the Treasury officers has not been uniform; Comptroller Tayler deny. ing a like claim by Nebraska in 1875, whilst Comptroller Porter allowed the claim of Kansas in 1880. Thus, the decisions of that Department can not be quoted as bringing the present claim within the principles of stare decisis. It is true the claim of Kansas when allowed was transmitted to Congress and appropriation made for the payment thereof. But I can not accept such action as a legislative construction of the law, or as in any way relieving this Department from its duty to examine the present claim, and to decline to state an account thereof, if, in the opinion of its officers, there is no law to authorize its payment. The case of United States v. McDougall's, administrator, (121 U. S., 89), is in point, and grew out of claims pending before this Department on contracts made by certain Indian commissioners to supply some of the tribes with beef cattle. The cattle were duly supplied and drafts given to the different contractors. Some of the drafts were paid and some were not. Fremont went to Congress and got an appropriation to pay his claim "for beef delivered to Commissioner Barbour, for the use of the Indians in California." Helmsley and McDougall went to the Court of Claims, who rejected their claims because based upon a contract made without authority. Congress, however, made an appro priation to pay Helmsley's claim. Norris also sued and his claim was rejected. But Congress passed an act directing the Court of Claims to examine and allow the same on the basis of the actual supplies furnished, and Norris obtained judgment for $69,900. Subsequently, Fremont sued on another claim and the Court of Claims awarded him judg. ment, on the ground that the aforegoing acts of Congress constituted a clear and distinct legislative recognition of the obligation of the United States to pay the fair value of the subsistence furnished. This decision was followed in two other cases. In one of which, that of Belt, the court, reviewing the circumstances connected with this class of claims, held that the United States were in law liable under the agreement for furnishing the supplies to the Indians. From these decisions no appeals were taken by the government. McDougall's administrator, subsequently, also brought suit and obtained judgment in the Court of Claims, all of said claims growing out of the same transaction.

In McDougall's case, though not differing from the others, an appeal was taken by the government to the supreme court, and that tribunal held that the contract under which the claim arose fixed no liability upon the government, because made without proper authority. In relation to the question of legislative construction as shown by the previous acts making payment for like claims the court said:

That Congress by special acts made provision for the payment of particular claims of the same class furnishes no ground whatever for the assumption that the government recognized its legal liability for the amount of such claims, much less for the amount of all other claims of a like character. Such legislation may well furnish the basis for an

appeal to the legislative department of the government to place all claimants of the same class upon an equality.

But the discretion which Congress has in such matters would be very seriously trammelled, if the doctrine should be established, that it can not appropriate money to pay particular claims, except at the risk of thereby recognizing the legal liability of the United States for the amount of other claims of the same general class. The same considerations apply to the suggestion that the liability of the United States to McDougall's administrator, as upon contract, may arise from failure or refusal of their law officers to proscute appeals from judgments against the government in suits brought by other parties holding similar claims. The question to be determined is, not whether the representatives of the government have heretofore been guilty of neglect in not prosecuting such appeals, but whether, in the case in hand, the plaintiff has a valid claim in law against the United States.

The law as here laid down by the supreme court seems to fix the measure of my duty in the premises; and to require that I should examine into the legality of the claim presented, regardless of the supposed legislative or executive construction, and determine whether it is "a valid claim in law against the United States."

Apart from any other considerations, it is insisted that the case of Beecher v. Wetherby, supra, determines the question in favor of the State.

That case arose on a construction of the clause in the compact with Wisconsin, on her admission to the Union, which provided, " that sec tion numbered sixteen in every township of the public lands in said State, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools." The State was admitted in May, 1848, but prior to that time the Indians roamed over much of the territory of which it was formed. In 1825 the United States undertook, by treaties, to settle the boundaries of lands claimed by the different tribes, and the particular section in question was within the boundaries of the land recognized as belonging to the Menomonee Indians. By further treaty the boundaries of the Menomonee country were again fixed. Portions of their land were ceded; one tract was set apart for them as the "farm" country, and for "homes," without conditions looking to the extinguishment of title or right of occupancy, whilst the other tract was to remain to them "for a hunting ground until the President of the United States" should "deem it expedient to extinguish their title," when they promised to "surrender it immediately upon being notified of the desire of the government to possess it." The tract in controversy was within this "hunting ground," and was afterwards ceded to the Stockbridge and Munsee tribes.

In October, 1852, the township embracing said section was surveyed; and in 1854, subdivided into sections. By act of Congress of February 6, 1871, the lands theretofore occupied by the Stockbridge and Munsee tribes were authorized to be sold, and subsequently were sold. The

plaintiff claimed title to section sixteen under patent from the United States, bearing date October 10, 1872, and the defendant claimed title under patent from the State of December 15, 1865.

The court held that the compact operated to transfer to the State the title to the sixteenth sections as soon as they could be identified by surreys; that said sections were appropriated to the State, withdrawn from any other disposition, set apart from the public domain, and no subsequent law authorizing a sale of it can be construed to embrace them. "All that afterwards remained for the United States to do with respect to them, and all that could be legally done, was to identify the sections by appropriate surveys." In continuation, the court says that in relation to lands in the occupancy of the Indians there can be no doubt as to the power of Congress to pass the fee by grant, and it has no doubt in the case under consideration of its intention so to do. The fee simple title having thus passed to the State, subject only to the Indian right of occupancy; that right having been extinguished in a short time after the admission of the State; and the sections having been identified by surveys in 1854, it is evident the title of the State be. came complete in the section upon its being thus identified and the subsequent attempt of Congress to sell it in 1871 passed no title.

I do not see that the case of Beecher and Wetherby can properly affect the claim of Kansas now under consideration. Under the ruling in that case, and by virtue of her compact, unquestionably she would be entitled to the sixteenth and thirty-sixth sections of the lands in occupancy of the Indians, when the occupancy ceases and said lands are identified by survey; or if said sections have been otherwise properly disposed of, to other lands in lieu thereof. And the fact that the grant of the five per cent claimed is made by the same act, as thus passes the conditional grant of the school sections to her, does not, that I can see, add strength to the claim. The one is a grant of the fee simple title to land, and the other a grant of the profits, so to speak, out of certain lands.

Under the grant, when the fee simple title and the right of occupancy become united in the United States, its whole title and right of posses sion passes to the State by virtue of the previous grant thereto. This seems plain enough. So, under the fifth clause of the compact, I can understand when the United States receives any net proceeds from the sale of public lands in Kansas, that State is entitled to be paid five per cent thereon. But I cannot see how it is possible for the United States to make such payment until it has made a sale out of the proceeds of which it has the authority of law to make such payment.

That the sale in this case is such a sale as was contemplated by the Kansas compact I do not believe. And if I did believe it, the language of the supreme court, in what are known as the Five Per Cent cases (110 U. S., 471), would make me doubt the correctness of that belief. In those cases petitions were filed, in that court, by each of the States

of Iowa and Illinois, praying for a writ of mandamus against the Com missioner of the General Land Office to compel him to state an account between the United States and the State, ascertaining the sum of money due the latter under a similar provision as here, allowing "five per cent of the net proceeds" of lands lying in the State and "sold by Congress," and requiring him to include in said account five per cent of the value, computed at one dollar and twenty-five cents per acre, of lands taken up in said S'ate under United States military bounty land warrants.

The supreme court refused to recognize the validity of the claim, on the ground that there had been no sale of such lands by the government within the meaning of the statutes relied upon, which are almost iden tical in language with that of the Kansas compact.

In the opinion of the court it is said:

When each of these acts speaks of lands sold by Congress' five per cent of the net proceeds' of which shall be reserved, and be 'disbursed' or appropriated' for the benefit of the State in which the land lies, it evidently has in view sales in the ordinary sense, from which the United States receive proceeds, in the shape of money payable into the treasury, out of which the five per cent may be reserved and paid to the State; and does not intend to include lands promised and granted by the United States as a reward for military service, for which nothing is received into the Treasury. The question depends upon the terms in which the compact between the United States and each State is expressed, and not upon any supposed equity, extending those terms to cases not fairly embraced within their meaning.

It seems to me that the reasoning of the court covers the case under consideration. That tribunal, construing compacts similar in language, holds that the only sales contemplated thereby are such as would give the United States money "out of which the five per cent may be reserved and paid to the State." Is that the case in regard to the lands in ques tion? They are ceded to the government to be sold; and, after deducting expenses of survey and sale, the proceeds are to be deposited in the treasury for the benefit of the Indians. The United States would violate its trust, if it were to touch one dollar of said funds, save for the purpose to which they are dedicated; for it is evident that neither the government, nor the Indians contemplated, at the time of the cession, that the proceeds of their lands were to be reduced by the donation of five per cent thereof to Kansas, of which State the latter were entirely independent, owing to it no political or other allegiance.

The United States having no power to reserve from said funds and pay to the State five per cent, in the view that there was no such sale of the lands as was contemplated by the act of admission, it follows that the present claim of the State should not be certified to the Treasury officials.

In addition to what has been said, it may be added that as to the Osage lands, the percentage on the sale of which constitutes the greater part of the present claim, their status was judicially determined by the

supreme court in the case of the L., L. & G. R. R. Co. v. United States (92 U. S., 733.)

There a grant was made by the United States to the State of Kansas of land for the purpose of aiding in the construction of a railroad. After the cession of the Osage lands to the United States, the railroad was definitely located through them, and no patents being required, the odd numbered sections within the granted limits were certified to the State for the use of the said road. Subsequently, suit was brought by the United States against said company to recover the title to said lands, and the supreme court held, that the status of the Osage lands was such that they did not pass by a grant which only took effect on public lands. The legal status of these lands having been thus determined by the highest court to be such as would not pass under a grant of public lands, I would be assuming an undue responsibility were I to decide that the same lands are public lands, for the purpose of extending by implication the five per cent grant in the present case. This I decline to do.

In arriving at the conclusion before stated, I am relieved to know that, if the agents of the State of Kansas are not satisfied of its correctness, they can follow the example of the agents of the States of Iowa and Illinois in the Five Per Cent cases, and apply for a mandamus. By this means the questions involved will, by an almost summary method, be brought before the supreme court of the United States, the highest tribunal in the land, and to whose decree all will bow with cheerful acquiescence. But, until such authoritative construction of the law in their favor, I must decline to approve of this claim, as at present advised.

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