Mr. Justice Harían
delivered the opinion of the court.
This action is in the nature of ejectment. It was brought to recover the possession of the northeast quarter of section thir[140]*140teen, township one hundred and thirty-two north of range fifty-seven west of the fifth principal meridian, situated in the county of Sargent, North Dakota, and of which the plaintiff Hewitt, now. plaintiff in error, claimed to be the owner in fee in virtue of a patent issued to him by the United States.
The present defendants in error, who were defendants below, claimed title as purchasers from the Northern Pacific Railroad Company, which asserted ownership of the land in virtue of the act of Congress of July 2, 1864, granting public lands to that corporation to aid in the, construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route. 13 Stat. 365, c. 217.
There was a verdict and judgment in the court of original jurisdiction in favor of the plaintiff. But that judgment was reversed in the Supreme Court of North Dakota, and the cause was remanded with directions to dismiss the action. 7 North Dakota, 601.
This appeal questions the final judgment of the highest court of North Dakota upon the ground that it denied to Hewitt rights and privileges specially set up and claimed by him under the laws of the United States.
The record contains a voluminous finding of facts based upon the stipulation of the parties. In the view taken of the case by this court many of those facts are immaterial. The precise case to be determined is shown by the following statement, based upon the finding of facts:
On the 30th day of March, 1872, the railroad company having by a map designated its general route from the Red River of the North to the Missouri River in the then Territory of Dakota, an Acting Commissioner of the General Land Office transmitted to the register and receiver of the proper local office a diagram showing such route, and in conformity with instructions from the Secretary of th¿ Interior, directed them “to withhold from sale or location, preemption or homestead entry all the surveyed or unsurveyed odd-numbered 'sections of public lands falling within the limits of forty miles” (the placé or granted limits), as designated on such map. This order took effect April 2SÍ, 1872, on which day it was. received at the local land office.
[141]*141The land in dispute is coterminous with the general route of the railroad as indicated by the above map.
On the 11th day of June, 1878, the railroad company having previously filed a map of Üiq.definite- location of its liné from the Eed Eiver of the North to the Missouri Eiver in Dakota Territory, the General Land Office transmitted to the local land office a diagram showing the forty and fifty mile limits of the land grant along that line, and that office was directed “ to withhold from sale or entry all the odd-numbered sections, both surveyed or unsurveyed, falling within those limits, and to hold subject to preemption and homestead entry only the even-numbered sections at $2.50 per acre within the forty-mile limits, and $1.25 per acre between the forty and fifty-mile or indemnity limits.” This order was recorded at the local land office June 24, 1873.
The land in dispute, the finding of facts states, was coterminous with such line of definite location, was more than forty but .within fifty miles of such line, that is, was within the indemnity limits, and was at the date of stícfi location public lands to which the United States had full title, not reserved, sold, granted or otherwise appropriated, free from preemption or other claims or rights, and non-mineral in character.
It may be here observed that the controlling question in this case is whether it was competent for the Secretary of the Interior, upon receiving and approving the map of the definite location of the road, to make the above order of withdrawal in respect of the odd-numbered sections of land within the indemnity limits, that is, of lands between the forty-mile and fifty-mile limits. This question will be adverted to after we shall have stated other facts material in the case.
On or about the 10th day of April, 1882 — the railroad company not having at that time made or attempted to make any selection of lands in the indemnity limits to supply losses in the place limits — Hewitt, being qualified to acquire and hold lands under the preemption laws of the United States, settled upon and improved the lands here in dispute with the intention of entering the same under the provisions of the act of Congress approved September 4,1841,5 Stat. 453, c. 16, and the acts sup[142]*142plemental thereto and amendatory thereof, authorizing the entry and purchase of public lands by citizens of the United States and by those who declared their intention to become citizens.
The township embracing the land in dispute was surveyed in July, 1882, and the plat of survey was filed in the local land office on the 13th day of October of the same year.
On the 2d day of November, 1882, Hewitt presented to the proper United States local land office a declaratory statement for this land, as provided by law, which was received, filed and placed upon the recordst of that office.
On the 19th day of March, 1883, the railroad company filed in the local land office a list of selections of land “in bulk” embracing the land in dispute, which, as already stated, was within the indemnity limits of the railroad company.
Having from the day of his settlement upon the land until April 4, 1883, resided upon and cultivated the same as required by law, Hewitt, on the day last named, submitted his final proofs for the land, and duly tendered'to the local land office the Government’s price for it, together with all required fees. But such final proof was rejected, the reason assigned for such rejection being that the land had been withdrawn from entry under the act of July 2, 1864, granting lands to the Northern Pacific Railroad Company, and the acts of Congress supplemental thereto and amendatory thereof. From that decision Hewitt appealed to thé Commissioner of the General Land Office, and on the 5th of October, 1883, that officer affirmed the decision of the local, land office.
On the 21st of June, 1884, while Hewitt was in possession— he had been in actual possession since ApriLlO, 1882, and had made valuable improvements on the' land — the defendant Emil Schultz (his co-defendant being his wife) made a contract with the railroad company, by .which the latter agreed, in consideration of $1200, to sell and convey to the former the land in dispute. Thereupon Schultz entered upon the land, ousting Hewitt from actual possession, and faking up his residence thereon, and cultivating the same. Schultz having paid the above consideration, the railroad company conveyed the land to him.' But the conveyance was not made until December 18, 1889.
[143]*143Before that conveyance was .made, namely, on the 15th day of August, 1887, the Secretary of the Interior revoked the above order withdrawing the odd-numbered sections of the indemnity lands from sale or entry.
Subsequently, October 12, 1887, the railroad company filed in the local land office a list designating an amount of lands equal to those “selected” in the list of March 19,1883, as having been.lost and excepted from the grant and within its place lands as defined on the map of definite location.
Of the decision of the Commissioner of the General Land Office on the 5th day of October, 1883, Hewitt had no notice whatever until- on or about August 1, 1888. On the latter day he applied for a review by the Commissioner. That review was had with the result that the decision of the local land office against Hewitt was reversed and set aside, his final proofs were admitted, and the selection by the railroad was held for cancellation.
In his opinion delivered September 25, 1888, the Commissioner said: “ Said tract is within the 50-mile indemnity limit of the withdrawal for the benefit of the Northern Pacific R. R. Co., ordered by letter from this office, dated June 11th, 1873, received at the local land office then at Pembina, June 24th, 1873. The township was surveyed July 12th to 27th, 1882, and the plat of survey was filed in your office on the 13th day of October following ; the whole of said section was selected by the agent of the railroad company March 19th, 1883, per list No. 6. . . . The final proof submitted by applicant shows that he is a native born citizen, over 21 years of age, and a qualified preemptor, July 10th, 1882; his improvements consisted of a frame house, 16X16 feet, stable 10X12 feet, and 20 acres of ground broken, the value of the same being estimated at $350. This declaratory statement was presented for filing within the time prescribed by law and was accepted by your office, a receipt issuing therefor. Under the late decision of the Hon. Secretary of the -Interior in the case of the Northern Pacific Railroad Company v. Guilford Miller, 7 L. D. 100, it is held that the withdrawal of the indemnity lands for the benefit of said company was prohibited by the sixth section Of the granting act, and, [144]*144being in violation of law and without effect, was not operative to defeat the rights of bona fide adverse claimants under the general laws' of the United States who settled on lands within such limits prior to the time when selection by the railroad had been made.. In view of the fact that claimant established his actual residence and had. permanent improvements upon the land prior to the Government survey or selection by the railroad company, his claim was superior thereto, and hence office decision of October 5th, 1883, is set aside, Hewitt’s final proof admitted, and the selection by the railroad company held for cancellation.”
■ The next step was the filing by the railroad company on the 23d day of February, 1892, of a rearranged list of selections— “ tract for tract ” selection — selecting the tract in .dispute for one previously selected in Wisconsin but which was lost to the company .
The railroad company having appealed from the decision of September 25-, 1888, in favor of Hewitt, the Secretary of the Interior by a decision rendered August 11, 1894, sustained Hewitt’s right to the land. The Secretary, addressing the Commissioner of the General Land Office, said: “ I have considered the appeal of the Northern Pacific It. H. Co., from your office decision of September 25th, 1888, holding for cancellation its indemnity selection of the N. E. ¼, sec. 13, T. 132 N., R. 57 W., Fargo., North Dikota, on account of the prior claim of Fred. Hewitt under his preemption filing upon which he has submitted- proof. Your office decision is based upon the holding that prior to selection lands within said liiúits aré subject to appropriation as other public lands, which is in harmony with the recent decisions of this Department in the case of Jennie L. Davis v. Northern Pacific R. R. Co., 19 L. D. 87, and your office decision is therefore affirmed and the company’s selection will be cancelled.”.
In conformity with the decision of the Secretary of the Interior, and based upon, the final preemption proof made by Hewitt, a patent of the United States was issued to him on the 22d,day of June, 1895.
We have seen' from the above statement that upon the filing [145]*145and acceptance of the map of the definite location of the line of the Northern Pacific Railroad, the Land Office withdrew from sale or entry all the odd-numbered sections, surveyed and unsurveyed, within both the place and indemnity limits. Was it competent for the Secretary of the Interior, immediately upon the acceptance of the map of definite location, to include in his withdrawal from sale or entry lands within the indemnity limits ? Was he invested with any such authority by the act of July 2, 1864, 13 Stat. 365, c. 217? Did Congress intend, by that act, to declare that when the railroad company indicated its line of definite location the odd-numbered sections outside of the forty-mile limit and within the fifty-mile limit, on each side of such line, along the whole of the line thus located, should not be subject to the preemption and homestead laws until it was finally ascertained whether the railroad company was entitled by reason of the loss of lands within the place or granted limits to go into the indemnity limits in order to obtain lands to meet such loss ? An answer to these questions may be found in the act of July 2, 1864, as interpreted by the Land Department for many years past. We will now advert to such of the provisions of that act as are pertinent to the present inquiry.
By the third section of the act Congress granted to the Northern Pacific Railroad Company “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, 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 definitely fixed, and 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, 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 [146]*146sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections: . . . Provided, further, That all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections, nearest to the line of said road may be selected as above provided. . .
This section has been often under examination by this court, and in repeated decisions it has been held that the act of Congress “ granted to the Northern Pacific Eailroad Company only public lands to which the United States had full title, not reserved, sold, granted or otherwise appropriated, and free from preemption or other claim or rights at the time its line of road was definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office ” — lands that were not, at that time, free from preemption or other claims or rights being excluded from the grant. United States v. Northern Pacific BaAVroad, 152 U. S. 284, 296; Northern Pacific Railroad v. Sanders, 166 U. S. 620, 634, 635, and United States v. Oregon & California Railroad, 176 U. S. 28, 42, and authorities cited in each case. The cases all speak of the granted lands as those within the place limits.
The fourth section of the act provided: “ That whenever' said ‘Northern Pacific Railroad Company’ shall have twenty-five consecutive miles of any portion of said railroad and telegraph line readjr for the service contemplated, the President of the" United States shall appoint three commissioners to examine the same, and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed in a good, substantial and workmanlike manner, as in all other respects required by this act, the commissioners shall so report to the President of the United States, and patents of lands, as afore-said, shall be issued to said company, confirming to said company the right and title to said lands, situated opposite to, and coterminous with, said completed section of said road; and, from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed and in readiness as aforesaid, and verified by said commissioners- to the President of the [147]*147United States, then patents shall be issued to said company conveying the additional sections of land as aforesaid: . . . Provided, That not more than ten sections of land per mile, as said road shall be completed, shall be conveyéd to said company for all that part of said railroad lying east of the western boundary of the State of Minnesota, until the whole of said railroad shall be finished and in good running order, as a first-class railroad, from the place of beginning on Lake Superior to the western boundary of Minnesota: Provided, also,f That lands shall not be granted under the provisions of this act on account of any railroad, or part thereof, constructed at the date of the passage of this act.”
But so far as the present case is concerned the most material section of the act is the sixth. That section provided:'“ 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, 1841, [5 Stat. 453, c. 16,] granting preemption rights, and the acts amendatory thereof, and of the act entitled 1 An act to secure homesteads to actual settlers on the public domain,’ approved May 20,1862, [12 Stat. 392, c. 75,] 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. And the reserved -alternate sections shall not be sold by the Government at a price less than two dollars and fifty cents per acre, when offered for sale.”
It is contended that, construing the third and sixth sections together, it is clear that the words, “ the odd sections of land hereby granted” in the first part, and the words, “excepting those hereby granted to said company,” in the latter part of the sixth section refer to the lands described in the first section of the act — that is, to the odd-numbered sections in the place limits which were free from preemption or other claims or .rights, and had not been appropriated by the United States [148]*148prior to the definite location of the road; that as to “ all other lands on the line of the said road, when surveyed,” the act expressly declares that the provisions of the preemption act of 1841 and the acts amendatory thereof, and of the homestead act of 1802, should extend to them; that Congress took pains to declare that it did not exclude from the operation of those statutes any lands except those granted to the company in the place limits of the road which were unappropriated when the line of the railroad was definitely fixed; and that if at the time such line was “ definitely fixed,” it appeared that any of the lands granted, that is, lands in the place limits, had been sold, granted 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. It is also contended that the object of the reference in the sixth section of the Northern Pacific act to the preemption and homestead acts could only have been to bring the odd-numbered sections in the indemnity limits within the operation of those acts.
This construction of the act of July 2, 1864, finds support in legislation enacted subsequently and before the .railroad company filed its map of general route.' By a joint resolution approved May 31, 1870, Congress declared: “ That the Northern Pacific?. Bailroad Company be, and hereby is, authorized . . . also to locate, and construct, under the provisions and with the privileges, grants and duties provided for in its act of incorporation, its main road to some point on Puget Sound, via the valley of the Columbia Biver, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade Mountains to Puget Sound; and in the event of there not being in any State or Territory in which said main line or branch may be located, at the time of the final location thereof, the amount of lands per mile granted by Congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections of land be[149]*149longing to the United States, and designated by odd numbers, in such State or Territory, within ten miles on each side of said road, beyond the limits prescribed in said charter, as will make up such deficiency, on said main line or branch, except mineral and other lands as excepted in the charter of said company of 1864, to the amount of the lands that have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of subsequent to the passage of the act of July 2, 1864. . . .” 16 Stat. 378.
Thus, it seems, a second indemnity limit was established into which the company could go and obtain lands in lieu of lands lost to it in the granted or place limits.
We do not find from the published decisions of the Land Department that the question of the power of the Secretary of the Interior, simply upon the definite location of the Northern Pacific Eailroad, to withdraw from the operation of the preemption and homestead laws lands within the indemnity limits, Avas ever distinctly presented and disposed of prior to the year 1888. It was mooted in the case of the Atlantic and Pacific Railroad Company, reported in 6 L. D. 84, 87. The third and sixth sections of the charter of that company Avere the same as the third and sixth sections, above quoted, of the charter of the Northern Pacific Eailroad Company. From the opinion of Secretary Lamar in that case, ave infer that some of his predecessors had assumed that the poAver to Avithdraw lands in indemnity limits from sale or entry could be exercised upon the definite location of the railroad even before it had been ascertained by losses in place limits that the company must look to the indemnity limits in order to supply its grant. The’Secretary said: “Were I called upon to treat as an original proposition the. question as to the legal authority of the Secretary to withdraw from the operation of the settlement laws lands within the indemnity limits of said grant, I should at least lmve such doubts of the existence of any such authority as to have restrained me of its exercise. It avouM seem that the very Avords of the act, ‘the odd-numbered 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, ás pro[150]*150vided in this act,’ of themselves indicate most clearly the legislative will that there should not be withdrawn for the benefit of said company from sale or entry any other lands, except the odd-numbered sections within the granted limits, as expressly designated in the act. But, when the provision following this, in the very same sentence, is considered — ' but the provisions of the act of September,. 1811, granting preemption rights, and the acts amendatory thereof, and of the act entitled “ An act to secure homesteads to actual settlers upon the public domain,” approved May 20, 1862, shall he 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 ’ — it is difficult to resist the conclusion that Congress intended that ‘ all other lands excepting those hereby granted to said company ’ shall be open to settlement under the preemption and homestead laws, and to prohibit the exercise of any discretion in the executive in the matter of determining what lands shall or shall not be withdrawn. Waiving-all questions as to whether or not said granting act took from the Secretary all authority to wTithdraw said indemnity limits from settlement, it is manifest that the said act gave no special 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; so that, were the withdrawal to be revoked, TlO law" would be violated, no contract broken. The company would be placed exactly in the position which the law gave it, and deprived of no rights acquired thereunder. It would yet have its right to select indemnity for lost lands, but' in so doing it would have no advantage over the settler, as it now has in>contravention of the policy of the- Government in denial of the rights unquestionably conferred upon settlers by land laws of the country, apparently specially protected by the provisions of the granting act under consideration.”
But in 1888 the question was directly presented to Secretary Vilas in Northern Pacific Railroad Company v. Miller, 7 L. D. 100, 120, (referred to in the decision of the Commissioner of the General Land Office of September 25,1888, upholding Hewitt’s [151]*151claim,) and it was there held, in an elaborate opinion, that the Northern Pacific act forbade the Land Department to withdraw from the operation of the preemption and homestead laws any lands within the indemnity limits of the grant made by the act of July 2, 1864. The Secretary said:
“ 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 lands 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.
“ As to the lands in the primary, or granted, limits: ‘ The title to the alternate sections to be taken within the limits, when all the odd sections are granted, becomes fixed, ascertained and perfected in each casé by this location of the line of road, and in case of each road the title relates back to the act of Congress.’ St. Paul, Sioux City &c. Railroad v. Winona &c. Railroad, 112 U. S. 720, 726; Missouri, Kansas & Texas Railway v. Kansas Pacific Railway, 97 U. S. 491, 501; Van Wyck v. Knevals, 106 U. S. 360; Cedar Rapids & Missouri Railroad Co. v. Herring, 110 U. S. 27; Grinnell v. Railroad Co., 103 U. S. 739. As to indemnity limits : ‘ The time when the right to lands becomes vested, which are to be selected within given limits under these land grants, whether the selection is in lieu of lands deficient within- the primary limits of the grant, or of lands which for other reasons are to be selected within certain secondary limits, is different in regard to those that are ascertained within the primary limits by the location of the line of the road. In Ryan v. Railroad Co., 99 U. S. 382, this court, speaking of a contest for lands of this class, said: “ It was within the secondary or indemnity territory where that deficiency was to be supplied. The railroad company had not and could not have any claim to it until specially selected, as it was for that purpose;” and the reason given for that is that “ when the road was located and the maps were made the right of the company to the odd [152]*152sections first named became fixed ánd absolute. -With respect to the lieu lands, as they are called, the right was only a float, and attached to no- specified tracts until the selection was actually made in the manner prescribed.” The same idea is suggested, though not positively affirmed, in the case of Grinnell v. Railroad Co., 103 U. S. 739. In the case of Cedar Rapids Railroad Co. v. Herring, 110 U. S. 27, this principle became the foundation, after much consideration, of the judgment of the court rendered at the last term. And the same principle is announced at this term in the case of the Kansas Pacific Railroad Co. v. Atchison, Topeka and Santa Fé Co., ante, (112 U. S.) 414. The reason for this is that, as no vested right can attach to the lands in' place — the odd-numbered sections within six miles of each side of the road — until these sections are ascertained and identified by a legal location of the line of the road, so in regard to the lands to be selected within a still larger limit, their identification cannot be known until the selection is made. It may be a long time after the line of the road is located before it is ascertained how many sections, or parts of sections, within the primary limits have been lost by sale or preemption. It may be still longer before a selection is made to supply this loss.’ St. Paul Railway v. Winona Railway Co., 112 U. S. 720, 731.
■ “ The consequence of this difference is that until a valid selection by the grantee"is made from the lands within the indemnity limits, they are entirely open to disposition by the United States or to appropriation under the laws of the United States for the disposition of the public lands. ' There is nothing to the line bounding the indemnity limits to distinguish lands within it from any other public lands; the only purpose of that being to place a boundary upon the right of selection in the grantee to. make good losses sustained within granted limits. This effect has been most explicitly declared by the Supreme Court in the case of Kansas Pacific Railroad v. Atchison, Topeka and Santa Fé Railroad, 112 U. S. 414, and in other cases. In that case, the court said of an order of the Commissioner of the General Land Office similar to this, so far as applicable to indemnity limits: ‘ The order of withdrawal of lands along the [153]*153probable lines of the defendant’s road made on the 9th of March, 1863, by the Commissioner of the General Land Office, affected no rights which without it would have been acquired to the land, nor in any respect controlled the subsequent grant.’ It also said of the indemnity limits under discussion there: ‘ For what was thus excepted from the granted limits other lands were to be selected from adjacent lands, if any then remained, to which no other valid claim had originated. But what unappropriated lands would thus be found and selected could not be known before actual selection. A right to select them within certain limits, in case of deficiency within the ten mile limit, was alone conferred, not a right to any specific land or lands capable of identification by any principles of law or rules of measurement. Neither locality nor quantity is given from which such lands could be ascertain ed. If, therefore, when such selection was to be made .the lands from which the deficiency was to be supplied had been appropriated by Congress to other purposes, the right of selection became a barren right, for until selection was made the title remained in the Government, subject to its disposal at its pleasure.’
“ It was in view of this difference and its consequences that the language of the granting act was employed by Congress, by which it was explicitly provided that the provisions of the preemption and homestead laws ‘shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby grantgd to said company.’ If lands within the indemnity limits are to be regarded as ‘ on the line of said road,’ this declaration appears to me prohibitory of any withdrawal, for the benefit of this road. It might be that such lands could be withdrawn for some other public purpose, within executive authority to provide for, such, for example, as to constitute a reservation for Indians. But this language was introduced into the same section which declared the granted lands not to be liable to sale, etc., and immediately following that declaration, and in the same sentence, so as obviously to mark the legislative intent to make clearly distinguishable the lands beyond the granted limits as being liable to disposition under those laws. Having so explicitly de[154]*154dared, it was not necessary to add a prohibition upon executive officers against withdrawal for the benefit of the road. It gave to any person entitled under the preemption or homestead laws to take any such lands, the absolute right to acquire any proper quantity thereof, in accordance therewith; and this right an executive officer could not deprive the settler of. The act as much makes that his right, as it makes it the right of the company ito take the others.
“ I cannot be satisfied - with- the idea that this language was so introduced in immediate qualification of and distinction upon the words rendering lands in the granted limits ‘not liable to sale or entry ’ for the mere purpose of declaring ‘ what was already enacted by general laws.’ The general laws applied without this declaration, and they applied more extensively than this would apply them, since by the general laws entries of other kinds might, if conditions concurred, be also made. The aim of this language was, as I am forced to. read it, towards the availability to settlement of all lands not granted. It was a vast grant, and even as so limited, a threatening shadow to fall on the settlement of the Northwest. Well might- Congress say, ‘ The lands -granted you shall have, but you shall tie up no more from the actual settler to the prevention of development.’
“ It may be claimed that the words, ‘ all other lands on the line of-said road,’ do not embrace lands within the indemnity limits. That construction would seem still more to deny the Commissioner’s- power to withdraw them; since it cannot be supposed Congress intended him to withdraw lands not on the .line of the road. But the phrase immediately after employed in the section — ‘the reserved alternate sections’ — when speaking of the lands to which the double minimum price must be attached, seems to indicate clearly that Congress had, in the use of the power, a more comprehensive meaning than simply to include by it the lands of the even-numbered,sections within the granted limits.
“ The Supreme Court appears to have fairly set the question at rest in the case of United States v. Burlington &c., Railroad Co., 98 U. S. 334, 339, where it is said of the similar point raised in respect to the line then under consideration : ‘ And the land [155]*155was taken along such line in the sense of the statute, when taken along the general direction or course of the road within lines perpendicular to it at each end. The saíne terras are used in the grant to the Union Pacific Company, in which the lateral •limit is twenty miles; and if a section at that distance from the road can he said to be along its line, it is difficult to give any other meaning than this to the language. They certainly do not require the land to be contiguous to the road ; and if not contiguous, it is not easy to say at what distance the land to be selected would cease to be along its line.’
“ The general rule alluded to in the opinion that lands once properly withdrawn by executive order remain so until restored to market by like order or by statute is not questioned. But every such general rule yields to the will of the legislature in a particular case; and the considerations presented are designed to show the grounds of my opinion that the legislation is in this case particular and exhaustive.”
The same question arose in Northern Pacific Railroad v. Davis, 19 L. D. 87, 90, and Secretary Smith expressed his concurrence in the views announced by Secretaries Lamar and Yilas. Referring to certain passages in the opinion of Secretary Yiías, he said: “ These views alone would be sufficient, in my judgment, to sustain the conclusion reached in this case, but I am not left to stand upon them only, for Congress in the same section has gone further. Not content with ordering a withdrawal, that body expressly declared a prohibition against the making of any other withdrawal, when it said, in the next clause of the same sentence, that the provisions of the preemption and homestead laws 1 shall be, and hereby are, extended to all other lands on the line of the said road when surveyed excepting those héreby granted to said company.’ Here is an enactment in which the most comprehensive language is used. Having withdrawn the granted sections, ‘ all other ’ lands within the grant, along the line of the road, are being legislated for. It would seem, therefore, to follow logically, when it was commanded that the preemption and homestead laws be extended to ‘ all other lands,’ it was all those lands within the limits of the grant which had not been otherwise disposed of by the act. The [156]*156‘ other ’ lands within the lifriits of the grant were the reserved sections and the odd and even sections within the indemnity limits, and it is clear to my mind that Congress meant all of those lands, for ‘ all ’ other lands surely cannot mean only a portion of the other lands. Qid omne elicit, nihil excludit is a maxim well recognized in the construction of statutes and is applicable here. This aspect of the. case is presented and fully discussed by Mr. Secretary Vilas in the Guilford Miller case, and concurring in his reasoning, it is not necessary that there should be further elaboration of the argument. The views which I have herein expressed were entertained also by Mr. Secretary Lamar, and are clearly and tersely stated by him in his opinion, before quoted from, in the case of the Atlantic and Pacific Railroad, in 6 L. D. p. 87.”
It was admitted at the hearing that the construction of the Northern Pacific act of 1861 announced by Secretary Vilas had been adhered to in the administration of the public lands by the Land Department. We are now asked to overthrow that construction by holding that it was competent for the Land Department, immediately upon the definite location of the line of the railroad, to withdraw from the settlement laws all the odd-numbered sections within the indemnity limits as defined by the act of Congress. If this were done 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. Of course, if the ruling of that office was plainly erroneous, it would be the duty of the court to give effect to the will of Congress ; for it is the settled doctrine of this court that the practice of a department in the execution of a statute is material only when doubt exists as to its true construction.
But without considering the matter as if it were for the first time presented, it is sufficient to say that the question before us cannot be said to be free, from doubt. The intention of Congress has not been so clearly expressed as to exclude construction or argument in support of the view, taken by Secretaries [157]*157Lamar, Vilas and Smith, and upon which the Land Department has acted since 1888. “It is the settled doctrine of this court,” as was said in. United States v. Alabama Great Southern Railroad, 142 U. S. 615, 621, “that, in case of ambiguity, the judicial department will lean in favor of a construction given to a statute by the department charged with the execution of such statute, and, if such construction be acted upon for a number of years, will look with disfavor upon any sudden change, whereby parties who have contracted with the Government upon the faith of such construction may be prejudiced.” These observations apply to the case now before us, and lead to the conclusion that 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. The order of withdrawal by the Secretary of the Interior, upon which the title of the railroad company depends, being out of the way, there is no legal ground to question the title of the plaintiff to the land in dispute.
It is appropriate to refer to one other matter. It appears from the finding of facts that Mr. Lamoreux, when Commissioner of the General Land Office, issued a certificate, dated May 2, 1896, in which it was stated: “I have caused examinar tion to be made of the records of this office relative to the grant to the Northern Pacific Railroad Company under acts of Congress approved July 2, 1864, and May 31, 1870, and certify that said records show that the total area of lands excepted from and lost to said grant within its primary limits amounts to 10,624,746.27 acres, and that there are within the first indemnity limits not to exceed 7,065,523.49 acres which are, or will be when surveyed, available for selection to satisfy the losses above referred to, thus leaving a known deficiency of 3,559,222.78 acres in said grant which cannot be satisfied from the limits as now recognized by this office.”
It does not appear from the finding of facts that this certificate was given in any proceeding pending between parties in the Land Department. On the contrary, the Commissioner of [158]*158the General Land Office in a supplemental report for the year 1899 referred to the grant to the Northern Pacific Bailroad Company, and said: “ In view of the large quantities of unsurveyed lands within the grant, and of the uncertainty of their availability for use in the satisfaction of it; of the litigation pending involving lands within the conflicting limits aforesaid and the true eastern terminus of the grant, and considering the proceedings now in progress under the act of July 1, 1898, and the right of selection for lands within the Mount Banier forest reserve under the act of March 2,1899, and the. prospect of the creation of other forest reserves within the limits of the grant, I am of opinion that it cannot at this time be stated with any degree of certainty that there are or are not sufficient lands available to satisfy the Northern Pacific grant under the act of 1884.” Besides, in Northern Pacific Railroad Co., 25 L. D. 511, and in Northern Pacific Railroad Co. v. Streib, 26 L. D. 589, it was found that there never had been any ascertained deficiency in the grant to the Northern Pacific Bailroad Company. In the above case in 26 L. D. the Secretary of the Interior, refering to the certificate of Commissioner Lamoreux, said: “Belative to the certification of a deficiency in the grant to this company [the Northern Pacific] made by your predecessor, it is sufficient to say that this department has never given recognition to that certificate, nor has the company been relieved from the specification of losses in making indemnity selections on account of an ascertained deficiency in the grant.” So that if the question whether there has been deficiency in the grant of lands to the Northern Pacific Bailroad Company was at all material in the present case,.no effect can.be given to the certificate of Commissioner Lamoreux set out in the findings of fact.
In our opinion the plaintiff Hewitt was entitled to a judgment upon the facts found', and the judgment of the Supreme Court of the State reversing the judgment of the opurt of original jurisdiction and directing the dismissal of the action is itself reversed, and the cause is remanded for further proceedings consistent with this opinion.
[159]*159Mb» Justice White concurred in the result.