thority derived from or exercised by or under the president. The act done here was the payment, under summary confiscation, of the debt due Clark to the military officer. The act omitted was the omission by Mitchell, during all these years, under that order, to pay to Clark. The two-years statute was intended to cover the act done by Mitchell in paying according to the order of Schofield, and the omission in refusing to pay to Clark.

The case of Harrison v. Myer, 92 U. S. 111, was a case where the rent due under a lease from an absconding malcontent was seized by a military order. This court held that the lessor could not afterwards insist on the contract. His property was seized, says the court, and the tenant was no longer responsible to him, who could no longer secure him possession, and as the lessee was obliged to render obedience to paramount authority, it was entirely competent for him to enter into a new contract to protect his interest.

It is said, however, that the supreme court of Missouri held the plea to be bad because it did not set out a copy of the order of Gen. Schofield on which the defense is founded, either in hæc verba or in substance, and that this, not being a question of federal law, is sufficient to sustain the judgment of that court. But there are several sufficient answers to this: (1) The opinion of the supreme court, while mentioning this objection en passant, does not decide that it is of itself sufficient to invalidate the plea. (2) It does proceed in a lengthy discussion of the plea on its merits, and rests its judgment on the ground that congress had no power to pass the statute of limitations in question. (3) The question, whether a plea sets up a sufficient defense when the defense relied on arises under an act of congress, does present, and that necessarily, a question of federal law; for the question is, and must be, does the plea state facts which, under the act of congress, constitute a good defense? (4) In this particular matter congress made even the manner of pleading the defense a question of federal law by the provisions of the statutes on this subject.

By section 4 of the act of 1863, (12 St. 756,) it is enacted that the defense which it affords may be made by special plea, or under the general issue; and by section 1 of the act of 1866, (14 St. 46,) that the order which shall be a sufficient defense may be written or verbal, general or special. These provisions furnish the rules by which the manner of setting up the defense is to be governed, and they leave no doubt in our mind that the liberality which they intended to prescribe in the matter requires that the present plea of the statute of limitations, being good in substance, is sufficient in form of statement. If the order was verbal, if it was general, if it could be given in evidence under the general issue, it is sufficiently set out in this plea as an order of Gen. Schofield, in command of that military department, under which defendant was compelled to pay to that officer's subordinate the rent he owed to plaintiff.

In the case of Bean v. Beckwith, 18 Wall. 510, the defendants did not rely upon the statute of limitations of 1863, but pleaded as a special defense that one of them was a provost-marshal, and the other acted under his orders; and that they both acted under the authority and by the order of Abraham Lincoln, president of the United States. But whether there was in that case a special order of the president to the provost-marshal, or whether he assumed to arrest and imprison the plaintiff under some proclamation or general order, did not appear by the plea, and as it was a case of arrest and imprisonment, this court held that the authority of the defendants to make it should be specifically set forth. That is not the present case. for the defendant here did as he was compelled to by others, and probably never saw the order under which he was forced to pay the money, and has not now within his control the order under which the officer acted. He has, besides, given with sufficient clearness the substance of Gen. Schofield's order to en

able plaintiff to deny its existence, if he can, or to make any other reply appropriate to the merits of the case, and if the order was verbal no better statement of it can be exacted.

We concur in the opinion of the lower courts in Missouri that the plea of the statute of limitations is a good plea, and is sufficiently set out; and for the error in sustaining the demurrer to this plea, the judgment of the supreme court of Missouri is reversed, and the case remanded to that court for further proceedings, not inconsistent with this opinion.

(110 U. S. 695)

RICE v. SIOUX CITY & ST. P. R. Co.1

(March 3, 1884.)

SWAMP-LAND ACT-APPLICABLE ONLY TO EXISTING STATES.

The act of congrees of 1850, granting to each of the states the swamp lands within its borders, had reference only to the states then existing, and no state admitted after the date of the act acquired any rights under it

Appeal from the Circuit Court of the United States for the District of Minnesota.

John B. Sanborn, for appellant.

E. C. Palmer, for appellee.

WAITE, C. J. This case briefly stated is as follows: On the twenty-eighth of September, 1850, what is now known as the swamp-land act, c. 8, (9 St. 519,) was passed by congress. By sections 1, 2, and 3 swamp lands were defined, and a special grant made to the state of Arkansas. Section 4 is in these words: "That the provisions of this act be extended to, and their benefits conferred upon, each of the other states of the Union, in which such swamp and overflowed lands, known or designated as aforesaid, may be situated." Minnesota was then a territory, and on the third of March, 1857, an act of congress (chapter 99, 11 St. 195) was passed, granting to that territory, for the purpose of aiding in the construction of certain railroads, "every alternate section of land, designated by odd numbers, for six sections in width an each side of each of said roads." If when the lines of a road were definitely fixed it should appear that any of the sections included in the terms of the grant had been sold or otherwise appropriated by the United States, authority was given for the selection of others in lieu within 15 miles of the line. All lands before reserved to the United States for the purpose of aiding in any object of internal improvement or for any other purpose whatever were excluded from the operation of the act, except for the right of way. On the eleventh of May, 1858, Minnesota was admitted into the Union as a state. 11 St. p. 285, c. 31. By the act of admission, (section 3,) "all the laws of the United States," "not locally inapplicable," were "to have the same force and effect within that state as in other states of the Union." The line of what is now the Sioux City & St. Paul Railroad, built by a company entitled to the privileges of the act of March 3, 1857, c. 99, was located in April, 1859. and the lands involved in this suit are odd-numbered sections within the six

mile limits according to that line. On the twelfth of March, 1860, congress passed an act (chapter 5, 12 St. p. 3) extending the provisions of the act of September 28, 1850, c. 84, to the states of Minnesota and Oregon, subject to a proviso, as follows: "That the grant hereby made shall not include any

18. C. 9 Fed. Rep. 368.

lands which the government of the United States may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the said act." The lands now in dispute were certified to the state under this act, and conveyed by the governor to Rice, the appellant. This suit was brought by the railroad company to establish its title under the railroad grant by the act of March 3, 1857, c. 99, as against the swamp-land certificate. The circuit court sustained the claim of the railroad company, and decreed accordingly. To reverse that decree Rice took this appeal.

The single question presented is whether the lands passed under the railroad or the swamp-land grant. That the swamp-land act of 1850 operated as a grant in præsenti to the states then in existence of all the swamp lands in their respective jurisdictions is well settled. Railroad Co. v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 171; Martin v. Marks, 97 U. S. 345. As Minnesota was a territory in 1850, it is conceded that the title to the swamp lands within its territorial limits did not pass out of the United States at that time, because there was then no grantee in existence. It is contended, however, that on the admission of the state into the Union in 1858, the grant, which had before rested in compact only, became absolute, and carried the title to the state, as against the United States and subsequent grantees, from the date of the original act, September 28, 1850, or at least from the date of the admission of the state.

In French v. Fyan, supra, it was said in the opinion, at one place, "that this court has decided more than once that the swamp-land act was a grant in præsenti, by which the title to those lands passed at once to the state in which they lay, except to states admitted to the Union after its passage;" and at another, "for while the title under the swamp-land act, being a present grant, takes effect as of the date of that act, or of the admission of the state into the Union, when this occurred afterwards." From these expressions it is argued that the question of the right of new states to claim the benefits conferred by the provisions of the act has been settled. The case which was then before the court related only to the operation of the act in a state which was in existence at the time of its passage, and called for no consideration of its effect on new states. All that was said as to new states was merely incidental to the main question, and by no means intended as an authoritative declaration of the law applicable to that class of cases. We feel quite at liberty, therefore, to consider that question an open one, and to treat it accordingly.

Donations of the public domain for any purpose are never to be presumed. Those who claim against the government under legislative grants must show a clear title. The grant under the act of 1850 was to Arkansas and "the other states of the Union." Arkansas was an existing state, and the grant was to all the states in præsenti. It was to operate upon existing things, and with reference to an existing state of facts. It granted “the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act." The secretary of the interior was required to make out, "as soon as practicable," lists and plats of lands, the greater part of which were "wet and unfit for cultivation," and to transmit the lists, etc., to the governor of the proper state. There is not a word in the act to show that the grant was to be a continuing one. It was to take effect at once, between an existing grantor and several separate existing grantees. There were, undoubtedly, at that time lands "wet and unfit for cultivation" in the territories as well as in the states. Confessedly, no grant was made to the territories or any of them. This shows clearly the intention of congress not to dispose of any more swamp lands at that time and in that way, than those in the states. It was clearly within the power of congress to make the same grants

to territories if it had been considered desirable. Cases are numerous in which grants were made to territories to aid in building railroads. The act of March 3, 1857, making the grant to the territory of Minnesota, is one instance of that kind. The swamp-land grants were made to enable the states to construct the necessary levees and drains for the reclamation of the lands. They were, therefore, in aid of public improvements, and could as well be made to the territories as to the states.

At the time of the original grant it was not known when another state would be admitted into the Union, nor what would then be the wants of the United States or the condition of the swamp lands. Events might happen that would render such a grant at that time entirely inappropriate. Seven states have been admitted since,-three before the late civil war began, and four afterwards,-and in six of them there must have been public lands which were in part wet and unfit for cultivation. Minnesota was the first and Oregon the second state admitted. None were admitted until nearly eight years after the act was passed, and the last did not come in until nearly 25 years had elapsed. If the interpretation which has been put on the act by the appellant is the true one, every parcel of public land in the territories, as subdivided under the law for sale, the greater part of which was "wet and unfit for cultivation" on the twenty-eighth of September, 1850, was from that date reserved to and set apart by the United States for donation to any new state that might thereafter be admitted to the Union, within whose boundaries it should fall. Nothing was reserved from the railroad grant to the territory of Minnesota on the third of March, 1857, except lands theretofore reserved by the United States for some purpose; and if these lands were reserved at all, they were for the purposes of this donation. If reserved, they could neither be sold to purchasers nor settled upon for pre-emption, for the reser vation is of lands unsold at the date of the passage of the act.

Such a reservation was clearly not in the mind of congress, and the subse quent legislation as well as the language of the act shows it. Of the language of the act enough has already been said. We therefore turn to the subsequent legislation. As has been seen, Minnesota was admitted into the Union as a state on the eleventh of May, 1858. Oregon was admitted on the fourteenth of February, 1859. 11 St. p. 383, c. 33. In the acts of admission there were specific grants of land to each state for certain purposes, but no reference was made directly or indirectly to the swamp lands. All the grants made were in consideration, among other things, of an undertaking on the part of the state, irrevocable without the consent of the United States, that the state should never interfere with the primary disposal of the soil within the same by the United States, or with any regulations congress might find necessary for securing the title in the soil to bona fide purchasers. It is of some significance also that the act of congress authorizing the people of the territory of Minnesota to form a state government preparatory to their admission into the Union, (chapter 6, 11 St. p. 166,) in which the propositions for grants of lands were contained, was passed on the same day with the act making the railroad grant under which the appellee now claims. Following this on the twelfth of March, 1860, nearly two years after Minnesota was admitted, and one year after the admission of Oregon, the act extending in express terms the provisions of the swamp-land act to these states was passed. In this way, as we think, for the first time the swamp lands falling within the description of the act of 1850, and then unsold or otherwise disposed of, were granted. No similar laws have been passed in favor of states which have since been admitted into the Union. In 1873, when the statutes of the United States were revised, the swamp-land acts were re-enacted in sections 2479 and some others which followed. Section 2479 is as follows: "To enable the several states (but not including the states of Kansas, Nebraska, and Nevada) to construct the necessary levees and drains to redeem the swamp and overflowed

lands therein, the whole of the swamp and overflowed lands made unfit thereby for cultivation, and remaining unsold on or after the twenty-eighth day of September, A. D. 1850, are granted and belong to the several states respectively in which such lands are situated: provided, however, that said grant of swamp and overflowed lands, as to the states of California, Minnesota, and Oregon, is subject to the limitations, restrictions, and conditions hereinafter named and specified as applicable to said three last states respectively." Then follows section 2490, continuing in force the specific provisions in the act of March 12, 1860, extending the benefits of the act to Minnesota and Oregon. Much stress was laid in the argument on the provision in the act admitting Minnesota into the Union, to the effect that "all the laws of the United States which are not locally inapplicable shall have the same force and effect within that state as in the other states of the Union." This is disposed of by what has already been said. As the act of 1850 related only to states in existence when it was passed, it was locally inapplicable to Minnesota until its provisions were actually extended to that state by the act of March 12, 1860. It follows that the title of the railroad company under the act of 1857 is superior to that of the appellant. The lands were not at the time of the passage of that act reserved to the United States for any purpose, and they were not, therefore, excepted from its operation.

The decree of the circuit court is affirmed.

(110 U. S. 688)

UNITED STATES 7. BRINDLE.

(March 3, 1884.)

1. OFFICERS RECEIVING DOUBLE COMPENSATION-HOW FAR LEGAL.

A provision in an act of congress prohibiting persons holding office under the United States from receiving compensation for discharging the duties of any other office, does not apply to services entirely unconnected with their official position. The case of Converse v. U. S., 21 How. 463, followed on this point.

2. SAME-RECEIVER AT LAND-OFFICE-INDEPENDENT SERVICES.

Accordingly, where the receiver of public moneys, at a government land-office, was appointed special receiver and superintendent to assist in disposing of lands held by the United States in trust for the Indians, held, that the trust moneys paid for the land were not public moneys, and hence that the receiver, whose official duty only required him to receive public moneys, was entitled to take, in addition to his salary, the compensation provided by government for the separate services rendered in respect of the trust lands.

8. RECEIVER OF PUBLIC MONEYS-HOW FAR ENTITLED TO BOUNTY-LAND FEES.

The receiver of public moneys for a district of land subject to sale is not entitled to the military bounty-land fees received by him during his term of office, over and above the amount required, with his commissions on cash sales of public lands, to make up his salary of $2,500 per year. So held on the authority of U. S. v. Babbitt, 1 Black, 55; reaffirmed in 95 U. S. 335.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Asst. Atty. Gen. Maury, for plaintiff in error.

John H. Sloan and M. F. Morris, for defendant in error.

WAITE, C. J. Two general questions are presented by the special verdict in this case: (1) Whether Brindle, the defendant in error, as receiver of public moneys for the district of lands subject to sale at Lecompton, Kansas, is entitled to the military bounty-land fees received by him during his term of office, over and above the amount required, with his commissions on cash sales of public lands, to make up his annual salary of $2,500 per year; and