Johanson v. Washington/Opinion of the Court
Under the statutes of Washington, an action in form similar to the old action of ejectment may be maintained in favor of one who has a superior title, whether legal or equitable. Ballinger's Anno. Codes & Statutes, §§ 5500, 5508. No patent is shown to have been issued by the general government, and the question, therefore, is whether the state obtained an equitable title by virtue of the selection and approval disclosed in the findings of fact.

The first contention of plaintiff in error is that no authority is shown for Phillip H. Lewis to act as agent for King county or the territory of Washington in making the selection. We pass the assertion that, in the brief of counsel for plaintiff in error in the state court, the right of Lewis to act for the county was conceded. It is enough that Lewis, assuming to act as agent, made the selection, and that his selection was approved by the Secretary of the Interior; for the state, the successor of the territory, by commencing this action, and claiming the benefit of his act as agent, ratified and confirmed what he did as agent. Besides, whether he had authority to so act is not a Federal question, but one whose decision by the state court is final.

Coming now to the Federal question, the approval by the Secretary of Interior of a selection made by one claiming to be the agent of a territory or state of land in lieu of school sections 16 and 36 is, if nothing more, in effect a withdrawal from private entry of the selected land, and such withdrawal continues until the approval of the selection is itself set aside. Whether such selection, so approved, shall afterwards ripen into a full legal title or not, is immaterial so far as the question of withdrawal is concerned. In the case at bar, at the time of the selection and approval, there was no settlement, no private right, nothing to interfere between the United States and the territory of Washington, or prevent a selection of this tract in lieu of an ordinary school section. When, therefore, the Secretary of the Interior approved the selection, it at least operated to withdraw the land from private entry. A claim in behalf of the territory had been presented, and that claim had been approved by the proper officer of the United States. While the land remained subject to such claim and approval, no individual could come in and question its validity. Johanson's attempt to make a homestead was wrongful, and gave him no rights whatever in the land.

But, further, the title of the state is good. For the material parts of the statutes bearing upon this question, see note at foot of this page.

Now we remark that, from the legislation of Congress, nothing is clearer than that the policy of the government has been a generous one in respect to grants for school purposes. Cooper v. Roberts, 18 How. 173, 15 L. ed. 338; Minnesota v. Hitchcock, 185 U.S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650, and cases cited in the opinion. And, as was said by Mr. Justice Field, in Winona & St. P. R. Co. v. Barney, 113 U.S. 618, 625, 28 L. ed. 1109, 1111, 5 Sup. Ct. Rep. 606, 609, acts making grants 'are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent, we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.'

Tested by this rule, it is obvious that Congress intended that Washington should receive full sections 16 and 36, or, in case of a failure by reason of prior settlement or from natural causes, the equivalent of such sections, and designated the Secretary of the Interior as the officer to approve any selections made by the territory. The act of 1859 is as applicable to Washington as to any other territory, notwithstanding that there was a special statute passed in 1853 in respect to it. While ordinarily a special law is not repealed by a subsequent general statute, unless the intent so to do is obvious, yet there is no rule which prevents the latter from applying to cases not provided for by the former. It is true the act of 1859 refers to the act of 1826 in reference to selections, and the act of 1826 designated the Secretary of the Treasury as the officer to select. At that time the Land Department was under the supervision of the Secretary of the Treasury. But by the act of March 3, 1849 (9 Stat. at L. 395, chap. 108), the Interior Department was created, and the supervising powers of the Secretary of the Treasury in respect to public lands were transferred to the Secretary of the Interior. The act of 1859 is to be taken, not as specially designating the Secretary of the Treasury as the officer to make the selections, but simply as describing the general mode of procedure in respect thereto. This is obvious from its language, which is that the selection and appropriation shall be 'in accordance with the principles of adjustment and the provisions of the act of Congress, May 20, 1826.'

Further, it must be remembered that the general supervision of the affairs of the Land Department is now vested in the Secretary of the Interior, and that, unless Congress clearly designates some other officer to act in respect to such matters, it will be assumed that he is the officer to represent the government. Catholic Bishop v. Gibbon, 158 U.S. 155, 39 L. ed. 931, 15 Sup. Ct. Rep. 779. If some one authorized to represent the territory of Washington made a selection, and it was approved by the Secretary of the Interior, such action, being that of the officer charged with the supervision of the landed interests of the United States, should, unless some direction of Congress has manifestly been violated, be held to be conclusive upon the transfer of title.

But still further, it appearing that some question had been mooted as to the intent of Congress in respect to these matters, the confirmatory statute of 1902 was enacted, and that obviously removes all doubt. It confirms the title to selected lands 'when the same shall have been approved by the Secretary of the Interior.' This does not refer alone to future action by the Secretary, but ratifies that which he has already done. He has approved this selection, and the act of 1902 places the title of the state beyond controversy.

For these reasons we think the judgment of the Supreme Court of Washington is right, and it is affirmed. 

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