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Argument for Appellants.

196 U. S.

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the Legislature, and to this end its provisions must be examined in the light of surrounding circumstances at the time of their enactment and of preceding history. Sieman's Adm'r v. Sellers, 123 U. S. 276, 285; In re Ross, 140 U. S. 453, 475; Ross v. Borland, 1 Peters, 654; Edwards v. Darby, 12 Wheat. 210; Gibbons v. Ogden, 9 Wheat. 1.

The statutes involved were passed more than seventy-five years ago, when the conditions and circumstances were entirely different from those now existing, or such as have existed for many years past. It is essential, therefore, to review the history and development of the public land system and the legislation bearing thereon. Smith v. Townsend, 148 U. S. 490; and see Chap. VIII, The History of the Public Domain, Donaldson, 1881.

From the earliest times the relief and protection of the first settlers has been a controlling consideration with every department of the Government; that first the protection and afterwards the encouragement of bona fide settlements for the purpose of making a home has been regarded as a most important consideration in the disposition of the public landsa consideration which finally led to the practical abandonment of the system of sales and the enactment of the preëmption and homestead laws.

Hackley comes within the terms of the act of April 22, 1826. The act is plain in its terms and the court must give it effect. Sutherland, $234; United States v. Hartwell, 6 Wall. 395; United States v. Wiltberger, 5 Wheat. 95. Congress has always protected the early settlers. Lamb v. Davenport, 18 Wall. 307; Lytle v. Arkansas, 9 How. 334; Wynn v. Morris, 16 Arkansas, 414.

The act amounted to a grant in presenti to the settler within its terms which could be defeated by the failure to perform conditions subsequent. United States v. Fitzgerald, 15 Pet. 418; Barnard v. Ashley, 18 How. 43; Brown v. Clements, 3 How. 666; Hall v. Pipin, 24 How. 132; Bryan v. Forsythe, 19 How. 334; Morrow v. Whitney, 95 U. S. 551; Caronditch v. St.

196 U. S.

Argument for Appellants.

Louis, 1 Black, 179; Glasgow v. Hortiz, 1 Black, 595; Sarignac v. Garrison, 18 How. 132.

The act of March 3, 1807, does not affect complainants' rights. It did not under the contemporaneous construction of the various preëmption acts by the executive departments of the Government to which the court will give controlling weight. United States v. Philbrick, 120 U.S. 52, 59; Hahn v. United States, 107 U. S. 405; Brown v. United States, 113 U. S. 571; United States v. Darby, 12 Wheat. 206; United States v. Moore, 95 U. S. 760; 2 Pub. Land Law Inst. & Orders, 272, 422; Cong. Deb. for 1825, 1826, pp. 1422–1436.

The act of 1826 did not require that Hackley should be in possession when the act was passed or January 1, 1826, but only that he should have-as he had—cultivated it prior to January 1, 1825. The courts will not read a condition into an act which it does not contain. Newhall v. Sanger, 92 U.S. 765; Glasgow v. Hortiz, 1 Black, 595; Ryan v. Carter, 93 U. S. 78; United States v. Dixon, 15 Pet. 141 ; Minds v. United States, 15 Pet. 423; United States v. Arredondo, 5 Pet. 691. Nor make exceptions which the Legislature did not insert in the act. French v. Spencer, 21 How. 228; Yturbide v. United States, 22 How. 290; Ross v. Duval, 13 Pet. 45.

The act of 1826 was wholly retroactive and covered settlements on unsurveyed lands. Moore v. Robbins, 96 U. S. 530 536, distinguishing Atherton v. Fowler, 96 U. S. 513.

Hackley's ejectment from his settlement by military forces of the United States, and the establishment of a camp thereon, prior to the passage of the act of 1826, did not prevent him from acquiring a right of preëmption in the purchase of the lands.

The temporary occupation of this tract of land by the troops of the United States in 1826, did not constitute a claim to the land at all; and even if it had been claimed, it would not have been within the terms of the act, since it was not a claim by "any other person."

The legal effect of such occupation, if any, is purely a question of law, as to which the courts are in no way bound by the

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finding of the Interior Department. Lee v. Johnson, 116 U. S. 48; Johnson v. Towsley, 13 Wall. 72; Johnson v. United States, 2 C. CI. 391.

There was no order by competent authority nor was the reservation made with such solemnity and publicity as will forever set apart the lands so reserved, so that they cannot be disposed of other than by act of Congress. Wolsey v. Chapman, 101 U. S. 755; United States v. Tichnor, 12 Fed. Rep. 421.

The presumption which holds in the case of the Secretary of War, that he is acting as the mouthpiece of the President, does not apply in the case of orders issued by subordinate officers. Wilcox v. Jackson, 13 Wall. 498; United States v. Stone, 2 Wall. 537; Missouri &c. Ry. Co. v. Roberts, 152 U. S. 119; Wilcox v. McConnell, 13 Pet. 498; 19 Am. & Eng. Ency. of Law, 1st ed., 441; United States v. Fitzgerald, 15 Pet. 407.

For distinction between mere “occupation” and reservation of public lands, see Morrow v. Whitney, 95 U. S. 551.

The occupation by the troops could have had no other effect than possibly to delay Hackley's right and did not render the act of 1826 inapplicable to these lands. On the termination of the occupation he was entitled to perfect his interests. Ham v. Missouri, 18 How. 126; Beecher v. Wetherby, 95 U. S. 517; State of Michigan, 8 L. D. 308; State of Louisiana, 17 L. D. 440; State of Wisconsin, 19 L. D. 518; United States v. Thomas, 151 U. S. 577; Stockbridge and Menesee Indians v. Wisconsin, 25 L. D. 17; State of Florida, 25 L. D. 117.

The right to perfect the title passed to Hackley's heirs. Buxton v. Traver, 130 U. S. 232, distinguished.

Mr. Edward R. Gunby, Mr. Wm. Wade Hampton and Mr. Horatio Bisbee for appellees.

MR. JUSTICE BREWER, after making the foregoing statement of facts, delivered the opinion of the court.

The vital question in this case is whether Hackley could claim the benefit of the act of 1826, in reference to the tract in

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controversy. Prior to that act he was wrongfully in possession of the tract, and could have been summarily removed by order of the President. (Act of March 3, 1807.) His dispossession was by authority of law. It was done in the exercise of the power vested in the President as Commander-in-Chief of the Army, the order of the War Department being presumed to be that of the President. The occupation of the tract by the United States troops was rightful, being an occupation of property of the Government by direction of the proper officer, and that rightful occupation continued until the act was passed. It is unnecessary to rest the case upon the clause in the act of 1826, “which tract is not rightfully claimed by any other person," although that is not without significance, or to discuss the question whether the United States can be considered another person. A more substantial reason is to be found in the rule that whenever a statute is passed containing a general provision for the disposal of public lands, it is, unless an intent to the contrary is clearly manifest by its terms, to be held inapplicable to lands which for some special public purpose have been in accordance with law taken full possession of by and are in the actual occupation of the Government. Where particular tracts have been taken possession of by rightful orders of an executive department, to be used for some public purpose, Congress in legislating will be presumed to have intended no interference with such possession nor a sale or disposal of the property to private individuals. Such has been the rule obtaining in the Land Department, as well as in the courts. An early case was Wilcox v. Jackson, 13 Pet. 498. That case rested upon a claim of right of preëmption under the act of June 19, 1834, 4 Stat. 678, which revived an act passed May 29, 1830, 4 Stat. 420, containing these provisions:

“That no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States, or either of the several States in which any of the public lands may be situated,” or “which is reserved from sale by act of Congress, or by order of the President, or

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which may have been appropriated, for any purpose whatso


It appeared that at the request of the Secretary of War the Commissioner of the General Land Office had marked upon the official map of that department the tract in controversy as reserved for military purposes, and directed it to be withheld from sale. The court held that this action was that of the President, saying (p. 513):

“Now, although the immediate agent, in requiring this reservation, was the Secretary of War, yet we feel justified in presuming, that it was done by the approbation and direction of the President. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Both military posts and Indian Affairs, including agencies, belong to the War Department. Hence, we consider the act of the War Department, in requiring this reservation to be made, as being in legal contemplation the act of the President; and, consequently, that the reservation thus made was, in legal effect, a reservation made by order of the President, within the terms of the act of Congress."

And going beyond the special language of the act in respect to the sale of lands, the court observed:

“But we go further, and say, that whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment, the land thus appropriated becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it; although no reservation were made of it.

“The very act which we are now considering will furnish an illustration of this proposition. Thus, in that act, there is expressly reserved from sale the land, within that district, which had been granted to individuals, and the State of Illinois. Now, suppose this reservation had not been made, either in the law, proclamation or sale, could it be conceived that, if that land were sold at auction, the title of the purchaser would

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