concurring:
I concur in the decision of the Court, but I dissent from the views expressed in the foregoing opinion upon one point of great practical importance; and, for that reason, feel obliged to state very briefly the grounds of my dissent.
In the first place, I think there is no room for construction as to the meaning of the grant. It means, and has the exact effect of, what it says. It is part of an act prescribing the different steps the people of Nevada Territory should take, in a certain order and at fixed dates, to form a State government. If they had failed to comply at least substantially with the terms of the enabling act, or if the President of the United States had not approved the constitution adopted by the people, and had refused to proclaim the admission of the State, the grant would never have taken effect. But when the people of Nevada did comply with all the provisions of the enabling act, and the President of the United States proclaimed the admission of Nevada as a *316State of the Union, eo instanii the title to the sixteenth and thirty-sixth sections vested in the State. That title did not of course attach to any specific parcels of land till the survey was made, but in the meantime Congress had no power to make other disposition of the sixteenth and thirty-sixth sections eo nomine, nor could it dispose of specific tracts so as to defeat the title of this State if, on the completion and approval of the public surveys,' those tracts were found to include any part of the sixteenth or thirty-sixth sections. These points are clearly settled in the authorities referred to on the oral argument of the case, and cited in the appellant’s printed brief, and none of the distinctions which respondent attempts to draw between this case and those referred to has any existence. The argument that this grant did not take effect at the time of the admission of the State into the Union because when i t was made there was no grantee in esse, is well answered by the quotation from the decision of Schulenberg v. Harriman, supra. If it is really the rule of law that there can, be no grant without a grantee in esse (which is a doubtful proposition), it is merely a rule of law, and a very technical rule of law, applying to transactions between private persons; but certainly the rule is not superior to the legislative will, and when a grant is made by law it operates according to the intent of the legislature, not only as a grant, but as a law, and if it is in conflict with any existing rule of law, then such rule is pro tanto repealed. The same reasoning applies to the objection that there was no specific thing in existence to be granted. If Congress desired to grant to a grantee in posse lands not segregated, but to be segregated thereafter from other lands of the United States, it could do so notwithstanding any pre-existing law, because it could make a law for the occasion. And finally, as counsel for appellant clearly point out, if the arguments of respondent on these points are valid at all they prove that Nevada has not acquired any title to any lands by virtue of the several grants made by Congress. Uut the strong argument of respondent, or at least the one upon which he insists most strongly, is that the grant in the en*317abling act should be construed as if it bad read, “That sections numbered sixteen and thirty-six in every township, and where such sections shall have been sold or otherwise disposed of (before final survey) by act of Congress, other lands equivalent thereto,” etc.; that it should be so construed because Congress had not disposed of any of the lands in Nevada Territory prior to that time; and unless we interpret the grant of lieu lands to be in place of lands to be subsequently disposed of, we convict Congress of ignorance and folly, etc. Besides the answers of appellant to this position, which are quite sufficient for the purpose, there is a much more complete answer. The whole argument rests upon the assumption that no lands had been disposed of in Nevada Territory by act of Congress prior to the enabling act. But the fact is, that several extensive Indian and military reservations had been set apart by the President under the authority of acts of Congress within the boundaries of this State. Not to mention others, the two extensive Indian reservations on the Trucbee and Walker Bivers, embracing many thousands of acres, and necessarily including several sixteenth and thirty-sixth sections, had been laid off pursuant to acts of Congress long before the passage of the enabling act. The simple mention of this fact sweeps away the whole foundation of respondent’s argument. My conclusion, therefore, as above stated, is, that the title to all the sixteenth and thirty-sixth sections vested in the State at the moment of our admission, and that our title has attached as fast as the surveys have been approved, unless the effect of the grant has been changed by subsequent agreement between the State and the United States. I do not differ from the Court in the opinion that the terms of the grant might be altered to any extent by mutual agreement of the parties. But the legislature cannot make any agreement in behalf of the State which will be in conflict with the Constitution of the State. Now, the Constitution (Art. XI, Sec. 3) dedicates the land granted in the enabling act to the school fund, and, in my opinion, deprives the legislature of the power to give it aivay. The legislature of course *318lias the power to convey the lands of the State upon such terms and conditions as it may judge expedient, being restricted only in the application of the proceeds. But I do not think the legislature can give away the school lands without getting anything in exchange. But the opinion of the Court, assuming that the title to every one of the sixteenth and thirty-sixth sections, whether mineral lands or not, was in the State before the passage of the act of February 13, 1867, holds that the effect of that act was to re-vest the title to all mineral lands in the United States, and to agree to accept other lands in lieu thereof. Now, there is not one word in any act of our own legislature which, in my opinion, will bear the construction that we are to get anything in exchange for the mineral lands which the legislature no doubt intended to surrender. And there is nothing in any act of Congress which can be construed into a grant of anything in exchange for such surrender. The congressional interpretation of the grant in the enabling act is expressed in the joint resolution of Congress, quoted in the opinion of the Court, and that is, that the mineral lands never were granted to the State — and the act of Congress of July 4, 1866, is evidently based upon that assumption. Of course, therefore, it offers nothing in exchange for lands which it regarded as all the time the property of the United States — never granted, and, consequently, never resumed. If, then, the legislature relinquished to the United States, by the act referred to, the title to the mineral lands, it relinquished it for nothing. In other words, it gave the lands to the United States. Now, if it could give one section to the United States, it could give all the lands of the State to the United States; and if it could give them to, the United States, it could give them to John Smith — a proposition that I am not prepared to admit. My conclusion is — and it is here that I differ from the Court — that all the sixteenth and thirty-sixth sections in the State, whether mineral lands or not, belong to the State, unless they had been disposed of by act of Congress prior to the passage of the enabling act.
*319But I do not think the appellant can derive any advantage from this conclusion, for the legislature has acquiesced in the congressional interpretation of the grant — that it does not embrace the mineral lands — and has agreed that they shall be reserved from sale. That agreement is not, in my opinion, binding upon future legislatures, and at any future time this State may dispose of its mineral lands. But the act providing for the disposal of the lands of the State, by virtue of which the appellant claims, is to be construed with reference to the act of February 13, 1867. The fact that that act is, in part, unconstitutional, does not preclude resort to its provisions for the purpose of construing an act in pari materia. Construed in the light of its provisions it is plain that the act under which appellant claims title does not provide for the sale of mineral lands. The grantor of appellant, when he applied to the State register for the land in question, knew that he could obtain no title to it under the existing law if it was mineral land, because no officer of the State was empowered to convey that sort of land.
It is for these reasons that I think the judgment should be affirmed.