Williams news., 1907-03-09
It now remains to be discovered

whether the said sections 16 and 36 in Arizona were legally appro priated to any purpose, by congress, l prior to the, creation of the forest reserves in which the forestry department is attempting to include such sectiops as an integral part,
 Paragraph 1946 of the Revised Statutes of the United States (1S7S) which paragraph was enacted over twenty years before the creation of any forest reserve in Coconino county, reads as follows:
 Sections numbered sixteen and thirty-six, in each township of the territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana and Wyoming shall be reserved for the purpose of being applied to schools in the several territories herein named and in the states and territories hereafter to be erected out of the same" Section l946 R. s. of the United States. 1878.
 Upon a reading of the section l946 supra we see that sections 16 and 36. in Arizona, lost their character as public lands years before any forest reserves were created in Coconino county and | that the said sections 16 and 36 are, therefore, lands of character | not cucoonf;blo cf ha;,,n constituted into the integral part of any | 'o:est reserve.
 It is canon of statutory con- struction that congress is always familiar with it's own previous ] enactments and it cannot be said to be reasonably argua ble that, although congress had pledged itself to reserve all the sections 16 and 36 in Arizona, for the purpose of applying them to the schools in Arizona, that it would subsequent ly Gin 1891 by the act of congress supra) give to the president the power to make such sections 16 and 36 integral parts of a forest reserve and thus violate the pledge and revoke the reservation it for merly made to the territories and forever deprive the schools in the territories of the benefit of the revenue derived from such sections, sixteen and thirty-six. Such an argument would be tantamount to a charge of bad faith on the part of the congress.
 1 am not unaware that the supreme court of the United States in the case of Heydenfelt versus Dalny Mining Company held that until the identical sections sixteen and thirty-six were surveyed, con- gress reserved the right to make any disposition of the lands that it saw fit, i. e. to constitute the lands (sections Is and 36) into a reserve of any kind. (See Heydenfelt vs Dalny Mining Company, 93 U. 5. 634.)
 The Heydenfelt case arose out of a dispute as to the title of a part of a section numbered sixteen, in the state of Nevada, which section six teen was referred to in section z. of the Nevada Ena bling Act which reads as follows:
 "That sections numbered sixteen and thirty-six in every township and where such sections have been sold or otherwise disposed of by any act of congress, other lands equivalent thereto, in legal sub divisions of not less than one quarter section and as contiguous as may be, shall be and are hereby granted to said state for the sup port of common schools"
 No one will fail to observe, in the above section seven of the said enabling act that, whilst the words are words of present grant there is a defeasance clause in the very section of the act granting the lands. that is to say there are words in the said section seven which indicate that upon the happening of certain contingencies the state's title to sections 16 and 36 may be defeated and the state required to select other lands in lieu of such sections Is and 36 as may have been sold or otherwise disposed of by congress.
 In paragraph or section 1946 of the R. S. of the us. (the law pass ing the title to sections 16 and 36 to Arizona) the closest scrutiny defies the discovery of any defeas- ance clause therein, that Is to say, there does not appear, in the law passing the title to sections Is and 36 to Arizona, any contingency. the happening of which will operate to defeat the right of the territory to the usufruct and the rents, |