Under the statutes of Washington, an action in form similar to the old action of ejectment may be maintained in favor of one who has a superior title, whether legal or equitable. Ballinger's Anno. Codes & Statutes, §§ 5500, 5508. No patent is shown to have been issued by the general government, and the question, therefore, is whether the state obtained an equitable title by virtue of the selection and approval disclosed in the findings of fact.
The first contention of plaintiff in error is that no authority is shown for Phillip H. Lewis to act as agent for King county or the territory of Washington in making the selection. We pass the assertion that, in the brief of counsel for plaintiff in error in the state court, the right of Lewis to act for the county was conceded. It is enough that Lewis, assuming to act as agent, made the selection, and that his selection was approved by the Secretary of the Interior; for the state, the successor of the territory, by commencing this action, and claiming the benefit of his act as agent, ratified and confirmed what he did as agent. Besides, whether he had authority to so act is not a Federal question, but one whose decision by the state court is final.
Coming now to the Federal question, the approval by the Secretary of Interior of a selection made by one claiming to be the agent of a territory or state of land in lieu of school sections 16 and 36 is, if nothing more, in effect a withdrawal from private entry of the selected land, and such withdrawal continues until the approval of the selection is itself set aside. Whether such selection, so approved, shall afterwards ripen into a full legal title or not, is immaterial so far as the question of withdrawal is concerned. In the case at bar, at the time of the selection and approval, there was no settlement, no private right, nothing to interfere between the United States and the territory of Washington, or prevent a selection of this tract in lieu of an ordinary school section. When, therefore, the Secretary of the Interior approved the selection, it at least operated to withdraw the land from private entry. A claim in behalf of the territory had been presented, and that claim had been approved by the proper officer of the United States. While the land remained subject to such claim and approval, no individual could come in and question its validity. Johanson's attempt to make a homestead was wrongful, and gave him no rights whatever in the land.
But, further, the title of the state is good. For the material parts of the statutes bearing upon this question, see note at foot of this page.
Now we remark that, from the legislation of Congress, nothing is clearer than that the policy of the government has been a generous one in respect to grants for school purposes. Cooper v. Roberts, 18 How. 173, 15 L. ed. 338; Minnesota v. Hitchcock, 185 U.S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650, and cases cited in the opinion. And, as was said by Mr. Justice Field, in Winona & St. P. R. Co. v. Barney, 113 U.S. 618, 625, 28 L. ed. 1109, 1111, 5 Sup. Ct. Rep. 606, 609, acts making grants 'are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent, we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.'