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established in good faith. The lots may then be offered at public sale to the highest bidder, at a minimum of $10 for each lot. Any tracts not then sold are afterwards liable to private entry at said minimum, or at such reasonable price as the Secretary of the Interior may order from time to time as the municipal property may increase or decrease, after at least three months' notice. A privilege is allowed to any actual settler upon any lot of pre-empting the same and any additional lot on which he may have substantial improvements, at the minimum price at any time before the day fixed for the public sale.
Where it is preferred, as it usually is, the sections 2387, 2388 and 2389 of the Revised Statutes of the United States grant to the inhabitants of cities and towns on the public lands the privilege of entering the lands occupied as town sites at the minimum price of $1.25 per acre, through the corporate authorities of such towns and cities, or the judges of the county courts acting as trustees for the occupants thereof. The maxi. mum quantity liable to entry varies with the number of the inhabitants. If 100 and less than 200, the maximum is 320 acres; if more than 200 and less than 1,000, it is 640 acres; if 1,000 and over, it is 1,280 acres; and for each additional 1,000 inhabitants, not exceeding 5,000 in all, a further quantity of 320 acres is allowed to be entered.
STONE AND TIMBER LANDS.
Surveyed lands in California, Oregon, Nevada, and the Territory of Washington, not yet proclaimed and offered for sale, valuable chiefly for timber and stone, unfit for cultivation, and consequently for disposition under the pre-emption and homestead laws, may be entered under the first, second, and third sections of the act of Congress of June 3, 1878. The quantity is limited to 160 acres to any one person, and the price is fixed at $2.50 per acre. The applicant must be a citizen of the United States, or must have declared his intention to become a citizen under the naturalization laws. He must make affidavit that he is a citizen, and produce evidence of the fact; also a sworn statement designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that it is unfit for cultivation and valuable chiefly for its timber or stone; that it is uninhabited, contains no mining or other improvements except for ditch or canal purposes, where any such do exist, save such as were made by or belong to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself. The statement must be verified by the oath of the applicant before the register or receiver of the district land office,
A notice of the application, describing the land, shall be posted in the office of the register for sixty days, and shall be published by the applicant in a newspaper published nearest the location of the premises for the same period of time. At the expiration of that time, proof of the publication of the notice and of the character and condition of the land as set forth in the sworn statement must be made, after which, if no objection appear, the entry will be allowed. The character and condition of the land must be shown by the affidavits of disinterested witnesses taken before the register or receiver, or any officer using a seal and authorized to administer oaths in the land district in which the land lies. Entry will be allowed and return thereof made to the General Land Office for the issue of the patent as in case of an ordinary cash sale.
The register and receiver are entitled to a fee of $5 each for allowing an entry under said act, and jointly at the rate of 227 cents per hundred words for testimony reduced by them to writing for claimants.
The desert-land law of March, 3. 1877, is confined in its operation to the States of Cali. fornia, Oregon, and Nevada, and the Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota. Only one entry can be made by any one person, and the maximum quantity which may be embraced therein is one section or 640 acres. A person desiring to avail himself of this law must be a citizen of the United States, or must have declared his intention to become a citizen. Ho must first submit proof that the land is of a class which will not without irrigation produce any agricultural crop, and, if it lies along streams or about bodies of water, that it will not produce hay without irrigation. He must also file his sworn declaration setting forth his qualification under the statute, and his intention to reclaim the tract applied for by conducting water thereon within three years from date of his declaration. If foreign-born, he must produce the record evidence of his naturalization, or of his having declared his intention to apply therefor, as the case may be. The land must be described in the declaration by legal subdivisions, if surveyed, and if not surveyed, by reference to conspicuous landmarks, or the established lines of survey. Thereupon the entry may be allowed, the party paying twenty-five cents per acre, the register and receiver issuing their joint certificate, and within three years the applicant must produce satisfactory proof of having reclaimed the land applied for by conducting water thereon, after which he may perfect his entry by paying the additional sum of one dollar per acre. This proof of reclamation must consist of the testimony of at least two disinterested and credible witnesses who must appear in person before the register and receiver of the proper district land office. The proof being found satisfactory, and full payment made, the receiver issues his final receipt, and the register his final certificate, on which the patent is issued.
No assignments are recognized under the desert-land law.
PUBLIC OFFERING AND PRIVATE ENTRY.
Lands are sold at public sale after offering in the manner indicated in prior pages of this volume, but no lands can be entered at private sale unless they have first been offered at public sale. The area of lands that can be so entered is small and they lio in isolated tracts in various States and Territories, except the total area of surveyed offered public lands in the five Southern States of Alabama, Arkansas, Florida, Louisiana, and Mississippi, which can be purchased at any district land office in said States in legal subdivisions, having been duly offered under the act of Congress of June 22, 1876.
STATES AND TERRITORIES, 1776 TO 1880.
By the terms of the Constitution of the United States any of the original thirteen States were to become States in the Union upon ratification of that instrument, and without further legislation than official information of ratification. After its adoption by the ratification of eleven States (nine only being necessary), and going into effect March 4, 1789, the two outstanding States, North Carolina and Rhode Island, upon message from the President were admitted into the Union by the seating of their Senators and Representatives in Congress, and the extension of the terms of the judiciary act over them.
Under the third section of the fourth article of the Constitution, the United States, through Congress, reserved to themselves the right to admit new States, by declaring that “New States may be admitted by the Congress into this Union"; and, as the fourth section of the same article requires that “ The United States shall guarantee to every State in this Union a republican form of government,” it has in practice been deemed a prerequisite that the people proposing to form a new State shall be authorized by law to form a constitution, to be submitted to Congress, so as enable that body to judge of its republican character, before admitting them to the rights, privileges, and immunities secured through the organization of a State government, and upon an equal footing with other States; still this has been varied in several cases hereafter noted.
The Constitution of the United States declares, that “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress."
The Constitution also declares that “the Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."
Under this clause Congress exercises the power of creating Territorial governments, which in process of time, by the increase of population, apply on behalf of the people for authority to form constitutions and State governments, with a view to admission into the Union, and it is for the Congress of the United States, in the exercise of their constitutional powers, to judge of the expediency and the time of admitting them to all the privileges and immunities of States in the American Union.
AS TO THE ADMISSION OF NEW STATES.
The power to expand the territory of the United States by the admission of new States is plainly given, and in the construction of this power by all the departments of the Government it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony, and governed by Congress with absolute authority, and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a
suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial; and whatever the political department of the Government shall recognize as within the limits of the United States, the judicial department is also bound to recognize and to administer in it the laws of the United States, so far as they apply. (Supreme Court United States, in Dred Scott 1. Sandford, 19, How., 393.)
The entire subject of the admission of a State into the Union from a Territorial or other condition, with a constitution and a complete State government in operation, as in the case of California, or without a constitution, as in the case of Kentucky, is wholly within the province of Congress.
Under section 3, Article IV, of the Constitution, Congress governs the territory of the United States. Congress can acquire territory by purchase or treaty, and then can enact laws for its government.
The Supreme Court of the United States, in American Insurance Co. v. Canter (1 Peters, 511), said:
In legislating for the Territories Congress exercises the combined powers of the General and of a State government.
The right to govern the territory of the United States is the inevitable consequence of the right to acquire territory. (Dred Scott v. Sandford, 19 How., 393; American Insurance Co. v. Canter, 1 Pet., 511; U. S. v. Gratiot, 14 Pet., 526.)
Congress possesses the absolute power of governing and legislating for the Territories, and may give a Territorial court jurisdiction over a suit brought by or against a citizen of a Territory. (Sere v. Pitot, 6 Cranch., 332.)
The power to govern the Territories subject to the Constitution is in Congress. It may do it mediately or immediately, either by the creation of a Territorial government with power to legislate for the Territory, subject to such restraints and limitations as Congress may impose upon it, or by the passage of laws directly operating apon the Territory, without the intervention of a subordinate government. (Édwards v. Panama, 1 Oregon, 418.)
A Territorial government is the only mode by which the purchasers and occupants of lands beyond the limits of any State can be protected in their rights of person and property. Hence the implied power of Congress to establish such a government. (U. S. v. Railroad Bridge Co., 6 McLean, 517; U. S. v. Gratiot, 14 Pet., 526; State v. Navigatiou Co., 11 Mart., 309.)
The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. It is therefore the duty of Congress to establish a government over the people in a Territory. The form of government to be established necessarily rests in the discretion of Congress. Some form of civil authority is absolutely necessary to organize and preserve civilized society and prepare it to become a State, and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority. (Dred Scott v. Sandford, 19 How., 393.)
REFERENCES TO EXISTING ORGANIC ACTS.
Territories are bodies politic, and have legal status under an organic act, but no sovereignty.
Organic acts have been passed from time to time from 1784 to 1868, viz: Ohio, ordinance of 1787; Louisiana, March 3, 1805; Indiana, May 7, 1800; Mississippi, April 7, 1798; Illinois, February 3, 1809; Alabama, March 3, 1817; Missouri, June 4, 1812; Arkansaw (Arkansas), March 2, 1819; Michigan, January 11, 1805; Florida, March 30, 1822; Iowa, June 12, 1838; Wisconsin, April 20, 1836; Minnesota, March 3, 1849; Oregon, August 14, 1848; Kansas, May 30, 1854; Nevada, March 2, 1861; Nebraska, May 30, 1854; Colorado, February 28, 1861. All of the above are now States.
New Mexico, September 9, 1850; Utah, September 9, 1850; Washington, March 2, 1853; Dakota, March 2, 1861; Arizona, February 24, 1863; Idaho, March 3, 1863; Montana, May 26, 1864; Wyoming, July 25, 1868.
27 L 0-VOL III
GOVERNMENT OF THE TERRITORIES.
The territory northwest of the river Ohio (the one first created) was organized by the ordinance of July 13, 1787. The form of government provided for the direct control of the Territory by officers appointed by the United States, and consisted of a governor, secretary, and three judges of the superior court. The legislative power was in the governor and the judges of the court. All their laws were subject to disapproval by Congress, and the United States paid all official salaries and the necessary expenses of government. When the Territory should have 5,000 free male inhabitants of full age they were to be entitled to a general assembly, consisting of a council and house of representatives. The members of the house were to be elected by the people. The council, consisting of 5 members, was nominated by the house, and appointed by Congress from ten names thus selected. This form of government was extended over Indiana by the act of May 7, 1800, but the feature of a council appointed by Congress was changed to one elected by the people by the act of February 27, 1809. The organic act for Mississippi, April 7, 1798, the Illinois act of 1809, the Alabama act of 1817, Missouri act of 1812, Michigan act of 1805, and Arkansaw act of 1819, were gradual enlargements of the rights and privileges of the Territories. In the Florida act of March 30, 1822, the powers were much enlarged, and this was really the first organic act. It set out and defined fully the powers and duties of a Territory and its people, with the exception of the method of appointing the members of the council, fifteen in all, to be appointed by the President of the United States. This feature was not enacted into the organic act for the Territory of Wisconsin, April 20, 1836, but the old system of an elective assembly was restored. This act was in the form of all the present organic acts, with slight alterations.
The usual method of organizing a Territory prior to the Florida act of 1822 was for Congress to describe the metes and bounds of a certain portion of the public domain and organize it into a Territory by name, re-enacting, with slight additions, an existing law relating to some other Territory, such as the ordinance of 1787, which was, in terms or effect, with slight modifications, extended over or embraced in the organic laws and acts for all of the Territories of the Union.
PRESENT FORM OF GOVERNMENT.
In each of the eight organized Territories the United States appoint and pay the governor, secretary, chief justice, and 2 associate justices, the marshal, and district attorney. In some of the Territories the judges create the judicial districts from the several counties, and the justices are assigned to hold court therein; in others the governor of the Territory performs this duty, and in some instances the natter is regulated by the legislature.
The legislature, council and house, are elected by the people. The legislative term and length of time of holding session are fixed by Congress, which pays the members and expenses of hold ng sessions and for printing laws. Biennial sessions are the rulo under the act of March 3, 1869.
In all the Territories, except Utah, where his veto power is absolute, the governor has a veto which may be overcome by a two-thirds vote.
Citizens of the Territories vote for local officers and Delegates to Congress, but not for President and Vice-President.
The legislative power extends to all “rightful subjects of legislation”; all acts are to be approved by Congress, to whom they are reported at once after each session of the legislature. Acts stand approved until disapproved.
The Secretary of the Interior now has charge, formerly exercised by the Department of State, over the Territories.
The Territories contain counties and municipalities chartered under special laws by the legislature, or under a general act. County and city officials are elected by the people, and in some of the Territories there are Territorial officers, controllers, auditors,