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The Honorable Henry M. Helgerson, Jr.
The school voucher programs proposed in 2000 Senate Bill No. 295, 2000 House Bill No. 2504, and 2000 House Bill No. 2462 do not result in a violation of the Establishment Clause of the United States Constitution. However, the voucher programs do result in a violation of Section 7 of the Bill of Rights of the Kansas Constitution and Article 6, Section 6 of the Kansas Constitution. Cited herein: K.S.A. 72-53,101; Kan. Const., Bill of Rights, § 7; Kan. Const., Art. 6, § 6; U.S. Const., Amend. I; U.S. Const., Amend. XIV; 2000 SB No. 295; 2000 HB No. 2462; 2000 HB No. 2504.
You request our opinion regarding whether the school voucher programs proposed in 2000 Senate Bill No. 295 (SB 295), 2000 House Bill No. 2504 (HB 2504), and 2000 House Bill No. 2462 (HB 2462) violate the Establishment Clause of the Constitution of the United States, or the Religious Liberty Clause or Education Article of the Kansas Constitution.
SB 295, HB 2504, and HB 2462 were not presented to the full Legislature for debate. The Bills will not be carried over for consideration during the 2001 legislative session. It is likely, however, that programs similar to those set forth in SB 295, HB 2504, and HB 2462 will be proposed in bills filed for the 2001 legislative session.
SB 295 and HB 2504 contain identical provisions. Under the program proposed in the Bills, a certificate would be issued by the State in the name of an eligible child's parent. The parent would then use the certificate to supplement the tuition required for attendance at an accredited nonpublic school selected by the parent. A nonpublic school could be accredited by the State Board of Education, the North Central Accrediting Association, the Independent Schools Association of the Southwest, the Independent Schools Association of the Central States, the Association of Christian Schools International, the National Lutheran Accreditation Association, or the Seventh Day Adventist Accreditation Association.(1) In order to participate in this program, a school would have to comply with the following requirements: (1) Residency in one of four named school districts in Kansas, (2) participation in the National School Lunch Act for free meals, and (3) ranking below the 40th percentile on nationally normed achievement tests. The program would be limited to 100 students per district.
HB 2462 proposes a program similar to the one set forth in SB 295 and HB 2504. A nonpublic school may be accredited by the State Board or be a private elementary or secondary school as defined at K.S.A. 72-53,101. To be eligible under HB 2462, a child must demonstrate satisfactory academic achievement and qualify under the National School Lunch Act for reduced cost or free meals.
Even prior to Agostini, the Court conceded that clarity and predictability were sacrificed in order to achieve the flexibility necessary in the Establishment Clause, thereby creating "some of the most perplexing questions to come before [the] Court."(8) The Court's reassessment of Lemon is the rationale underlying the most current exercise of that flexibility.
Regarding the issue of whether a statute fosters "excessive entanglement" with religion, the Court traditionally assumed that any governmental aid or benefit which reaches religious schools automatically creates an excessive entanglement because of the "comprehensive, discriminating, and continuing state surveillance [which] will inevitably be required to ensure that these restrictions [against the inculcation of religious tenets] are obeyed and the First Amendment otherwise respected."(20) Now, however, under Agostini the entanglement between church and state must be excessive before it runs afoul of the Establishment Clause. Additionally, the Court now recognizes "entanglement" as "an aspect of the inquiry into a statute's effect."(21) In determining the degree of entanglement, the Court will look at the "character and purpose of the benefitted institutions, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority."(22) The Court has stated that "routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no 'detailed monitoring and close administrative contact' between secular and religious bodies, does not of itself violate the nonentanglement command."(23) "The State's regulation of participating schools, [which is] designed to ensure that the program's educational purposes are fulfilled, does not approach the level of constitutionally impermissible involvement."(24) If the governmental aid satisfies these criteria, it will be found to withstand the third prong of the Lemon test.
We now review the programs proposed in SB 295, HB 2504, and HB 2462. We have been advised by proponents of these bills that the purpose of the programs is to raise the educational opportunities and achievements of under-privileged elementary and secondary school students. Thus, it is our opinion that a court could find that the programs, as proposed, have a secular purpose.
Assuming the purpose of the proposals is not to advance or inhibit religion, we next review the actual effect of the proposals. The programs do not have the principal or primary effect of advancing or inhibiting religion. The vouchers are allocated to student recipients without reference to religion. The vouchers would be distributed based on neutral, secular criteria that neither favor nor disfavor religion. Additionally, the vouchers would be made available to both religious and secular beneficiaries on a nondiscriminatory basis, and would not give recipients any incentive to modify their religious beliefs or practices in order to obtain program services.
Lastly, the vouchers do not foster an excessive entanglement with religion. The character and purpose of the benefitted institutions are based on educating Kansas children. The governmental aid is money given in the name of the eligible child's parents to the school for the purpose of helping low-income families with tuition in order to allow the parents the private choice of where to send their child to school. In cases where a program was held to foster an excessive entanglement, the government was playing an active role in the day to day operation of the school. For instance, the government instituted a system for monitoring the teachers, thus inserting itself into the administration of a religious authority and allowing itself to monitor the authority's daily actions.(26) Under the programs proposed in SB 295, HB 2504, and HB 2462, the State maintains and distributes information submitted by the schools, receives assurances that admission criteria and tuition are the same, and monitors the academic performance of certificate-eligible children. This creates only minimal entanglement which falls short of the "excessive entanglement" standard.
Based on our analysis of current law as expressed by the United States Supreme Court, we opine that the voucher programs set forth in SB 295, HB 2504, and HB 2462 do not violate the Establishment Clause of the United States Constitution.
The Religious Liberty Clause of the Bill of Rights of the Kansas Constitution provides in part that "[t]he right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship . . . ."(33) Moreover, Section 6 of Article 6 of the Kansas Constitution provides in part that "[n]o religious sect or sects shall control any part of the public educational funds."
The Kansas Constitution was modeled after the Ohio Constitution at the Wyandotte Constitutional Convention in 1859. However, the Religious Liberty Clause of the Kansas Bill of Rights may actually have been taken from the Indiana Constitution.(34) It has long been a general rule that when a constitutional provision has been borrowed from another state after that state's court of last resort has construed it, that construction is adopted along with the provision.(35) However, neither Ohio's nor Indiana's court of last resort construed the provision prior to 1859 when it was adopted by Kansas.
Ratification of the Fourteenth Amendment to the United States Constitution made federal provisions applicable to the states.(36) However, the Kansas Constitution was ratified in 1861, seven years before the Fourteenth Amendment was added. Thus, when the Constitution of the State of Kansas was adopted, there was no federal constitutional provision applicable to Kansas respecting religious liberty.(37) Therefore, the framers at the Wyandotte Convention drafted into the proposed Bill of Rights Section 7, the Religious Liberty Clause, which is much more detailed than the First Amendment to the United States Constitution.(38) The drafters also included what is now Section 6, Subsection (c) of the Education Article in the Kansas Constitution. At the time of its drafting, this clause was Section 8, but only the placement has changed.(39) The language remains the same.
Section 7 of the Bill of Rights and Section 6 of Article 6 of the Kansas Constitution have been reviewed in only a handful of cases. The test utilized by the Kansas Supreme Court in determining whether the provisions have been violated depends in part on whose rights are impinged. In determining the right of an individual to freely exercise his religious rights, the Court has not differentiated between the tests used in determining whether a violation of the First Amendment to the United State Constitution or Section 7 of the Bill of Rights of the Kansas Constitution has occurred.(40) However, a much more restrictive stance has been taken by the Court when reviewing whether someone is being compelled to attend or support any form of religion.
The most recent case in which the rights under Section 7 of the Bill of Rights were reviewed is State v. Evans.(51) In that case, the defendant appealed conditions of his probation which required he attend services at a specified church and that he perform 1,000 hours of maintenance work at the church.(52) The Court noted that an order of probation which mandated or forced association with a particular religious group was permissible when the condition was clearly related to rehabilitation.(53) Because "[t]he Kansas Constitution contains a strong prohibition against religious coercion, . . . only those interests of the highest order" could be allowed to override the free exercise of religion.(54) The Court found that the State failed to show such interests.
Section 7 of the Bill of Rights of the Kansas Constitution clearly provides that no person may be compelled to pay tithes or taxes to secure or maintain a place where any form of religious worship is conducted, or where any religious doctrine is taught, and Section 6 of Article 6 precludes any religious sect from controlling any part of the public educational funds. The educational opportunities certificate issued under the programs proposed in SB 295, HB 2504, and HB 2462 is not earned by the parent for services provided to the State, nor may it be used at the complete discretion of the parent. The certificate may be used only for the purpose of acquiring educational services for a child. If the child withdraws from the school that received the proceeds supporting the certificate, the school is required to reimburse excess funds to the State for deposit in the State's general fund. The private choice of the parent in selecting the school the child will attend does not alter the character of the funds supporting the certificate. The funds remain public educational funds. The funds may not be used to secure or maintain an institution in which religious doctrine is taught, nor may the funds be controlled by a religious sect. Because the voucher programs proposed in SB 295, HB 2504, and HB 2462 have the effect of compelling taxpayers to secure or maintain institutions where religious doctrine is taught and allowing religious sects to control a part of public educational funds, the programs proposed in the Bills violate Section 7 of the Bill of Rights and Section 6 of Article 6 of the Kansas Constitution.
1. "[W]hile the legislature cannot delegate its constitutional power to make a law, it can make a law which delegates the power to determine some fact or state of things upon which such law shall become operative. In other words, the legislature may enact general provisions but leave to those who are to act certain discretion in 'filling in the details,' so to speak, provided, of course, it fixes reasonable and definite standards which govern the exercise of such authority." State ex rel. Fatzer v. Urban Renewal Agency of Kansas City. 179 Kan. 435, 440 (1956). (Emphasis added.) It appears the Bills fail to provide reasonable and definite standards to be applied by the private accreditation associations. However, the issue has not been fully researched as it was not raised in the request for an opinion. We merely raise it because sponsors of similar programs in the future should be aware of such concerns.
2. U.S. Const., Amend. 1.
3. 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).
4. 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985).
5. 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985).
6. 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1973).
7. Agostini, 521 U.S. at 222.
8. Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646, 662, 100 S.Ct. 840, 63 L.Ed. 2d 94 (1980); Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 37 L.Ed. 2d 948 (1973).
9. Lemon, 403 U.S. at 612-13.
10. Mueller v. Allen, 463 U.S. 388, 394-95, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983).
11. Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (emphasis added).
12. Mueller, 463 U.S. at 395.
13. The Court also abandoned the presumptions that "the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." Agostini, 521 U.S. at 223.
14. Agostini, 521 U.S. at 222.
15. Agostini, 521 U.S. at 225-26.
16. Agostini, 521 U.S. at 231.
17. Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 486, 106 S.Ct. 748, 88 L.Ed. 2d 846 (1986).
18. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8, 113 S. Ct. 2462, 125 L.Ed.2d 1 (1993).
19. Everson v. Bd. of Educ., 330 U.S. 1, 16, 67 S. Ct. 504, 91 L.Ed. 711 (1947).
20. Lemon, 403 U.S. at 619.
21. Agostini, 521 U.S. at 233.
22. Agostini, 521 U.S. at 232.
23. Hernandez v. Commissioner, 490 U.S. 680, 696-97, 109 S. Ct. 2136, 104 L.Ed. 2d 766 (1989).
24. Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998), cert. denied, _U.S._, 119 S.Ct. 466, 142 L.Ed.2d 419 (1998).
25. Agostini, 521 U.S. at 234.
26. Aguilar, 473 U.S. at 402.
27. Jackson, 578 N.W.2d at 602; Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (on tax credits); Campbell v. Manchester Bd. of School Dir., 641 A.2d 352 (Vermont 1994).
28. Jackson, 578 N.W.2d at 620.
30. Attorney General Opinion No. 94-37; 16A Am.Jur.2d Constitutional Law § 477.
31. State v. Smith, 155 Kan. 588, 594-95 (1942).
32. Attorney General Opinion No. 94-37.
33. Kan. Const., Bill of Rights, § 7 (emphasis added).
34. Attorney General Opinion No. 94-37; Heller, The Kansas State Constitution: A Reference Guide 52 (1993). Compare Ohio Const., Art. 1, § 7; Ind. Const., Bill of Rights, §§ 2-6.
35. Edgington v. City of Overland Park, 15 Kan.App.2d 721, 728 (1991).
36. U.S. Const., Amend. 14.
37. See Smith, 155 Kan. at 594.
39. Placement was changed in the 1966 recodification of the Kansas Constitution.
40. See State v. Barclay, 238 Kan. 148 (1985); State, ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544 (1985); State v. Garber, 197 Kan. 567 (1966); Wright v. Raines, 1 Kan.App.2d 494 (1977).
41. 47 Kan. 712 (1892).
43. But see Wright v. School District, 151 Kan. 485, 486 (1904).
44. Billard v. Board of Education, 69 Kan. 53, 54 (1904).
45. Article 6 of the Kansas Constitution was recodified in 1966. Section 8 of that Article is now Section 6 of Article 6.
46. Billard, 69 Kan. at 56.
48. 151 Kan. 485 (1940).
50. Wright, 151 Kan. at 486.
51. 14 Kan.App.2d 591 (1990).
52. Evans, 14 Kan.App.2d at 591.

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The Atlantic and Pacific Railroad Company took no title to lands within the indemnity limits of its grant until the deficiency in the place limits had been ascertained, and the company had exercised its right of selection.
The Secretary of the Interior had no authority, upon the filing of a plat in the office of the Commissioner of the General Land Office, to withdraw lands lying within the indemnity limits of the grant from sale or preemption, and a patent issued to a settler under the land laws, prior to the selection made by the railroad company, of the land in dispute as lieu lands was held to be valid notwithstanding the lands lay within the forty-mile strip ordered by the act to be surveyed, after the general route of the road had been fixed.
The case of Hewitt v. Schultz, 180 U. S. 139, followed and applied to the facts of this case.
This was a complaint in the nature of a bill in equity filed by the Southern Pacific Railroad Company in the Superior Court of Fresno County, California, against Isaac T. Bell, praying to be declared the rightful owner of a certain quarter-section of land in that county, and that it be adjudged that the defendant Bell holds the legal title to said land in trust for the plaintiff, and requiring him to convey the same to it free of all encumbrances.
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 designated by 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, or occupied by homestead settlers, are 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,"
"SEC. 6. And be it further enacted, That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale or entry or preemption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the Act of September, eighteen hundred and forty-one, granting preemption rights, and the acts amendatory thereof, and the Act entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' approved May twenty, eighteen hundred and sixty-two, shall be and the same are hereby, extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company."
road on the like regulations, as to time and manner, with the Atlantic and Pacific Railroad herein provided for."
On November 26, 1866, the plaintiff accepted the terms and conditions of the charter and grant of July 27, 1866, as above set forth, and on January 3, 1867, duly fixed the general route of its line of road, designating the same by a plat thereof filed in the office of the Commissioner of the General Land Office. This plat and designation having been duly approved and accepted by the Commissioner and Secretary of the Interior on March 22, 1867, all the odd-numbered sections of land lying with in thirty miles of the railroad, as shown upon the plat, were withdrawn from sale or location, preemption or homestead entry, and have ever since remained so withdrawn.
Thereafter, and prior to November 8, 1889, the company duly constructed and equipped the entire railroad provided for in said act, and along the line designated upon the plat filed on January 3, 1867, and the road so constructed, except that part which extends from Mojave to the Needles, was duly accepted and approved by the President and Secretary of the Interior.
lands to the extent or amount earned and acquired by it in virtue of the grant and the provisions of the granted act.
The complaint further alleged that, notwithstanding the rights of the company secured to it by the Act of July 27, 1866, the United States issued a patent for the quarter-section so selected in lieu of the other to the defendant, who claims the legal title to said land in fee simple and free from any trust or obligation to the plaintiff.
To this complaint the defendant interposed a general demurrer, which was sustained, and, the plaintiff having refused to amend his complaint, a final judgment was entered against it and an appeal taken to the Supreme Court of California, where the judgment of the Superior Court of Fresno County was affirmed upon the authority of another case against one Wood. 124 Cal. 475. Whereupon plaintiff sued out a writ of error from this Court.
This case involves a priority of right as to certain lands within the indemnity limits of the grant to plaintiff by Act of Congress of July 27, 1866, and a patent for the same lands issued to the defendant as a settler under the land laws of the United States.
"odd sections of land hereby granted shall not be liable to sale or entry or preemption, before or after they are surveyed, except by said company, as provided in this act,"
"shall be and the same are hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company."
There is no dispute that the land "hereby granted" extends to all the odd-numbered sections within the place limits -- that is, within twenty miles of each side of the road. The real question is whether it extends to the indemnity lands, ten miles beyond this limit, so much of which the company was authorized to select in lieu of lands unavailable to it within the granted limits.
The relative rights of railroads and of settlers under these congressional grants, all of which are couched in similar language, have been the subject of much litigation in this Court, the main object of which has been to fix the time when the right of the roads to particular lands within both the place limits and the indemnity limits finally attaches as against both prior and subsequent settlers. Although, at the last term of this Court, the question involved in the case under consideration was practically settled in Hewitt v. Schultz, 180 U. S. 139, the progressive steps by which the conclusion in that case was reached will show the difficulties which have attended the solution of these questions, and, as we think, indicate the logical necessity of affirming this case. Two objects have been kept steadily in view: first, securing to the railroad the benefit of the lands actually granted; second, protecting, as far as possible, the right of the public to lands not actually granted, or necessary to indemnify the roads for lands which have become unavailable to it within its granted limits, by reason of the fact that they had been otherwise disposed of prior to the designation of the line of the road.
the State of Wisconsin, to aid in the construction of railroads, was a grant in praesenti of lands within the granted limits, and passed the title to the odd sections designated to be afterwards located, but until such designation, the title did not attach to any specific tracts, and that, when the route was fixed the title which was previously imperfect acquired precision, and became attached to the lands as of the date of the grant. There was no question of indemnity lands involved.
In Leavenworth &c. Railroad Co. v. United States, 92 U. S. 733, it was held that a similar grant, though operating in praesenti, did not apply to lands set apart for the use of an Indian tribe under a treaty, and that it was immaterial that they subsequently became a part of the public lands by the extinguishment of the Indian rights. This doctrine was extended in the next case, Newhall v. Sanger, 92 U. S. 761, to lands within the boundaries of an alleged Mexican or Spanish grant, which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road.
In Ryan v. Railroad Company, 99 U. S. 382, the rule laid down in the last two cases was qualified and limited to lands within the place limits, and it was held that, as the lands in Ryan v. Railroad Company were within the indemnity, but not within the place limits, "the railroad company had not and could not have any claim to it until specially selected." The land in dispute was within a tract formerly covered by a Mexican claim, which, although sub judice at the date of the act, had been finally rejected as invalid before the railroad road company had selected in as part of its lieu lands. When so selected "there was no Mexican or other claim impending over it." This case practically holds that the title to indemnity lands inures to the railroad company only when selection is made.
This view, that the act conferred no rights to specified tracts within the indemnity limits until the grantees' right of selection had been exercised, was subsequently confirmed in Cedar Rapids &c. Railroad Co. v. Herring, 110 U. S. 27, and Kansas Pacific v. Atchison &c. Railroad, 112 U. S. 414, although it had been stated only as a suggestion in Grinnell v. Railroad Company, 103 U. S. 739.
In Van Wyck v. Knevals, 106 U. S. 360, it was again held that the grant of the place lands was in praesenti, and attached to the sections as soon as a map showing the definite location of the road was filed, and that a party who had subsequently entered a portion of the land covered by the grant, and procured a patent for the same, might be required to execute a release of the premises to the company. It was said by Mr. Justice Field in that case, p. 106 U. S. 365, that the grant cut off all subsequent claims from the date of this act, with certain exceptions specifically named, and passed the title as fully as if they had been then capable of identification.
The principle of this case was still further applied in St. Paul & Sioux City Railroad v. Winona & St. Peter Railroad, 112 U. S. 720, to two conflicting grants, and it was held that, as the title to the lands was within the place limits, it related back, after the road was located, to the date of the grant, priority of date of the act of Congress, and not priority of location of the line of the road, giving priority of title. A distinction was drawn in this case between the land within the place limits and land within the indemnity limits, and it was said that, in case of the latter, neither priority of grant nor priority of location nor priority of construction gave priority of right, but this was determined by priority of selection.
"should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands falling under the operation of this act and acquired in the donation to the road."
The prior case was not cited in the opinion.
takes immediate effect, and attaches to particular lands when the map of definite location is filed; that the Secretary of the Interior may, upon the filing of such map, give notice of a withdrawal from sale of all the odd-numbered sections within the granted limits, and that the title so acquired by the railroad company relates back to the date of the grant, and takes precedence of all titles subsequently acquired, except those specifically named.
(2) That to lands within the indemnity limits the company takes no title until a deficiency in the place limits has been ascertained and the company has exercised its right of selection, with perhaps some rare exceptions. See St. Paul & Paul & Pacific v. Northern Pacific, 139 U. S. 1.
The last case upon this subject is Hewitt v. Schultz, 180 U. S. 139, which involved the title to a quarter-section of land in North Dakota within the indemnity limits that is (as applied to territories), between the forty- and fifty-mile limits of the Northern Pacific Railroad land grant. Plaintiff Hewitt claimed title as a settler under the preemption laws, defendant as a purchaser from the railroad company under its grant of July 2, 1864. 13 Stat. 365, c. 217. The third and sixth sections of this act were, except as to the name of the railroad and a few immaterial words, identical with the corresponding sections of the Atlantic and Pacific Act of July, 1866.
On March 30, 1872, the railroad company filed a map of its general route through the Territory of Dakota, and the local land office was thereupon directed to withhold from sale or location all the odd-numbered sections within the place limits of forty miles, as designated on such map. On June 11, 1873, the company having filed a map of the definite location of its line, the local land office was directed to withhold from sale or entry all the odd-numbered sections within the fifty-mile limits. This action was taken pursuant to the practice at that time prevailing in the General Land Office.
the odd-numbered sections within such indemnity limits; that is, between the forty- and fifty-mile limits.
Hewitt settled upon the land April 10, 1882, more than a year before the withdrawal was made, and it was not until March 19, 1883, that the railroad company filed in the local land office its selection of land, embracing the land in dispute within the indemnity limits.
On April 4, 1883, Hewitt submitted his final proofs for the land, tendered the price, and demanded a patent; but his proof was rejected on the ground that the land had been withdrawn from entry under the Act of July 2, 1864. Hewitt appealed to the Commissioner of the General Land Office, who affirmed the decision of the local land office, October 5, 1883. He was ousted of his possession the following year by the defendant Schultz, who had taken a deed from the railroad company. On August 15, 1887, the order of withdrawal of the indemnity lands was revoked, and, upon a review by the Commissioner of the General Land Office of his former decision, the ruling of the local land office was set aside, Hewitt's final proofs admitted, and the selection by the railroad held for cancellation. The company appealed from the decision in favor of Hewitt to the Secretary of the Interior, who affirmed the decision of the Commissioner, and a patent was issued to Hewitt, June 22, 1895.
or otherwise appropriated, then, but not before, the company was entitled to go into the indemnity limits beyond the forty-mile and within the fifty-mile line, and under the direction of the Secretary of the Interior, and not otherwise, select odd-numbered sections to the extent necessary to supply the loss in the place limits."
"In my opinion -- and it is with great deference that I present it -- the granting act not only did not authorize a withdrawal of lands in the indemnity limits, but forbade it. The difference between lands in the granted limits and land in indemnity limits, and between the time and manner in which the title of the United States changes to and vests in the grantee, accordingly as lands are within one or the other of these limits, has been clearly defined by the supreme court, and it is sufficient to state the well settled rules upon this subject."
The same question arose in Northern Pacific Railroad v. Davis, 19 L.D. 87, and in Northern Pacific Railroad v. Ayers, wherein Secretaries Smith and Francis expressed their concurrence in the views announced by Secretaries Lamar and Vilas.
done [that construction overthrown], it is to be apprehended that great, if not endless, confusion would ensue in the administration of the public lands, and that the rights of a vast number of people who have acquired homes under the preemption and homestead laws, in reliance upon the ruling of Secretary Vilas and his successors in office, would be destroyed. . . . If the practice in the Land Department could with reason be held to have been wrong, it cannot be said to have been so plainly or palpably wrong as to justify the court, after the lapse of so many years, in adjudging that it had misconstrued the Act of July 2, 1864."
"It is manifest that the said act gave no especial authority or direction to the executive to withdraw said lands, and when such withdrawal was made, it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior and in the exercise of his discretion."
The power of the Secretary to withdraw lands is exercised for the purpose of carrying out the grant to the railroad, and to prevent lands covered by said grant from being taken up by settlers before the road is completed and the patents issued to the company; but clearly that power cannot be exercised to withdraw lands which are beyond the intended limits of the grant. It was said by Secretary Smith to have been exercised for many years, "but the right of this asserted power on the part of the executive is involved in obscurity." Northern Pacific R. Co. v. Davis, 19 L.D. 87, 88.
"The plaintiff in error insists that the map of its line of road was filed in 1859. The court of original jurisdiction finds that, up to the time of the trial in October, 1878, a period of nearly twenty years, no selection of these lands had ever been made by that company or anyone for it. Was there a vested right in this company, during all this time, to have not only these lands, but all the other odd sections within the twenty-mile limits on each side of the line of the road, await its pleasure? Had the settlers in that populous region no right to buy of the government because the company might choose to take them, or might, after all this delay, find out that they were necessary to make up deficiencies in other quarters? How long were such lands to be withheld from market and withdrawn from taxation, and forbidden to cultivation? "
"It is true that, in some cases, the statute requires the Land Department to withdraw the lands within these secondary limits from market, and in others, the officers do so voluntarily. This, however, is to give the company a reasonable time to ascertain their deficiencies and make their selections."
"It by no means implies a vested right in said company, inconsistent with the right of the government to sell, or of any other company to select, which has the same right of selection within those limits. Each company having this right of selection in such case, and having no other right, is bound to exercise that right with reasonable diligence, and when it is exercised in accordance with the statute, it becomes entitled to the lands as selected."
If the command of the statute were to withdraw from the market, instead of survey, all odd-numbered sections within the forty-mile strip, the position of the railroad company in this case would be impregnable; but as the withdrawal only extends to the lands "hereby granted," we must look elsewhere to ascertain the meaning of those precise words. There is good reason for withdrawing lands within the place limits, since these lands already belong to the railroad company as soon as they are identified by the location of the line, while lands within the indemnity limits may never be required at all, and in most cases are required only to a limited extent. Undoubtedly the company acquires title to both classes of lands by the third section of the granting act; but it acquires a title to lands within the place limits by a present grant, but to land within the indemnity limits only by a future power of selection. In both cases, the statute is the origin of the title; but in the one case, it gives instantaneously; in the other, it is a mere promise to give in the future, and requires the action of the railroad to perfect it. The words "hereby granted" evidently refer to the former.
"hereby granted . . . 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."
"whenever, prior to said time, any of said section, 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,"
etc. There is here a clear distinction between the lands granted in praesenti in the first clause, and lands to be thereafter selected by the company, whenever the deficiency in the granted lands shall be ascertained.
made, it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior, and in the exercise of his discretion, so that, were the withdrawal to be revoked, no law would be violated, no contract broken."
But as the power to withdraw extends only to the "lands hereby granted" and all other lands, except those hereby granted, remain open to settlement, we are thrown back upon section 3 to determine what are the lands "hereby granted."
"As to the lands within the indemnity limits, the contract was based upon two contingencies -- that of losing lands within the granted limits and being able to find sufficient to indemnify the company among the odd-numbered sections within a further limit of ten miles. Here, the interest of the company was so remote and contingent, being a mere potentiality, and not a grant, that Congress declined to order a withdrawal for the benefit of the same, or even a survey within the territories."
In view of the constant trend of population toward the western territories, it is a serious matter to withdraw these enormous tracts from settlement and hold them, as it were, in mortmain against the protest of those who stand ready to enter upon and possess them.
ouster after a possible lapse of twenty-seven years, when the very improvements he may have put upon the lands might be the reason for their selection by the company.
We are therefore of opinion that the Act of July 27, 1866, did not authorize the withdrawal by the Secretary of the Interior of the indemnity lands, that such lands remained open to homestead and preemption entry, and that patents issued to settlers within such indemnity limits, based upon the entries made prior to the selection by the railroad company, approved by the Interior Department, were valid as conveyances of the land as against the selection by the railroad company.

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