ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
This case involves questions of the power of the land department over the matter of the identification of the particular lands passing under the swamp land act of 1850, of the finality of the action of the Secretary of the Interior in approving and certifying to the Governor of the State a list of such lands, and of the effect of the confirmatory act of 1857. There is no testimony showing what was in fact the condition of the land, whether swamp or not, at the time of the passage of the act of 1850, and the case turns wholly upon the documentary evidence.
The act of 1850 made a grant in praesenti; in other words, the title then passed to all lands which at that date were swamp lands, and the only matters thereafter to be considered were those of identification. Railroad Company v. Smith, 9 Wall. 95; French v. Fyan, 93 U.S. 169; Martin v. Marks, 97 U.S. 345; Rice v. Sioux City & St. Paul Railroad, 110 U.S. 695; Wright v. Roseberry, 121 U.S. 488; Tubbs v. Wilhoit, 138 U.S. 134. But while the act operated as a grant in praesenti, the determination of what lands were swamp lands was entrusted to the Secretary of the Interior. Section 2 contains this provision:
"That it shall be the duty of the Secretary of the Interior, a soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the State of Arkansas, and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in said State of Arkansas, subject to the disposal of the legislature thereof."
It may be remarked in passing that while the first and second sections refer specifically to the State of Arkansas, section 4 of the act makes it applicable to all the States. It is true that in the first section Congress defines the lands granted as "swamp and overflowed lands, made unfit thereby for cultivation;" and section 3, referring to the lists and plats ordered by section 2 to be made out by the Secretary of the Interior, contains this further specification as to the character of the lands granted:
"That in making out a list and plats of the lands aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom."
But while Congress thus defined what it intended to grant as swamp and overflowed lands it entrusted, as appears from section 2, the identification of those lands to the Secretary of the Interior.
It will be perceived that the act contemplated the issue of a patent as the means of transferring the legal title. In Rogers Locomotive Works v. American Emigrant Co., 164 U.S. 559, 574, it was said, speaking in reference to this matter, and after a full review of the previous authorities: "When he" (that is, the Secretary of the Interior) "made such identification, then, and not before, the State was entitled to a patent, and 'on such patent' the fee simple title vested in the State. The State's title was at the outset an inchoate one, and did not become perfect, as of the date of the act, until a patent was issued."
Generally speaking, while the legal title remains in the United States, the grant is in process of administration and the land is subject to the jurisdiction of the land department of the Government. It is true a patent is not always necessary for the transfer of the legal title. Sometimes an act of Congress will pass the fee. Strother v. Lucas, 12 Pet. 410. 454; Grignon's Lessee v. Astor, 2 How. 319; Chouteau v. Eckhart, 2 How. 344, 372; Glasgow v. Hortiz, 1 Black, 595; Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U.S.
. Sometimes a certification of a list of lands to the grantee is declared to be operative to transfer such title, Rev. Stat. § 2449; Frasher v. O'Connor, 115 U.S. 102; but wherever the granting act specifically provides for the issue of a patent, then the rule is that the legal title remains in the Government until the issue of the patent, Bagnell v. Broderick, 13 Pet. 436, 450; and while so remaining the grant is in process of administration, and the jurisdiction of the land department is not lost.
It is, of course, not pretended that when an equitable title has passed the land department has power to arbitrarily destroy that equitable title. It has jurisdiction, however, after proper notice to the party claiming such equitable title, and upon a hearing, to determine the question whether or not such title has passed. Cornelius v. Kessel, 128 U.S. 456; Orchard v. Alexander, 157 U.S. 372, 383; Parsons v. Venzke, 164 U.S. 89. In other words, the power of the department to inquire into the extent and validity of the rights claimed against the Government does not cease until the legal title has passed. "A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination." Miller v. Kerr, 7 Wheat. 1, 6. After the issue of the patent the matter becomes subject to inquiry only in the courts and by judicial proceedings. United States v. Stone, 2 Wall. 525, 535; Moore v. Robbins, 96 U.S. 530; United States v. Schurz, 102 U.S. 378, 396; Bicknell v. Comstock, 113 U.S. 149, 151; Iron Silver Mining Co. v. Campbell, 135 U.S. 286; Williams v. United States, 138 U.S. 514. This jurisdiction of the department has been maintained in cases of preemption where the entire purchase money has been paid and a receiver's final certificate issued. Orchard v. Alexander, 157 U.S. 372, and cases cited in the opinion; Parsons v. Venzke, 164 U.S. 89.
In Knight v. United States Land Association, 142 U.S. 161, is a full discussion by Mr. Justice Lamar of the power of the Secretary of the ...