This is an appeal from the circuit court of the district of Kansas. The suit is brought by B. H. Brewster, attorney general of the United States, for and on behalf of the United States. The object of it is to set aside certain instruments in writing which, if they are valid, are supposed to convey title from the United States for a considerable quantity of land in southeastern Kansas.
An act of congress approved July 26, 1866, granted to the state of Kansas 'every alternate section of land or parts thereof designated by odd numbers, to the extent of five alternate sections per mile on each side of the road, and not exceeding in all ten sections per mile, * * * for the purpose of aiding the Union Pacific Railroad Company, Southern Branch, the same being a corporation organized under the laws of the state of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near that military reservation, thence down the valley of the Neosho river to the southern line of the state of Kansas, with a view to an extension of the same through a portion of the Indian Territory to Fort Smith, Arkansas. * * *'
There is the usual clause in this grant providing that if 'it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid; which lands thus indicated by the direction of the secretary of the interior shall be reserved and held for the state of Kansas, for the use of said company, by the said secretary, for the purpose of the construction and operation of said railroad, as provided by this act.'
This railroad company, for whose benefit the grant was made to the state of Kansas, afterwards changed its name, by a valid procedure, into that of the Missouri, Kansas & Texas Railroad Company. Under this latter name it built the road contemplated by this grant, which was completed in due time, and asserted a claim before the commissioner of the general land-office for the lands now in question as indemnity for others lost by the previous sale, appropriation, or other disposition of them, under the clause above cited in the act of 1866. These lands were, on that demand, certified to the state of Kansas, and by the state patented to the railroad company. The Missouri, Kansas & Texas Railroad Company afterwards, for a valuable consideration, conveyed them to the appellant in the present case, the Kansas City, Lawrence & Southern Kansas Railroad Company.
The object of this suit is to vacate and declare void the certification of the lands by t e secretary of the interior to the state of Kansas, as well as the patents issued by that state to the railroad company. There is no allegation of fraud, accident, or mistake, except as the alleged want of authority or power in the officers of the United States to certify these lands to that state may be a mistake in law. Unquestionably, if there was no such power, the government has a right by this proceeding to have those instruments declared void and set aside as a cloud upon its title. The authority of the commissioner of the general land-office and the secretary of the interior to make this certification of the lands to that state for the benefit of this company depends upon the true construction of this act of 1866, and of certain other statutes on the same subject.