(dissenting) .
. The court’s conclusion rests on the premise, among others, that in the 1916 Act Congress unmistakably authorized the District Court for Oregon to decide whether the 472,000 acres of government land here involved had been granted to the railroad. I think this premise erroneous.
The 1916 Act' revested in the United States so much of the granted lands as ■had not been sold by the railroad. In § 7, ■the Act expressly • authorized the Attorney General -to “institute and prosecute * * * suits * * * against' the Oregon and California Railroad Company * * * to have determined the amount of moneys which have been received by the said railroad company * * * on account of * * * granted lands * * and which should be charged against it as a part of the ‘full value’ secured to the grantees under said granting Acts as heretofore interpreted by the Supreme Court.” (Emphasis added.) 39 Stat. 221. The Act did not, expressly or by any implication that I can see, authorize a court to determine in such a suit what lands had been granted.
There is some implication to the contrary, for § 10 of the Act, which said *497nothing about a court or a suit or the Attorney General, authorized the Secretary of the Interior to ascertain how much land had been granted. 39 Stat. 222.
This court says that “to determine the moneys received by the railroad ‘on account of any of said granted lands,’ the court had to determine what the granted lands were.” This seems to me both debatable and immaterial. It is immaterial because it applies only to lands which the railroad had sold and which, therefore, were not revested in the United States by the 1916 Act. As the court points out elsewhere in its opinion, we are concerned with lands which the railroad had not sold and which were re-vested in the United States by the 1916 Act.
Though the court says the words of Congress “were precise, and we think it meant what it said”, the court points to no precise words by which Congress said that the District Court for Oregon might decide what lands were granted. I do not suggest that the question whether Congress meant that is not debatable. But the very fact that it is debatable means that the status of the lands and funds now in suit is not so clear as to make the duties of the Secretaries merely ministerial. I do not reach other questions.
On Petition for Rehearing.
PER CURIAM.The court has before it a petition for rehearing and several motions.
1. In so far as the petition for rehearing requested rehearing in banc, it was denied by the court on June 21,1954. In the course of their petition for rehearing appellees urged that the court’s judgment directed an action which is premature in the present status of the case. In Section XIV of the opinion promulgated April 30, 1954, this court directed the entry of a decree and specified the terms of the decree.1 This was an inadvertence arising from references in the record and briefs to summary judgment in the District Court. As a matter of fact the District Court granted a motion to dismiss the complaint. The defendant Secretaries had not pleaded, other than to move to dismiss, and a motion for summary judgment was neither made nor considered. Section XIV of the opinion of April 30, 1954, will be stricken and the following inserted in lieu thereof:
XIV
The judgment of the District Court will be reversed and the case remanded for further proceedings not inconsistent with this opinion.
Of course, if the allegations of the complaint are substantially established as pleaded, a decree of the District Court not inconsistent with the opinion of this court would contain substantially the matter described in our original Section XIV. The petition for rehearing will be denied.
2. Appellees move that the judgment heretofore entered by this court be vacated, the opinion promulgated April 30, 1954, be withdrawn, and the *498case be remanded to the District Court as moot because of the enactment on June 24, 1954, of Public Law 426, 68 Stat. 270, 43 U.S.C.A. §§ 1181f-1181j. The gist of the controversy is that the defendant Secretaries have failed and refused to comply with an Act of Congress of June 9, 1916, 39 Stat. 218, known as the Chamberlain-Ferris Act, and a further Act of 1937, 50 Stat. 874, 43 U.S.C. A. § 1181a et seq., which was based upon and further implemented the Act of 1916. The judgment of this court was that it was and is the duty of the Secretaries to comply with the 1937 Act, and that they could and should be required to do so. Public Law 426, approved June-24, 1954, provides that the revenues derived from these lands and placed in spe-cial deposit “shall be disposed of in accordance with the provisions of title II of the Act approved August 28, 1937 (50 Stat. 874) as hereby amended”. It is not alleged, and it does not appear, that the amendments to the 1937 Act made by Public Law 426 changed the distribution directed by the 1937 Act. The amendments went principally to the future administration of the revested lands, a matter which was not involved in this litigation or considered in the opinion of this court, as the opinion itself carefully noted. This view is supported by the statement made on behalf of the seventeen Oregon counties to the Senate Committee considering the bill which became Public Law 426.2 Therefore it appears that, in so far as it is pertinent to the present controversy, Public Law 426 merely directs the Secretaries to comply with the 1937 Act, which is precisely what the court directed them to do. No statement is made that the Secretaries have complied by distributing the funds in accordance with the distribution directed in the 1937 Act. It thus clearly appears that the judgment of the court has not been rendered moot. The motion to dismiss as moot will be denied. Likewise the prayers, contained in the same motion, to vacate the judgment arid to withdraw the opinion will be denied.
3. Seventeen counties in Oregon move for leave to intervene for the purpose of filing a motion to dismiss the appeal as moot. The complaint in this case was brought by Clackamas County, Oregon, as one of eighteen counties which, it contended, were entitled to the funds derived from the revested lands. In the complaint the plaintiff said: “Clacka-mas County brings this suit on its own behalf, and in behalf of any other of the 18 Oregon counties interested who may see fit to come in and become parties, or who may be brought in by order of this Honorable Court under its powers in the-premises.” The names of the other seventeen counties were listed. So far as the record before us shows, none of the other seventeen counties sought to become a party and none was brought in by order of the court. Nevertheless it is clear as a practical matter that, if, pursuant to the opinion of this court of April 30, 1954, it should eventuate that the District Court should compel the Secretaries to distribute the funds pursuant to statute, each of the seventeen counties will receive its share and will thus be a beneficiary of the litigation. These counties say that they expect the Secretaries to comply with Public Law 426 and that thus they will receive their distributive share of the funds quite apart from the litigation.
A petition to intervene is addressed to the sound discretion of the court, and particularly is this so where the petition comes so late in the litigation, after judgment has been entered by the appellate court. Under all these circumstances the petition to intervene will be denied. In this connection we call attention to what we have hereinabove said in connection with the motion of the Secretaries to dismiss the litigation as moot.
4. Appellant moves for leave to file the printed hearings which are part of *499the legislative history of Public Law 426, approved June 24, 1954. This motion will be granted in view of the motions of the seventeen counties and of the appellee Secretaries, which are premised upon Public Law 426.
5. Appellant moves to file a supplemental memorandum in opposition to the Secretaries’ motion to vacate the judgment and dismiss as moot. This motion will be granted.
6. Appellant moves for leave to file a telegram, which telegram appears to have been directed from the Commissioners of Clackamas County, Oregon, and its counsel in Oregon to local counsel. It is in the nature of a brief in opposition to the motion of the appellee Secretaries for amendment of the opinion. The motion will be granted and the telegram of counsel filed as a memorandum in argument upon that motion of the appellee Secretaries.
EDGERTON, Circuit Judge, took no part in these rulings.
. Section XIV of the opinion promulgated April 30, 1954, read as follows:
“The judgment of the District Court will be reversed and the case remanded with instructions to enter a decree in accordance with the terms of this opinion. The decree will enjoin the Secretary of Agriculture from interfering with compliance by any other Government official with the terms of the Acts of 1916 and 1937, and specifically from interfering with the distribution by the Secretary of the Interior and the Treasurer of the United States of the moneys which remain as balances in the account in the Treasury which by the terms of the statute was a special account of which the proper title was “The Oregon and California land-grant fund”, and from interfering with the treatment of the 472,000 acres of land here involved as land re-vested from the railroad by the 1916 Act of Congress; and will direct the Secretary of the Interior to issue authorization to the Treasurer of the United States to distribute the balances in the aforesaid account to the entities named in the pertinent statutes and in the proportions therein specified.”
. Statement of Frank S. Sever, Hearing before Committee on Interior and Insular Affairs on S. 2225, 83d Cong., 2d Sess. 38 (1954).