public building or public work, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being, or has been, prosecuted that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond. upon which said person or persons supplying such labor Action on bond and materials shall have a right of action, and shall be terials furnished, authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties and to prosecute the same to final judgment and execution: Provided, That such action and its prosecutions shall involve the United States in no expense.' Act of August 13, 1894 (28 Stat. L., 278). for labor or ma 1 When a contract is entered into for the construction of any public building, of the prosecution and completion of any public work, or for repairs on any public building or public work, the contractor will be required, before entering upon performance of the same, to include in the bond given for the faithful performance of the contract the further obligation that he will promptly make payments to all persons who supply him with labor and materials for the prosecution of the work provided for in such contract. A certified copy of this contract and bond will be furnished to any person who has supplied such labor or materials, upon his application to the War Department, accompanied by an affidavit that the labor or materials have been supplied by him and have not been paid for by the contractor. Par. 644, A. R., 1901. The act of August 13, 1894, which requires that the bond given to the United States by any contractor on a Government work shall contain the additional obligation that such contractor will promptly make payments to all persons supplying him with labor, materials, etc., does not establish any privity between the United States and such persons so as to authorize the officers of the Government to satisfy such claims from the moneys due the contractor on the failure of the latter to do so. Compt. Dec., 708. 3 The act of August 13, 1894, giving to persons supplying labor and materials to a contractor on a Government work the right to maintain a suit in the name of the United States for their own benefit against the contractor and the sureties on his bond, does not authorize payment of the amount due the contractor from the United States to the sureties upon their claim that they will be held liable for certain amounts due for labor and materials which the contractor had failed to pay. Ibid. When a contract has been fully completed payment of the balance remaining due from the United States to one of two copartners appearing as contractors in the name of the partnership will be a valid acquittance of the United States whether the other partner was ever legally bound as a party to the contract or not. Ibid. When the Government, under the terms of a contract, takes possession of and finishes the uncompleted portion of the work for less than the amount which would have been payable to the contractor therefor, the latter is not entitled to the profit thus accruing to the Government. Ibid. Where, in the erection of a public building, the United States reserves the right to withhold a part of the money in case the contractor fails to pay claims for material and labor, the contractor can not, by an assignment of moneys so withheld, give the costs. 1577. Provided that in such case the court in which such Security for action is brought is authorized to require proper security Sec. 2, ibid. for costs in case judgment is for the defendant. ibid. Sec. 2. INSPECTION OF FUEL IN THE DISTRICT OF COLUMBIA. Par. 1578. Appointment of inspectors. 1579. Certificates of appointment. Par. 1580. No payment without certificate. fuel in District July 11, 1870, s. Appointment of inspectors, etc. Mar. 2, 1895, s. Sec.3711, B.S. 6, v. 28, p. 808. 1578. It shall not be lawful for any officer or person in Inspection of the civil, military, or naval service of the United States in of Columbia. the District of Columbia to purchase anthracite or bitumi-1, v. 16, p. 229. nous coal or wood for the public service except on condition that the same shall, before delivery, be inspected and weighed or measured by some competent person to be appointed by the head of the Department or chief of the branch of the service for which the purchase is made from among the persons authorized to be employed in such Department or branch of the service: Provided, That the weigher or measurer of the Navy Department may be appointed outside of said Department, and that such weigher and measurer shall give bond and be paid as heretofore provided by law. The person appointed under this section shall ascertain that each ton of coal weighed by him shall consist of two thousand two hundred and forty assignee any standing to participate in the fund until all labor and material claims have been paid. Greeneville Sav. Bank et al. v. Lawrence et al., 76 Fed. Rep., 545. The act of August 13, 1894, 28 Stat. L., 278, for the protection of persons furnishing material and labor for the construction of public works, and providing that, on furnishing an affidavit to the department of the Government, any person may have a copy of the bond and contract, upon which such person may bring suit, has reference only to the procuring of the copy of the contract and bond, and is not a prerequisite to the right to maintain an action. This requirement is for the purpose of satisfying the Government official that the person has furnished labor or material on the particular contract. Surety Co. v. U. S., 77 Illinois, App. 106. The condition in the bond of a contractor with the United States for public work, prescribed by the act of August 13, 1894, 28 Stat. L., 278, is intended to cover payments only for the visible material furnished for direct use and incorporation in the work, and of wages to the men whose services are directly employed in doing the work; and an action against the sureties on such a bond can only be maintained, under the statute, by one who has title to a claim for labor or materials so supplied. A person furnishing board and lodging to laborers employed on the work does not supply either labor or materials within the meaning of the statute. U. S. e. Kimpland, 93 Fed. Rep., 403. The terms of this statute do not include the claim of a railroad for freight due on materials which are loaded and unloaded by the contractor, such charges being neither labor nor materials within the meaning and purpose of the act. U. S. v. Hyatt, 92 Fed. Rep., 442. A government contractor for public work, who has given a bond conditioned that he will "make full payments to all persons supplying him with labor or materials," is not liable thereon for unpaid wages due from a subcontractor who has supplied him with materials, when he paid such contractor in full therefor. U. S. r. Farley et al., 91 Fed. Rep., 474. pounds, and that each cord of wood to be so measured shall be of the standard measure of one hundred and twentyeight cubic feet. Each load or parcel of wood or coal weighed and measured by him shall be accompanied by his certificate of the number of tons or pounds of coal and the number of cords or parts of cords of wood in each load or parcel.' Act of March 2, 1895 (28 Stat. L., 808). Appointments 1579. The proper accounting officer of the Treasury to be certified to shall be furnished with a copy of the appointment of each inspector, weigher, and measurer appointed under the Sec.3712, B.S. preceding section. Sec. 2, ibid. of weighers, etc., accounting offi cer. Sec. 2, ibid. for fuel, etc., cate. Ibid. Sec.3713, R.S. No payments 1580. It shall not be lawful for any accounting officer to without certifi- pass or allow to the credit of any disbursing officer in the District of Columbia any money paid by him for purchase of anthracite or bituminous coal or for wood unless the voucher therefor is accompanied by a certificate of the proper inspector, weigher, and measurer that the quantity paid for has been determined by such officer. Ibid. For requirements of regulations in respect to open-market purchases see paragraphs 645-649, A. R., 1901. CHAPTER XXXIII. THE PUBLIC LANDS-MILITARY RESERVATIONS-MILITARY POSTS. 1581. Lands subject to preemption and homestead entry. Par. 1582. Lands not subject to entry. 1581. All lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of preemption, under the conditions, restrictions, and stipulations provided by law. Apr. 21, 1876, c. 72, v. 19, p. 35, Shepley et al. v. Cowen et al., 91 U. S., 330. Lands subject June 2, 1862, c. 413: Feb, 11, 1874. to preemption. 94, s. 1, v. 12, p. c. 25, v. 18, p. 18; Feb. 23, 1875, c. 99, v. 18, p. 334, Sec. 2257, R.S. Lands acquired by the United States for public uses, by purchase with the consent of the legislatures of the States, or acquired by an exercise of the right of eminent domain are not “public lands," that term applying only to such lands as are subject to sale or other disposition under general laws. Newhall v. Sanger, 92 U. S., 761; V Opin. Att. Gen., 578. Power over such lands is vested in Congress by the Constitution, without limitation, and is the foundation upon which the Territorial governments rest. U. S. v. Gratiot, 14 Pet., 526. The power of Congress over the public land and the effect of its grants can not be interferred with by State legislation. Gibson v. Chouteau, 13 Wall., 92. Congress has the sole power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the Federal Government, in reference to the public lands, declares the patent the superior and conclusive evidence of legal title. Until its issuance the fee is in the Government; by the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment. Bagnell v. Broderick, 13 Peters, 436, 450; Wilcox v. Jackson, ibid., 498, 516; Langdon . Sherwood, 124 U. S., 74, 83; Hussman v. Dunham, 165 U. S., 144; Carter v. Ruddy, 166 U. S., 493; Kirwan v. Murphy, 83 Fed. Rep., 275. There is no way for titles to land to be divested out of the United States, except in strict pursuance of some law of the United States, and, as no statute of limitations runs against the United States, occupancy and possession alone, even for a great length of time, can not ripen into title as against the United States. Drew v. Valen tine, 18 Fed. Rep., 712. In the administration of the public lands the decisions of the Land Department upon questions of fact are conclusive, and only questions of law can be reviewed by the courts. Catholic Bishop of Nesqually v. U. §. 158 U. S., 155. Lands not sub ject to preemp 1582. The following classes of lands, unless otherwise Sept. 4, 1841, c. Specially provided for by law, shall not be subject to the tion. 16, s. 10, v. 5. P. rights of preemption, to wit: 455; Jan. 12, 1877, c. 18, v. 19, p. 221. Wilcox v. Jack Josephs v. Ú. S., 1 N. and H., 197; First. Lands included in any reservation by any treaty, son, 13 Pet., 498; law, or proclamation of the President, for any purpose.1 Second. Lands included within the limits of any incorUnion, Meporated town, or selected as the site of a city or town. Lean, 344; U. S. Third. Lands actually settled and occupied for purposes Bridge Com- of trade and business, and not for agriculture. Turner v. American Baptist V. Railroad pany, 6 McLean, 517; Russell "'. Beebe, Hemps., 704. Sec. 2258, R.S. other reserva Mar. 2, 1867, c. Fourth. Lands on which are situated any known salines or mines. Military or 1583. The provisions of this chapter2 shall not apply to tions, etc. military or other reservations heretofore made by the 177, v. 14, p. 541; United States, nor to reservations for light-houses, custom39, R.S., houses, mints, or such other public purposes as the inter Feb. 28, 1877,c.74, v. 19, p. 264. Sec. 1 Under this head fall military and Indian reservations, the Yellowstone National Park, and the forest reservations in California set apart by the President under the authority conferred by section 24 of the act of March 3, 1891. See the chapter entitled NATIONAL PARKS. 2 Chapter 8, Revised Statutes, relating to the reservation and survey of town sites on the public lands. See also the chapter entitled NATIONAL PARKS. 3 MILITARY RESERVATIONS. No specific statutory authority exists empowering the President to reserve public lands; but the right to reserve such lands for public uses is recognized by the courts. 14 Dec. Int. Dep., 426, 607, 628; Wolsey v. Chapman, 101 U. S., 755, 768; Walcott v. Des Moines Co., 5 Wall., 681. Such reservation may be effected by proclamation or by Executive order. 13 Dec. Int. Dep., 426. For cases in which the specific authority of law exists for the establishment of reservations, see the title Forest Reservations, in the chapter entitled NATIONAL PARKS. A military reservation, being simply territory of the United States withdrawn from sale, preemption, (a) etc. (VII Opin. Att. Gen., 574, 757; 14 ibid., 775), the mere fact of the establishing of such a reservation can not affect the power of the State or Territorial authorities (according as it may be located in a Ŝtate or Territory) to a The Constitution (Art. IV. sec. 3, ¶ 2) has vested in Congress the exclusive power to dispose of and make all needful rules and regulations respecting the territory" (held in U. S. v. Gratiot (14 Peters, 537) to mean “lands") or other property belonging to the United States." As a consequence perhaps of the indefiniteness of this grant (see 7 Opin. Att. Gen., 574) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a special authority to establish a military reserve has been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the purpose has been deemed to exist, and this authority is found in the usage of the executive department of the Government, as indirectly sanctioned by Congress in repeated preemption acts, acts relating to the survey of the public domain, appropriation acts, etc., in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, etc., or special provision has been made for the cost of improvements to be erected upon the same. In Grisar e. McDonald (6 Wallace, 381) the United States Supreme Court, by Field, J., observes: "From an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses." Further, "The authority of the President in this respect is recognized in numerous acts of Congress," The court then cites several statutes as containing this recognition, including the preeemption acts of May 29, 1830, and September 4, 1841, and adds: "The action of the President in making the (military) reservations" (the title to which was at issue in the particular case) "was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them." And see XII Opin. Att. Gen., 381; XIV ibid., 182; XVII ibid., 258; Wilcox v. Jackson, 13 Peters, 512; U. S. v. Hare, 4 Sawyer, 653; also U. S. v. R. R. Bridge Co., 6 McLean, 517; It is, moreover, to be noted that the provision of the act of 1841, referred to by the Supreme Court, has been incorporated as a general enactment in the Revised Statutes in the chapter (chapter 4 of title 32) on preemptions, section 2258 expressly excepting from the lands of the United States, "subject to the rights of preemption," "lands included in any reservation by any treaty, law, or proclamation of the President for any purpose." And see section 2393, specifically excepting military reser- . vations from the operation of the laws authorizing the establishing of town sites. The "proclamation" of the President reserving lands for military purposes is usually in the form |