United States, Ex Rel. v. C., O. G. R. R. Co. , 3 Okla. 404 ( 1895 )

OPINION OF THE COURT. The opinion of the court was delivered by Various motions were filed by the defendant company in this court in this case, after the filing of the petition in error and transcript of record here, upon June 6, 1895. Under the direction of the court, these motions were argued orally, and upon printed briefs in connection with the argument upon the merits of the case as presented in the transcript of the record, and will be here reviewed.

The defendant railroad company filed its motion on June 24, 1895, in this court, to require the plaintiffs to make a deposit and give security for costs. This motion was based upon rule second of the Rules of Practice of the supreme court of the Territory of Oklahoma, which reads as follows:

"No cause shall be docketed, nor process issued thereon (except in cases wherein the territory or the United States is appellant) until the plaintiff in error or appellant shall pay to the clerk ten dollars advance fees; nor shall any civil cause be docketed until security for costs shall be given, approved by the clerk of the supreme court, conditioned for the payment of all costs for, which the plaintiff in error maybe liable."

The argument admits that in this case no security for costs has been given, as provided by the rule. It is, however, contended by the plaintiff in error that compliance with the rule is not necessary, since this is a suit by the United States, and that the United States is not required to pay costs, or to give the security here required, in order to avail itself of the rights and remedies provided by and within the jurisdiction of this court.

This contention the plaintiff maintains upon the following sections of the Revised Statutes of the United States, which are a part of the judiciary act passed by congress in 1798, which read as follows:

"SEC. 1000. Bond in Error and on Appeal. Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and if he fail to make his plea good, shall answer all damages and costs, where the writ is asupersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.

"SEC. 1001. No Bond Required of United States. Whenever a writ of error, appeal, or other process in law, admiralty, or equity, issues from or is brought up to the supreme court, or circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted."

The sections here recited are a part of the procedure provided by congress for the supreme court and circuit and district courts of the United States, which are provided for under art. 3, § 1, of the constitution of the United States, as follows:

"SEC. 1. Supreme and Inferior Courts. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. The judges both of the supreme court and inferior courts, shall hold their offices during good behavior."

In providing a mode of procedure for the "judicial power of the United States, * * * vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish," congress did not provide a code of procedure for the territorial courts. The legislation here stated, does not relate to the territorial courts. So far as congress has legislated with regard to territorial courts, it has legislated under the general powers which congress possesses over, and to provide a government for, the territories, and not under the constitutional authority given to it to ordain and establish one supreme court and inferior courts vested with judicial power, for the United States. (Amer. Ins. Co. v. Canter, 1 Peters, 511; Stacy v. Abbott, 1 Am. L. T. 84;Benner v. Porter, 9 How. Pr. 244.)

The same conclusion must be drawn from an examination of the context of the sections relied upon. Section 1000 provides that the judge shall take good and sufficient security, except in cases brought up by the United States or by direction of any department of the government, and in § 1001, next ensuing, it is provided in what cases such security shall not be required, that is, in "issues * * * brought up to the supreme court, or a circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid," etc.

The prohibition against requiring security from the United States, or from any party acting under the direction aforesaid, is in cases brought up to the supreme court of the United States, or circuit court of the United States. The prohibition is not against bringing up the case by petition in error from the district court of a territory, to the supreme court of a territory. And while the Organic Act of this territory provides that its district court "shall have and exercise exclusive of any court herofore established, the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States," the writ of error here is not to the supreme court of the United States, or to a circuit court of the United States, but to the supreme court of the Territory of Oklahoma. It cannot be contended that these sections are imported into the practice of this territory.

"Laws regulating the proceedings of the United States courts are of specific application, and are, in truth and in fact, locally inapplicable to the courts of a territory. * * * The acts of congress respecting proceedings in the United States courts, are concerned with, and confined to, those courts, considered as parts of the federal system, and as invested with the judicial power of the United States expressly conferred by the constitution. * * * They were not intended as exertions of that plenary municipal authority which congress has over the district of Columbia and the territories of the United States. They do not contain a word to indicate any such intent. The fact that they require the circuit and district courts to follow the practice of the respective state courts in cases at law, and that they supply no other rule in such cases, shows that they cannot apply to the territorial courts. As before stated, these acts have specific application to the courts of the United States, which are courts of a peculiar character and jurisdiction. * * * As a general thing, subject to the general scheme of local government chalked out by the Organic Act, and such special provisions as are contained therein, the local legislature has been intrusted with the enactment of the entire system of municipal law, subject, also, however, to the right of congress to revise, alter and revoke at its discretion. * * * From a review of the entire past legislation of congress of the subject under consideration, our conclusion is that the practice, pleadings and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject, as before said, to a few express or implied conditions in the Organic Act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves." (Hornbuckle et al. v. Toombs, 18 Wall. 648-657.

There is in force in the Territory of Oklahoma, and relating to appeals on writs of error from a district court of the Territory to this court, no provision under which the United States is exempted from the rule of procedure of this court, under which it is provided that

"No civil cause shall be docketed until security for costs shall be given," etc.

We understand the rule to be that unless such special exemption is provided for, if the United States comes voluntarily into the court, it must do so under similar circumstances and upon the same conditions as if it were a private party, unless, indeed, exemption should be conceded to it upon the ground of sovereignty. (The United States v.Thompson, 93 U.S. 588; The United States v. Union Pac. R. R.Co. 105 U.S. 263.)

And such exemption is not relied upon in this case, since the liability here discussed, has been provided against by the requirement made in behalf of the United States, and taken by those who represent the interest of the United States, if it has any in the case, by the agreement filed with the bill of complaint, that the relators should be responsible to the United States for its costs incurred therein.

The case of The United States v. Bryant, 111 U.S. 500, has been cited to support the contention of plaintiff that §§ 1000 and 1001 relate, and are applicable, to writs of error from the district courts of this territory to the supreme court of this territory. The case does not support the contention. This was an action at law by the United States in the circuit court of the United States for the southern district of Alabama, and cannot aid us in reference to the application of those sections to proceedings in the territorial courts.

If the United States should, in fact, itself, be exempt from the application of the rule of court requiring security for costs, we should yet hold that the relators are themselves the real parties in interest, and that, as such, they would not be entitled to the benefit of the exemption thus provided in behalf of the United States. They being thus the real parties in interest and having invoked the name and authority of the United States in the bringing of this action, would not be permitted to prosecute it for their own benefit without complying with the rule.

In the absence of any special provision this action must be prosecuted in the name of the real party in interest, and if these parties are here with any legal rights, it is by reason of being here in that capacity. (Chapter 26, § 6, Code of Civil Procedure, Statutes of Oklahoma, 767; State of Kansasex rel. A. T. S. F. R. R. Co. v. County Commissioners, 11 Kan, p. 66; Nixon v. School District, 32 Kan, 511; A. T. S.F. R. R. Co. v. State, 22 Kan. 17.)

The view here taken was undoubtedly that of the department of justice in charge of these proceedings, and has been provided against herein, since there was filed in the district court on March 19, 1895, in conjunction with and annexed to the bill of complaint, an agreement and obligation to the United States, which recites that:

"William S. Search, Samuel Clay, Wright Christian, George A. Outcelt and Edward J. Kelley hereby agree that their names shall be used as relators in the above entitled cause and that they will be responsible to the United States for its costs incurred therein."

We hold that the defendants in this action are entitled to an order requiring the plaintiff herein to give security for costs, to be approved by the clerk of the supreme court, conditioned for the payment of all costs for which the plaintiffs in error maybe liable, before they could require any further proceeding or demand relief herein.

Upon June 24, 1895, the defendant also filed its motion in the cause to strike from the transcript filed in the cause, the affidavits of Dunn, Webster and others, together with certificates, letters, map and opinion of Judge Henry W. Scott, for the reason that "none of the same were made a part of the record in this case by a bill of exceptions or case-made, and therefore are no part of the record and were improperly filed with said transcript," and also moved the court to tax the costs of making the portions of the transcript above referred to, to the plaintiffs herein, for the reason that the same were improperly filed with the transcript in this court.

Two methods are provided by the statutes of this territory, either of which may be adopted in bringing appeals to this court from the district courts, in all civil causes: (1) by a transcript of the record, and (2) by case-made. The Code of Civil Procedure, ch. 66, p. 855-856, of the Statutes of Oklahoma, 1893, provides, with reference to the second method of taking an appeal from the district court, that:

"SEC. 564. In all actions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court.

"SEC. 565. A party desiring to have any judgment or order of the district court, or a judge thereof, reversed by the supreme court, may make a case-made, containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.

"SEC. 566. The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing, and present the same to the party making the case, or to his attorney. The case, and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. * * *

"SEC. 567. The court or judge may, upon good cause shown, extend the time for making a case-made and the time within which the case-made may be served; and may also direct notice to be given of the time when the case may be presented for settlement after the same has been made and served, certified and signed by the judge who tried the cause."

The final judgment or order was made by the judge of the district court at chambers, on the 1st day of May, 1895, by which it was ordered that "the temporary injunction be, and the same is, hereby dissolved, to which plaintiff excepts." By this order the plaintiffs were allowed twenty days to prepare and serve a case-made. Thereafter, on the 23d day of May, 1895, "it being one of the regular judicial days of the May term of the district court," the court finds that the "order of the judge of the district court of the Third judicial district, dissolving the temporary injunction, on the 1st day of May, 1895, at chambers in Oklahoma City, Oklahoma Territory, and all orders heretofore made, are hereby set aside and held for naught." And the court then proceeded especially to dissolve and set aside the order of May 1, 1895, to all of which the plaintiff excepted.

The plaintiff thereupon made a motion for a new trial, upon the following grounds: (1) That the "decision is not sustained by sufficient evidence," and, (2) that the "decision is contrary to law," which was overruled, to which the plaintiff excepted. Upon which the plaintiff prayed an appeal, and the order of the court, then passed, provided that "ten days is hereby allowed said plaintiffs to make and serve a case-made upon the defendants."

The first judgment, entered May 1, 1895, and the second judgment, dated May 23, 1895, are, in all essential respects, identical, except that the first judgment includes no statement of a motion for a new trial, with ruling and exception, and with the further exception that in entering the second judgment the court undertook to allow an appeal to the supreme court and, also, allow from that date "ten days to make and prepare a case upon the defendants."

It is provided by the Code of Civil Procedure, § 320, p. 814, Statutes of Oklahoma, that

"The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."

The decision rendered May 1 was, in all respects, final. The decision rendered May 23, 1895, was, as to the material thing ordered and accomplished by the judgment — that is, the dissolution of the temporary injunction — in no respect more effective in its terms than that which had been passed by the court on May 1.

This was an injunction proceeding, properly heard at chambers, and the fact that the first judgment was entered at chambers, made it in no respect invalid or ineffective. The fact that the second judgment was entered upon a "judicial day" and by the court, had no virtue, nor could it make a judgment dismissing the temporary injunction, in any respect more final or conclusive. There could have been no reason why the court should have undertaken to set aside, by the judgment entered May 23, the final judgment which had been entered on May 1, in the same matter, except a strong desire to oblige the plaintiffs in error, by enabling them to make their motion for a new trial within the time prescribed by the statute, if possible, and for the purpose of extending the time in their behalf, within which to prepare and serve a case-made for the supreme court, or "ten days to appeal said cause upon the transcript of the record in said cause."

Our Code of Civil Procedure has been adopted from the state of Kansas, and this court uniformly follows the principles of interpretation and construction which have been applied to it by the supreme court of that state. It has been by that court repeatedly held, with reference to the motion for a new trial, that a motion must be filed in strict conformity with the provisions of the statute, i. e., within "three days after the verdict * * * was rendered, unless unavoidably prevented." (Mercer v.Ringer, 40 Kan. 191; Bubb v. Cain, 37 Kan. 692; McDonald v.Weeks, 32 Kan. 58.)

And that when no showing has been made that the party has been unavoidably prevented from filing his motion within the time specified, the court cannot consider or review the errors occurring upon the trial. (Odell v. Sargent, 3 Kan. 80;Mitchell v. Milhoan, 11 Kan. 617; Nesbitt v. Hines,17 Kan. 316; Dyal et al. v. City of Topeka, 35 Kan. 62.)

And it has been by the same court uniformly held that the district judge has no power to extend the time for making a case, after the time fixed by the statute and by the order of the court has once elapsed. (The Ætna Life Insurance Co.v. Koons, 26 Kan. 215; Dyal v. City of Topcka. 35 Kan. 62; Doddv. Abram, 27 Kan. 69.)

When, therefore, the court, in its final judgment in this case, of May 1, 1895, which was final as to the only matter involved, to-wit: the revocation of the temporary injunction, extending the time upon the application of plaintiffs for twenty days to make a case-made, and when the time so extended had expired upon the 21st day of May, the district judge had no power to extend the time for making a case. The power did not exist in him in any form. He was without authority. He could not extend the time by an order intended simply for that purpose, nor could he do so by any method less simple and direct. Not having jurisdiction to extend the time directly, he could not do so by indirection, and hence, the order extending the time for making a case-made after the time had expired within which the case was to be made under the order of May 1, was void, notwithstanding the fact that it was attempted to be accomplished through the instrumentality of revoking the judgment of May 1, upon the temporary injunction, and renewing the order for extension of time by the new order dated May 23, 1895, and purporting to be a final judgment, which assumed to be the only order by which the temporary injunction was then, for the first time, revoked.

The second decision of May 23, purporting to be a final judgment, can have no effect to extend the time specified in the statute for the benefit of the plaintiffs in error, nor have any other effect, except as a substantial testimonial of the willingness of the district judge to strain the limits of his jurisdiction in an effort to relieve the plaintiffs in error and to aid them in appealing to this court for review.

The large number of affidavits, certificates, letters and the map which are furnished and annexed to the petition in error are certified to by the clerk of the district court of the Third judicial district as "a true, full and complete copy of the proceedings and papers in the case of The United States ofAmerica v. The Choctaw, Oklahoma Gulf Railroad company andGeorge S. Goode Co. a co-partnership, defendants, as the same remain on file in my office."

Together with other evidence of its insufficiency as a case-made, it has not "been submitted to the judge, who shall settle and sign the same." The evidence consisting of affidavits and papers purporting to have been used as evidence at the hearing below, are not, therefore, in such form as that they can be reviewed by this court.

We understand the statute prescribing the method of making up an original case-made and providing for its certification by §§ 564, 565, 566 and 567, of the Code of Civil Procedure above referred to, constitute the only and exclusive method by which evidence may be brought into this court in such form as that it may be reviewed and examined upon error. This is the case, unless, indeed, it should appear upon examination that, as is claimed by the plaintiffs in error, "the decree adopts the opinion and expressly makes it a part of the record, and the proofs are also made a part of the record; that the findings are all in the opinion," and that this order of the court, making the opinion and proofs referred to therein, parts of the record, was sufficient for that purpose.

It is, by the decree of the district court dated May 1, 1895, stated that the "defendants submitted their evidence to sustain said motion, and plaintiffs their evidence to resist the same, and both parties having rested," and by the subsequent order dated May 23, it is "ordered, adjudged and decreed that upon the pleadings, proofs and findings by the judge of this court, of law and fact heretofore had, with the opinion of the judge, is ordered made a part of this record."

We hold that the decree of May 23, 1895, is void as to either of these purposes sought to be accomplished by it, by which a motion for a new trial can be made, or the evidence from the trial in the lower court be brought here for the review of errors, in lieu of the method prescribed by the specific and exclusive provisions which are made by the statute for the bringing of evidence into this court by a case-made, by which "hereafter in all actions instituted in the supreme court the original case-made shall be attached to the petition in error," and that such case-made shall be "served upon the opposite party or his attorney for the suggestion of amendments," and that the case so made shall then "be presented for settlement to the judge who shall settle and sign the same and cause it to be attested by the clerk," etc.

In support of their proposition, however, we are referred by the plaintiffs in error to § 192 Elliott's App. Proc., toMcCullah v. Allen, 10 Kan. 121, to Stapleton v. Orr,43 Kan. 170, to 14 How. Pr. 426, to Weyman v. Bank, 59 How. Pr. 2, to Auld v. Smith, 23 Kan. 42, toSmith v. Auld, 31 Kan. 266, to Mitchell v. Insley, 33 Kan. 658, to Redden v. Metzger, 46 Kan. 288, and to Mason Lumber Co. v.Beetchel, 101 U.S. 68.

To review these authorities: It is stated in Elliott's App. Proc. § 192, that:

"The statute requires an order of the court in the nature of a special order, and without such an order, instruments of evidence, instructions, or the like, cannot be regarded as in the record unless, of course, brought in by a bill of exceptions."

The reference here made is to the statute of the state of Indiana, which provides that,

"The transcript of motions, affidavits, and other papers, * * * depositions, and papers filed as mere evidence, shall not be certified, unless made a part of the record by exception or order of court."

We do not practice under such a statute. Our statute provides, Code of Civil Procedure, §§ 430, 431, as follows:

"The record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. * * * Evidence must not be recorded."

But it is urged by the plaintiff upon the authority of the Kansas cases that the opinion contained findings of fact and conclusions of law, and "by order of the court all are made a part of the record." We do not find that this conclusion can be drawn from the authorities cited from that state.

Our Code of Civil Procedure, adopted from Kansas, provides, § 302, Statutes of 1893, p. 812, that:

"Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law."

It will be here seen, (1) that in the absence of an express request by one of the parties to the cause, it is not made the duty of the "court to state its findings, except generally," and (2) that if one of the parties, with a view of excepting to the decision of the court upon the questions of law involved in the trial, request it, it shall then become the duty of the court to state, in writing, the conclusions of fact found, separately from the conclusions of law. If the court, not being requested and not having in view the taking of exceptions to its decisions upon the questions of law involved in the trial, does yet volunteer to prepare a written opinion, including a recitation of the facts, or a part of them in so far as it sees fit to do so, it is yet acting under that provision of the statute which only makes it its duty to find no further, or otherwise, than "generally for the plaintiff, or for the defendant." The voluntary statement of its opinion in writing thus made, including such facts as it would see fit to include in its opinion, is not such special finding of fact and conclusion of law as is provided for by the statute, when either party to the cause so requests it, and such voluntary action of the court has been universally treated as a general finding only, notwithstanding any care which it may have taken in the preparation of a written opinion. Such general finding, under the voluntary action of the court, is radically different from the special findings of fact and conclusions of law provided for under the second branch of the statute. Such special findings of fact and separate conclusions of law, when made by the court upon the request of either party and entered upon the journal, although not signed by the judge nor made a part of the record by a bill of exceptions, have yet been held to be a part of the record by the supreme court in the state of Kansas in McCullagh v. Allen,10 Kan. 121. Nor do the other Kansas cases go further.

It is urged by the plaintiff that in the case ofStapleton v. Orr, 43 Kan. 170, "the evidence in the case is attached to the opinion and referred to in the opinion as a part of it. Thereby the evidence becomes a part of the record."

The fact in this case, as extracted from the opinion of the court, was, that upon the motion to dissolve the attachment, "we could not, we think," examine the testimony submitted before the district court, and "do so in order to determine whether or not the order of dissolution was correct, but as the defendant has made it a part of his answer, we certainly can treat it as a part of the pleadings in this case."

It will thus be seen that the evidence was not attached to the opinion and referred to in the opinion as a part of it. The case does not aid us.

The case of Mason Lumber Company v. Beechtel. 101 U.S. 68, cited by the plaintiff in support of the proposition that "the findings of a referee upon which the judgment was rendered, like the verdict of a jury, constitutes an essential part of the record of the case."

We find, upon an examination of the case, that exceptions were taken to the report and overruled by the court below. That case, therefore, came regularly into the supreme court by a bill of exceptions, as we must infer from this statement in the opinion of the court, and the case does not support the statement of plaintiff's brief that the referee's report would form part of the record without such exceptions.

The New York practice, pressed upon our attention in the brief of plaintiffs, in the case of Thomas v. Fauer, 14 How. Pr. 426, and Weyman v. Bank, 59 How. Pr. 2, does not support their contention. It is, in the syllabus of the former case, declared that, "the decision, which, by the 267th section of the Code, is required to be given in writing and filed by the clerk, is a very different thing from the opinion which the judge may think proper to write. The decision can only appear by his signature or allocutor. The opinion never should be carried bodily into the record."

On the contrary, in the absence of such a statutory provision as that found in the state of Indiana, it has been repeatedly held that no evidence, depositions, affidavits, judge's minutes, notes or opinions are a part of the record until they are embodied in a bill of exceptions or case-made, and that neither the action of the clerk by his certificate, nor the power of the judge himself, unless authorized by statute, can be effective to incorporate these matters in the record in any other manner than that which they are limited to, as prescribed by the legislative will. The provisions of the statute, as above set out, are made for the protection of the defendants in error. He has a right to avail himself of them, and the courts have no power to deprive him of the benefit of those provisions, if that is demanded. (Haraszthy v. Horton, 24 Cal. 545;Thorne v. Hammond, 46 Cal. 530; St. A. Mill Co. v.Vandall, 1 Minn. 250; Balt. Pot. R. R. Co. v. Trustees, I Otto. 130; Saint Croix Lumber Co. v. Pennington, 2 Dakota 467;Backus v. Clark, 1 Kan. 303.)

The finding of a court, no matter how full and exhaustive or how complete and adequate may appear to be its statement of facts, unless it appears by the record that it was made upon the request of one or both of the parties as a special finding of fact and conclusion of law, will be but a general finding, and not a part of the record unless made so by a bill of ex-exceptions. (Connor et al. v. Town of Marion, 112 Ind. 517.)

In an additional brief upon this motion filed by the plaintiffs July 26, 1895, the cases of Tolman v. S. B. N YR. R. Co. 92 N.Y. 353, and Snyder v. Snyder, 96 N.Y. 92, are cited as supporting the proposition that the order of the court making the opinion and proofs referred to therein, parts of the record, and effectual in bringing the evidence here to review.

The case of Tolman v. S. B. N.Y. R. R. Co., was an appeal from an order of the general term, affirming an order of the special term, denying a motion to compel the plaintiff to file security for costs. The only question in the case was whether the lower court could "exercise its discretion in requiring security for costs." The question was jurisdictional. The court declared that it "did not possess the power," and filed its decision in making the order. There was no evidence in the record. It was simply a proposition of law, and the court of appeals looked into the decision in order to ascertain upon what grounds the lower court declared "its want of power to grant the application." It concluded upon a comparison of sections of the New York statute, cited in the decision of the lower court, that "the opinion constitutes an important and material part of the record, and is expressly referred to in the orders," declaring at the same time as a general proposition that "while the opinion can not ordinarily be referred to, to show the ground upon which an order is made, this case is not brought within any such rule. The reason for the rule is, it forms no part of the record, and therefore cannot be referred to to explain the meaning of the record."

Upon the authority of this case, the court again declared inSnyder v. Snyder, 96 N.Y. 92, that "notwithstanding the general rule that an appellate court is not to look beyond the order to ascertain the ground of judgment, it may do so when the terms of the order are ambiguous, or when the order itself refers to the opinion."

The opinion does not cite any statute upon the subject, nor show what the statute of the state of New York provides shall be the contents of the record brought to the court of appeals; nor in what manner the contents of such record shall be certified, as we have seen has been fully and carefully provided for by our own statute, and the interpretations made thereupon by the courts of that state from which our code was adopted. The rule which now seems to be accepted in New York upon the strength of the case of Tolman v. S. B. N.Y. R. R.Co., is not the rule here. And these authorities do not support the proposition that evidence can be imported into the record by an order of the court or of the judge. Such a holding would render nugatory the provisions of the statute for making up the record, and substitute for them the choice of the judge when, in ruling upon an appealable matter, he might see fit to exercise his discretion, or indulge his caprice.

The case of In re Assignment of Holbrook, 99 N.Y. 543-4, also cited, furnishes nothing further upon the matter.

We must, therefore, hold that the opinion of the court, including such statements of fact as may be contained therein, is not a part of the record by the order of the judge, that he is not authorized by the statute of this territory to make such an order, and that the order so made in the decree of May 23, 1895, would have had no such force or effect if the decree passed May 1, 1895, had not been final as to the dissolution of the temporary injunction, which was the only matter then to be determined, and exhausted the jurisdiction of the court in that matter.

The motion to strike from the transcript filed in the case, the affidavits of Dunn, Webster and others, together with certificates, letters, map and opinion of the judge of the district court, etc., as described in the motion, for the reason that "none of them were made a part of the record in this case by a bill of exceptions or case-made and are therefore no part of the record, and were improperly filed with the said transcript," and "to tax the costs of making the portions of the transcript above referred to, to the plaintiffs for the reason that they were improperly made and filed with the transcript in this court," will be sustained.

It has also been moved by the defendant in error that the court affirm the judgment of the court below without consideration of the merits of this action for the following reasons: (1), for the reason that the decision of the court below was based upon evidence which has not been made a part of the record by case-made, or bill of exceptions, and is not before this court for review, and that no other questions are presented by the record for the consideration of this court.

This motion presents the question, whether, evidence having been produced at the hearing below, and the judgment of the court having been rendered thereupon, and the evidence not having been brought here by a case-made, this court can go into an examination as to whether the trial judge erred in rendering the judgment which he did.

It has been uniformly held by the supreme court of the state of Kansas, that:

"In order to have the question, whether the evidence supports the findings and judgment examined, a case-made should show that it contains all the evidence." (Hill v. National Bank,42 Kan. 364.)

And it has been uniformly held by this court, in the the case of W. A. Wood Co. v. Farnham, 1 Okla. 375, Burford, J.:

"Unless the bill of exceptions is shown on its face to contain all the evidence, this court will not review the action of the court below in overruling a motion for a new trial because the verdict is not sustained by the evidence." (L. N.A. C. Ry. Co. v. Henley, 88 Ind. 535; L. N. A. C. Ry. Co. v. Murdock, 82 Ind. 381; Swift v.Stein, 13 Pac. Rep. 904; Forelander v. Hicks, Administrator,6 Ind. 450.)

Notwithstanding the fact, therefore, that a large number of affidavits are annexed to the transcript which has been brought here, they will not be examined or reviewed by this court. No means are furnished to us by which the correctness of the determination upon the facts by the district judge can be examined into, and under such circumstances the practice has been necessary and uniform, in both federal and state courts, to affirm the decision of the district judge. Every presumption is in favor of the correctness of the finding of the trial court upon the facts, if it is a court of general jurisdiction, until the contrary is made to affirmatively appear. (Altschiel v. Smith et al. 9 Kan. 63; James v. Bank, 7 Wal. 692; Mullaney v. Humes, 47 Kan. 99; Hopkins v. Hopkins,47 Kan. 103; Swift v. Stein, 13 Pac. Rep. 904; Bedford v. Ruby,17 Neb. 97; Roele v. Roele, 15 Neb. 655.)

But the petition, answer and judgment have been properly brought here, and the question arises whether the plaintiff is entitled to relief in this court by way of judgment on the pleadings.

The Code of Civil Procedure of this territory, § 424, p. 830, Statutes of 1893, provides that:

"Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though the verdict has been found against such party."

Upon a precisely similar statute in the Code of Civil Procedure of the state of Indiana, the supreme court of that state has repeatedly held that since no such motion having been made at the trial, and the defendant not being thereby notified of defects which he would be entitled to amend in the furtherance of justice, and since no opportunity was afforded the trial court to consider and decide the question, the sound rule of law is that the question of the right of the party to judgment on the pleadings cannot be first made on appeal. (Cupp v. Campbell, 103 Ind, 213; Dunham v. Courtenay, 24 Neb. 627; Fowler v.Bowery Savings Bank, 113 N.Y. 450; Wilson v. Fowler, 9 Kan, 121; Mo. F. S. Gulf R. R. Co. v. Duncan, 20 Kan. 624.)

We hold upon this point that the defendants are entitled to have the judgment below affirmed without looking into the merits of the action.

In its motion to this court for the affirmation of the judgment below without looking into the merits of the action, the defendant assigns as a second reason:

"2. That the record fails to show that either the United States or the persons upon whose relation this action was brought, have any interest in the subject of the action, or would be in any way affected by the construction of the defendant's road over section four, as mentioned in the petition, or are in any way interested in obtaining the relief prayed."

The Code of Civil Procedure of this territory provides, (ch. 66, § 26, p. 767,) that

"Every action must be prosecuted in the name of the real party in interest." * * *

If the relators, therefore, are entitled to prosecute this action, it is because they are the real parties in interest. When the question is one of public right and the object of the proceeding is to compel the performance of a public duty to restrain the commission of a public wrong, the people are regarded as the real party, and the action must be brought in the name of the territory upon the relation of the prosecuting officer, or upon the relation of some member of that public, who has a personal special or peculiar interest in the result as a part of the public.

The decided weight of authority supports the proposition that where relief is sought merely for the protection of private rights, the relator must show some separate and distinct personal interest in the matter, since he is regarded as the real party and his rights must clearly appear. (High on Extraordinary Legal Remedies, § 431; Pomeroy v. Mayor,Baltimore, 47 Md. 145; 28 Am. Rep. 446, and note 448; Dane v.Derby, 89 Am. Dec. 740, note.)

The interest of the relators must appear in the petition. If it is sought in this action to prevent a wrong to the public, the petition should at least show that the relators are citizens or residents and, as such, are interested in the execution of the laws. If the action is brought by the relators for the protection of private rights, they should show in the petition some personal or special interest in the subject matter. The petition shows neither. The relators are neither described, nor is it shown in any way in the pleadings, that they are citizens, or even residents, of the territory or of the United States. No interest is in any manner exhibited which would entitle them to appear as seeking redress or relief in the preservation of either public or private rights. The relators appear in the action as mere volunteers, and as such are not entitled to the relief sought. (2 High on Injunctions, 1556; State ex rel. A. T. S. F. R. R. Co. v. Board CountyCommissioners, 11 Kan. 66; State v. Marston, 6 Kan. 524; Statev. McLaughlin, 15 Kan. 183; State v. Houston, 6 Ohio 101;Putnam v. Valentine, 50 Ohio 107)

It is alleged in the petition that the building of the defendant's line in the manner and at the places to be enjoined, is a public nuisance, and in that case the petition must show that the relators have suffered some special or peculiar injury, independent of, and distinct from, the common and general injury shared by the public alike. No such special or peculiar injury to the relators is alleged or shown in the petition. (2 High on Injunctions, 1555; Bigelow v. Hartford B. Co., 14 Conn. 565; Doolittle v. Supervisors, 18 N.Y. 160;Hinchman v. Paterson H. R. Co., 2 C. E. Green 75; Williams v.Smith, 22 Wis. 594.)

It cannot be claimed that this is an action in which the United States itself is the real party in interest. If it were in fact so, and this is a proceeding in which the United States is the real party in interest, there would then be a misjoinder of parties. The action would be the action of the United States, in which the relators have been improperly joined.

The petition is verified by each of the relators respectively. This verification has been made in pursuance of the provision of the Code of Civil Procedure, § 108, page 780 of the Statutes of Oklahoma, 1893, which is that:

"In all actions, allegations of the execution of written instruments, * * * duly verified by the affidavit of the party, his agent or attorney, shall be taken as true," etc.

And since the verification does not show that it was made by agents or attorneys, and since the statute provides that such verification of pleadings may only be made by the party, his agent or attorney, it must have been made by the affiants, who being themselves the relators, believed themselves to be, and accepted responsibility as, the real parties in interest.

Before the institution of this suit an agreement was executed by the relators, by which they bound themselves that they would be responsible to the United States for its costs incurred therein.

This agreement was filed with the petition in the district court at the time the suit was brought, as has been stated, and the fact that it was taken by the United States from the relators and that the relators verified the petition in their own behalf as the real parties in the case, abundantly shows that the action, while it was instituted in the name of the United States of America, was instituted for the benefit of the relators, that it is a suit to protect a private interest, and that the permission to use the name and authority of the United States for the institution of the action was only permitted upon the execution of this agreement, and that the relators, and not the United States, have been the active, interested and real parties in interest, and that the United States was to stand no otherwise engaged, than to protect the interests of the relators themselves.

If the United States had any real interest in the matter in controversy here, it is able, and it is proper that it should be responsible for, and defray its own costs. The attorney general would not, under such circumstances, call upon private persons to secure the United States against the payment of the expenses of litigation on its behalf. The United States comes into court, if it comes at all, upon precisely the same footing, and upon the same conditions, with private persons. It must show its interest. It must show that it has been, or is itself about to be, prejudiced by some action of the defendant or defendants. It must show that it has some pecuniary or other interest at stake. Or, if suit is brought by the United States for the protection of some public interest, or at the relation of private parties for the protection of some private interest, it must appear that there is some obligation subsisting under which it is incumbent upon the United States to litigate in behalf of the public, or of those who offer themselves as relators in the proposed litigation.

If these conditions or some of them do not appear the action cannot be sustained. And it has been declared by the supreme court of the United States that:

"If the fact is manifest that the suit has actually been brought for the benefit of some third person, and that if no obligation exists which requires the United States to bring it, then the suit must fail. (23 Fed. Rep. 279;United States v. San Jacinto Tin Co., 125 U.S. 285; UnitedStates v. Beebe, 127 U.S. 338.)

So much has been decided. But is, in fact, the United States the redresser of public or private wrongs? If the federal government is a government of delegated powers, it is incumbent upon the plaintiff to show that some power has been conceded by the constitution or laws to the United States, under which it is authorized to conduct such proceedings as these.

Under our government power goes from the people to the government, and the authority assumed by the attorney general in England to institute, in his own name, proceedings of a character similar to this, as cited to us in the brief of plaintiff, has no existence.

Nor does the practice in the state of Massachusetts, similarly cited by plaintiff upon the authority of the case ofAttorney General v. Algonquin Club, 157 Mass. 87, aid us. Whatever the authority of the attorney general may be in England, or the practice under a state statute or otherwise may be in Massachusetts, the plaintiffs here are the United Statesex rel. Search and others, and the attorney general appears, not as the party in interest or as the actor bringing the suit in his own name, but as attorney general acting in the usual capacity of attorney in behalf of the plaintiffs in the case, in the conduct of the legal proceedings in court.

If in fact a public wrong is about to be committed and this action is brought to restrain it, it should be brought, not in the name and upon the authority of the United States, but in the name of the territory, on relation of the attorney general of the territory, or in the name of the Territory of Oklahoma upon the relation of an individual of that public, naming him, who is personally affected by such wrong, and this interest and damage must affirmatively appear by the petition.

This doctrine has been held by this court in the case ofThe Territory of Oklahoma ex rel. W. S. Whittinghill v. C. R.I. P. Ry. Co. (1894) not reported.

Upon the considerations herein mentioned, we hold that the judgment below should be affirmed by this court without looking into the merits of the action, because neither the United States nor the persons by whom the action was brought have shown any interest in the subject of the action, or have shown that they are in any way interested in obtaining the relief prayed for.

For a third reason, urged by the defendants, why the judgment below should be affirmed without looking into the merits of the action, the defendant alleges:

"3. For the reason that plaintiffs' cause of action as set out in the petition is based wholly and solely upon the secretary of the interior's alleged disapproval of section four of the route of the defendants' road; that defendants, by their third paragraph of answer, set up an affirmative defense by alleging, among other things, that in addition to the grants contained in said several acts of congress (mentioned in the petition and answer), the defendant, the Choctaw, Oklahoma Gulf Railroad company, has a right to construct, equip and operate its road over and upon the route designated on the said map of section four under and by virtue of the laws of Oklahoma Territory; that said company, by resolution of its board of directors, entered in the records of its proceedings, designated the route of its said road from the west line of the Seminole nation, Indian Territory, to Fort Reno, Oklahoma Territory, in the manner and as required by the laws of said territory, and filed a copy of such record, certified by the president and secretary of said company, in the office of the secretary of the territory, and caused the same to be recorded as provided by law; that the route designated by said resolution begins at the east end of section four, and extends westward to the west end thereof on the route designated on said map of section four, and is in every respect the same route; that to this answer plaintiffs did not file a reply, and thereby admitted said facts to be true, which warranted the judgment of the court below; and for the further reason that the evidence under this paragraph of defendants' answer is not in the record, and this court cannot determine the facts in relation thereto, except as admitted by the plaintiffs' failure to reply to defendants' answer, and the judgment of the court below will be presumed to be in accordance with the evidence"

Section 128, of the Code of Civil Procedure, Statutes of Oklahoma, 1893, p. 782, provides that:

"Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true."

Since no reply was filed by the plaintiff, and since the third paragraph of the answer of defendants set forth in this motion constitutes new and affirmative matter, and was not controverted by the reply, its allegations must for the purposes of the action be taken as true. Whether these allegations constitute such material matter as would of itself be an adequate defense to the action is a proposition which will be hereinafter examined.

It was said by Judge Brewer in Altschiel v. Smith, 9 Kan. 90, that inasmuch as there was no information upon what the district judge acted, although there were some copies of affidavits in the transcript and the certificate of the clerk showing that they were on file the day after the decision, and inasmuch as it had been decided in the case of Backus v. Clark,1 Kan. 303, that affidavits on a motion in the lower court to become a part of the record so as to be reviewable by the supreme court must be included in a bill of exceptions, that "all presumptions are in favor of the correctness of the decision of the judge of the district court, and we are not placed in possession of the testimony upon which he acted, we have no alternative than to affirm the decision,"

We, therefore, find that the plaintiffs would not be permitted to prosecute this action further for their own benefit without complying with the rule of this court requiring security for cost; that, while a large number of affidavits, map and opinion accompany the transcript of record, they have not been brought here in such a manner as to enable us to review the evidence; that the affidavits, map and opinion should be, therefore, stricken from the files, and the costs of bringing them here taxed, as prayed in the motion, to the plaintiffs; that the findings and judgment of the district court, having been made upon facts produced in evidence before said court, the judgment cannot be inquired into and reversed owing to the absence of such evidence; that the defendants are entitled to have the judgment affirmed on the pleadings without looking into the merits of the action, no motion for such relief having been made below, and since the application for such relief cannot be made for the first time in this court; and because it does not appear that the United States has any interest in the subject matter of the case, and that the interest of the relators has not been made to appear, either in the subject matter of the litigation, or even that they are residents or citizens of the territory or of the United States. The case will, therefore, and for these reasons, be dismissed and the judgment of the lower court affirmed. This is a legal right of the defendants of which, since they are here demanding it, they cannot be deprived.

It is, however, in view of the great importance of the case and the extensive interests involved, considered by the court desirable to examine the legal questions proposed in the pleadings and concluded in the judgment of the court below, and to express their views thereon, and this examination will, therefore, now be made.

The sole question in the case is whether, upon the facts presented by the pleadings and the acts of congress therein recited and referred to, the defendant company may proceed to construct and operate its road, notwithstanding the fact that the secretary of the interior on the 15th day of February, 1895, disapproved the map of the proposed new route, except as the same coincides with the old survey, by writing on the map:

"DEPARTMENT OF THE INTERIOR, Feb. 15, 1895. "The within map is hereby disapproved, except where said line coincides with the line shown upon the original map of the fourth section, filed in the Indian office in 1890."

"(Signed.) HOKE SMITH, Secretary."

The object must be to discover the purpose for which, and the object to be promoted by, that provision of § 6 of the act of congress of February 18, 1888, which provides:

"That when a map showing any portion of said railway company's located line is filed as herein provided for, said company shall commence grading said located line within six months thereafter, or such location shall be void; and said location shall be approved by the secretary of the interior in sections of twenty-five miles before construction of any such section shall be begun."

The concessions made by the act of congress referred to were made seven years ago. Within this period important political and social changes have occurred in the Indian Territory. In the area of country to which the acts of congress herein recited respectively relate, semi-civilized tribes under the close and paternal guardianship and protection of the government, and living and holding all their interest in the lands in common under the laws, usages and customs of Indian tribes, trusting to the protection of the United States government, its legislature and its various civil departments, together with its army, for their protection, under all circumstances of negotiation, and at all points of contact with the white race, have given place to the white race itself. Rights of possession and occupancy, and the whole Indian interest, as such, upon this part of the public domain, have been extinguished, and the possession and vested interest in the ownership of the whole country has devolved upon individual Indians who have received allotments of specific portions of the land in which they are now entitled to acquire an absolute and private ownership separate from any ownership in common, or otherwise, with other Indians, and upon individual citizens of the United States, endowed with all the rights, and encumbered by all of the duties provided for, in the homestead act. These changes in the condition of the country must be observed and taken into account. They reflect upon the intention of congress, and upon the purposes for which the various provisions in the acts of congress in question were made.

These circumstances and conditions, including the history of the country, its condition at the time of the passage of the act first referred to, and its condition now, are facts of such an open, known and public character that the courts must take notice of them. (Winona St. P. R. R. Co. v. Barney, 113 U.S. Rep. p. 625; U.S. v. Denver, etc., R. R. Co. 150 U.S. 1, 14; Sutherland on Statutory Construction, ¶¶ 298, 380.)

The twenty-five miles of land included in section four now in controversy, is built within the territory which became a part of the public domain of the United States by virtue of the Louisiana purchase from France in 1803, and is within Oklahoma Territory as constituted by the act of congress of May 2, 1890, and had been conveyed by the United States to the Creek and Seminole Indians by treaties executed in 1832 and 1833, found upon pages 102-106, of the Revision of Indian Treaties. By subsequent treaties executed March 21, June 14, respectively, in 1866, these nations of Indians receded these lands to the United States "in compliance with the desire of the United States to locate other Indians and freedmen thereon." By a subsequent treaty made with the Creek nation for the purpose of "entirely freeing from any limitations in respect to the use and enjoyment thereof, the interests of the Creek nation were entirely extinguished," and this agreement and treaty was ratified by congress by the act of March 1, 1889, which provided that the lands "thus acquired by the United States, should be a part of the public domain." (25 U.S. Statutes at Large, 757-759.)

A similar release and conveyance was obtained from the Seminole nation. An act, ratifying such release and extinguishment of interest also provided that "the lands thus acquired should be a part of the public domain." (25 Statutes at Large, 1004-1006.)

The lands of the section of country in question, became, by these treaties and conveyances made by the Indian tribes and ratified by act of congress, a part of the public domain, and were held by the United States in fee simple, subject only to a location of the Kickapoo Indians upon the tract, including part of the twenty-five mile section in question, by an executive order of the president made upon August 15, 1883. Upon September 9, 1891, the Kickapoo Indians entered into an agreement to relinquish their occupancy of said land to the United States, which was approved by act of congress March 3, 1893. (27 Statutes at Large, 557.)

Thereafter the president of the United States, having been authorized thereto by the act of congress accepting, ratifying and confirming the said agreement with the Kickapoo Indians, approved March 3, 1893, (27 United States Statutes, 557-563, § 3), issued his proclamation on the 18th day of May, 1895, in which, after reciting that, "by a written agreement, made on the 9th day of September, 1891, the Kickapoo nation of Indians, in the Territory of Oklahoma, ceded, conveyed, transferred and relinquished forever and absolutely, without any reservation whatever, all their claim, title and interest of every kind and character in and to the lands particularly described in article 1 of the agreement, provided, that in said tract of country there shall be allotted to each and every member, native and adopted, of said Kickapoo tribe of Indians, eighty acres of land in the manner and under the conditions stated in said agreement;" and that * * * "whereas, allotments of land in severalty to said Kickapoo Indians have been made and approved in accordance with law and the provisions of the before mentioned agreement with them." * * * and that "whereas, all the terms, conditions and considerations required by said agreement made with said tribes of Indians and by the laws relating thereto, precedent to opening said lands to settlement, have been, as I hereby declare, complied with."

The president, thereupon, proceeded to declare that "all of said lands hereinbefore described, acquired from the Kickapoo Indians by the agreement aforesaid, will, at and after the hour of twelve o'clock, * * * on the 23d day of the month of May, 1895, and not before, be opened to settlement under the terms, and subject to all the conditions * * * contained in said agreement, the statutes above specified and the laws of the United States applicable thereto, saving and excepting such tracts as have been allotted, preserved or selected under the laws herein referred to, and such tracts as may be properly selected by the Territory of Oklahoma under and in accordance with the provisions of the act of March 2, 1895, hereinbefore quoted, prior to the time fixed herein for the opening of said lands to settlement."

The proclamation referred to, and made a part of it, "A schedule of lands within the Kickapoo reservation, Oklahoma Territory, to be opened to settlement by proclamation of the president."

And a further provision was made, attaching the lands of the Kickapoo reservation, then opened, to the Eastern land district and Oklahoma land district, both of Oklahoma Territory.

The allotments therein referred to, were the allotments of land in severalty to individual Indians, to be held by each of them respectively, not as parts of an Indian reservation, nor as Indian lands, nor to be held under the laws, usages and customs of Indian tribes or nations. The Indian interest, as such, was wholly extinguished. The reservation, as such, was obliterated. The tribal unity was destroyed; together with the tribal rights of ownership and occupancy. The Indian allottee became an individual owner of the separate tract of land allotted and set apart to him under the treaty referred to, subject only to the provision that the secretary of the interior should hold the land in trust for his use and benefit, and that they should be incapable of alienation for the period of twenty-five years.

The surveillance, protection and control of the United States government, mainly through the secretary of the interior, over the rights of the Indian to his land then allotted, which has been uniformly likened by the courts to that of a guardian over his ward, ceased. He and his rights passed, subject to the provisions mentioned, under the protections of the common law, of the laws of the United States, and the laws of this territory, and he became entitled to all the rights and subject to all the duties of a resident, and probably to those, also, of a citizen of the United States and of the Territory of Oklahoma.

It is contended by the defendants in error, that §§ 3, 5 and 6 of the act of 1888, are applicable only to the Indian Territory as it is now, at the time of the hearing of this case, constituted; and that these sections were incorporated into the act for the protection of the Indian tribes, and individual occupants of these tribes, which would be inapplicable to country owned and controlled absolutely by the United States. We do not find that this contention can be sustained. At the time of the passage of the act of 1888, all of the territory now comprised within the boundaries of Oklahoma Territory, together with that portion or country now included within the boundaries of the Indian Territory, constituted but one territory under the name of the Indian Territory, and when in that act, the Indian Territory is spoken of, we understand it to refer to the whole body of land included within the boundaries of the Indian Territory, as it then existed. We do not understand that the mere fact of the separation of a portion of that territory, and its erection into the new Territory of Oklahoma, by the act of congress of May 2, 1890, releases the Choctaw Coal and Railway company or its successor, the defendants in this case, from the performance of any of the conditions and requirements which are imposed by the act of 1888. We cannot hold that the conditions stipulated for in the sections of the act of 1888 referred to, apply the less to the territory so separated, because it happens to be included within the boundaries of the Territory of Oklahoma. When the act undertook to provide "full compensation for any lands held by individual occupants, according to the laws, customs and usages of any of the Indian nations or tribes" through which it may be constructed, together with other conditions, including "the payment of fifty dollars per mile to the secretary of the interior," etc., and the provision that "congress should have the right so long as said lands are occupied and possessed by said nations and tribes, to impose such additional taxes on said railroad as it may deem just and proper for their benefit," these provisions did not relate solely to those lands which belong to the Indians by a fee simple title executed to them by the United States government, but that they also applied as well to such tribes as the Kickapoos, who were located upon a part of the public domain of the United States with the simple right of possession and occupancy, subject to executive order. And when by the act of congress of February 13, 1889, by which § 1 of the act of 1888 was amended, the Choctaw Coal and Railway company was authorized to construct and operate its railway through that portion of the Indian Territory occupied by the Kickapoo tribe, the land in question in this case, and now a part of the Territory of Oklahoma, by the most feasible and practicable route to an intersection with the Atchison, Topeka Santa Fe railway, it was an amendment of a single section of the act of 1888, and being such, was made and accepted, as an amendment only, of the original act subject to all the other provisions and conditions of the act of 1888, as they then stood unaltered and unchanged. Individual occupancy of lands, was in pursuance of and a part of, the laws, customs and usages of the Indian tribes who occupy the public domain of the United States under executive order, as it was also, of tribes occupying such lands as were held in fee simple by the tribe itself.

That this was the meaning and intention of: congress is manifest from the repeated provisions in the act itself, with reference to Indian occupancy, and which provide that congress shall have certain rights, "so long as said lands are occupied by said Indians and tribes," so that the legislation related, not to lands which were owned by said Indian tribes, but to lands which were in the occupancy of such tribes.

Nor did the passage of the act of August 24, 1894, by congress, providing for the organization of the defendant company as the successor of the Choctaw Coal and Railway company, have the effect to render nugatory, or to abridge, the extent or force of the conditions and requirements of the act of 1888, relating, as those provisions and conditions of that act, including those of February 13, 1889, did, to the whole extent of the defendant's railway, including that portion now included within the Territory of Oklahoma, as well as that portion now included within the Indian Territory as it is at present constituted. The concessions and authorizations were made to the defendant company in 1894, subject to the provision that they should, as provided in § 5 of the act of that date, be done "in conformity with the provisions of the acts of congress, relating to or affecting the Choctaw Coal and Railway company." We hold this view conclusively, upon these considerations and upon the provision of the Organic Act constituting the territory, by which it is, in a conditional clause which forms a part of the first section of that act, passed May 2, 1890, stipulated:

"That nothing in this act shall be construed to impair any right now pertaining to any Indians or Indian tribe in said territory under the laws, agreements and treaties of the United States, or to impair the right of personal property pertaining to said Indians, or to affect the authority of the government of the United States to make any regulation or to make any law respecting said Indians, their lands, property or other rights which it would have been competent to make, if this act had not been passed."

If, then, it should be found that §§ 3, 5 and 6, of the act of 1888, were intended for the protection of the rights of any Indians or Indian tribe in the said territory, that is, the Indian Territory, whether those rights existed among the Indians or Indian tribes who owned and occupied their lands, or as they related to Indians or Indian tribes who merely occupied and were in possession of certain portions of the public domain under executive order from the president, this provision of the Organic Act thus plainly provides for their preservation and protection as they existed at the time of its adoption.

We do not now treat of the applicability or inapplicability of the sections of the act of 1888 referred to, as applied to the changed conditions of the country, but do announce it as our opinion that the act of 1883 was applicable to the land in question in this case, for all the purposes and protections intended in that act, notwithstanding the fact of the change of political organization and the erection of the new Territory of Oklahoma, including the land through which the section of twenty-five miles herein referred to, extends designated as section 4, and as applicable alike to defendant, as originally to the Choctaw Coal and Railway company itself, throughout the whole extent of the line built under and by virtue of the act of 1888, as well in the Indian Territory as now constituted, as in that portion of the Indian Territory as it then existed, which has since been erected into the Territory of Oklahoma.

It is, in the next place, urged by the defendant railroad company, that the acts of congress gave to it the sole right of selecting its own route, of locating its own line, and of determining for itself, what was the most feasible and practicable route therefor, and that if it observed the conditions prescribed for it, by those acts of congress, that having accepted the granted powers, and entered upon its work, it has the right to build its line notwithstanding the fact that the secretary of the interior may withhold his approval of the route as selected.

By the act of February 18, 1888, the Choctaw Coal and Railway company was "hereby invested and empowered with the right of locating, constructing * * * a railway * * * line through the Indian Territory by the most feasible and practicable route."

It was by § 5 provided that, also: "If the general council of either of the nations or tribes through whose lands said railway may be located, within four months after filing the maps of definite location, as set forth in § 6 of this act, dissent from the allowance hereinbefore provided for * * *" and by the last clause of § 5 of the same act it was provided, that "said railway company shall have the right to survey and locate its railway immediately after the passage of this act."

And it is by § 6 provided that:

"Said company shall cause maps showing the route of its located lines through said territory to be filed with the secretary of the interior."

By the act of February 13, 1889, it was again provided:

That the Choctaw Coal and Railway company, * * * is hereby invested and empowered with the right of locating, constructing, * * a railway * * line through the Indian Territory, and thence by the most feasible and practicable route to an intersection with the Atchison, Topeka Santa Fe railway, * * otherwise known as a point on the north fork of the Canadian river."

The power given by these acts was by the act of August 24, 1894, vested in the defendant railroad company with "all the powers, rights, immunities, privileges and franchises which have been heretofore granted to, or conferred upon, said company by any act or acts of congress."

To locate, is defined in Webster's dictionary as "to place; to set in a particular spot or position." It is defined in Stormonth's dictionary as, "to set in a particular place or position." It is defined in the Century dictionary as, "to determine the situation or limits; to locate a tract of public land by surveying it and defining its boundaries."

When, therefore, the rights and privileges of the Choctaw Coal and Railway company devolved upon its successor, the defendant company, it was invested and impowered with the right of setting its railway line in a particular spot or position; with the right of fixing the place of its railway line, and of determining its situation, of surveying the place where it was to go, and defining its boundary, unless, indeed, it should eventually be determined that the clause of 6 of the act of 1888 providing that, "said location shall be approved by the secretary of the interior in sections of twenty-five miles before the construction of any such section shall be begun," should be construed to authorize the secretary of the interior to defeat the right of surveying and locating its railway immediately after the passage of that act, and with which the defendant company was "invested and empowered," notwithstanding that the defendant company had, as appears by the pleadings, fulfilled all the conditions stipulated in the said acts of congress, and notwithstanding that such withholding of approval should be derived from some matter or cause wholly outside of, and disconnected with, the provisions of the acts of congress by which the authority and power to "locate" were given.

The view here taken is one which, while seeming to require no support, is in fact corroborated by the general rule, which is that, "where a railway corporation is formed under a special charter authorizing it to construct its road between certain points; the right of selecting the route and location of the road is left to its discretion, and the question whether its charter warrants the location as recorded, is one of judicial construction for the courts. But neither a court of equity nor of law will attempt to control the exercise of this discretion within the designated termini." (2 Beech on Injunctions, § 1332; 2 Woods Railway Law, § 237; Southern Minn.R. R. Co v. Stoddard, 6 Minn. 150; Parke's Appeal, 64 Penn. St. 137; Hentz v. Long Island R. R. Co. 13 Barb. [N.Y.] 646;Cleveland, etc. R. R. Co. v. Speer, 56 Penn. St. 325; Struthersv. Dunkirk R. R. Co. 87 Penn. St. 282; People v. N.Y. R. R. Co.74 N.Y. 302.)

And upon an act of congress containing a like provision authorizing the Kansas Pacific Railway company to "locate" its line, it was said by the supreme court of the United States, in the case of the Kansas Pacific Railway Co. v. Dunmeyer,113 U.S. 629, that:

"We are of opinion that under this grant, as under many other grants containing the same words or words of the same purport, an act which fixes the time of definite location, is the act filing the map or plat of those lines in the office of the commissioner of the general land office. * * * After this no such rights can be attached, because the right of the company becomes by that act vested. * * * The company makes its own preliminary and final surveys by its own officers. It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or rather, in his office. The line is then fixed."

It is, however, contended by the plaintiff in error, that if the approval by the secretary of the interior was not necessary, the filing of the map in 1890 fixed the location. This contention takes no account of the changed conditions of the country, of the extinction of the Indian interest, and of the interest of the United States in the land as a part of the public domain, nor can it be sustained in view of that provision of § 6 of the act of 1888, which provides:

"That when a map showing any portion of said railway company's located line is filed as herein provided for, said company shall commence grading said located line within six months thereafter, or such location shall be void."

Nor could the stipulation endorsed by the secretary of the interior on February 15, 1895, upon the map filed by the defendant company in the department of the interior in December, 1894, to the effect that: "The within map is hereby disapproved, except where said line coincides with the line shown upon the original map of the fourth section filed in the Indian office in 1890," have any effect to restore to the defendant company the right to build upon the line upon which it was expressly declared by congress that such location should become void if not built upon within six months after filing its map of location.

It is further contended by the plaintiff in error that the filing of the map in 1890, known as the old survey, exhausts the power of the company to file, and it could not make a new selection.

While it is provided that, if the company locates the line, it must commence grading said located line within six months thereafter, or the location shall be void, this provision does not take away the right of the defendant company to make a new location, or to build its line thereafter, under the act of 1888, by which it was provided, in § 9, that "said railway company shall build at least one hundred miles of its railway, in said territory, within three years after the passage of this act, and complete the main line of the same, within said territory, within one year thereafter, or the rights herein granted shall be forfeited as to that portion not built."

Under the acts of congress of February 21, 1889, and of January 22, 1894, it was provided that "the time for the construction of the railway of the Choctaw Coal and Railway company * * * shall be extended for the period of two years from that date, so that said company shall have until February 18, 1896, to construct the lines of railway authorized by the act approved February, 1888." The provisions of § 6 of the act of 1888, by which a particular location is made void if not graded upon within six months after filing the map of its located line, was doubtless intended for the benefit of such Indians as, being individual occupants, should desire to make improvements subsequent to the filing of the original plat, and was a condition intended to provide compensation for such additional improvements to the Indian so making them upon the proposed right of way, if the railroad company should not proceed, within the six months specified, to build its line then located, and was not intended to defeat the final and complete building of the line, and to make new selections of location, if, by reason of not having begun grading thereon, a location formerly made should become void.

The provisions made in the first section of the act of 1888, that the company was invested and empowered with the right of locating * * * "by the most feasible and practicable route," was a provision intended, not to promote the interests of the Indian tribes or nations through whose lands the line was then being projected, nor for the benefit of the United States, which could have no interest in the matter, but was a provision for the benefit of the railroad company that it might provide the most economical line, and that which would be the most beneficial to the commercial objects and purposes which it had in view, and for the cheaper and more advantageous transportation of the persons and property of the public. It had the means to make such selection, and to correctly ascertain what was in fact the most feasible and practicable route.

The judge of the district court, in reviewing and summing up the testimony produced before him by the expert engineers, who were selected by the secretary of the interior to go over and examine and report to him the various routes surveyed, as well as a number of civil engineers and persons having knowledge of the matter, "testified that the line in question is the most feasible and practicable route." The conclusions, based upon this statement of the testimony, will, in the absence of the testimony, be affirmed here.

The act of congress upon that point has, therefore, been complied with, as is also stated by the defendant company in its answer in the case. If the fact had been ascertained and the findings made by the court that the railroad company had, in fact, not built its line by the most feasible and practicable route, it would, indeed, have formed a reason upon which the secretary of the interior might have acted in disapproving the location, for it has been repeatedly decided by the supreme court of the United States that railroads are, for many purposes, public highways, in which the convenience of the public as to transportation of persons and property must be consulted, and that their construction should be made without unnecessary length between the termini designated in the acts authorizing them, and that the road should be constructed upon the most direct and practicable line, and that no unnecessary deviation from such line should be deemed within the contemplation of the grantor, and would be rejected as not in accordance with the grant. (Woodstock Iron Co. v. Richmond D. E. Co. 129 U.S. 643; United States v. Northern Pac. R. R.Co. 152 U.S. 292.)

In determining the purpose of the act of 1888, it must be observed with regard to the condition of the Indian Territory that at that time the whole of it was set apart for the occupancy of Indian tribes and nations alone. White men were rigidly excluded from it, except upon terms which were carefully provided by the Indian Intercourse act found in the Revised Statutes of the United States. This Intercourse act was administered by the interior department, under the general direction of the secretary of the interior. Persons other than Indians were permitted to trade, and to have limited commercial privileges within the territory, only under regulations provided by that act, and by such further regulations as should be found necessary by the secretary of the interior himself, or by the commissioner of Indian affairs. But under no circumstances were white men permitted to acquire any interests in land within any portion of the Indian Territory, except for certain temporary and limited purposes under the limitations of the Indian Intercourse act, and the regulations provided thereunder. And it will be found upon a careful consideration of the act of congress of 1888, and of the subsequent acts under which the defendant company was authorized to build its line, that all the conditions imposed by congress upon the Choctaw Coal and Railway company and its successor, the defendant company, were provisions intended solely for the protection of the Indian interests in the land, except such as are intended for the protection of the railroad company itself.

It was provided by the original act of 1888 that (1) the corporation is authorized to use a right of way one hundred feet in width through said territory, and (2) for all purposes of railway, and for no other purpose, and (3) to take and use a strip of land two hundred feet in width with a length of three thousand feet, in addition to the right of way, for stations, for every ten miles of road, and (4) the right to use additional ground where there are heavy cuts or fills, as may be necessary for the construction and maintenance of the roadbed, not to exceed one hundred feet in width on each side of said right of way, and (5) that no more than such addition of land shall be taken for any one station, and (6) that no part of the lands authorized to be taken should be leased or sold by the company, and (7) that they should not be used except in such a manner and for such purposes only as should be necessary for the construction of said railroad, and (8) that when any portion thereof shall cease to be used, such portion shall revert to the nation or tribe of Indians from which the same shall be taken, and (9) that full compensation shall be made to individual occupants, according to the laws, usages and customs of any of the nations or tribes through which it might construct its road, and (10) that in case of failure to make amicable settlement, compensation was to be determined by the appraisement of three referees, one to be appointed by the president, one by the chief of the nation to which the occupant belongs, and one by the railway company, together with provisions for appeal to the district court, and (11) that upon the hearing of the appeal if judgment was for a larger sum than the award of the referees, the costs of appeal were to be assessed against the railway company, and (12) that when proceedings were commenced in court, the railway company was to pay double the amount of award into court, to abide the judgment thereof, before having the right to enter upon the property, and (13) that the railway company was to pay to the secretary of the interior for the benefit of the particular nations or tribes through whose lands said railway may be located, the sum of fifty dollars, per mile in addition to compensation provided for in this act.

Other conditions of the act, not here recited, indicated with equal clearness that the conditions exacted from the railroad company were for the benefit and protection of Indian interests alone. Other provisions of the act exhibit with equal force that the right of way which the company was by that act authorized to locate had reference to lands which either belonged to Indian nations or tribes, or were in their occupancy, and to no others.

It is provided in the act referred to, in the last clause of § 2, that (1) "when any portion thereof (that is, of the lands over which the right of way has just been granted) shall cease to be used, such portion shall revert to the nation or tribe of Indians from which the same shall be taken," and (2) that "congress shall have the right, so long as said lands are occupied and possessed by said nations and tribes," etc., and in § 7, (3) that the servants of the company may reside "upon the right of way," but subject to the provisions of the Indian Intercourse laws, and such rules and regulations as may be established by the secretary of the interior, in accordance with said Intercourse laws, and (4) concurrent jurisdiction is provided over controversies arising between said railway company and the nations and tribes through whose territory said railway shall be constructed, in the United States circuit and district courts for the Western district of Arkansas and the Northern district of Texas, [it being here observed that jurisdiction over controversies is provided for between the railway company and the Indian nations or tribes alone, and not between either of them and any white citizen or citizens of the United States,] and (5) that all mortgages executed by the railway company upon any portion of its railroad were to be recorded in the department of the interior.

No conditions precedent to the right to build the road, are to be found in the act of 1888 and those which follow it, except such as provided for the protection of the Indians, or granted authority to the railroad company. The railroad company, then, accepted the grant upon the conditions therein provided, and no others. It had the right to rely upon the grant of powers made to it, upon condition only that it should fulfill and comply with the precedent conditions upon which the powers were granted.

The company, having accepted the conditions upon which it was provided that it might build its line in the Indian Territory, and having entered upon its location and construction, had a right to locate and construct its line without the imposition of further conditions. Congress itself would have no right to impose them, unless it should undertake to do so under the power reserved in the act itself, "to amend, add to, alter, or repeal this act," a reservation of authority which does not exist in the secretary of the interior.

It is apparent from the allegations of both the petition and answer that the cause of the secretary's disapproval of the location of section four, was that, "there was a difference between the Choctaw, Oklahoma Gulf Railroad and the people of Tecumseh in regard to the location of their line. * * * Two lines were run by the road in the neighborhood of Tecumseh, one through Tecumseh, and the other about six miles north of Tecumseh." The railroad company's right to build the line nearest to Tecumseh had become void before the time that the land upon which Tecumseh is built was opened to settlement. It would have had no right to build on that location without making a new survey, map and location. While the motive of the secretary of the interior arose, without doubt, from a sincere desire to protect the interest of that city, and of its people, we cannot find that the duty approving, or the right of disapproving, can be gathered from any other source than from the terms of the act which authorized the railroad company to build its line, and under which it did build it from a point eastward to the eastern terminus of section four, and from a point westward to the western terminus of section four, thus leaving a most important breach which would remain unbuilt and destructive to a great degree of the value of the eastern and western sections of the line, if the completion of the road could be defeated, by reason of the consideration given by the secretary to interests which were not established at the time of the passage of the act of 1888, and could not have been in the contemplation of congress at that time.

The government, too, of the United States, had a right to exact of its grantee the full performance of those conditions. It had a right to make such a provision as would secure their performance. That provision was made in the sixth section of the act of 1888, that "said location shall be approved by the secretary of the interior in sections of twenty-five miles before construction of any such section shall be begun."

We understand that this provision, authorizing the secretary of the interior to approve the location, imposed a duty upon him which was to see that the map and location were in compliance with, and in conformity to, those conditions which congress had, in the act of congress authorizing it to build, imposed upon the railway company. We do not understand the secretary of the interior to have been charged with any other duty, or to have had any matter involving discretion imposed upon, or committed to, him. We believe this to have been the extent of the authority reposed in the secretary of the interior by this act. If so, the function committed to him was ministerial only, and not judicial.

It is alleged by the answer and not denied by the plaintiff and it is admitted for the purpose of this discussion that the conditions had all been complied with, and with great respect for the secretary of the interior, we believe that whatever may be the character of the "approval" required of him by other acts of congress charging him with the exercise of discretion, we do not believe that the authority committed to him by this act was any further or other, than to ascertain if the conditions of the act had been complied with, and that the duty can be interpreted no other or larger than ministerial only, and so holding we shall find that the conditions of this act had been complied with and that the railway company was entitled to have the approval by the secretary of the interior under the direction of the act, that "said location shall be approved before construction of any such location shall be begun."

We hold that the defendant company having fulfilled all the conditions required of it by the act of congress under which it was built, should not be restrained from building its line by the withholding of his "approval" by the secretary of the interior.

In order to show that the "approval " of the secretary of the interior was an essential prerequisite to the building of the road upon the location selected, the plaintiff in error has cited the cases of Buttz v. Northern Pac. R. R. Co.119 U.S. 55; New Orleans Pac. R. R. Co. v. Parker, 143 U.S. 57; UnitedStates v. Mo. Ry. 141 U.S. 374; Kan. Pac. R. R. v. A., T. S.F. R. R. 112 U.S. 414; Williams v. United States, 138 U.S. 514;Miller v. Mayor New York, 109 U.S. 385.

All of these cases, except the last two named, relate to concessions from the United States to railroad companies, of alternate sections of the public lands. In the acts of congress, respectively, by which the grants of land were made, it is provided that selections shall be made "under the direction of the secretary of the interior," or that he shall "cause to be selected," or that it "shall be the duty of the secretary of the interior to select," the respective sections to be conveyed to the railroad companies, and in doing so, to determine whether or not there still remains a deficiency in the grant, whether the particular public lands desired by the railroad company could properly be taken, or whether any lands within the limits prescribed had been disposed of to settlers under the land laws of the United States, and if so, to determine what lands should be selected and granted, to the railroad company in lieu thereof.

In the case of Williams v. United States, the plaintiff had sought by a gross fraud to secure the conveyance of a portion of the public lands, and to use the rights provided under the land laws of the United States, to aid him in the perpetration of this fraud. In order to complete the fraud it was necessary that he should secure the "approval" of the secretary of the interior, which was properly withheld, the supreme court, by Brewer, J., saying that:

"We do not mean to imply that any arbitrary discretion is vested in the secretary; but we hold that the statute requiring the approval by the secretary of the interior, vests a discretion in him by which wrongs like this could be righted; and equitable considerations, so significant and impressive as this, given full force."

The case of Miller v. Mayor of New York arose under an act of congress, (15 U.S. Statutes at Large 336), giving to the secretary of war supervision of the construction of a bridge across the Hudson river. The navigation of that river being of the highest importance, the act required that the bridge company should furnish all the necessary evidence including the specifications of the bridge, and of the condition of the stream, and such evidence as the secretary of war might need to enable him to determine whether or not the bridge as proposed would obstruct navigation. In all of these cases discretion was expressly committed to the secretary, and its exercise was necessary, and in each instance the "approval" of the secretary of the interior, or of the secretary of war, were held to be necessary. But these cases do not aid us in the interpretation of a statute which commits no duty to the secretary, except to see that the conditions prescribed in the act, imposing the duty upon him, are fulfilled, where no discretion is given to the secretary of the interior, and where no gross fraud upon the government or upon individuals has been alleged or sought to be perpetrated.

After the order made by the district court on the 23d day of May, 1895, in which, at the instance of the plaintiff, the district court undertook to set aside the final judgment which it had rendered in the case on May 1, 1895, in the absence of, and without notice to, the defendant, the defendant on the 25th day of May, 1895, filed its motion for a new trial, which application was upon the same day by the court overruled, and leave granted to the defendant to file its supplemental answer in the case, at that time tendered to be filed, and an order made that the same should be filed as of May 23, 1895, and made a part of the record in the case.

In this supplemental answer the defendant sets up that, "the Kickapoo reservation had, since the order of May 1, 1895, dissolving the injunction, been opened to homestead settlement by a proclamation of the president; that said country had been opened to settlement on the 23d day of May, 1895, and thereupon ceased to be in any sense an Indian reservation, or a reservation of any kind."

It is by the defendants strongly urged in argument that, by reason of their compliance with the general laws of Oklahoma Territory applicable to railroads, it is now entitled to take advantage of these laws, and to build its line without the approval of the secretary of the interior, since these laws do not require such approval. As appears by the proclamation of the president referred to, the Kickapoo nation of Indians, through which that portion of "section four," in question, is located, "conveyed, transferred and relinquished forever and absolutely, all of their claim, title and interest of every kind," to those lands, and that this agreement was ratified and confirmed by act congress approved March 3, 1893.

The allotments of land of eighty acres each, to individual Indians, provided for in that act, having been made, the president, as has been stated, upon the 18th day of May, in the year 1895, declared that the lands of the reservation, not already appropriated as such allotments by individual Indians, would be opened for settlement under the homestead laws of the United States on the 23d day of May, 1895. These lands thereby became a part of the Territory of Oklahoma. By the contract of September 9, 1891; by the act of congress ratifying the same; by the making of the allotments therein provided for, and by the proclamation of the president, the rights of individual occupancy were extinguished, and the lands of the whole reservation became subject to the laws of the Territory of Oklahoma, subject only to the provision and the agreement referred to, and "when the allotments of land shall have been made and approved by the secretary of the interior, the title thereto should be held in trust for the allottees, respectively, for the period of twenty-five years in the manner and to the extent provided in the act of congress approved February 8, 1887." (24 Statutes at Large, 388; Buttz v. Northern Pacific R.R. 119 U.S. 55.)

By § 26, of art. 9, ch. 17, of the Statutes of Oklahoma, 1893, upon "Railroad Corporations," it is provided:

"Any railroad corporation chartered and organized under the laws of the United States, or any state or territory, whose constructed roads shall reach and intersect the boundary line of this territory at any point, may extend its road into this territory from any such point or points to any place or places within the territory, and may build branches from any point on such extension." * * *

It is alleged in the answer, and not denied by the plaintiff, that the defendant company has complied with all the requirements of this statute, which entitle it to the benefits therein provided.

By § 9 of the same article, it is provided that:

"Every railroad company so authorized to construct, operate and maintain a railroad in this territory, shall have the power, first, to make surveys, * * * fourth, to lay out road, and fifth to construct its road." * * *

The defendant company is entitled to the provisions and benefits of the general railway laws of the Territory of Oklahoma to the same extent as if it had been incorporated under the laws of a state or territory.

In the case of the United States v. Denver, etc. R. R. Co.150 U.S. 14, a case in which the railroad company having been incorporated under a special act, claimed the benefit of the general railroad law of the United States passed in 1875, the court says:

"Upon what principle does the enjoyment by the defendant of the rights and benefits conferred by the earlier special act, preclude or estop it from accepting the benefits offered by the later general act after the special rights and privileges had terminated. We know of no such principle."

In the case of Centl. Branch U. P. R. R. Co. v. A. T. S. F.R. R. Co. 26 Kan. 669, it was said by the court, Brewer, J.:

"The question simply is whether a specially chartered corporation can avail itself of the general procedure established by law for all railway corporations, and the question must be answered in the affirmative."

We, therefore, hold that the Choctaw, Oklahoma Gulf Railroad company was authorized by the acts of 1888 and 1894 to locate its own line through the section of country wherein "section four" is built, and has located its line by the most feasible and practicable route, and inasmuch as the right of location and construction were dependent only upon the performance of the conditions set forth in the acts, and that these conditions were for the protection of the Indian tribes and nations or of Indian occupants under the laws, customs and usages of the Indian tribes or nations, and that the defendant company has fully complied with the conditions, that the defendant company is invested and empowered with the right to locate and construct its line, and to the "approval" of the secretary of the interior therefor, and that, the Indian interest having been extinguished, the land became subject to the laws of the Territory of Oklahoma, without the intervention of the limitations of the Indian Intercourse act, and that the defendant company, having complied with the provisions of the laws of this territory authorizing the laying out and construction of railways, is entitled to locate and construct its line thereunder, and that the "approval" of the secretary of the interior is not necessary under the provisions of this act, and that injunction will not lie to restrain the defendant railroad company from building its line without such approval.

The judgment of the district court is, therefore, affirmed.

Scott, J., having presided in the trial of the cause below, not sitting; all the other Justices concurring.