the power of a subordinate official of a co-ordinate branch of the government to defeat this purpose by arbitrarily refusing to sanction with his approval the selections made by the company, or disposing of the lands for other purposes.
The position that approval by the secretary is necessary to the vesting of the title in the grantee undoubtedly has its suggestion in the fact that all preceding railroad grants prescribe such a condition precedent. The indemnity provisions in the grants of Sept. 20, 1850 (9 St. p. 466;) June 10, 1852 (10 St. p. 9;) February 9, 1853 (10 St. p. 156;) June 29, 1854 (10 St. p. 302;) May 16, 1856 (11 St. p. 9;) May 17, 1856 (11 St. p. 16;) June 3, 1856 (11 St. pp. 17-19, 21;) August 11, 1856 (11 St. p. 31;) March 3, 1857 (11 St. p. 195;) May 5, 1864 (13 St. p. 66;) March 8, 1865 (13 St. p. 520;) July 4, 1866 (14 St. p. 83)—are substantially as follows: “But in case it shall appear that the United: States have, when the line of said road shall be definitely fixed by the authority aforesaid, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption has not attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest [or most contiguous] to the tier of sections above specified, 80 much land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold,” etc. In the acts of March 3, 1863 (12 St. p. 772;) May 12, 1864 (13 St. p. 73;) July 1, 1864 (13 St. p. 839;) July 4, 1866 (14 St. p. 87;) July 23, 1866 (14 St. pp. 210, 236;) July 26, 1866 (14 St. p. 87)—the language is: “It shall be the duty of the secretary of the interior to cause to be selected,” etc. In the act of March 3, 1865 (13 St. p. 526), it is: “And said lands granted shall be in all cases indicated by the secretary of the interior.” In the act of May 5, 1864 (13 St. p. 64) it is: “Then it shall be the duty of the secretary of the interior to select from the lands of the United States,” etc. The uniform use of language in these cognate acts plainly requiring the approval of the secretary of the interior before the selections become effective so as to pass the title to the lands, coupled with the failure to use similar appropriate language in the
