But this diagram, instead of reserving from forfeiture "the lands. within granted limits along the whole of the constructed portion of the road," as provided in the letter, designates as forfeited all the granted land in the eight townships lying wholly or partly within the 20-mile limit on the west and south of the "constructed" or "completed" road, and constituting the south-west quadrant or fourth of a circle 40 miles in diameter, and having its center at Forrest Grove; and also all that in the five other townships lying just outside this quadrant and wholly or partly within the 25-mile limit. This is done. on the diagram by dividing the completed road into two lines or parts, forming nearly a right angle with each other, and treating the section between Portland and Forest Grove as one road, and that between the latter place and McMinnville as another, and reserving from forfeiture only the granted lands within the 20-mile limit on either side of said two sections of the completed road; and, as said road turns to the south at Forest Grove at nearly a right angle, the granted lands which lie within the 20-mile limit on the outside of this curve or angle and within the area of said quadrant, as well as those in the fivemile limit beyond, are treated as forfeited.

The plaintiff claims in his bill that by virtue of the premises the Oregon & California Company is now the owner of and entitled to patents for 611,200 acres of land within the said 25-mile limit along the line of said 47 miles of completed road, if there was so much subject to said grant within, such area; and alleges that by reason of the overlapping of the prior grant to the Oregon & California Company on the south and west thereof, as well as the overlapping therein of the grant to the Oregon Central Company itself, not more than 345,600 acres of odd-numbered sections can be found in said limits, leaving a deficit of 265,600 acres, to which must be added a number of locations under the pre-emption and homestead laws made prior to the date of said grant; that lists of the greater portion of the lands adjacent to and coterminous with the completed road were long since filed with the register and receiver at Oregon City, and application made to the secretary of the interior for patents therefor, none of which have been issued; and that in the area constituting the quadrant aforesaid, extended to the 25-mile limit, there are in the oddnumbered sections 91,545.89 acres of land, of which 73,570.89 acres have been selected by the company, 66,921.89 acres of which are within the 20-mile limit.

At the passage of the act of 1885 congress had the power, under section 6 of the act of 1870, to forfeit the whole of this grant, because the road was not completed to Astoria as well as McMinnville within the time therein prescribed. The grant was in præsenti, and vested in the grantee and its assigns the legal title to the odd-numbered sections for 20 miles on either side of the line of said road as fast as the company filed with the secretary of the interior a map and survey of 20 miles of the location of such line, subject to the condition that

man,

the whole was constructed within six years. Shulenberg v. Harri21 Wall. 44. But congress was not bound to do so unjust a thing as to forfeit the whole grant after the completion and acceptance of a considerable portion of the work. And, accordingly, we find that while the act declares that so much of the grant as is "adjacent to and coterminous with the uncompleted portions of the road" is forfeited, the effect of this language is carefully guarded and restrained by the counter clause, "and not embraced within the limits of said grant for the completed portions of said road."

The grant made by the act of 1870 was to one company for one road "from Portland to Astoria and McMinnville," as expressed in the title thereof. The junction was fixed near Forest Grove, and for a certain distance beyond that point the grant on the Astoria and McMinnville section necessarily overlapped. But the company could build either section first, and to that which was first completed the grant within the full prescribed limits would in justice apply and belong. There was no attempt on the part of congress in the act of 1870 to apportion the overlapping portion of this grant between the two sections of this road, although it was apparent that for sóme distance the space between them would vary from nothing to less than . 40 miles. The grant was made without reference to this fact, and subject only to the penalty of forfeiture if the whole road was not completed within a given time. The road from Portland to McMinnville was completed in time, but the one to Astoria was not. And, unless congress was going to claim "the pound of flesh" in the forfeiting act, this state of things called for special legislation. Therefore, while it declared the granted lands forfeited along the line of the uncompleted portion of the road-the Astoria section-it qualified this declaration by saying, in effect, so far only as they are not embraced within the limits of the grant to the completed portion of the road, the McMinnville section.

By this means the Astoria section, and the grant thereto for 20 miles beyond Forest Grove, are in effect eliminated from the problem, and the grant is saved to the completed road from Portland to McMinnville the same as if the former had never been mentioned. Therefore the land embraced in the odd-numbered sections within the limits of the quadrant aforesaid is, in my judgment, the property of the Oregon & California Railway Company, and not the public land of the United States. But so far as the lieu or indemnity lands in the second five-mile limit are concerned, the act only gave the grantee the right of "selection" to supply an ascertained deficiency in the grant within the 20-mile limit, and no right attaches to any such lands until the selection is made. Ryan v. Railroad Co., 99 U. S. 382; Grinnell v. Railroad Co., 103 U. S. 742; Kansas Pac. R. Co. v. Atchison, etc., R. Co., 112 U. S. 414; S. C. 5 Sup. Ct. Rep. 208; St. Paul, etc., R. Co. v. Winona, etc., R. Co., 112 U. S. 720; S. C. 5 Sup. Ct. Rep. 334.

In the first of these cases (Ryan v. Railroad Co.) the question arose under section 2 of the act of July 25, 1866, (14 St. 239,) granting land in aid of the California & Oregon Railway. The language of the grant, and the provision concerning the selection of lieu lands within the secondary limit, is in effect the same as in the act under consideration. Speaking for the court, Mr. Justice SWAYNE says:

"Under this statute, when the road was located and the maps were made the right of the company to the odd sections first named became ipso facto fixed and absolute. With respect to the 'lieu lands,' as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made in the manner prescribed.”

See, also, St. Paul R. R. v. Winona, etc., R. Co., supra, in which Mr. Justice MILLER in considering this subject says:

"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 land so selected. The unascertained float then becomes a vested right to an identified tract of land."

Assuming, then, that the legal title to the land in the odd-numbered sections in this quadrant is in the company, but as to those in the further five-mile limit it only has the right of selection for the purpose of making up the deficiency in the 20-mile limit, is the receiver entitled to the relief sought in this suit? As a means of controlling the action of public officers in a matter affecting private rights, the writ of injunction is considered the correlative of the writ of mandamus; and whenever, in such case, the latter will issue to compel affirmative official action the former may issue to restrain such action. Gaines v. Thompson, 7 Wall. 352; Board, etc., v. McComb, 92 U. S. 541. In the leading case of Kendall v. U. S., 12 Pet. 524, it was held that a mandamus would issue to compel the postmaster general to perform a mere ministerial duty in which the relator had an interest, and which did not involve the exercise of executive judg ment or discretion on the part of that officer. In the later case of Gaines v. Thompson, 7 Wall. 347, which was a suit to enjoin the secretary of the interior and the commissioner of the general land-office from canceling an entry under which the plaintiff claimed an interest in certain lands, the subject was thoroughly and ably re-examined by Mr. Justice MILLER, and the conclusion reached "that an officer to whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions." And that "however the courts may, in ascertaining the rights of parties in suits properly before them, pass upon the legality of their acts after

the matter has once passed beyond their control, there exists no power in the courts, by any of its processes, to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before him for action. The reason for this is that the law reposes this discretion in him for that occasion, and not in the courts." He also quotes with approval Mr. Chief Justice CHASE's definition. of a ministerial duty in Mississippi v. Johnson, 4 Wall. 498, concerning which an officer may be directed or restrained by the courts: "A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist, and imposed by law."

Following this case the court, in Litchfield v. Register, 9 Wall. 575, refused to enjoin the defendants from receiving and acting on applications under the pre-emption law by settlers on certain lands within the district for which they were respectively the register and receiver. In delivering the opinion of the court, Mr. Justice MILLER said:

"The very first duty which the register is called on to perform when an application is made to him to enter a tract of land, is to ascertain whether it is subject to entry. This depends upon a variety of circumstances. Has there been a proclamation offering it for sale? Has it been reserved by any action of congress or of the proper department? Has it been granted by any act of congress, or has it been sold already? These are all questions for him to decide, and they require the exercise of judgment and discretion."

Notwithstanding my conclusion that this land belongs to the company under the acts of 1870 and 1885, and that its claim thereto will ultimately be maintained in the courts against any one who attempts to acquire the title to it under the pre-emption or other laws of the United States for the disposition of the public lands, still the matter is not so plain that there is no room for difference of opinion and the exercise of judgment in the premises on the part of the defendants, or those authorized to direct them in the discharge of their duties. For instance, it may be claimed with some show of rer son that the grant was made to aid in the construction of a road from Portland to Astoria, and another from Forest Grove to McMinnville, and therefore the land in the quadrant aforesaid is no part of the grant to the latter, but is simply adjacent to and coterminous with the uncompleted portion of the former; or that on the face of the act of 1870, there being an overlapping grant for some 20 miles to the northwest of Forest Grove to the Astoria and McMinnville branches, or sections of a road from Portland to said last-mentioned places, the act should be construed so as to divide the grant between them, whereby the sections falling to the Astoria branch, being adjacent to and coterminous with the uncompleted portion thereof, are forfeited by the act of 1885.

It is not a sufficient answer to this that by far the more reasonable and just construction of the statutes is the one first indicated in

this opinion. So long as there is fairly room for the exercise of their judgment in the premises, the action of the defendants cannot be constrained by the courts.

This conclusion makes it unnecessary to consider the objection of want of parties defendant to the bill. In Litchfield v. Register, supra, it appeared that persons had already settled on the land in question under the pre-emption law, and were about to "prove up" thereon before the defendants. The court held that these persons were necessary parties to the bill. But in this case there is no allegation that any one has yet settled on the land or taken any steps to acquire an interest therein adversely to the company.

The demurrer to the bill must be sustained, and it is so ordered.

WITTERS, Receiver, etc., v. SowLES, Executor, etc.

(Circuit Court, D. Vermont. October 19, 1885.)

NATIONAL BANKS-INSOLVENCY-ASSESSMENT OF SHARES OF STOCK IN HANDS OF EXECUTOR AND RESIDUARY LEGATEE.

H. B., at the time of his death, owned 430 shares of capital stock in a national bank, which he bequeathed to S. B. as residuary legatee. S. B. died, having bequeathed the shares to M. B. S. The executor, before the failure of the bank, on representation that there would be left for the residuary legatee, after paying debts and legacies, a large amount of real and personal estate, was ordered by the probate court to pay the legacies and turn over the balance to the residuary legatee. He transferred 400 of the shares to the residuary legatee. Afterwards he transferred 10 shares to another person without consideration, and in trust, leaving 20 shares standing in his own name as executor on the books of the bank when it failed. There were still claims against the estate which were in dispute, and the stock was not specifically mentioned in the will or the decree ordering it to be paid to the residuary legatee. Held, that the 400 shares turned over to the legatee were not liable to the assessment made by the comptroller of the currency upon the capital stock of the bank which were owned and stood in the name of H. B. at the time of his decease, but that the 30 shares in the name of the trustee and of the executor were liable to such assessment.

In Equity.

Wilder L. Burnap and Daniel Roberts, for orator.

William D. Wilson and Albert P. Cross, for defendants.

WHEELER, J. This bill is brought to reach the assets of the estate of Hiram Bellows, in the hands of the executor and legatees, to satisfy an assessment made by the comptroller of the currency upon capital stock of the bank which was owned by and stood in the name of Hiram Bellows at the time of his decease, and has now been heard on demurrer. According to the bill there were 450 shares. After the will was proved, and before any decree of distribution, 20 shares. were transferred by the executor, and no question is now made about them. Susan B. Bellows, the widow, was residuary legatee. She died, leaving a will with the same executor, and Margaret B. Sowles resid