On Petition for Rehearing.
PER CURIAM.A petition for rehearing has been filed in this ease on the ground that this court is without jurisdiction to direct the entry of a decree requiring the Secretary of the Interior to issue a patent for public lands while the-legal title to the lands remains in the United States. The decree in this case does not direct tho Secretary to issue a patent for the lands in question. It commands him “to give full legal force and effect to plaintiff’s selection.” This is based upon the admission of the averments of the bill sustaining the conclusion that, from the admitted facts, plaintiff was entitled to an order restraining the Secretary from canceling his selection for the purpose of issuing a supplemental patent to Gleason, his heirs or assigns.
True, we said in our opinion, after considering the sweeping admissions in this ease, that “the discretion of the Secretary is exhausted, and there is nothing left for him to do but to issue a patent to the plaintiff, as required by law.” This statement, however, as the decree itself, is based upon the record. There is nothing in the decree which estops the Secretary from exercising lawful discretion in the further consideration of plaintiff’s selection, should there be information in tho possession of the department, not disclosed in the present record, that would justify such action. The decree speaks for itself, and merely restrains tho Secretary from using the Gleason entry as a basis for canceling the selection. Of course, the opinion and decree deal only with matters appearing in the record, in which, it may be suggested, the government, by electing to stand on its motion to dismiss the bill, a course for which the court is not responsible, quite effectively conceded itself out of court.
The petition is denied.