Page:Federal Reporter, 1st Series, Volume 10.djvu/459

 C, M. & ST. P. BY. CO. V. 8. 0. <& ST. P. E. CO. 447 �It is fuitlier said that "all the lands claimed, -with the exception of here and there a small tract, had been patented to the state for tUe benefit of the defendant Company long prior to the passage of the act upon which the complainant rests its claim of title. �The f acts upon which this proposition rests seem to be briefly as follows: �On the twelfth day of February, 1873, Mr. Secretary Delano addressed the following letter to Hon. Willis Drummond, then commissioner of the general laud-offlce, �"DkPABTMENT of THE INTERIOK, �"Washington, D. C, February 11, 1873. �"SiE — ^I have examined the case of the Mc&regor & Missouri River R. Co. V. The Sioux City & St. Paul R. Co., on appeal from your decision, and I flnd that the Sioux City & St. Paul Company first located and constructed its Une along the lands in controversy and is entitled to the same. �" I reverse your decision, and herewith retura the papers transmitted by you. " Very respectfully, C. Delano, Secretary. �" Hon. Willis Drummond, Commissioner General Land-Office." �In pursuance of this decision the lands in controversy were patented to the state of lowa for the use and benefit of the Sioux City & St. Paul Eailway Company. �Af terwards, to-wit, on the thirteenth day of March, 1874, the legislature of the state of lowa passed an act providing that the governor of the state should certify to the Sioux City & St. Paul liailroad Company all lands which were then held by the state of lowa in trust for the benefit of said railroad company, in accordance with the provisions of section 2, chapter 144, of the Laws of the Eleventh General Assembly. Turning to said section 2, chapter 144, we find the folio wing: �" Sec. 2. Whenever any lands shall be patented to the state of lowa in accord- ance with the provisions of said act of congress, said lands shall be held by the state in trust for the benefit of the railroad company entitled to the same, by virtue of said act of congress, and to be deeded to said railroad company as shall be ordered by the legislature of the state of lowa at its next regular session or at any session thereafter." �In pursuance of this legislation the governor of the state did certify the lands in controversy to the Sioux City & St. Paul Company, subject, however, to " conflicting claims." It is claimed that this qualiiied clause, saving all " conflicting claims," is nugatory, since the governor had no authority to impose it. Such, however, seeras net to have been the view taken of the gov- ernor's action by the general assembly of the state of lowa, since we flnd that in the act of 1878, transferring to the complainant company the lands and rights belonging to the McGregor enterprise, the following provisions occur: �" Sec. 2. That all lands and rights to lands, whether in severalty, joint tenancy, or in common, and including all lands or rights to lands, or any interest therein, or daims thereto, whether certified or not, embraced within the overlapping or conflicting limits of the two grants made and described by the act of con- gress hereinafter designates, etc., be and the same are hereby granted, etc., to the Chicago, Milwaukee &.St. Paul Railroad Company." ��� �