property of the state, subject only to the right of occupancy on the part of the Indians; that in the year 1902, before any patents were issued, and while the surveying and allotting were in progress, the state caused an examination to be made for the purpose of ascertaining the tracts which, on March 12, 1860, were swamp and overflowed lands, and a list prepared of them, which list is attached to the bill as an exhibit; that it presented and filed that list with the surveyor general of the United States for the state of Oregon, together with evidence tending to prove that all of the tracts within the list had been and were, on March 12, 1860, swamp and overflowed lands, and rendered thereby unfit for cultivation, which evidence was found and certified by the surveyor general to be sufficient. That thereupon the state selected and claimed said tracts as granted to it by the act of Congress of March 12, 1860, and applied to the proper officers of the United States to inquire into and consider the claims of the state; that this application and the evidence were submitted to the defendant Richards, as Commissioner of the General Land Office, and on November 18, 1903, the Acting Commissioner denied and rejected the claim upon the sole ground that the lands, whether swamp and overflowed or not, were not granted to the state of Oregon by the act of Congress. From this decision an appeal was taken to the Secretary of the Interior, and the decision of the Land Office affirmed.

1860, the United States owned in fee sim-, act of March 12, 1860, had become the ple a large region and body of land lying within the boundaries of the state of Oregon, which said body of land was neither [62] reserved nor dedicated to any public use, and was free from any claim of title or possession, saving and excepting a right to temporary use and occupation belonging to certain Indian tribes; that within this large body of lands were three tribes or bands of Indians, the Klamaths, the Moadocs, and the Yahooskins,-few in number, that number being estimated by the officials of the United States in charge at from 1,200 to 1,500; that they were all in a savage state, uncivilized, without a fixed place of abode, and roaming from place to place within the region; that they had no other kind of tenure or title than that which they and their ancestors held from time immemorial and before the settlement of white men in the territory; that on October 14, 1864 (16 Stat. at L. 707), a treaty was negotiated between the United States and these tribes of Indians, by which they ceded to the United States their right, title, and claim to all these lands except a certain specified and smaller tract within the original outboundaries, which was created a reservation for their use; that said reservation was continued in the occupation of the Indians according to the aboriginal usages and customs of said Indians and of Indians generally, without any claim or pretense of permanent title or individual right to the lands, or any of them, and without any steps taken to wards conferring the ultimate title upon them until after the year 1899, when the defendant Hitchcock, Secretary of the Interior, directed and caused a large portion of the lands to be surveyed and divided into numerous definite lots or tracts, for the purpose and with the intention of allotting such tracts to the individual members of the tribes, to be by them held in severalty, and the further purpose of issuing and delivering to each of them a patent declaring that the United States holds the tract allotted in trust for the Indian and his heirs for a period of twenty-five years, and that at the expiration of such period it will convey the tract to him or his heirs, discharged of the trust, and free from all encumbrances; that in this the defendant Hitchcock was assuming and professing to act under the authority of the act of Congress of February 8, 1887 (24 Stat. at L. 388, chap. 119); that within the reserva[63]tion made by the *treaty of 1864 were large tracts, which had been and were on March 12, 1860, swamp and overflowed lands and unfit for cultivation, and hence, under the

Mr. Charles A. Keigwin argued the cause, and, with Andrew M. Crawford and William B. Matthews, filed a brief for complainant:

While no suit will lie to compel either a state or its officers to affirmative action in public affairs, the officers may be restrained from the execution of any laws or policy of the state which unlawfully affect the rights of individuals.

Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; United States v. Peters, 5 Cranch, 115, 3 L. ed. 53; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Allen v. Baltimore & O. R. Co. 114 U. S. 311, 29 L. ed. 200, 5 Sup. Ct. Rep. 924; Board of Liquidation v. McComb, 92 U. S. 531, 23 L. ed. 623; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. 608; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Rolston v. Crittenden (Rolston v. Missouri Fund Comrs.) 120 U. S. 390, 30 L. ed. 721. 7 Sup. Ct. Rep. 599; Reagan v. Farmers'

Loan & T. Co. 154 U. S. 362, 38 L. ed. | Anderson v. Watt, 138 U. S. 707, 34 L. ed. 1082, 11 Sup. Ct. Rep. 449; Tug River Coal & Salt Co. v. Brigel, 30 C. C. A. 415, 58 U. S. App. 320, 86 Fed. 818.

table rights comes within the cognizance of, in favor of the state, it will not affect the Land Department.

Brown v. Hitchcock, 173 U. S. 473, 43 L. ed. 772, 19 Sup. Ct. Rep. 485; Humbird v. Avery, 195 U. S. 480, 502, 503, 49 L. ed. 286, 296, 25 Sup. Ct. Rep. 123.

There has been no finding by the Land Department, of which the Secretary of the Interior is the head, that the lands were swamp or overflowed in character on March 12, 1860. Until such finding is made and patent issued the grant is in process of administration.

Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 591, 592, 42 L. ed. 591, 592, 18 Sup. Ct. Rep. 208; New Orleans v. Paine, 147 U. S. 261, 266, 37 L. ed. 162, 163, 13 Sup. Ct. Rep. 303.

The acts which the bill alleges the defendants threaten to perform are the making of certain allotments and the issuing of trust patents for such allotments. These acts are such as, by law, are imposed upon the defendants, and require, on their part, the examination and investigation of facts and the construction and application of laws; hence are judicial, and not ministerial, in character. Therefore they are not subject to control, review, or correction in injunction proceedings.

Gaines v. Thompson, 7 Wall. 347, 353, 19 L. ed. 62, 65; New Orleans v. Paine, 147 U. S. 261, 267, 37 L. ed. 162, 164, 13 Sup. Ct. Rep. 303; Brown v. Hitchcock, 173 U. S. 473, 477, 43 L. ed. 772, 774, 19 Sup. Ct. Rep. 485.

their interests, but bind and determine the rights of the United States, the real, substantial defendant. It is further said that if there is any other interest adverse to the plaintiff it belongs to the Klamath. Indians, who are not made parties, and that the rule in equity is not to determine a suit without the presence of the parties really to be affected by the decree. California v. Southern P. Co. supra.

The question of jurisdiction in a сазе very similar to this was fully considered in Minnesota v. Hitchcock, 185 U. S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650. There, as here, a state was plaintiff, and the suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office to restrain them from selling school sections 16 and 36 in what was known as the "Red Lake Indian reservation."

This suit is brought by a state against the same officers, to restrain them from allotting and patenting in severalty swamp lands within the Klamath Indian reservation. In that case we said (p. 387, L. ed. p. 962, Sup. Ct. Rep. p. 655):

"Now, the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale,-to devest the government of its title, and vest it in the state. The United States is, therefore, the real party affected by the judgment, and against which, in Mr. Justice Brewer delivered the opin- fact, it will operate, and the officers have ion of the court:

no pecuniary interest in the matter. If The question of jurisdiction of course whether a suit is one against a state is to precedes any inquiry into the merits. By be determined, not by the fact of the party 2 of art. 3 of the Constitution and Rev. named as defendant on the record, but by Stat. § 687, U. S. Comp. Stat. 1901, p. the result of the judgment or decree which 565, this court has original jurisdiction of may be entered, the same rule must apply a suit brought by a state against citizens to the United States. The question whethof other states. Pennsylvania v. Quicker the United States is a party to a consilver Min. Co. 10 Wall. 553, 19 L. ed. 998; troversy is not determined by the merely Wisconsin v. Pelican Ins. Co. 127 U. S. nominal party on the record, but by the 265, 287, 32 L. ed. 239, 242, 8 Sup. Ct. question of the effect of the judgment or Rep. 1370, and cases cited in the opinion; decree which can be entered.” California v. Southern P. Co. 157. U. S. 229, 258, 39 L. ed. 683, 693, 15 Sup. Ct. Rep. 591; Minnesota v. Hitchcock, 185 U. S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650. But the contention is that the United States is the real party in interest as defendant, that it cannot be sued without its consent, and that it has given no consent.

*It is true in that case we sustained the [70] jurisdiction of this court, but we did so by virtue of the act of March 2, 1901 (31 Stat. at L. 950, chap. 808, U. S. Comp. Stat. 1901, p. 1384), which was held to be a consent on the part of the United States to be sued in respect to school lands within an Indian reservation, and an acceptance by

[69] While the nominal defendants are *citizens the government of full responsibility for

of a state other than Oregon, yet they have no interest whatever in the controversy, and, if a decree be rendered against them 938

the result of the decision, so far as the Indians, its wards, were concerned. But neither of the two facts deemed essential

to the maintenance of that suit appear in this. There is no act of Congress waiving immunity of the United States, or consenting that it be sued in respect to swamp lands, either within or without an Indian reservation, and there is no act of Congress assuming full responsibility in behalf of its wards, the Indians, for the result of any suit affecting their rights in these lands. It is unnecessary to repeat all that was said in that opinion in reference to these matters. It is sufficient to refer to it for a full discussion of the question.

price if the offer should be accepted within the time mentioned is unenforceable, as contrary to public policy, where made in part consideration of services rendered before and after the making of the agreement, in bring ing the property to the attention of committees of Congress as a suitable and appropriate site for a hall of records, although the actual services rendered may have been legitimate.

[No. 225.]

Argued April 12, 1906.

Again, it must be noticed that the legal A

1906.

Decided April 23,

PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District, sustaining a demurrer to, and dismissing, a bill for specific per

See same case below, 25 App. D. C. 337.
The facts are stated in the opinion.
Mr. Heber J. May argued the cause and
filed a brief for appellant:

This contract differs from an agreement for a contingent fee, by the terms of which a party or attorney does not buy the claim or property, and pays nothing for it, but is to have a per cent of whatever sum may be recovered. This class of contingent agreements is held valid in claims against the government.

title to all these tracts of land is still in
the government. No patents or conveyances
of any kind have been executed. There has
been no finding or adjudication by the Landformance. Affirmed.
Department that the lands referred to were
swamp or overflowed on March 12, 1860.
Under those circumstances it is not a prov-
ince of the courts to interfere with the Land
Department in its administration. So far
as a grant of swamp lands is claimed, it
must be held that the grant is in process
of administration, and, until the legal ti-
tle passes from the government, inquiry as
to equitable rights comes within the cog-
nizance of the Land Department. Courts
may not anticipate its action, or take up-
on themselves the administration of the
land grants of the United States. New
Orleans v. Paine, 147 U. S. 261, 266, 37
L. ed. 162, 163, 13 Sup. Ct. Rep. 303;
Michigan Land & Lumber Co. v. Rust, 168
U. S. 589, 591, 42 L. ed. 591, 592, 18 Sup.
Ct. Rep. 208; United States v. Thomas, 151
U. S. 577, 38 L. ed. 276, 14 Sup. Ct. Rep.
426; Brown v. Hitchcock, 173 U. S. 473,
43 L. ed. 772, 19 Sup. Ct. Rep. 485; Hum-
bird v. Avery, 195 U. S. 480, 502, 503, 49
L. ed. 286, 296, 297, 25 Sup. Ct. Rep. 123.
For these reasons the demurrer
sustained and the bill is dismissed.

[71] *GEORGE C. HAZELTON, Appt.,

บ.

is

MARGARET R. SHECKELS et al., Heirs and Devisees of Francis Miller, Deceased.

(See S. C. Reporter's ed. 71-79.)

Contracts-validity—public policy. An agreement to sell a tract of land at a specified

Taylor v. Bemiss, 110 U. S. 42, 28 L. ed. 64, 3 Sup. Ct. Rep. 441; Stanton v. Embrey, 93 U. S. 548, 23 L. ed. 983: Nutt v. Knut, 200 U. S. 12, ante, 348, 26 Sup. Ct. Rep.

216.

of construction to the agreement (Drexel When the court applies the proper rule v. Berney, 122 U. S. 254, 30 L. ed. 1222, 7

Sup. Ct. Rep. 1200) either upon its face or by "looking through the form to the substance," it will result in finding the transaction and the agreement one for the purchase by the appellant of real estate for a valuable and adequate price, and which, as shown by the allegations of the bill, he, in turn, relying on the said agreement as to his rights, sold to the government for a fixed price.

From all that appears in the record there was no design to prejudice the public interest, and such design must clearly appear to warrant a court in denouncing a contract void.

Richardson v. Mellish, 2 Bing. 229; Nichols v. Cabe, 3 Head, 92; Hertz v. Wilder, 10 La. Ann. 199; Greenhood, Pub. Pol., Rule 129, p. 166; Richmond v. Dubuque & S. C. R. Co. 26 Iowa, 191; Kellogg v. Larkin, 3 Pinney (Wis.) 123, 56 Am. Dec. 164; HaNOTE. On the validity of contracts for serv-zleton v. Putnam, 3 Chand. (Wis.) 123, 54 ices to procure legislation-see notes to Houlton v. Dunn, 30 L.R.A. 737; and Hayward v. Nordberg Mfg. Co. 29 C. C. A. 446.

Am. Dec. 158; Swann v. Swann, 21 Fed. 299; See 9 Am. & Eng. Enc. Law, p. 898.

It must be found that the agreement here, or the allegations of the bill, make out such a case as will avoid the transactiongress and before the departments, the cases, for the sake of public policy; or to avoid injury to the public, without reference to

Mr. J. J. Darlington argued the cause as the defendant. and filed a brief for appellee:

A contract not to prosecute before Congress, acting in a quasi judicial capacity, a claim of right, but to seek to obtain from it, in its purely legislative capacity, and for a contingent compensation, a contract of purchase or other advantage or benefit to which the other party to the contract has no legal claim, is against public policy and void.