, and others, together with certificates, letters, map, and opinion of Judge Henry W. Scott, for the reason that "none of the same were made a part of the record in this case by a bill of exceptions or case made,

and therefore are no part of the record, and were improperly filed with said transcript," and also moved the court to tax the costs of making the portions of the transcript above referred to, to the plaintiffs herein, for the reason that the same were improperly filed with the transcript in this court. Two methods are provided by the statutes of this territory, either of which may be adopted in bringing appeals to this court from the district courts in all civil causes: (1) By a transcript of the record; and (2) by case made. The Code of Civil Procedure (chapter 66, pp. 855, 856, St. Okl. 1893) provides, with reference to the second method of taking an appeal from the district court, that:

"Sec. 564. In all actions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach to and file with the petition in error, the original case made, filed in the court below, or a certified transcript of the record of said court.

*

"Sec. 565. A party desiring to have any judgment or order of the district court, or a judge thereof, reversed by the supreme court, may make a case made, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.

"Sec. 566. The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing, and present the same to the party making the case or to his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. *

"Sec. 567. The court or judge may, upon good cause shown, extend the time for making a case made and the time within which the case may be served; and may also' direct notice to be given of the time when the case may be presented for settlement after the same has been made and served, certified and signed by the judge who tried the cause."

The final judgment or order was made by the judge of the district court at chambers, on the 1st day of May, 1895, by which it was ordered that "the temporary injunction be, and the same is hereby, dissolved, to which plaintiff excepts." By this order the plaintiffs were allowed 20 days to prepare and serve a case made. Thereafter, on the 23d day of May, 1895, "it being one of the regular judicial days of the May term of the district court," the court finds that the order of the judge of the district court of the Third judicial district, dissolving the temporary injunction on the 1st day of May, 1895, at chambers, in Oklahoma City, O. T., and all orders heretofore made, are hereby set aside and held for naught." And the court then proceeded especially to dissolve and set aside the order of May 1, 1895, to all

of which the plaintiff excepted. The plaintiff thereupon made a motion for a new trial, upon the following grounds: (1) That the "decision is not sustained by sufficient evidence"; and (2) that the "decision is contrary to law," -which was overruled, to which the plaintiff excepted. Upon which the plaintiff prayed an appeal, and the order of the court then passed provided that "ten days is hereby allowed said plaintiffs to make and serve a case made upon the defendants." The first judgment, entered May 1, 1895, and the second judgment, dated May 23, 1895, are, in all essential respects, identical, except that the first judgment includes no statement of a motion for a new trial with ruling and exception, and with the further exception that in entering the second judgment the court undertook to allow an appeal to the supreme court, and also allow from that date "ten days to make and prepare a case upon the defendants."

It is provided by the Code of Civil Procedure (section 320, p. 814, St. Okl.) that "the application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence, have discovered andduced at the trial shall be within three days after the verdict or decision was rendered, unless avoidably prevented." The decision rendered May 1st was in all respects final. The decision rendered May 23, 1895, was, as to the material thing ordered and accomplished by the judgment, that is, the dissolution of the temporary injunction,-in no respect more. effective in its terms than that which had been passed by the court on May 1st. This was an injunction proceeding, properly heard at chambers, and the fact that the first judg ment was entered at chambers made it in no respect invalid or ineffective. The fact that the second judgment was entered upon a “judicial day," and by the court, had no virtue, nor could it make a judgment dismissing the temporary injunction in any respect more final or conclusive. There could have been no reason why the court should have undertaken to set aside by the judgment entered May 23d the final judgment which had been entered on May 1st in the same matter, except a strong desire to oblige the plaintiffs in error, by enabling them to make their motion for a new trial within the time prescribed by the statute, if possible, and for the purpose of extending the time in their behalf, within which to prepare and serve a case made for the supreme court, or "ten days to appeal said cause upon the transcript of the record in said cause." Our Code of Civil Procedure has been adopted from the state of Kansas, and this court uniformly follows the principles of interpretation and construction which have been applied to it by the supreme court of that state. It has been by that court repeatedly held, with reference to the motion for a new trial, that a