
    THE STATE OF ILLINOIS v. THE UNITED STATES.
    [No. 12,
    Departmental.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    The Swamp Land Act 1850 grants overflowed lands to the several States to-he drained and reclaimed. Subsequently portions of the granted lands are sold by the United States to innocent purchasers. Ultimately an act is. passed authorizing patents to issue to them, and to indemnify each State by allowing it to locate a like quantity upon, any of the public lands subject to entry. A Secretary of the Interior decides that this right must be confined to lands within the State; also that the claimant is not entitled to swamp lands reserved from entry and sale .by the President pursuant to the Illinois Central Railroad Act 1850.
    I.The transfer of a claim under the Bowman Aot (22 Stat. L., p. 485, § 2)> does not carry with it a,n increase of power over the matter in controversy. If the department be without jurisdiction of the claim, the court is without power to determine the case upon its merits.
    II.A decision of a Secretary of the Interior concerning the public lands,, general in its intention and application, and covering all lands-within the description of certain statutes, is obligatory upon his-successors, who can neither reverse his rulings nor reopen the controversy by transferring a claim fairly covered by the decision to this court, under the Bowman Act. The cases relating to decisions in the executive departments examined and stated.
    III.The Revised Statutes did not make a new state of the law such as-would authorize the head of an executive department to re-examine legal questions determined by his predecessors.
    
      The Reporters' statement of tbe ease:
    Tbe following are tbe facts as found by tbe court:
    I. That after tbe passage of tbe act of September 28, 1850' (9 Stat. L., 519), tbe government of tbe United States continued to dispose of, and in fact did dispose of to individuals, large quantities of the swamp and overflowed lands in tbe State of Illinois. On tbe 31st day of March, 1858, Hon. Jacob Thompson, then Secretary of tbe Interior, decided that tbe State of' Hlinois was not entitled to locate swamp indemnity lands outside tbe limits of tbe said State, under tbe provisions of tbe act of March 2, 1855: said decision was affirmed by tbe following successive Secretaries of the Interior: Hon. Caleb B. Smith, May 8, 1861; Hon. W. T. Otto (Acting Secretary), March 12. 1863; Hon. O. H. Browning, February 8, 1868; Hon. C. Delano, February 2, 1874; and Hon. S. J. Kirkwood, October 19, 1881.
    II. That subsequently to the passage of the said act of September 28, 1850, large quantities of swamp and overflowed lands in the State of Illinois were located with military bounty - land warrants and scrip, and among other swamp and overflowed lands so located were 5,763.13 acres situated in Clay County, Illinois.
    III. That pursuant to the decisions of the Secretaries of the Interior the indemnity certificates issued to the State of Illinois since March 31, 1858, by the Land Office of the United States, have expressly declared that the land to be located thereunder must be public land of the United States within said State.
    IV. That there are no public lands of the United States in the State of Illinois subject to be taken by or located with swamp indemnity, certificates.
    V. That the location of the line of railroad in the State of Illinois authorized by the act of Congress approved September 20,1850 (9 Stat., 466), was certified by the president and the secretary of said company, known as the Illinois Central Railroad Company, on December 11,1851; that said certificate was filed in the General Land Office on February 13,1852, and was approved by the Secretary of the Interior on February 20, 1852; that included within the sections of land designated by the odd numbers lying within 6 miles of the line of railroad so located are certain swamp and overflowed lands, for which the State of Illinois claims indemnity under the provisions of the acts of Congress approved March 2, 1855, and March 3, 1857.
    VL That on the 19th day of September, 1850, the President of the United States, by executive order, suspended and reserved from sale the lands for 6 miles on each side of the now Illinois Central Railroad for not to exceed six months, and by further orders, of date February 25, 1851, September 4,1851, December 31,1851, continued the said suspension and reservation until June 30, 1852; that on the 3d of April, 1852, by a proclamation of the President of that date, the said lands were restored to entry and offered for Sale. The power of the President so to suspend the sale of lands had been theretofore several times exercised; among others, once in the year 1828 and •once in 1844, as well as in other cases.
    VII. That on the 20th day of November, 1855, Hon. Eobert McClelland, then Secretary of the Interior, decided that the State of Illinois was not entitled, under the provisions of the act of September 28, 1850, to the swamp and overflowed lands lying in the odd-numbered sections of land within. 6 miles of each side of the line of the Illinois “Central Bailroad; that said decision was affirmed by Hon. C. Schurz, subsequent Secretary of the Interior, May 2, 1878, June 28, 1880, and, after reference to the Attorney-G-eneral for an opinion, again affirmed by said Secretary March 2, 1881.
    VIII. That at the time of the passage of the act of September 28, 1850, the United States owned large tracts of public lauds in the State of Illinois, unsurveyed and unappropriated, and unaffected by pre-emption or homestead claims, which lands were swamp and overflowed, and rendered thereby unfit for cultivation. Also, that tracts of such swamp lands were situate in the odd sections within 6 miles on either side of the Illinois Central Bailroad, as afterwards located •, also tracts of such swamp lands situate between the 6-mile and 15-mile limits of said railroad, as located.
    IX. That the United States, on March 2, .1855, and for some considerable time thereafter, owned public lands in the State •of Illinois of the class subject to entry at $1.25 per acre, and ■disposed of all of the same since said last-named date except an amount heretofore located under swamp-land certificates, and that the United States has still in other States and Territories public lands unappropriated and unreserved, and not interfered with by pre-emption or homestead claims.
    X. That the lands described as lying in township 5 and mentioned in the second part of the petition were situate in Olay County, in the State of Illinois, and they were swamp and ■overflowed on the 28th of September, 1850; and the same were duly selected and claimed by the State of Illinois as swamp and overflowed; that the same were either sold or located by the United States after September 28,1850, and before March 3, 1857, and the State of Illinois claimed indemnity on the same, which the department refused, upon the ground that the same are situate within/the 6-mile limits of the Illinois Central Railroad, and for that reason did not inure to the State under the swamp-land grant.
    XI. That in the year 1883 the State of Illinois caused to be selected the N. £ of the NW. \ of sec. 17, T. 4 N., E. 5 E., m the county of Clay, in the State of Illinois, as swamp land, under the grant of September 28, 1850; that the same had Ueen sold by the United States; that the State asked indemnity therefor, and it was refused by the Commissioner of the “General Laud Office, upon the ground that the same lies within the 6-mile limits of the grant to the Illinois Central ¡Railroad.
    XII. That there are still claimed by the State of Illinois tracts of land as indemnity land under the swamp-land indemnity acts of Congress, and a cash indemnity under the aforesaid acts.
    XIII. That the Department of the Interior instructs its special agent to examine the tracts of land in Illinois upon which land indemnity is claimed, and to make report upon the same to the department; that this practice has been followed for many years, and continues up to the time of the filing of the petition herein.
    XIV-. That the department has once allowed indemnity on a tract in the odd sections within 6-mile limits of said railroad— S. I NW. i, sec. 35, T. 4 N., E. 5 E.
    
      Mr. 8. 8. Burdette and Mr. O. A. Gregory for the claimant:
    1. The department has adopted a rule of action on its own construction of a law under which we assert “ a right”; it has assumed to pass on the constitutionality and on the meaning and intent of acts of Congress, and has so decided in respect thereto, by its rule-of action, as to deprive us of that which we ■say is “ a vested right.” We may grant that such decision is snow, by force of the principle, res judicata, the binding rule in that department until by a higher authority its ruling is corrected. We say we are in a court of law now; that there alone resides the constitutional power to conclusively pass judgment on such a matter, so as to allow a right or deny a right to a party; and that if in the opinion of this court, we have a vested right affected by the subject-matter of this reference, it is the duty of the court to so instruct and advise the department as to protect “ that right ” ; and that it is not reasonable to assert against us that such a question has been concluded in the department by its decision on the law. (See Towsley v. Johnson, 13 Wall., 72, and numerous cases,passim.)
    
    2. The adoption of the Revised Statutes by Congress created a new state of the law, which enables us to come to this court to deal with the question as res nova.
    
    The passage of sections 2479 and 2482 of the Revised Statutes absolutely and instantly annulled the decision of Secretary McClelland on one of these questions, and of Secretary Thompson on the other.
    The passage of said sections of the Revised Statutes constituted a new grant of swamp lands and of indemnity therefor to the State of Illinois. (Wright v. The United States, Washington Law Reporter, February 9, 1880,89; United States v. Hammond, 2 Woods, 203.)
    
      Mr. J. G. Fay (with whom was the Assistant Attorney-General) for the defendants.
    1. The Bowman Act does not contemplate the revival of adjudicated cases, nor was it intended to overturn the well-settled principles of administrative law, so clearly set out by the several, Secretaries of the Interior and the Attorney-General,who have had occasion to deal with this case since the decisions of Secretaries Thompson and McClelland. The case of Frederick S. Jackson (19 C. 01. R., 505) effectually disposes of this case; it is'not and cannot be claimed that this case falls within any of the exceptions referred to in the case of the United States v. The Bmk (15 Peters, 401).
    2. In passing upon questions submitted by the departments it is submitted that, as the court is to lay down rules for administrative action, the opinions of the Attorney-General given at the request of the heads of the departments are entitled to great weight; they are entitled to the same force and effect that courts give to the decisions of other courts of concurrent jurisdiction, and in this view they are referred to.
    As early as 5 Opinions, 240, Hon. Reverdy Johnson, in a case involving the construction of á grant of land in the State of Iowa, held that the decision of the Secretary of the Treasury, whilst the Land Office belonged to his department, was resjudi-
      cata and beyond the control of the Secretary of the Interior.. The same principle is reiterated in 9 Opin., 34; 12 Opin., 172— 358; 13 Opin., 387,456; 14 Opin., 275, affirmed by this court in Lavalette’s Case (1 C. Ols. B., 149), Jackson’s Case (19 0. 01s. B., 509), and by the Supreme Court in United States v. Bank of Metropolis (15 Pet., 401).
    There is no force in the claimant’s suggestion that this rule is-not applicable when the decision of the head of a department, is based upon a matter of law. All the cases cited above referred to decisions of this character.
   Davis, J.,

delivered the opinion of the court:

By an act approved September 28, 1850,.swamp and overflowed lands unfit for cultivation were granted to the States^ wherein they were situated, to be drained and reclaimed. These-lands not being definitely located, were in many instance innocently taken up by individuals, who in due course received title therefor from the Land Office. To remedy the difficulties-which necessarily followed these double titles, Congress, in 18.15-[March 2, 1855,10 Stat. L., p. 634), confirmed the patents issued to individuals, and granted to the States the purchase-money received for swamp lands sold, or if the lands had been located by warrant or scrip, then indemnified the States by-giving them the right to locate a quantity of like amount-upon any of the public lands subject to entry at one dollar and a quarter per acre or less.” The States claimed the right under • this act to receive scrip which might be located upon any vacant public lands subject to entry at $1.25 per acre or less, no matter where situated; but Mr. Hendricks, then Commissioner of the General Land Office, declined to issue any indemnity scrip not on its face confined to location within the borders of the State receiving it. His decision was affirmed by Secretary Thompson, and has since been adhered to by succeeding Secretaries of the Interior.

The second ground of complaint is based upon the construction by the Interior Department of an act passed eight days prior to the swamp-land act, and which gave to the State of Illinois,, to aid in the construction of the Illinois Central Bailroad, the even-numbered sections on either side of that road, the odd-numbered sections, retained by the government, being advanced to double minimum price and reserved from sale by the President until 1852. The State claims the swamp lands in these odd-numbered sections, or indemnity therefor, as granted to it by the act of September 28,1850 (the “Swamp Land Act”), notwithstanding the advance in price and- the reservation of the lands by the President from sale or location. Secretary Mc-Clelland, in 1855, decided adversely to this claim of the State, and his ruling has since been regarded by the department as •conclusive.

The question of the jurisdiction and power of this court acting under the Bowman Act (March 3, 1883, 22 Stat. L., p. 485) •upon claims transmitted by the executive departments is met upon the threshold of this case and has been presented by •counsel with great care and ability, both upon the argument of the motion to dismiss and upon the final hearing.

The government cannot be sued without its consent, and may -affix to that consent such conditions as it chooses, any resulting hardship being remediable only by the law-making power. The ■act under which this case is sent here empowers us to consider those matters pending in the executive departments which are transmitted by the heads of those departments, and which are not barred by the provisions of any law of the United States. It is clear that this claim is pending in the Department of the Interior, within the meaning of the act, in so far as to give this court jurisdiction to consider it and reports its findings to the Secretary for his guidance. (Jackson v. The United States, 19 C. Cls. R., 508.)

In the McClure Case (19 C. Cls. R., 23), decided at the last term, the nature and extent of the jurisdiction conferred upon this court by the Bowman Act were fully considered, and the conclusion was reached that section 1093 of the Revised Statoutes operates upon the act, and bars in this court any demand against the government in which a final judgment has been rendered. The result of the reasoning in that case is that the transfer of a claim from one of the departments to this court •does not carry with it an increase of power over the matter in controversy, and if the head of department be himself without jurisdiction or power to aid the claimant, the latter’s legal posi-ion is not bettered by the transfer. The Bowman Act is exceptional and peculiar in its provisions, and the jurisdiction conferred by it is very different from that granted by sections 105» and 1063 of the Revised Statutes, being in its nature advisory.

As was said by this court in the McClure Case, the intention of Congress in passing the act “ seems to have been not to rer suscitate claims which had previously been forever wholly barred from settlement, and not to open old outlawed and dead issues, while it was affording assistance and relief to the departments in the investigation of claims alive and undér consideration therein.” The opinion in the case of Jackson (19 0.. Cls. R., 504) also proceeds upon this theory, and closes by directing the clerk to certify to the Secretary of the Treasury,.’ not that the decision made by his predecessor was or was not correct, but that he had “no power to open the claim for readjustment on its merits.” What, then, is the power of the Secretary of the Interior over the case at bar, one branch of which was decided by Secretary Thompson in 1858, and the other by Secretary McClelland in 1855 ?

As early as 1825, Mr. Wirt, then Attorney-General, in a let-' ter to the Secretary of the Navy, said that he had understood it to be a “rule of action prescribed to itself by each administration to consider the acts of its predecessors conclusive as tar-as the Executive is concerned.” The Supreme Court, in the case of the Bank of the Metropolis, decided in 1841 (15 Peters, 401), limited the right of an executive officer to review his predecessor’s decisions “ to mistakes of fact arising from errors of calculation, and to cases of rejected claims in which ¡material testimony is afterwards discovered and produced; in 1849,. Mr. Attorney-General Toucey held (5 Op., 29) that the principle of res judicata applied to claims “ thus deliberately considered and rejected ”; his successor, Mr. Reverdy Johnson (5-Op., 240), ruled that the decision of a Secretary of the Interior, “whether right or not.” could not be overruled by his success sor; and these decisions were followed consistently by other-Attorneys-General, among them Mr. Black (9 Op., 300 and 387), Mr. Stanbery (12 Op., 169 and 356), Mr. Hoar (13 Op., 33 and 226), Mr. Akerman (13 Op., 387), Mr. Bristow (13 Op., 457), and Mr. Williams (14 Op., 275). Even the opinion of Mr. Attorney-General Bates in the Sot Springs Case (10 Op., 61), cited as a departure from this line of authorities, does not seem to be such; but if it be, Mr. Bates retraced bis steps the next .year in the Dart Case (10 Op., 255), wherein he reviewed and followed the opinions of his predecessors.

In 1864 (Lavallette v. The United States, 1 C. Cls. R., 149) this court decided "that, the head of a department cannot, in a matter involving judgment and discretion, reverse the decision and action of his predecessor even in a matter relating to the .general affairs and management of the business of the department” ; and the Supreme Court held, in Stone v. The United States (2 Wall., 535), that one officer of the Land Office is not competent to cancel or annul the act of his predecessor ” ; finally, • this court, at the last term, in Jackson’s Case, followed the path so clearly defined by sixty years of consistent rulings, and held that the Secretary of the Treasury could not reopen a claim adjusted by his predecessor.

It is contended on behalf of the claimant, that the decisions' of the Secretaries were in their nature judicial, not administrative, and so beyond their power and jurisdiction; and, further, that the precise limited question now presented has not been •decided, that precise question being (to quote from the brief), "Will the department issue a certificate simply reciting the words of the statute of March 2, 1855, as to authority to locate land in lieu of certain 5,763 acres heretofore located, which was .also sold by the United States, situate in Clay County, Illinois, leaving the legal effect of such certificate to be hereafter tested by submission to some court of competent jurisdiction?”

We cannot agree that the decisions of the Secretaries upon the questions of statutory construction involved in this case were beyond their power to make; it is a necessary daily duty -of administrative, officers to construe-the laws by virtue of which they officially exist, which prescribe their duties and limit their powers. How far .these decisions, necessarily made in the discharge qf official duty, are binding upon others, need .not now be considered, as they clearly are binding upon the successors and subordinates of these officers until reversed by •competent authority, and such authority has not been given to this court by the Bowman Act. The decisions and opinions •already cited in relation to the power of one executive officer to reverse the ruling of his predecessor sprung from questions involving interpretations of the law, and in Jackson’s Case this ■court described the ruling of the Secretary which could not be reopened by bis successor as one upon “ a question of the construction of a statute.”

Nor is the matter presented here so limited, as the complainant contends, or confined to any specific lot of land. The Secretary of the Interior describes it as the “claim of the State of Illinois’ to-locate swamp-land indemnity scrip outside of the State, and to the swamp lands in the odd-numbered sections lying within 6 miles on each side of the Illinois Central Railroad,” and this sub mission cannot be limited or changed by the ■claimant. The Secretary requests the findings of this court not in relation to the Clay County lands alone, but upon the broad question of the right of the State to the lands described or to indemnity scrip not confined to location within the State. Further, the decisions of Secretaries Thompson and McClelland were general in their intention and application, covering all lands within the description of the acts, and, while inchoate as to specific lots until defined, these rulings attached to each section as soon as located and found to fall within the acts of Congress.

It is urged that the adoption of the Revised Statutes created a new state of the law, which brings the questions up as res nova, annulling the prior decisions and making a new grant of lands and indemnity. The Revised Statutes are the legislative declaration of the law on the 1st day of December, 1873, and we can go back of them only to explain ambiguity (United States v. Bowen, 10 Otto, 508); but we cannot see that the enactment of 1874 nullified all rights which had vested prior thereto under the various statutes as theretofore construed by competent authority •, the enactment was for aid and simplicity in the future, and was not intended to tear up the past or to annul all that had gone before.

We are of opinion that the Secretary of the Interior has not authority to reop ■ n the claims of the State of Illinois specified in his letter to this court dated February 13, 1884, and in this view of the case we express no opinion as to the correctness of the decisions made by his predecessors.

The clerk will certify a copy of this opinion to the Secretary of the Interior, for his guidance and action.  