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connection with it, so as to form the compact parcel of three hundred and twenty acres, or more, as the case may be. Should such re-selections be made they are required to be embraced in an entire new list, bearing the number of the series at the time of such re-selection.
Herewith you will receive the form of a list to be used for selections. This form requires the date to be given when the list is filed in your office; such date being regarded as the date of selection, so that in the event of a pre-emption or other conflict, the question, as to priority of right, may be properly settled. The lists should bear a regular series of numbers from No. 1, and should be signed by the agent. If the list is regular and complete, you will enter up the selections on your books, and mark them on the plats, sign the official certificate as to the correctness of the list of selections, and trapsmit the same to this Office, in order that it may be submitted to the Secretary of the Treasury for his approval.
The law of Congress allows no commissions on this business.
You are requested to acknowledge the receipt of this circular, which is designed to embrace all the material principles in previous circulars in reference to this subject, and to be your rule of action in relation to this business in future. Very respectfully, your obedient servant,
Note.—The States designated in the first section of the Act of Congress approved September 4, 1841, entitled “An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights,” are Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas, and Michigan.
OPINIONS OF ATTORNEY-GENERAL.
The Grant for the Improvement of the Des Moines River, (No. 117,) does
not extend to the source of the river. Public Grants must be strictly construed against the grantee.
November 22, 1858. Sir:-On the 8th of August, 1846, (No. 117,) Congress made a grant to the Territory of Iowa, in the following words that there be, and hereby is, granted to the Territory of Iowa, for the purpose of aiding said Territory to improve the navigation of the Des Moines river, from its mouth to the Raccoon Fork, (so called,) in said Territory, one equal moiety in alternate sections of the public lands, (remaining unsold, and not otherwise disposed of, encumbered, or appropriated,) in a strip five miles in width on each side of said river, to be selected within said Territory, by an agent or agents to be appointed by the Governor thereof, subject to the approval of the Secretary of the Treasury of the United States."
The question arising on the construction of this law has been debated for upwards of twelve years without being settled. You ask my opinion upon it now, as if nothing had ever been said or done about it before. I do not doubt that you are right in regarding it as still sub judice and undetermined,-open as it ever was, to the operation of the principles which ought to have governed it originally. But in forming our judgment upon it, we cannot help looking up with becoming respect to the opinions of the eminent men who have heretofore had it under consideration.
The Act gives to Iowa, for the purpose of improving the Des Moines, from the mouth to the Raccoon Fork, certain lands on both sides of the river. Does that mean that the Territory shall have the prescribed quantity of lands on all parts of the river up to its source? or, is the grant, like the improvement it aids, confined to that part of the river which runs below the Fork ? The simple reading of the Act, leaves on my own mind the impression, that no lands above the Fork were meant to be included. Taking into consideration nothing but the words of the grant, I cannot but think it probable, that the person who drew it, understood it himself, and intended that others should understand it, as giving merely a moiety of the unappropriated public lands which lay within five miles of the river between its mouth and the Fork. I believe too, that such words, in such a collocation, would naturally be supposed by most members of Congress, to concede nothing more. Nor is there, in my opinion, any established rule of interpretation which forbids us to say, that the words “ from its mouth to the Raccoon Fork," qualify and limit both the grant and the improvement. The lands given, and the work to be done, are described in the same sentence, and a limitation which is not necessarily confined to one, may well be applied to both, without being repeated. There is an argument, to be sure, and a specious if not a strong one, on the other side. But this does not destroy nor explain the opposing view; it only shows that something may be said on both sides.
The grant is certainly obscure in its phraseology. A person whose faculties are sharpened by an interest in the claim, can see it extending to the head waters of the Des Moines plainly enough, while an advocate of the other side might perceive, with equal clearness, the construction which stops at the Raccoon Fork. Nay, more, it has actually divided the judgment of the ablest men and the soundest lawyers in the service of the government. Mr. Walker and Mr. Johnson could not have been in favor of the larger interpretation, unless there had been cogent and good reasons for it. On the other hand, Mr. Ewing, Mr. Crittenden, and Mr. Cushing, would not have set their faces against it, if opposite considerations of great weight had not been presented to them. And surely, if it had been a tolerably plain case either way;
Mr. Stuart and Mr. M-Clelland would not have kept it poised in their scales for seven years, without determining where the preponderance was; much less would either of them have offered to settle it by compromise. In truth, this law has been treated for a dozen years as no plainly written law could be treated.
But for my own part, I have not the least doubt about it. My reason may seem paradoxical, but the very obscurity of the grant, in my judgment, makes it clear. It is out of these doubts, that certainty grows. In every doubtful case, we know very well what we ought to do, as soon as we ascertain which party is entitled to the benefit of the doubt. We shall see who is entitled to it here.
It is well settled, that all public grants of property, money, or privileges, are to be construed most strictly against the grantee. Whatever is not given expressly, or very clearly implied from the words of the grant, is withheld. This is most especially true of legislative grants, and for very good reasons the rule ought to be adhered to with unyielding firmness. We all know the fact,—and we are not bound to seem ignorant of it,—that gifts like this are often caused by private solicitation and personal influence. The bills are almost universally drawn up by their special friends, and may be made ambiguous on purpose, to disarm their opponents or put suspicion asleep. If you let the grantees have the advantage of the ambiguity which
they themselves put into their own laws, many of them will get a meaning which Congress never thought of.
Acts which were supposed to have but little in them when they passed, will expand into very large dimensions afterwards. An ingenious construction will make that mischievous which was intended to be harmless. The remedy for these evils,-and they are evils to the public morals as well as to the treasury,-is to let all men know that they can get nothing from the United States, except what Congress has chosen to give them, words so plain, that their sense cannot be mistaken.
I do not know any reason for suspecting the slightest bad faith in this case, but it comes within a general rule which must be maintained, in order to prevent a general mischief. It should, however, be remembered, that the grant was construed at the Land Office, immediately after its passage, to extend no further than the Fork, and this was acquiesced in by the State authorities, for upwards of two years.
The idea that it went to the source of the river was certainly an after-thought. I do not say that this estops them now, or that their mistake, if it had been a mistake, should prevent them from getting all that was given. But when this law was on its passage, it would have been easy to say, that half the land on each side of the river up to its source should belong to the Territory. Not being said, we cannot presume that it was intended. A word or two would have put the meaning beyond the reach of a doubt; but the ambiguity was left in the bill, and leaving it there was the fault of its framers and its friends. They, and not the United States, must suffer the consequences. Yours, very respectfully,
J. S. BLACK. Hon. Jacob Thompson,
Secretary of the Interior, Washington, D. C.
The grant to the State of Wisconsin, will embrace lands to which the Indian
Title had not been extinguished. All the title which the United States had, or might afterwards acquire, vested in the grantee. The State acquired no right to any but odd-numbered sections.
June 3, 1859. Sir:--I have received your letter of the 9th instant, relative to the grant of lands on Fox river to the State of Wisconsin by Congress, in the Act of August 8, 1856, (No. 120,) together with its supplements.
The grant is in the following words :-“That there be, and hereby is, granted to the State of Wisconsin, on the admission of such State into the Union, for the purpose of improving the navigation of the Fox and Wisconsin rivers, in the Territory of Wisconsin, and of constructing the canal to unite the said rivers at or near the portage, a quantity of land equal to onehalf of three sections in width on each side of said Fox river and the lakes through which it passes from its mouth to the point where the portage canal shall enter the same, and on each side of said canal from one stream to the other, reserving the alternate sections to the United States, to be selected under the direction of the Governor of said State, and such selection to be approved by the President of the United States.”
1st. This grant lay afoul of the Stockbridge Indian Reserve, and the title of the tribe for which it had been set apart, was not extinguished until 1856. The question now arises, whether upon the treaty with the Indians, the State of Wisconsin obtained a right to the lands granted her within the reserve, or whether the grant is pro tanto void, for want of title in the United States at the time it was made.
I do not think this a problem of difficult solution, if we apply to it the principles of law and equity which govern analogous cases.
When one party grants lands in which he has no estate, a title subsequently acquired by him, enures not to his own benefit, but to that of his grantee. Besides, the United States had title at the time of the grant, and the right of the Indians was no more than a usufruct. Nothing, it seems to me, can be clearer than this proposition; namely, that when the United States by a legislative grant, give land to a State, a corporation, or an individual, for public purposes, all the title which the United States had at the time of the grant, or may afterwards acquire, vests in the grantee, unless the grantee has done something in the mean time, which estops him from claiming. In this case, it does not appear that the State of Wisconsin took lands elsewhere, in place of those which were given to her within the Indian Reserve.
2d. Some of the lands given to Wisconsin by the Act of 1846, had been previously appropriated by settlers or purchasers, and this prevented the State from getting all that Congress intended her to have. Several efforts were made to make up for this loss, by giving other lands. Finally, the Act of 3d August, 1854, was passed, which compensated her for the lands she failed to get within the limits of the original grant, by allowing her to select an equal quantity "out of any unsold public lands in the State, subject to private entry, at one dollar and twenty-five cents per acre, and not claimed by pre-emption.” It must be remembered, that the original grant gave her alternate sections within certain limits. She chose the odd numbered sections, and left those which lay between to the government. She now demands the even numbered sections within the same limits, and whether she can have them or not, is your second question.
Most undoubtedly she cannot. On what principle will she pretend to claim them ? Not under the Act of 1846, for that confines her to alternate sections. Not under the Act of 1854, for that excludes from her choice all public lands, which are subject to private entry at a higher price than one dollar and twenty-five cents per acre; and she knows, of course, that these sections are held at double that sum. Nor will it do to say, that the Act of 1854 is unconstitutional, for three most conclusive reasons :—First. It is constitutional. Second. An executive officer cannot pronounce it void. Third. The State of Wisconsin is estopped to deny its validity. She cannot accept its benefits and repudiate its restrictions.
My opinion, therefore, is in favor of the State on the first question, and against her on the second. I think she may claim within the Reserve just as if the Indian title had been extinguished before the date of the first Act. But she is not entitled, under any law that has yet been passed, to take even sections where she has already got the odd ones. In am, very respectfully,
J. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior.
The Department has no power to issue patents for lands selected under the
Act of 1841, where the law does not authorize it, but provides another mode for passing title.
DEPARTMENT OF THE INTERIOR,
November 10, 1856. Having duly considered the subject brought to my attention personally, a few days since, and especially referred to in your letter of this date, I have not been able to satisfy myself that the Department has any power to issue patents where the law not only does not authorize it to be done, but provides another mode for the passing of the title to the lands in question, and the practice having been in accordance with this view of the absence of authority, I deem it proper to adhere to it. In the opinion of the Attorney-General of the 29th May last, on the Des Moines river case, it is stated: “In so far as regards selections already approved, whether by yourself or by Mr. Stuart, it is clear, that the Government cannot undo that. What Mr. Stuart did, in this respect, with deliberation ; what you did, without the questions involved being suggested to you, was, in each case, done by the competent legal authority, and binds the Government. One secretary has no more lawful power to undo a thing, lawfully done by his predecessor, in a matter of grant, than in a matter of account; no more right, where a settlement is in favor of a third party, than where it is in favor of the United States. Where a thing is decided and done by the head of a departinent, acting within the scope of his lawful authority, it can be revised by his successor only on the ground of a mistake, in a matter of fact, or the discovery and production of material new testimony. [Mr. Crittendon's Opinion of December 28, 1852 ; see also Bank of Metropolis v. United States, 15 Peters, 400; Ex parte Randolph, 11 Brocken. 470.] If the acts of Mr. Stuart and yourself, in this respect, had undertaken (as they do not,) to dispose of any contending rights of third parties, the latter would have had their remedy at law. But what you have done is final, as respects the United States.”
In the foregoing views of the Attorney-General, I have concurred, and for the reason that the acts of approval by Mr. Stuart and myself have divested the United States of the title. I can see still further grounds to decline issuing a patent or patents, as that would be assuming that the title had not yet passed, and the question would be yet open for adjustment, like selections not yet approved.
R. M-CLELLAND, Secretary. Hon. Reverdy Johnson.
The President questions his power to reverse the decision of the Secretary,
in the matter of the Fox and Wisconsin River Grant, and affirms the
DEPARTMENT OF THE INTERIOR,
February 13, 1857. I herewith return the original draft of the decision of the Department, of the 26th March, 1855, which was furnished your office at that date, and