Page:North Dakota Reports (vol. 2).pdf/398

 pany,’ not by him; nor was the selection required to be approved by him, as is required by some other acts; and when there was a deficiency, and the company selected lands open to selection, there was no authority vested in the secretary to arbitrarily refuse to recognize and allow such selection. This would deprive the company of the right of selection expressly given by the statute, and vest it in the secretary, where, as the statute says in express terms, ‘other lands shall be selected by said company in lieu thereof.’” The power and duty of the department to examine and pass upon these selections is unquestionable, The duty of issuing patents for indemnity lands properly selected carries with it the additional duty, and consequent power, of determining if they are properly selected; that is, of ascertaining whether there is a proper basis for the selection in the shape of a loss from the place limits; that the selection is of land subject to the right of selection, and is properly made, in compliance with the rules and regulations in force at its date. Where the selections are improperly made, or where the lands are not subject to the right of selection, or where there was no proper foundation therefor, they could properly be rejected and canceled by the department. Such power is necessary to the due administration of the land department. Indeed, if the lands were not subject to the right of selection, or there were no losses, the approval of the selection by the secretary would be ineffectual to pass any title to the company. There is nothing inconsistent in the existence of such authority in the department with the acquisition by the company if an indefeasable title to the lands prior to the approval of such selections, by a selection duly made of lands subject to the right of selection and in lieu of a proper loss. Thus it is the secretary’s duty to examine the place lands before patenting the same, to ascertain if they are granted; but such duty on his part does not prevent the title to those of the place lands that fall within the conditions prescribed in the granting act vesting in the grantee immediately upon the fixing of the line of definite location, and long before such duty is performed. Nor will an erroneous decision on his part divest the rights vested by the operations of the act, but the courts will, when the matter is properly brought