ERROR TO THE SUPREME COURT OF THE TERRITORY OF OKLAHOMA.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
In Knight v. United States Land Association, 142 U.S. 161, the supervisory power of the Secretary of the Interior over all matters relating to the sale and disposition of the public lands, the surveying of private land claims and the issuing of
patents thereon, and the administration of the trusts devolving upon the government by reason of the laws of Congress or under treaty stipulations, respecting the public domain, was fully considered, and numerous authorities cited. It was declared by Mr. Justice Lamar, speaking for the court, that the Secretary was clothed with plenary authority as the supervising agent of the government to do justice to all claimants, and to preserve the rights of the people of the United States, and that he could exercise such supervision by direct orders or by review on appeal, and, in the absence of statutory direction, prescribe the mode in which it could be exercised by such rules and regulations as he might adopt.
In the execution of the trusts created by the act of May 14, 1890, the Secretary of the Interior on June 18, 1890, issued a circular setting forth such regulations. (10 Land Dec. 666.) Of these, paragraph 12 provided for the hearing and determination by the town site trustees of controversies between two or more claimants to the same lot, block, or parcel of land, and paragraph 13 for an appeal from their judgment to the Commissioner of the General Land Office, and an appeal from the Commissioner to the Secretary. On May 8, 1891, this paragraph was amended by adding thereto the words: "A failure to appeal as herein provided shall not be construed as a waiver of, or to prejudice the rights of either party, nor held to preclude suits in the courts in case the party entitled to appeal desires to proceed in that manner for the purpose of settling the title to the lot or lots in controversy." (12 Land Dec. 612.) These regulations were referred to by the Secretary under date of July 3, 1891, in certain instructions to the Commissioner of the General Land Office, in which it was ruled that the Secretary was authorized to allow appeals from the decisions of the town site trustees under the act of May 14, 1890, to the Commissioner, even though the act did not expressly provide for an appeal in such cases. (13 Land Dec. 9.) The question of the right of appeal is there discussed at length, and again on March 15, 1892, (14 Land Dec. 295,) by the Assistant Secretary, who decided that the issue of the patent to town site trustees under the act was not a disposition
of the government title, but a conveyance in trust to be held under the direction of the Secretary of the Interior.
This proposition is denied, and it is insisted that the authority of the Secretary relates solely to public lands, the title to which is still in the United States, and that by the issue of the patent to town site trustees the title passes and all control over the lands embraced therein is lost. Hence that in this case the title of the United States passed by the patent to the trustees, and that they held it thereafter in trust for the occupants, free from the control of the Land Department. Reference is made to Moore v. Robbins, 96 U.S. 530, and like cases, to the point that when a patent has been awarded, issued, delivered, and accepted, all right to control the title or to decide on the right to the title has passed from the executive department of the government. But those cases refer to the legal title directly and finally conferred, and the principle invoked can only be applicable on the assumption that by the town site conveyance title was granted to the Oklahoma trustees for the purpose of divesting the government of all authority and control over the final disposition of the property, and not for the purpose of putting title in the trustees as agents of the government for the execution of the trust devolving upon them as such. Whether this assumption is justified or not must depend upon the terms and true construction of the act of May 14, 1890.
By section one of that act the land that might be embraced in each town site entry was limited, and it was prescribed that the entry should be made for the several use of the occupants thereof by three trustees to be appointed by the Secretary of the Interior for that purpose, and that when the entry should have been made the Secretary should provide regulations for the proper execution of the trust by such trustees, including surveys when necessary, or the approval of such survey as might already have been made by the inhabitants, and for the assessment upon the lots of such sum as might be necessary to pay for the lands embraced in such town site, costs of survey, conveyance of lots, and other necessary expenses, including compensation of trustees.
Section two provided that in the execution of such trust and for the purpose of the conveyance of title by the trustees, any certificate or other paper evidence of writing duly issued by the authority recognized for such purpose by the people residing upon any town site, the subject of entry thereunder, should be taken as evidence of the occupancy by the holder thereof of the lot or lots therein described, except that where there might be an adverse claim to such property such certificate should only be prima facie evidence of the claim of occupancy.
Section four directed that all lots not disposed of as thereinbefore provided for should be sold under the direction of the Secretary of the Interior for the benefit of the municipal government of any such town, or the same or any part thereof might be reserved for public use as sites of public buildings or for the purpose of parks, if in the judgment of the Secretary such reservation should be in the public ...