The other point-that the proclamation as I have just construed it, would violate the law-is made in part upon the proposition that, with the filing of the application for survey, the lands ceased to be such "public lands" as the President was authorized to reserve (act of Mar. 3, 1891, sec. 24, 26 Stat. 1103); and in part upon the declaration of the act of 1894 that the lands covered by such application "shall be reserved upon the filing of the application for survey from any adverse appropriation by settlement or otherwise except under rights that may be found to exist of prior inception, for a period to extend from such application for survey until the expiration of sixty days from the date of the filing of the township plat of survey in the proper district land office, during which period of sixty days the State may select any of such lands not embraced in any valid adverse claim." In the latter connection, it is argued that the words "any adverse appropriation” were intended to include an appropriation of public lands by the Government for forest purposes through the action of the President.

The act of 1891 (loc. cit.) empowered the President, "from time to time" to "set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber," etc., "as public reservations," and directed him to declare by public proclamation "the establishment of such reservations and the limits thereof."

The case does not call for an attempt to define generally what was there intended by "public lands." That is a term which is susceptible of various meanings, according to the connections in which it is found. In the restricted sense in which it is employed in acts looking to the disposition of the title or the granting of privileges—and this is undoubtedly the sense in which it most frequently appears in litigation--it means the lands of the United States which are open to acquisition by the qualified first comer under some one or more of the general land laws-lands which are not withheld from such acquisition by any subsisting right or claim in another, or any act of the Gov

ernment. In the absence of reasons for a contrary interpretation, this, as has been frequently held, is the meaning which should be adopted; but it is not the only possible meaning. Thus, in the recent case of Union Pacific v. Harris (215 U. S. 386, 388) the court said:

"The grant of the right of way was 'through the public lands.' What is meant by 'public lands' is well settled. As stated in Newhall v. Sanger (92 U. S. 761, 763), 'the words "public lands" are habitually used in our legislation. to describe such as are subject to sale or other disposal under general laws.' If it is claimed in any given case that they are used in a different meaning, it should be apparent either from the context or from the circumstances attending the legislation."

* * *

And in United States v. Blendaur (128 Fed. 910, 913), where the Circuit Court of Appeals for the Ninth Circuit decided that lands, formerly part of an Indian reservation, which were by law set apart specially for homestead entry, were nevertheless such "public lands" as the President was authorized to reserve under section 24 of the act of March 3, 1891, it was said:

same sense.

"The words 'public lands' are not always used in the Their true meaning and effect are to be determined by the context in which they are used, and it is the duty of the court not to give such a meaning to the words as would destroy the object and purpose of the law or lead to absurd results. There are many cases where the courts have been called upon to decide the meaning of these words. In United States v. Bisel (8 Mont. 20, 30; 19 Pac. 251) the court, after referring to the decisions in Wilcox v. Jackson, Newhall v. Sanger, and other cases, said:

"There is no statutory definition of the words "public lands," and the meaning of them may vary somewhat in different statutes passed for different purposes, and they should be given such meaning in each as comports with the intention of Congress in their use.""

In a broad sense, as the United States can have no property which is not public property (Van Brocklin v. Tennessee, 117 U. S. 151, 158), all the lands which it owns are

"public lands," whatever, at a given time, may be their status in relation to possible acquisition of title from the Government. The term "public lands" and the term "public domain," held to be its equivalent (Barker v. Harvey, 181 U. S. 481, 490), exist in many provisions of law, civil and criminal, the purposes of which have obviously no relation whatever to any change of title. Take, as one instance only, the provisions against willfully setting out or leaving fires on the "public domain" (Penal Code, secs. 52, 53; 29 Stat. 594; 31 Stat. 170). Does any pressing reason suggest itself why this legislation, though highly penal, should not be held applicable to lands within a forest reservation? And would it be reasonable to say that its application to the lands now in question ceased when the State filed its request to have them surveyed?

Illustrations like this, though not of course conclusive, indicate how unsafe it may be to lay down any hard and fast rule for the interpretation of a term which Congress undoubtedly has used in the past, and may be expected to use in the future, in varying degrees of significance. Whether these lands, notwithstanding the proceedings taken by the State, are still to be regarded as "public lands" for the purpose of reservation by the President may best be decided, not by resort to a definition or upon any insulated view of that term, but by consideration and comparison of the two enactments involved.

The substantial object of the legislation of 1891, was obviously not to bestow a power or privilege upon the President, but rather to declare a policy which Congress deemed important to the public welfare, and to provide expedient means for its accomplishment. The discretion reposed and the power conferred implied a duty to exercise them; the President came under an obligation to make reservations of suitable land whenever and wherever, in his judgment, they should be made to carry out the general plan of Congress--a plan of which this executive participation was itself a material and important element. A repeal, therefore, in whole or in part, of the authority thus conferred upon the President, could only mean a

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renunciation in a corresponding degree of the policy of Congress touching forest reservations. And the same may be said of legislation which would render it possible for States to suspend or seriously interfere with the President's ability to set aside forest reservations within their borders. But this is precisely what could be accomplished under the act of 1894 if construed as the State of Idaho believes it should be. By the mere filing of applications and making of publications this important function of the President could be entirely suspended as to vast areas of the unsurveyed public domain for long periods of time. In this way reservations might be defeated upon the very eve of their creation. It is not, of course, to be assumed that the States would deliberately abuse such a power; but, on the other hand, it is not out of the way to suppose that they might exercise it in their own interest so liberally as seriously to handicap the President in his efforts to set apart timbered lands which he believed should be reserved for the federal purpose.

Upon the general principles that acts granting property or privileges are to be strictly construed in favor of the Government (Dubuque & Pacific R. Co. v. Litchfield, 23 How. 66, 88), that in the absence of specific language or necessary implication to the contrary, the sovereign is excepted from the operation of general laws, which tend to divest of any right, privilege, title, or interest (United States v. Herron, 20 Wall. 251, 263; Dollar Savings Bank v. United States, 19 Wall. 227, 239), and that repeals by implication. are not favored (Frost v. Wenie, 157 U. S. 46, 58); I am obliged to conclude that the legislation of 1894-notwithstanding its evident purpose to realize for the States named the bounties in land which Congress had extended to them, and notwithstanding the general language reserving the areas which they ask to have surveyed from "any adverse appropriation by settlement or otherwise❞—was not designed to empower the State to withdraw public lands from the operation of the provisions of the act of 1891, to any extent or in any way not previously permissible.

The act of 1894 was evidently intended, first, to expedite the surveys, so that the lands might be identified for selection, and second, to hold off new claimants (who otherwise might anticipate the States), until the surveys had been approved and the States had enjoyed a reasonable opportunity thereafter to make their selections. It was intended to effect a readjustment of the relations previously existing between the States and other beneficiaries of the land laws, but not to confer upon the States any privilege which they did not already possess to precede the Government in appropriations of land. This view appears to conform entirely with the purpose of the legislation as it was understood by the executive officials who drafted it, and by the Representative who introduced it in its. original form (as an amendment to an appropriation bill) and explained it on the floor of the House. (See proceedings and official correspondence, Cong. Rec., vol. 26, pt. 3, pp. 2955-2959; also Senate proceedings, ib., vol. 26, pt. 8, pp. 8020-8021.)

The facts that the State of Idaho expended money to cruise the land and advanced funds for the survey, and that, notwithstanding the proclamation, the survey was proceeded with at the expense of the State, while they help to emphasize the hardship of the situation in which the State has been placed, can not, in my opinion, affect the foregoing conclusions. Undoubtedly any moneys which it paid to the Government or its officials by way of fees, survey expenses, or otherwise, upon the faith of its application, ought, ex æquo et bono, to be refunded. I am greatly impressed, also, by the representations made concerning the disappointment and loss which have come to the State from its inability to obtain the lands which were supposedly granted to it by Congress.

Very respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.