The nature and extent of the power conferred by Congress in the Porto Rico Organic Act of April 12, 1900 (31 Stat. 77), on the people of Porto Rico to incur obligations in anticipation of taxes are so fully considered in my opinions of April 15, 1910 (28 Op. 245), and of June 26, last (29 Op. 468), as to make anything more than a reference to these opinions unnecessary in this case. The power so granted by Congress is broad and general in its scope, being limited only by the provision that the indebtedness incurred under its authority shall not exceed 7 per centum of the aggregate tax valuation of the property of the corporation concerned. In the present case you state that this limitation will not be exceeded by the proposed issue and it is evident that in every other respect the terms of the organic act have been complied with. The case does not differ in any respect from that of the road and bridge bonds, whose legality was affirmed in the opinion of April 15, 1910, just referred to.

I have examined the form of registered bond submitted by you, and it appears to comply with the provisions of section 2 of the act of the legislative assembly of Porto Rico of March 7, 1912, the relevant section upon this matter.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF WAR.

NORTHERN PACIFIC LAND GRANT-INDEMNITY SELEC

TIONS.

In selecting indemnity lands for the loss of mineral lands the Northern Pacific Railway Co. is not limited to the State in which the loss occurred.

The company may select as indemnity lands within the primary limits, which at the time the grant attached were "reserved, sold, granted, or otherwise appropriated," but which have since been relieved of that impediment and at the time of the selection are unoccupied or unappropriated public lands.

The indemnity selection for lost mineral lands may be made within 50 miles of the line of the road.

Where there is a discrepancy between the printed statutes and the enrolled act the latter will control.

DEPARTMENT OF JUSTICE,

July 24, 1912.

SIR: I have the honor to reply to your letter of December 12. 1911, requesting an opinion concerning certain indemnity lands selected by the Northern Pacific Railway Co. in lieu of lands lost from the primary grant because of their mineral character.

The bases assigned in support of these selections are lands in the State of Montana which have been classified and approved as mineral under the act of February 26, 1895. (28 Stat. 683.) The selections were made under the last proviso to section 3 of the act of July 2, 1864. Stat. 367.)

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The material portions of section 3 are as follows: "Every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, * * * Provided further, That all mineral lands be, and the same are hereby, excluded from the operations of this act, and

in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections, nearest to the line of said road, and within fifty miles thereof, may be selected as above provided."

The underscored words" and within fifty miles thereof," in the above quotation do not appear in the act as published in the Statutes at Large, but are in the act as passed and approved, and as recorded in the State Department.

The lands selected are in the Wausau land district, in Wisconsin. They are all of odd-numbered sections, and all but two are within the 20-mile or primary limit. These two, however, are situated outside both the primary 20mile limit and the secondary 10-mile limit, but are in fact within "fifty miles fifty miles" of the line of road as definitely

located.

You request an opinion upon the three following questions:

"1. In the matter of indemnity for mineral lands excluded from its grant, is the company limited to the State in which the loss occurred?

2. May the company select, as indemnity, lands within the primary limits, which, at the time the grant attached, were reserved, sold, granted, or otherwise appropriated,' but which since said time, have been relieved of said impediments and are, at the time of the selection, unoccupied and unappropriated public lands?

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"3. Are lands lying more than 10 miles beyond the limits of said alternate sections' granted by the act of 1864, but within 50 miles' of the line of road, subject to selection as indemnity for mineral lands lost to the grant by reason of exclusion under the terms thereof?"

It appears from the legislation in question that it was the intention of Congress to give to the Northern Pacific Railroad Co. every alternate odd-numbered section of land throughout a strip 40 miles wide on each side of the road in the Territories and 20 miles wide in the States; and the particular sections given were automatically fixed upon the filing and approval of the map of the right of way. If, for any of the reasons mentioned in the statute, the

United States could not give good title to any agricultural sections within this primary belt, the company was to have in lieu thereof a similar amount of land within an adjoining belt 10 miles wide; and such lieu sections were also to be alternate and odd-numbered and were to be selected under the direction of the Secretary of the Interior.

All mineral lands were excepted from this grant, in lieu of which a like quantity of agricultural lands in oddnumbered sections nearest to the line of railway and within 50 miles thereof was to be selected.

1. I am of the opinion that in selecting indemnity lands for the loss of mineral lands the company is not limited to the State in which the loss occurred. Attorney General Garland thus answered the question, so far as losses of agricultural lands were concerned, in his opinion of January 17, 1888 (19 Op. 88), and this ruling has been consistently followed by your Department.

Northern Pac. R. R. Co. (on review) (20 L. D. 187). Northern Pac. R. R. Co. v. Shepherdson (24 L. D. 417). Hagen v. Northern Pac. R. R. Co. (26 L. D. 312). There is no reason for a different ruling in regard to mineral losses.

2. I am of the opinion that the company may select as indemnity lands within the primary limits, which at the time the grant attached were "reserved, sold, granted, or otherwise appropriated," but which have since been relieved of that impediment and at the time of the selection are unoccupied or unappropriated public lands.

While there is some apparent conflict in the decisions on this question, I think the true rule is laid down by the Supreme Court in Ryan v. Railroad Co. (99 U. S. 382), and United States v. Southern Pacific Co. (223 U. S. 565). See also 26 L. D. 452 and 29 Op. 124, 129, 130.

In the Ryan case, the grant to the California & Oregon Railroad Co. was in terms similar to those of the grant involved here; at the time of the grant a part of the land within the indemnity belt was subject to a Mexican claim, which was subsequently rejected, and a patent issued to the railroad for this as indemnity land. Ryan, a homesteader, later settled on the same section and also received a patent. In a suit between them to determine the lawful title, the court admitted that at the time of the original grant, the

section, being sub judice, would not have been public land within the meaning of the statute, but by the subsequent dismissal of the claim it had become so, and was as open to selection by the railroad as any other land within the indemnity belt.

In United States v. Southern Pacific Company (223 U. S. 570), Mr. Justice Holmes, speaking of the Ryan case, said:

"An indemnity grant, like the residuary clause in a will, contemplates the uncertain and looks to the future. What a railroad is to be indemnified for may be fixed as of the moment of the grant, but what it may elect when its right to indemnity is determined depends on the state of the lands selected at the moment of choice. It seems to us, in short, that Ryan v. Railroad Company, supra, should be taken to establish a general principle and should not be limited to its special facts.”

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This construction seems to me to accomplish the purpose of Congress. Undoubtedly Congress intended that the railroads should have these odd-numbered sections within the primary limits in return for the accomplishment of its great enterprise. The exception of lands to which other claims had previously attached was not designed to serve as a technical pretext whereby that which had been granted might thereafter be withdrawn. It was created for the purpose of protecting homesteaders and others who might settle upon the lands before the railroad's line was definitely located. It is wholly unnecessary to the accomplishment of this purpose that after these homestead claims have ceased to exist their temporary interposition should continue to be effectual to prevent the accomplishment of the underlying intent of Congress. And although the fiction of the gift in præsenti may properly prevent their passing under the primary grant, I see no reason why they should not be subject to selection as indemnity lands, at least under provisions phrased like the mineral indemnity proviso in the present charter.

3. Your third question involves the question whether the published statute or the act as passed and enrolled and recorded in the State Department is to control.