Page images
PDF
EPUB
[merged small][ocr errors]
[ocr errors][merged small]

to be good and valid, any omission heretofore to extend the time for making of such entries and surveys to the contrary notwithstanding.” It also contained the provise of the act of March 2, 1807, above recited.

By an act approved August 19, 1841, 5 Stat. 449, the act of July 7, 1838, was " revived and continued in force” until January 1, 1844, and by an act approved July 29, 1846, 9 Stat. 41, the act of August 19, 1841, was “revived and continued in force” until the first day of January, 1848. On July 5, 1848, 9 Stat. 244, a like act was passed, by which the act of August 19, 1841, was “revived and continued in force until January 1, 1850.” And by an act passed February 20, 1850, 9 Stat. 421, the same act of July 5, 1848, was revived and continued in force until January 1, 1852.

The effect of the series of acts, beginning with the act approved August 19, 1841, and ending with the act of February 20, 1850, was to continue in force the act of July 7, 1838, till January 1, 1852. The whole series, beginning with the act of March 23, 1804, and ending with the act of July 7, 1838, as revived and continued in force by the later acts just referred to, relates to the same subject and is to be construed together. The United States v. Freeman, 3 How. 556; Rex v. Loxdale, 1 Burr. 445, 447. It appears, even from a cursory reading, that § 3 of the act of March 23, 1804, was not repealed or modified, either directly or indirectly, by any of the subsequent acts above mentioned. There was no direct repeal of the section. Neither was there any repeal by implication. McCool v. Smith, 1 Black, 459; United States v. Tynen, 11 Wall. 88; Henderson's Tobacco, Ib. 652; Murdock v. Memphis, 20 Wall. 590; Red Rock v. Henry, 106 U. S. 596. It was allowed to remain unaltered on the statute book; the effect of the subsequent legislation being only to suspend its operation until the first day of January, 1852. The interpretation must, therefore, be the same as if the third section of the act of March 23, 1804, had been repeated in every subsequent statute of the series. As neither Archibald Gordon, nor any of his heirs or representatives, ever made a return of the survey of the land in dispute, either to the Secretary of War, or the Commissioner of the General

Opinion of the Court.

[ocr errors]

Land Office, either before or after the first day of January, 1852, the third section of the act of March 23, 1804, cuts up by the ra ts all the right and title derived from the location and survey of Archibald Gordon.

Under the acts of Congress, Gordon, by his entry and survey, acquired title depending on his performance of certain pro scribed conditions. His failure to perform the conditions stripped him of all interest or estate in the lands covered by his entry and survey.

That such is the effect of the third section of the act of March 23, 1804, is made manifest by the proviso above quoted of the act of July 7, 1838, which declared all entries and surveys theretofore made to be good and valid, notwithstanding any omission by Congress to extend the time for making such entries and surveys. This is equivalent to a declaration by Congress that 3 of the act of 1804 was still in force, and legislation was necessary to relieve from its operation entries and surveys not made within the time limited by that or the subsequent enactments,

Since the act of February 20, 1850, Congress has passed two acts, on both of which the plaintiff relies as making good her title. The first of these is the act of March 3, 1855, 10 Stat. 701, entitled “ An act allowing the further time of two years to those holding land by entries in the Virginia Military District in Ohio which were made prior to the first of January, 1852, to have the same surveyed and patented.” This act provided “ that the officers and soldiers of the Virginia line of Continental establishment, their heirs or assigns, entitled to bounty lands which have, prior to the first day of January, 1852, been entered within the tract' reserved by Virginia between the Little Miami and Scioto rivers, for satisfying the legal bounties to her officers and soldiers upon Continental establishment, should be allowed the further time of two years from and after the passage of this act to make and return their surveys and warrants, or certified copies of warrants, to the General Land Office."

This act is by its terms confined to lands entered and not surveyed prior to January 1, 1852. The policy of the act is

VOL, CXIII-36

Opinion of the Court.

clear. The acts passed prior to the act of July 7, 1838, fixed one period for locating entries and a longer time for making and returning surveys, plainly because the surveys could not be made until the entries were made. But the act of July 7, 1838, as revived and continued in force by subsequent statutes, fixed the first day of January, 1852, as the limit allowed both for making entries and making and returning surveys. It trerefore doubtless happened that laggard warrant holders procrastinated the making of their entries until it was too late to make and return their surveys before the fitst of January, 1852. Therefore the act of March 3, 1855, was passed allowing the holders of warrants, who had made their entries before January 1, 1852, two years further time after the passage of the act to make and return their surveys. Those who before January 1, 1852, had made both their entries and surveys were not within the words or spirit of the act.

The next act on which the plaintiff relies is the act of May 27, 1880, 21 Stat. 142. This act is entitled “An Act to construe and define 'An Act to cede to the State of Ohio the unsold lands in the Virginia Military District in said State' approved February 18, 1871, and for other purposes." The act which was to be construed and defined provided “that lands remaining unsurveyed and unsold in the Virginia Military District in the State of Ohio, be, and the same are hereby, ceded to the State of Ohio,” and saved to any bona fide settler not exceeding one hundred and sixty acres by him occupied by his pre-empting the same in such manner as the State of Ohio might direct. 16 Stat. 416.

The plaintiff relies on the first three sections of the act of May 27, 1880. The first section declares that the true intent and meaning of the act of February 18, 1871, just mentioned, was to cede to the State of Ohio only such lands as were unappropriated and not included in any entry or survey within said district founded on military warrants upon Continental establishment.

The second section is as follows: “That all legal surveys returned to the land office on or before March third, eighteen hundred and fifty seren, on entries made on or before January

[ocr errors]

Opinion of the Court.

first, eighteen hundred and fifty-two, and founded on unsatisfied Virginia military Continental warrants, are hereby declared valid.”

The third section provided that the officers and soldiers of the Virginia line on Continental establishment, their heirs or assigns, “entitled to bounty lands which have, on or before January first, eighteen hundred and fifty-two, been entered” in the Virginia Military District in Ohio, should be allowed three years after the passage of the act to make and return their surveys for record to the office of the principal surveyor of said district, and might file their plats, and certificates, warrants, or certified copies of warrants, at the General Land Office, and receive patents for the same.

The provisions of the third section are based on the same policy, and are similar to those of the act of March 3, 1855, ubi supra, and must receive the same construction, namely, that three years further time was allowed for the return of the surveys of the land which had been entered but not surveyed before January 1, 1852. The section does not, therefore, help the plaintiff's title.

But the plaintiff relies confidently on the second section, and her contention is, that the “land office” referred to in this section is the same as the “office of the principal surveyor of said,” the Virginia military,“ district” mentioned in the third section of the act, and that, as on November 25, 1824, Archibald Gordon had recorded his survey in the latter office, kept at Chilicothe, Ohio, the section above quoted makes the surrey valid.

In construing the second section of the act of 1880, the rule already referred to must be applied, namely, that all acts in relation to the same subject are to be construed together as if one act.

The act of 1880 is part of the system of legislation relating to the Virginia Military District in the State of Ohio, beginning with the act of March 23, 1804, and continued in the fourteen other acts heretofore referred to. The acts of March 23, 1804, and of March 2, 1807, passed before the establishment of the General Land Office, required surveys to be returned to the Secretary of War. All the subsequent acts,

Opinion of the Court.

except the act of February 22, 1815, which omitted any direction for the return of surveys, fourteen in number, either directly or by reference to other acts, required surveys to be returned to the General Land Office. When, therefore, the second section of the act of May 27, 1880, provides that all legal surveys returned to the “land office” before March 3, 1857, shall be valid, it is not open to question that the land office referred to is the General Land Office. In all the legislation on the subject, found in thirteen acts of Congress, extending over a period of sixty-eight years, no other land office had been mentioned. The theory that the words “land office," in the act of May 27, 1880, meant the office of the principal surveyor of the District of Chilicothe, which, in all the previous legislation had never been named or alluded to, is without any support in any rule of construction, and is inconsistent with the system for the disposition of the lands adopted and maintained by Congress for more than three-quarters of a century. That system, as we have seen, required the surveys and warrants to be returned to the city of Washington, at first to the Secretary of War, and afterwards to the General Land Office. It required that patents should be issued by the President upon surveys so returned, and no patent could issue on any survey not so returned. It cannot be conceived that Congress, by the omission of the word “general” before the words “ land office,” intended to reverse this policy which it had persistently adhered to through fifteen different statutes and for nearly three generations, and thus to unsettle the titles to land in a large and densely peopled territory.

Nor can we impute to Congress the incongruity of using the words “land office," and the words “the office of the principal surveyor of said district," in contiguous sections of the same act, to mean the same thing. But all doubt, if any existed, of the true meaning of the words "land office" in the section under consideration is removed by the fact that the section is plainly in substance and effect a reenactment of the act of March 3, 1855, which provided in terms for the return of surveys to the General Land Office.

The plaintiff further insists that the first and second sec

« PreviousContinue »