author: Rost, J.

text:
    A. M. Foley v. S. T. Harrison.
    Congress has the full power to declare the dignity and effect of titles emanating from the United States ; and the whole legislation of the government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues the fee is in the government. A State has no power to declare any title less than a patent, valid against a claim of the United States, or against a title held under a patent granted by the United States.
    A claim based on a patent obtained from the State, under the act of 25th of March, 1844, must yield to a patent obtained from the government of the United States, under the preemption laws passed by Congress, approved on the 29th of May, 1830, and revived and continued in force in 1844.
    Instructions from commissioners of the general land office, to registers and receivers, are not judgments binding upon any one.
    APPEAL by defendant from the Fifth District Court of New Orleans. Buchanan, J.

      L. Lessassier and the Citizens’ Bank were called in warranty, and intervened in this case.

      Illsley, and H. A. Bullard, for plaintiff,
    contended: The plaintiff in this petitory action claims from the defendant in possession the lands described in his petition, and exhibits evidence of title thereto as follows: 1st. The locations thereof made by the State of Louisiana in the land office at New Oleans as public lands, which had been surveyed according to existing laws under and by virtue of the 8th section of the act of Congress, approved on the 8th day of September, 1841. 2d. Two patents, issued by the State to plaintiff in accordance with the 7th section of an act of the Legislature, approved 25th March, 1844, both dated 20th April, 1846. 3d. The correspondence between the register and the commissioner of the general land office, respecting the location of said lands under the said act of Congress.
    The 8th section above referred to is in the following words: “That there shall be granted to each State specified, (Louisiana being included,) five hundred thosand acres of land, for the purposes of internal improvement. Provided, that to each of said States, which has already received grants for said purpose, there is hereby granted no more than a quantity of land which shall, together with the amount such State has already received as aforesaid, make five hundred thousand acres. The selections in all the said States to be made within their limits respectively, in such manner as the Legislature shall direct, and located in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location, on any pulic land, except such as is or may be reserved from sale by any law of Congress or proclamation of the president of the United States; which said locations may be made at any time after the lands of the United States in said States shall have been surveyed according to existing laws.” By this section, it appears that the State entitled to this grant “might make its seclections in such manner as the Legislature thereof should direct, and that no United States patent is 3 equired to vest the title to the lands selected in the State.”
    The 7th section of the act of the Legislature before recited, provides, “that it shall be the duty of the register and the treasurer, as receiver of public moneys, when the lands have not been located, to issue warrants' for the lands donated by Congress, and not as yet located; provided they shall not be issued for less than eighty nor more than six hundred and forty acres, which wai'rants shall be sold in the (same) manner as the lands located; provided they shall no.t be sold for less than three dollars per acre; and it shall be the duty of the governor to issue patents for all the lands sold, and that have been sold, and for the lands located by wai'rants when .conteitaplated to be sold by that act, whenever he shall be satisfied that the same have been properly located.” The question .then to be considered, is, 1st, whether, at the time of the locations, the lands claimed were public lands, subject to entry; and 2d, whether they have been located by the plaintiff in the liianner contemplated by the act of Congress of 4th September, 1841; for, the sole reliance of the plaintiff for success in this suit, is in maintaining these two propositions affirmatively; and an investigation into the first proposition will necessarily test the validity of the defence set up by the defendant. Before entering upon this enquiry, however, we will assume as demonstrated, that, as regards the manner of locating, the law has been fully complied with; that the State patents having issued,'raises the legal pi-esumption that the lands claimed have been pi'operly located, and no patent is required from the United States, as the gi'ant once located is equivalent to a title “in words of present grant.” (See p. 516. 13 Peters. 57. 1,3 L. R.) For a legal consideration paid to the State the plaintiff purchased its right to locate the lands in controversy; and standing, as he does, on his legal rights, he recognises no authority either in the executive officers of the government or in the defendant to criticise his motives in making the acquisition. But he deems it due to himself (and that only with the view of counteracting en-oneous impressions respecting extensive improvements on the lands that have no existence in fact, but upon which the defendant has, and no doubt will seek to establish a case of strong equity,) to state, that he never sought to profit gratuitously by the labors of the defendant, for the court will find, on a careful inspection of the evidence, that th® whole tract claimed, with the exception, perhaps, of a very inconsiderable portion, (and for which the defendant sets up an enormous charge in reconvention,) is still wild land, no part of which has ever yet been cleared. The plaintiff thus having exhibited a title which is prina facie a legal one, the onus is thrown on the defendant to show that it is radically defective, or that there is- a better outstanding title to oppose it. The defendant contends that the land' in question was.legally entered by his authors prior to the 19th June, 1836, unfler the provisions of the acts of Congress passed on the 19th June, 1834, which revived the act of 29th May, 1830, entitled “An act to grant preemption rights to settlers on the public lands.” As the validity of these entries will be strenuously contested, it may be advisible, before adverting to .these laws, to state, that the following facts appear to be conclusively established by the evidence in the record. 1st. That all the lands claimed during the operation of the act of 19th June, 1834 were entered by divers persons, under whom defendant claims by means of floats, derived from alleged settlements within the limits of the Houmas clahn. 2d. That the Houmas claim had been, under the acts of 1805, 1806, and 1807, respectively, presented in due time and according to law to the recorder of land titles in the district of Louisiana, and filed in his office for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the Territory of Louisiana, 3d, That all said entries, both mother claims and floats, had been, about the 12th of August, 1844, and prior to the location of the lands embraced in them, made by the State, cancelled by the treasury department, because the land on which the original settlements purported to have been made, were, at the time of said entries, not subject to the operation of the acts of 29th May, 1830, and 19th June, 1834. Now, it is contended, on this statement of facts, and we will proceed to demonstrate, that all these entries made under the said acts of 1830 and 1834, were not 3nerely voidable, but absolutely null and void ab initio; that the land upon which the settlements originated, and from which the floating rights accrued, was not public land, and if public, was specially 3-eserved from the ope3-ation of those laws by their very terms; and that the officers who undertook to adjudicate them were acting beyond the pale of their authority; and that adjudications made by them to the claimants, not being within their jurisdiction, but, on the contrary, excluded from it in direct terms, were nullities, (Miller et al. v. Kerr et al.,7 Wheat. 1; Brown’s Lessee and others v. Clements, 3 Howard, 575; 13 Peters, 5; &c.,) and no judicial action was required to have them so declared. Congress was the only power that could resuscitate them and give them a legal existence; and this could only be accomplised by means of a confirmatory law passed while the said lands were under their control; for it will hardly be contended that if, at .the time when the State selected them, nothing had been done to cure the vice in the original entries, that either Congress or the executive officers of the government could constitutionally impair the rights vested to said lands in a subsequent purchaser. The original preemption entries never severed the land embraced in them from the public domain; and once disposed of legally, under the provisions of a subsequent statute, they were beyond the reach of legal remedies. The ground of the claim set up by defendant, is the right of certain settlers to preemptions, under the act of 19th June, 1834, entitled “An act to revive an act granting preemption rights to settlers on the public lands, passed on the 29th May, 1830;” and to the act of 183.0 must reference be had, to ascertain what where the rights, benefits and privileges conferred by it, or, in other words, what was the character of the preemption right's thus claimed, and on what land the claim was allowed to operate. 1st. It authorized every settler or occupant of the public lands under the circumstances.therein stated, to enter with the register of the land office in which the land lies, by legal subivisions, a quantity of land not exceeding a quarter section, subject to certain limitations and restrictions 2d. It gave the right of float to the two first settlers on a quarter section of public lands, and then provided that no entry or sale of any land should be made under the provisions of the act which had “been reserved for the use of the United States, or either of the several States, or which was reserved from sale by any act of Congress or by order of the president, or which may have been appropriated for any purpose whatsoever.” Does the land alleged to have been settled on fall within the scope of any of these restrictions ? It is shown that it is within the limits of the Houmas claim, and that the said claim had been reported for confirmation; and it is therefore in due order to show, that the claims so situated were reserved from sale by act of Congress. By the 6th and 10th sections of the act of Congress passed 3d March, 1811, entitled “An act providing for the final adjustment of claims to lands,” &c., &e., (pp. 590 and 591, 1st vol. Land . Laws,) it is declared, that “till after the decisions of Congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time and according to law presented to the recorder of land titles in the district of Louisiana, and filed in his office for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the Territory of Louisiana.” ,
    The Houmas claim was confirmed by the board of commissioners, and also by the act of Congress of 18th April, 1814, and has been since patented, and as such was certainly not subject to the preemption laws, either directly or indirectly; no provision for such a contingency as a settlement on a private claim having been made until the 3rd March, 1843, when an act was passed to remedy the evil in future ; but it was applicable only to unsurveyed lands at the time of such settlement. If the said claim is not confirmed, which is still a question, then Congress has never yet rendered a decision on the validity or invalidity of the claim. And the whole claim was protected by the proviso contained in the act of 3d March, 1811. This has been admitted by the land department, in letters from commissioner Brown to the register at New Orleans, and to the Hon. R. C. Nicholas, both dated the 17th June, 1836; and the attorney general Legaré, to whom the question was submitted by the acting secretary of the treasury, on the 2d September, expressed the opinion, that any disposal of said land was illegal; which opinion was corroborated by Mr. Bibb, secretary of the treasury, who cancelled all entries made within its limits. In the case of Stoddard v. Chambers, (2 Howard’s Rep., 313,) and also in the case of Barry v. Gamble, (3 Howard, 32,) both strongly analagous in many points raised in this case, the question as to the effect of the reservation, under said act of 1811, was elaborately argued, and it was decided that any disposition of lands so reserved was against law, and void. But if it be conceded that these entries, under the acts of Congress of 1830 and 1834, were originally illegal, was it competent for the treasury department to declare the nullity and recall the certificate? It was so ruled in the case of Carroll v. Stafford, (3 Howard, 460,) where the court says: “It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake, and in this respect there is no difference between a certificate holder and a patenteeand such a course of proceeding was contemplated by Congress, as appears by the acts of 12th January and 25th February, 1825. (See 1 L. L. 896.) And it was the opinion of Mr. Attorney General Butler, that “whatever doubt there might be as to the right of the United States, who have parted with their title on the receipt of a legal consideration, (and this is a conclusive answer to the reason for refusing the State patent advanced by Mr. Attorney General Preston,) to make a valid title to any other person, until such first title shall have been avoided by some appropriate judicial proceeding, there can be none when the first title is absolutely void, and not merely voidable.” (See 2d vol. Instructions and Opinions, &c., 216.) And it has been so held by the Supreme Court of this State, in 19 L. R. 334, 510; and 3 Rob., 293. But are the principles and authorities on this point, which are incontrovertible, so far as they refer to the entry of “the settlement lands,” applicable to lands not reserved, but entered as floats, derived from tracts not subject to the law, but on the contrary excluded from its operation. We have maintained, and we think correctly, that a float is but a secondary right, accessory .to the original or mother claim; and we deduce as a corollary therefrom, that if the entry of said private claim is radically defective, the accessory, which is essentially dependant on its validity, must necessarily follow its condition. In the language of the commissioner of the general land office on this subject, “floats are liable to the same disabilities as the ox'iginal preemptions under which they accrued.” (See 2d vol. Instructions and Opinions, p. 632, last pax'agraph, in answer to interrogatory No. 5,) And, in a letter dated 24th September, 1834, to the register and receiver, containing supplemental instructions under the preemption law of 19th June, 1834, by order of the secretaxy of the treasux-y, in a ease vexy analagous to that at bar, it is declared, that “no preemption right to section No. 16, reserved for schools, can be susfained'under existing laws, nor will the act of 19tlx June, 1834, admit of a floating right or preemption elsewhex-e, in virtue of a settlement and improvement on the sixteenth section. Individuals considering themselves aggrieved under such circumstances will have to prefer their claims to Congress.” And here it may be asked, whether between the 19f.lx June, 1834, and the date of the location of the lands in controversy by the State, under the act of 5th September, 1841, any confirmatory law had been passed by Congx-ess which had the effect of curing the radical vice inherent in the defendant’s title. The only statutes of repose that had any application whatever to the preemption laws before mentioned, was the act of 2d July, 1836, entitled “ An act. to confirm, the sales- of public lands in certain cases.” the second section of which is in these words: “ Be it further enacted : That in all cases where an entry has been made under the preemption laws, pux-suant to instructions sent to the register and receiver from the treasury department, and the proceedings have been in all other respects fair and regular, such entries and sales are hereby confirxhed, and patents shall be issued thereon as in other cases.” A reference to the decision of the Supreme Court of the United States, in the case of Wilcox v. Jackson, (13 Peter’s Rep., 514,) answers conclusively any argument that can be urged, as to the application of this statute to the case in point. In alluding to the subject the court says: “Now, the first remark we make upon the act, is, that when the previous law had totally exempted certain land from the right of preemption, if there were nothing else in the case, it would be a very strong, not to say strained construction of this section, to hold that Congress meant thereby, (i.- e., the act of 2d July, 1836,) by implication, to repeal the former law in so important-a provision.” And then goes on to say, that they “were satisfied that there were other cases to which it was intended to apply, where the instructions from the treasury department assumed, to say the least, a doubtful, if not an illegal power. As, for example, the instructions of the 7th February and 17th October, 1831, by which entries were allowed to be made and certificates issued under the act of 1830, which was only in force for one year from its passage; after the expix-ation of the year, when the persons claiming had been deprived of the benefits of the act of 1830, by reason of the township plats not having been furnished by the surveyor general, and when, nevertheless, proofs of the claim had been filed before the expii'ation of the year. To this case, and othei's similarly situated, the law may well apply; because, without affecting the general principles of the system, they present instances in which innocent parties would have been injured by the acts or omissions of public officers, or by some other cause to which no fault was imputable to them.” And in the same case it is further said, that “ by the express terms of said second section, entries under the preemption laws, to be protected by it, must be in all respects fair and regular.” In the case cited, the commissioner refused to issue the patent; whilst in this, he not only refused the patent, but actually cancelled and annulled the preemption entries, as having been from the begining radically defective; so that in the concluding words of the court on that point, we may say, “that the defendant can derive no aid from the act of the 2d July, 1836.”
    The next confirmatory law was passed on the 26th August, 1846, (see Statutes of the United States, at large, p. 534,) the first section of which, by its terms, is intended to particularize irregularities in original entries, which the act of 1836 only referred to generally; but the second section is intended to exempt from the operation of the act of 5th September, 1841, (so far as it refers only to preemptions under said act,) all lands which had not been confirmed by the genera! land office, on account of any alleged defects therein, where such lands were in the hands of an innocent and bona fide purchaser. The defects intended to be cured by this section, were evidently defects of form, and not nullities essentially and radically inherent in the original claim. Be this as it may, the second section of said act relates exclusively to preemption claims under act of 5th September, 1841, and not to the location of the State grant, and according to the well known maxim, “expressio unius est exclusio alterius,” it could not affect plaintiff’s title; and this was the construction put upon the law at Washington, as appears from the letter of the commissioner of the general land office, under date of---, in answer to a letter from the register calling for a construction of the law.
    This brings us to the remaining inquiry, whether the action of the treasury department, in disregarding the State locations and subjecting the lands embraced in them to the operation of the act of Congress approved on the 6th August, 1846, is warranted either by law or by the principles of equity that form the essential elements of this" statute. In adjudging to the plaintiff the land in controversy, the special tribunal, created by the act of 1846, acted on a case clearly not within their judicial competence; and this court will not countenance an arbitrary assumption of power exercised under color of a law intended for good purposes, and not for objects of a spoliatory character. The first section of the law defines clearly its object and provides, “That the commissioner of the land office be, and is hereby authorized and empowered to determine on principles of equity and justice as recognized in courts of equity, and in accordance with genera] rules and regulations to be settled by the secretary of the treasury, the attorney general, and commissioner, conjointly, consistently with such principles, all cases of suspended entries now existing in said land office, and to judge in what cases patents shall be issued for the same.” To suspended entries, existing in the land office at the date of the passage of the statute then, was the law intended to apply; and that only in cases where the United States had retained the fee in the land, to which the title was to be thus perfected. The preemption entries, which form the basis of the defendant’s title, were not of this character. We have shown that, in reality, they conveyed no rights originally, and that the department, whose special duty it was to pronounce their nullity, had officially declared them void. The functions of the special tribunal were restricted and limited, and could not be extended to lands which before the passage of the law had been legally disposed of to bond fide proprietors. They were confined to entries upon which no definite action as to their validity had been yet had by the treasury department. But whatever may have been the extent of the powers conferred on this tribunal by the act of 6th August, 1846, they have undertaken to adjudicate these lands to the defendant, who now holds patents for them issued long since the institution of this suit. The inquiry therefore now is, what additional strength has been contributed to the defendant’s original title by the ex parte proceedings and the high-handed measures had and adopted by the executive officers of the government and the special court created by the statute ? Congress, while it was solicitous of doing justice to bond fide claimants under the preemption laws, did not intend that they should profit at the expense of others. The proviso found in the second section of the act of 1846, declares that “the rights of conflicting claimants are not to be affected by any judgment pronounced in virtue of the provisions of said act;” and even if no such provisions were found in the law, vested rights would be no j0gg protet.ted by the courts, whose duty it is to see that citizens are not deprived of their estates in land by a mere enactment. (13 L. R. 12Ó.) It is not our intention to urge any objection to the exercise of the legitimate powers conferred on the special tribunal, so long as its action is confined to the subject matters contemplated by the statute. We do so because in the case at issue it has undertaken to assume jurisdiction, and act upon a subject clearly not. embraced in the general term “ Suspended Entries.” The effect of a judgment rendered under such circumstances is not questionable. It was considered in the case of Wilcox v. Jackson, before cited, and the court there held as follows: “Before we proceed to inquire whether the land in question falls within the scope of any one of these prohibitions, it is necessary to examine a preliminary objection which was urged at the bar, which if sustainable would render that inquiry wholly unavailable. It is this: that the acts of Congress have given to the registers and receivers of the land offices the power of deciding upon claims to the right of preemption; that upon these questions they act judicially; that no appeal having been given from their decision, it follows as a consequence that it is conclusive and irreversible. This proposition is true in relation to every tribunal acting judicially, whilst acting within the sphere of their jurisdiction, where no appellate tribunal is created; and even where there is such an appellate power the judgment is conclusive when it only comes collaterally into question, so long as it is unreversed. But directly the reverse of this is true in relation to the judgment of any court acting beyond the pale of its authority. The principle upon this subject is concisely and accurately stated by this court in the case of Elliot et al. v. Peirsol et al., (1 Peters, 340,) in these words: ‘Where a court has jurisdiction it has a right to decide every question which occurs in the cause;. and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority its judgments and orders are regarded as nullities. They are not voidable; but simply void.’ Now, to apply this: even assuming that the decison of the register and receiver, in the absence of fraud, would be conclusive as to the facts of the applicant then being in possession, and his cultivation during the preceeding year, because these questions are directly submitted to them; yet, if they undertake fey grant preemptions in land, in which the law declares they shall not be granted, then they are acting upon a subject matter clearly not within their jurisdiction; as much so as if a court whose jurisdiction was declared not to extend beyond a given sum, should attempt to take cognizance of a case beyond that sum.” (See' also 19 L. R. 334.)
    But, even supposing that the special court had the power to act in the premises, their decisions quoad, the plaintiff could produce no legal effect. He was-no party to the proceedings before the special tribunal; nor was he even notified thereof. Such right only as the United States had on the day of the adjudication passed to the defendant; and even the patents, which are usually considered the consummate and paramount title out of the government, could not, in this instance, be considered evidence of title against the plaintiff. On this point the reasoning of the Supreme Court of the United States, in the case of Stoddard v. Chambers is unanswerable; and may be considered evidence of what the law is on this. head. The court in the case cited declared the defendant’s title, which was an entry made in due form under a New Madrid certificate, void, and the patent was issued thereon utterly inoperative. The court says : “ On the above facts the important question arises, whether the defendant’s title is not void. That this is a question as well examinable at law as in chancery will not be controverted. That the elder legal title must prevail in the action of ejectment, is undoubled. But the inquiry here is, whether the defendant has any legal title as against the plaintiffs. And there seems to be no difficulty in answering the question that he has not. His location was made on lands not liable to be thus apropriated, but expressly reserved; and this was the case when his patent was issued. Had the entry been made on the patent issued, after the 26th May, 1829, when the reservation ceased, and before it was revived by the act of 1832, the title of the defendant could not be contested. But at no other interval of time, from the location of Bell until its confirmation in 1836, was the land claimed by him to be appropriated in satisfaction of a New Madrid certificate. No title can be held valid which has been acquired against law; and such is the character of the defendant’s title, so far as it trenches on the plaintiff’s. It has been argued that the first patent appropriates the land, and extinguishes all prior claims of inferior dignity. But this view is not sustainable. The issuing of a patent is a ministerial act, which must be performed according to law. A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual. The fee having been vested in the patentee by the first patent, the record could convey no right. It is true a patent possesses the highest verity. It cannot be contradicted or explained by parol; but if it has been fraudulently obtained, or issued against law, it is void. It would be a most dangerous principle to hold, that a patent should carry the legal title, though obtained fraudulently, or against law. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. The patent of the defendants having been for land reserved from such appropriation, is void; and also the survey of Coontz, so far as either conflicts with the plaintiff’s title and this question, this court can decide.” 3 R. R., 293; 1 lb., 546; lb., 372. The court is respectfully requested to examine the proceedings in the document marked 15, and particularly the letters of Mr. Commissioner Piper to Mr. Walker, Secretary of the Treasury, dated respectively on the 28th January and 24th February, 1847, by which the relative positions of the two claims at that date are minutely described; and he therein very properly expresses an unwillingness to interfere with the State locations. From the foregoing statement of the facts and the law, it results: 1st That the preemption entries which form the basis of defendant’s title, were from the beginning null and void, and that the floats followed the condition of the settlement claims. 2d. That all said entries had been legally cancelled prior to the 20th April, 1846. 3d. That no confirmatory law, up to that period, had resuscitated said entries. 4th. That when plaintiff acquired said lands they were public lands, subject to the operation of the act of 1841, and that his title is perfect under said law. 5th. That any proceedings, whether legislative, judicial, or executive, tending to affect plaintiff’s title, at a time subsequent to the date of his title, are unconstitutional, illegal, null and void. These arguments and authorities satisfied the court below, as we trust they will this tribunal, that the secretary of the treasury acted without warrant of law, when he undertook to annul a State entiy, to set aside a State patent and to recognise as valid a float which the law itself declares a nullity. The patents issued pending this suit, on the ex parte application of the defendants, based upon the original location of these floats, were disregarded by the court below as having been issued contrary to law. Judgment was accordingly rendered in favor of the plaintiff for a part of the land; but with regard to some of the land in controversy the plea of prescription was sustained. In this part of the judgment we contend the court erred; and in our answer to the appeal we have prayed that it may be amended so as to give us the whole sued for.
    It appears by the record, that a part of the land was held under private contracts, dated more than ten years before this suit was brought, and at a time when the land clearly formed a part of the public domain. The court is therefore called upon to say, whether a sale by an individual of a part of the public domain can form the basis of the ten years’ prescription. To maintain the affirmative of this proposition is to assert, that between the time of the private sale and the issuing of a patent, during which period the legal title was clearly in the government, prescription can begin to run against the government. If no patent had ever issued, it appears to us clear that no length of possession would give the possessor under the sale any title against the government; in other words, that prescription does not run against the government for a part of the public domain. This question came before the late Supreme Court in the case of Pepper et al. v. Dunlap, when it was held that no length of possession can give any prescriptive right to a part of the public domain. That case is understood to be yet under advisement in this court on a second appeal. But we are confident that that part of the judgment will not be overruled. Although generally a sale ei non domino may form a sufficient basis of prescription; yet that principle supposes that the property is in commerce; is the proper object of private contracts, and subject to the influence of the State laws. The public lands are neither. No man can be in good faith who holds under such a contract. He necessarily knows that the land is not private property, but forms a part of the public domain. But in this ease there is no evidence whatever as to possession, except what results from the allegation in the petition, that the defendant was in possession at the inception of this suit. He has only a paper possession, shown by a chain of mesne conveyances. It is not shown that there has been an open, notorious, public, quiet and uninterrupted possession for ten years; which alone, coupled with a title translative of property, and good faith, can give a prescriptive right to land. So long as the title was in the government, we contend that a mere sale by an individual is not translative of property; that the thing itself is not susceptible of sale by any but the government. The defendant himself treated the land as a part of the public domain, by applying for a patent pending this suit, and showing, himself, by the date of his patents, that the title was in the government up to the date of his patents.
    The legal propositions, then, upon which we rely, are the following: 1st. That the grant to the State, by the act of Congress of 1841, vested the title in the State as soon as the entry was made according to the State regulations,without any patent; and that a State patent cannot be set aside by the secretary of the treasury. 2d. That the first entry of floats was legally cancelled, because the original settlement to which they were but accessaries, was illegal and void, the Houmas lands being reserved from sale, and even patented by the secretary; and those floats could not be legally reinstated to the prejudice of the State, by any authority vested in the secretary or the commissioners under the act of 1846. 3d. That the act of 1846, creating a board to decide upon suspended entries, conferred no power on them to act in this case; and in no case ex parte. 4th That the defendant has exhibited no title on which he could base a plea of prescription; gave no evidence of possession'; and cannot prevail in his plea without satisfying the court that prescription runs against the government for a part of the domain.

      L. Janin, for defendant and intervenors,
    contended : This is a petitoiy action, in which the plaintiff claims several tracts of land, having together 855 4-10 acres, and forming part of the defendant’s sugar plantation, situated in the parish of Iberville, at a short distance from the Mississippi river.
    The plaintiff applied on the 22d of December, 1845, to the land office of the State of Louisiana, to become the purchaser of these lands. This application was based upon the 8th section of the act of Congress of September 4th, 1841, which granted to the State of Louisiana a certain quantify of public lands, and upon the 7th section of the act of the Legislature of Louisiana of March 25th, 1844 (p. 62), which authorized the State register to issue warrants for lands donated by Congress and not yet located, (p. 86) The register declined to issue warrants for these specific lands; but issued warrants in blank. These blank warrants were afterwards located by the plaintiff on these lands in the United States land office, from which he obtained, on the 17th of January, 1846, two warrants or certificates of location. On the 19th of March, 1847, the plaintiff’s counsel requested the State register to issue patents. He, at first, declined to do so; because, by a letter of Attorney General Preston, of December 8th, 1845, he had been instructed not to issue patents in cases similar to the present one; the particulars of which will be explained hereafter. Mr. Elmore, the new attorney general, being applied to for advice by the register, seemed to entertain the same opinion; but Governor Johnson being at that moment in Mr. Elmore’s office, advised the issuing of the patent, in order that the question might at once be brought to an issue between the plaintiff and defendant; and, therefore, State patents were issued to the plaintiff under the 7th section of the act of the Legislature of Louisiana, of March 25th, 1844, which directs the Governor to issue patents “for the lands located by warrants, whenever he shall be satisfied that the same have been properly located. This issuing of patents, as Mr. Ker correctly observes, is merely a State regulation. State patents do not add to the strength of the locator’s title ; they do not dispense with the United States patent; and, let it passingly be observed, it is not the province of the State, but of the federal authorities, to decide whether the public lands of the United States have been correctly located.
    Leaving, therefore, these State patents out of view, the plaintiff’s title is a purchase of blank warrants from the State, and a location which is his own act, approved only by P. Laidlaw, the register of the United States land office. No United States patent having issued, the fee was still in the United States ; the locations, before they were binding upon the United States, required the approval of the general land office, and until the patent issued they might be rejected. And these locations were rejected after a protracted discussion, and United States patents were issued to the defendant on the 1st of September, 1847, during the pendency of this suit.

      Congress has the full power to declare the dignity and effect of titles emanatingfrom the United States ; and the whole legislation of the Government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues, the fee is in the Government, which, by the patent, passes to the grantee, and he is entitled to possession in ejectment. Where a patent has not been issued for a part of the public lands, a State has no power to declare any title, less than a patent, valid against a claim of the United States, or against a title held under a patent granted by the United States. Wilcox v. Jackson, 13 Pet. 498. Bagnell v. Broderick, 13 Pet., 436.
    The land remains the property of the United States until the patent is issued. 9 Rob. 287 ; Pepper v. Dunlap. See on the same point the opinions of Attornies General Wirt and Butler. 2 Laws, opinions, &c., relating to public lands, p. 25, 84, 213, and 214.
    Here the defendant might rest his case. For a patent cannot be attacked except when it has been issued through fraud or error; (13 Peters 455,) neither of which is charged in this case. Yet it may not be improper to resume briefly the voluminous evidence in the record, and to show by the history of these titles, that the defendant has not only the law, but also the strongest equity on his side. By the 2d section of the act of May 29th, 1830, when two persons had settled upon the same quarter section, they were each entitled to one divided half of this section, and to a preemption of eighty acres elsewhere, in the same land district. It is well known that many pex'sons in Louisiana availed themselves of this provision of law. They entered the land on which they were settled, and the claim to which is generally called the “ mother claim,” and they sold the unlocated claim or “float” to speculator's, who selected. the land, and located the floats on it.
    On the 19th June, 1834, this act was revived to continue in foi'ce for two yeax-s, in favor of persons who were settled on the public lands, in 1833. Under this act Thomas Barrett and Robert Bell purchased a number of floats, and located them on the land in dispute, and on adjoining tracts. On the 17th of May, 1836, Barrett sold his undivided half to Bell; Bell immediately afterwards established a large plantation on it, which he mortgaged to the Citizens’ Bank, together with a great - number of slaves on the 31st August, 1837, for a loan of $50,000, payable in one year. The Citizens’ Bank obtained an oi-der of seizure and sale on this mortgage, and bought the plantation with its slaves at sheriff’s sale on the 17th September, 1839. On the 21st of January, 1840, that Bank sold it again to Botts and Robinson, and on the 18th of September, 1840, Robinson sold his undivided half to Botts ; Botts having become a bankrupt, this property was sold by his assignee on the 1st of February, 1844, to L. Lessassier ; Lessassier sold it to Mrs. Caroline Bell on the 29th of Febi'uaxy, 1844 ; and Mrs. Bell sold it on the 9th of May, 1844, to <S. P. Harrison, the defendant. It is now one of the large sugar plantations of the State ; but the question of improvement and all questions which might arise between the defendant and his warrantors, are reserved by agreement of parties. It was not discovered until after all these various sales that the mother claims, from which the floats composing the defendant’s plantation are derived, are within the boundaries of the well-known and much-contested “ Houma” claim. The printed report of the secretary of the treasury, sent to the Senate on the 15th January, 1S45, which is in evidence in this cause, contains many documents relating to this claim; of which, however, but few require to be noticed in this place. Its history is compendiously stated in the letter of Commissioner Blake, to the acting secretary of the treasury, dated August 9th, 1842. (p. 94 of the Houma pamphlet.) The claim as originally filed for confirmation, with the board of commissioners, extends from the Mississippi to the Amite, and embraces, within widely diverging side lines, an immense body of land. It was confirmed by the commissioners. But in 1829, Graham, then commissioner of the genei'al land office, coixstrued their decision as recognizing only the validity of the grant, and “ not as going to confirm any other lands than those included within its ox'iginal limits,” and he interpreted the grant as giving a right to a depth of eighty arpents only. He treated the land behind the eighty arpents as public property. Many settlements were afterwards made on it; and among others, those in which the defendant’s title originated. On March 17th, 1836, Commissioner Brown directed the register and receiver at New Orleans, to withhold all the lands within the “ claimed limits of the Houma grant from sale,” because the law (the act of March 3d, 1811,) prohibits the sale of any lands to which a claim was filed in due time and according to law. After various other proceedings,, showing that the law department was strenuously opposed to the claim, Mr. Secretary Woodbury, in a letter of October 21st, 1840, “ concurred in the commissioner’s suggestion that no further steps be taken in the matter, until Congress shall have further opportunity for legislative action. By a letter of June 30th, 1841, the register at New Orleans was directed not to issue patent certificates upon these claims. Yet his successor issued them; for which he was strongly blamed in a letter of the commissioner, dated February 10th, 1843, (p. 106 of the pamphlet,) who required him to recall those certificates ; but they had gone forth; the surveys were made. Secretary John C. Spencer also decided to leave this claim to the decision of Congress ; and in relation to the patent certificates, he says, in a letter of Aug. 28 th, 1843. (p. 112 of the pamphlet,) that they had been issued not only without authority, but against the express instructions of the commissioner of the general land office, and that a knowledge of the erroneous and unauthorized issue is believed to have been bx-ought home to the holders.” When Mr. Spencer was superseded by Chancellor Bibb, an unexpected change took place in the policy of the department. The new secretary wrote out an elaboi’ate decision in favor of the claim, and directed the patents to be issued, which was accordingly done. (p. 126 to 131 of the pamphlet.)
    On the 18th of September, 1844, the acting commissioner wi'ites to the register of New Orleans, that in consequence of this decision of the secretary of the treosury all private entries within the claimed limits of the Houma grant were cancelled, and that the preémptors should be informed of it, in order that they might make their applications for the reimbursement of the purchase money. With the validity of the entries, the floats, of which they were the basis, also fell. We have no evidence that the requix-ed notice was given to Harrison. If he received it, he might possibly have believed that the act of Congress of August 26th, 1842, would protect him, until relief could be obtained from Congress, that act px-ohibiting tile sale to préemptors and others, of lands which are claimed under prior preemptions or entries, not confirmed by the general land office, “on account of any alleged defect therein, provided such tracts had passed into the hands of innocent and bona fide purchasers-” Harrison was indeed secure against settlers, a meritorious class, favorably viewed by Congress; but by an oversight of the law, he was exposed to the keener appetite and sharper wits of speculator's in State scrip. On the 13th of November’, 1845, Register Laidlaw wi’ites to the commissioner that an enquiry had been made by the locating agent of the State, whether certain tracts now patented to Harrison, and part of his plantation, could be taken up under State scrip, issued under the 8th section of the act of Congress of September 4th, 1841, making a grant of lands to the State, or whether the State was excluded as well as preemptors from acquiring a title to these lands. No allusion was made in this letter to the present possessor, or to the impi'oved condition of these lands; the register would not have failed to mention that he had notified Harrison, as he was directed to do, of the decision cancelling his titles, if he had given that notice. It is therefore not surprising that the commissioner, unaware of the consequences, should have briefly replied on December 24th, that the cancelled entries were public lands, and as such subject to the 8th section of the act of September 4th, 1841. It requires more than ordinary charity not to suspect that the register of the United States land office, was governed by private motives in his course. The facts studiously kept out of view in his letter, are not the only circumstances warranting suspicion. The applications for State scrip to be located on Harrison's lands, were made on the 22d December, and on the 5th January ; the formei’, before the commissioner’s letter was written ; the latter, when probably it had just been received. The parties who made the applications were speedily apprised of the information obtainable in New Orleans, only in the United States land office, and that party was, in evexy instance, John Laidlaw, the register’s son and clerk, who was always in the land office", and well informed of what was going on there. We may well doubt that the locating agent ever made any enquiry for the lands. The conduct of the register of the State land office, and of the attox-ney genei’al of the State, shows that they were sincerely averse to lending the assistance of the State to similar speculations. The State register refused to give any other but blank warrants, leaving the responsibility of the selection of the land to the applicant, and to the United States register. The attorney general, in an official opinion dated December 8th, 1846, and given in answer to enquiries by the State register, declared that no State scrip should be located upon lands claimed under cancelled or suspended preemptions, unless the locator should be also the owner of the suspended claim, and desire to perfect'his title.
    The warrants of location were issued by the United States register, on the 17th of January, 1843, but it was not until the 17th of February following that Harrison obtained information of these proceedings; and then he filed a caveat with the register of the State land office. The State register was pressed to issue patents on the warrants — he hesitated — he consulted again both the new attorney general and the governor, they doubted with him, and as has already been stated, the governor advised the issuing of the patents to test the matter. These patents are dated the 20th of April, 1846. It may be presumed, that when Harrison filed his caveat, he wrote also to Commissioner Shields, of the general land office; that officer seems to have taken the matter to heart. On the 7th of March, 1846, he wrote to the chairman of the committee on private land claims in the House of Representatives, on the subject of these claims; and on the 9th of the same month, he addressed to the register and receiver at New Orleans, the following letter, viz :
    “As Congress has taken the subject of the floating preemption entries arising from preemption settlements, within the limits of the Houmas private claim, into consideration, and is about to confirm them in the hands of bond fide assignees, I deem it proper, in order to prevent future inconvenience, to direct that all the land embraced by such entries, except as to those where the purchase money has been refunded, and the claim abandoned, be hereby considered as excused from disposition in any way, either by State selections or otherwise. The State selections already made will be suspended to await the action of Congress. If the contemplated law confirms all entries made by bond fide assignees, it will, in all probability, defeat all locations made by State selections. In the mean time, it is necessary that all appropriations of the land covered by such entries be suspended.”
    The State selections having been suspended on the 9th of March, the State patents should not have been issued on the 20th of April, and however meaningless and inoperative the State patents may be, as they do not divert the title of the United States, yet it is probable that Governor J ohnson would not have directed them to be issued if the United States register and his son and clerk, the agent of the applicants, had not withheld from him all knowledge of the order of suspension. The bill alluded to in Commissioner Shield’s title, as being before Congress, was superseded by the act of August 3d, 1846, entitled, “ an act providing for the adjustment of the suspended preemption land claims in the several States and territories.” By this act, the commissioner of the general land office was “ authorized and empowered to determine upon principles of equity and justice, as recognised in courts of equity, and in accordance with general equitable rules and regulations, to be settled by the secretary of the treasury, the attorney general, and commissioner conjointly, consistently with such principles, all cases of suspended entries now existing in said land office.” Under this act, various reports were made to the secretary of the treasury, by Piper, the then acting commissioner. In him the locators of State scrip had a zealous advocate. From these letters it also appears that Trasimond Landry, one of the parties who has made location on Harrison's land, took an active part in the matter; but, nevertheless, the final decision of the secretary, communicated in his letter to the new commissioner, R. M, Young, dated the 25th of June, 1847, in which the commissioner and the attorney concurred, were adverse to the State locations, and confirmed Harrison's floats; whereupon patents were issued to Harrison, as assignee. It is by no means certain, nor yet very probable, that the title of the Houma claimants to the land behind the eighty arpents will ultimately prevail. Chancellor Bibb’s decision excited much comment in Congress. By a resolution of the Senate of December, 10th, 1844, (p. 1 Houma pamphlet,) he was required to communicate to the Senate all the documents relating to the Houma claim, in the possession of the department, and his report was communicated to the Senate, on the 13th of January, 1845. By a joint resolution of June 20th, 1846, the attorney general was directed to examine the evidences of title upon which the Houma claim was based, and if, in his opinion, the patents should have issued contrary to law, the president was requested to cause proceedings to be instituted on behalf of the United States, and to have the validity of said patents, judicially determined. The result of this resolution has been the institution of a suit by the United States, in the Circuit Court of the United States, for the Eastern District of Louisiana; the object of which is the avoidance of the patents. If that suit is decided in favor of the United States, Harrison’s entries were valid from the beginning. The judgment of the district court is clearly based upon erroneous principles. It assumes, with Mr. Attorney General Preston, that an entry vests a title which cannot be set aside without a judicial proceeding. It denies the power of the general land office and of the secretary of the treasury, to reject an entry or a location under State scrip. Hence, the court concluded that Harrison’s entries being anterior in date, must prevail over those of plaintiff; but, as these entries were not produced, it gave judgment in Harrison’s favor, on a plea of prescription, and only for those entries, of which he and his predecessors had been in possession, for more than ten years, previous to the institution of this suit, as shown by the notarial acts in the record. But, one of these entries, that of lot 1, in section 3, township 11, S., range 14 east, appears for the first time in the sheriff’s deed to the Citizen’s Bank of September 19th, 1839, and less than ten years before the institution of the suit; and for this the court gave judgment in favor of the plaintiff. The court disregarded the patents altogether; while it admits that if we had produced the entries, the judgment would have been entirely in Harrison’s favor. From the judgment the defendant and intervenors appealed. The plaintiff also moved for leave to appeal, but filed no bond.
    The answer to the reasoning of the district court is obvious. It misconstrues entirely the powers of the general land office, and overlooks that the patent, and nothing else, constitutes a title emanating from the United States, and that until it issues, the control of the land office over entries is unlimited ; subject to no authority but that of the secretary of the treasury and the president of the United States. The plaintiff exhibits a State location rejected by the competent authority. He is therefore without any title whatever. That is enough to defeat- him in a petitory action. It is well settled that a patent cannot be attacked but for fraud or error, or want of authority in the party issuing it. It is only in such cases, or when both parties have patents, that the court can look behind the patents. In addition to the authorities already cited, we beg leave to refer to the case of the United States v. Gratiot, 14 Peters, 526, in which the supreme court emphatically says, that the power of Congress over the public lands is unlimited. The entries or certificates of purchase were given up when we obtained the patents. The existence and date of the entry of lot 1, sec. 1, township 11, south range 13, east, if it was necessary to prove it, would appear from the report of the commissioner of the general land office to the secretary of the treasury.
   The judgment of the court was pronounced by

Rost, J.

This is a petitory action, in which the plaintiff claims several tracts of land forming part of a plantation in the actual possession of the defendant. There was judgment in favor of the plaintiff for a portion of the land; and the defendant appealed. The plaintiff has asked that the judgment be amended and rendered in his favor agreeably to the prayer of his petition.

The plaintiff purchased from the State several blank warrants under the 7th section of the act of the Legislature, approved on the 25th of March, 1844, which authorizes the State register to issue warrants for lands to be granted to the State of Louisiana under the 8th section of the act of Congress of the 4th September, 1841. These blank warrants were afterwards located by the plaintiff on the lands claimed in the United States’ land office, from which he obtained two certificates of location. Patents were subsequently issued for those lands by the State under the section of the act of 1844, already referred to. This action is brought on these patents.

The defendant’s title must now be considered. By the 2d section of the act approved the 29th March, 1830, when two persons had settled upon the same quarter section of public land, they were each entitled to one divided half of this section, and to a preémption of eighty acres elsewhere in the same land district. The settlers generally retained the land which they occupied, and sold the unlocated portion of their preemption right, popularly named a “float,” to speculators who selected the land and located the floats on it.

In 1844, this act was revived to continue in force for two years in favor of persons who were settled on the public lands during the year 1833. Under this act, Thomas Barrett and Robert Bell purchased a number of floats, and located them on the land in dispute and on adjoining tracts. Those locations were approved by the land office at the time they were made; and since the institution of this suit patents have issued upon them. In 1836, Barrett sold his undivided half of the land to Bell, who established a sugar plantation upon it. The defendant holds under Bell by a regular chain of conveyances.

The nature and extent of the powers of Congress over land titles emanating from the United States, are too well settled to be considered open questions. They are stated as follows by the Supreme Court of the United States : “ Congress has the full power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues the fee is in the government, which, by the patent, passes to the grantee. Where a patent has not been issued for a part of the public lands, a State has no power to declare any title, less than a patent, valid against a claim of the United States, or against atitle held under a patent granted by the United States.” Wilcox v. Jackson, 13 Peters, 498. Bagnell v. Broderick, 13 Peters, 436.

To avoid the effect of these decisions, the plaintiff must establish affirmatively that, under the act of 1841, the United States were divested of their title by the State location in the land office at New Orleans, without the necessity of a patent or of any other formality; and failing in this, he must show that the location amounted to an equitable title, and that the patents of the defendant were issued in violation of law. The section of the act of 1841, on which he relies, is in these words: “There shall be granted (to each State specified, Louisiana being one of them,) five hundred thousand acres of land for the purposes of internal improvement. The selection in all the said States to be made within their limits respectively, in such manner as the Legislature shall direct, and located in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location, on any public land, except such as is or may be reserved from sale by any law of Congress or proclamation of the president of the United States ; which said locations may be made at any time after the lands of the United States in said States shall have been surveyed according to existing laws.”

There is nothing in it which can at all be construed into a surrender of the power of the United States to see that the locations were properly made; whether the lands selected had previously been surveyed; whether they were reserved from sale or subject to other claims; and whether the selections were made in parcels conformably to the sectional divisions and subdivisions, and of not less than three hundred and twenty acres in any one location, were questions not submitted to the arbitration of the State, and therefore reserved to the secretary of the treasury.

We have beenreferred, in argument by the defendant’s counsel, to the letters of acting Commissioner Piper, found in the record. He states the practice of the land department under the act of 1841, to be as follows : “The State is authorised under the law to make certain locations, and it is with the State authority, and not with the purchaser, that this office has to treat. If the State selects a tract of land, and it is rejected, the cause of its rejection is communicated and the State has no further control over it. If it be approved, the approval is communicated and the State can dispose of it in such manner as it may think best. But if the State disposes of a tract of land before its approval, and the selection is rejected, the purchaser has to look to the State for redress, and not to the general government.” We believe those regulations to be in accordance with the act of Congress.

It is not necessary to determine, in this case, the force and effect of the State patents; but it is obvious that they should not have issued before the locetion was approved by the secretary of the treasury. Those patents bear date the 20th April, 1846. On the 0th March preceding, the commissioner of the general land office had written to the register and receiver at New Orleans, as follows: “As Congress has taken the subject of the floating preemption entries arising from preemption settlements within the limits of the Houmas private claim into consideration, and is about to confirm them in the hands of bona fide assignees, I deem it proper, in order to prevent future inconvenience to direct that all the land embraced by such entries, except as to those where the purchase money has been refunded and the claim abandoned, be hereby considered as excused from disposition in any way, either by State selection or otherwise. The State selections already made will be suspended to await the action of Congress. If the contemplated law confirms all entries in the hands of bond fide assignees, it will, in all probability, defeat all locations made by State selections. In the mean time, it is necessary that all appropriations of the land covered by such entries be suspended.”

The selections made in behalf of the State, so far from having been approved were suspended at the time the State patents issued. The governor was not apprised of the suspension when he signed them; and it is shown that he did so not because he was convinced of their validity, but in order that the question might be judicially determined.

The acting commissioner of the land office, Mr. Piper, paying no regard to the State patents, laid the selections made by the plaintiff before Mr. Secretary Walker for his approval, on the 28th of January, 1847. Mr. Walker took the matter under advisement. On the 24th February following, at the request of Mr. Johnson, a senator from Louisiana, the commissioner referred to his decision, the conflicting claims of the preemption entries and of the State locations, which form the subject of this controversy. The decision of the secretary of the treasury is contained in the following letter to the commissioner, bearing date the 28th of June, 1847: “ Sir, In reply to your communication of the 24th of February last, with respect to conflicting claims to land under floats in Louisiana and selections made by that State, I would state that I propose to approve the locations made under the floating claims held by the actual settlers and improved by them, in preference to the State locations made subsequently and covering those improvements.”

It appears, then, that the State locations have been disallowed by the proper authority and that the floating claims on which the patents of the defendant rest, have been preferred to them.

We have been referred in the brief to the cases of Brown's Lessee v. Clements, 3d Howard, 575, and Levy v. Thompson, 4th Howard, 19. In these cases Congress had sold the land and the purchasers had complied with all the formalities required and obtained patent certificates. The Supreme Court of the United States held, that if there was no error or fraud in the issuing of the certificate's, they formed avalid tide, and Congress had no right to refuse patents. But in this case the United States have not sold the land ; they have merely agreed to give it to the State, when the location of it is finally approved by the land department; and until that approval is had, they have nothing to do with the contracts which the State has entered into with individuals in relation to it.

We are ef opinion that the State location and the warrants issued upon it by the land office at New Orleans, did not divest the United States of their title.

The only question remaining is, whether the patents of the defendant issued contrary to law. For if they did not,- under the decisions in 13 Peters referred to, the plaintiff has not such an equitable title as will support a petitory action. It is doubtful whether he could have such a title under any circumstances. It is necessary to a proper understanding of this part of the case that we should advert to the facts upon which it rests^

The mother claims, from which the floats of Bell and Barrett Were derived, are within the boundaries of the Houmas claim. This claim, as originally filed for confirmation with the board of commissioners, is represented as extending from the Mississippi river to the Amite, between widely diverging side lines. It was confirmed by the board, and also by an act of Congress passed in 1814. But in 1829, Mr. Graham, then commissioner of the general land office,- construed the confirmation as recognizing simply the validity of the grant, and leaving Congress to determine the extent confirmed, he ordered the claim to be surveyed with a depth of one and a half leagues, and instructed the register and receiver at New Orleans to treat all beyond that depth as public land, subject to settlement and entry. In consequence of this decision, which remained undisturbed until 1836', a great many settlements were made in the rear of the survey, and amongst others those in which the defendant’s title originated.

In 1836, a subsequent commissioner of the general land office directed the register and receiver at New Orleans to withhold from sale all the lands within the claimed limits of the Hoftmas grant; in 1840, Mr. 'Woodbury, then secretary of the treasury, directed the land office to take no further step in relation to the Houmas claim itself, until Congress should have further opportunity for legislative action ; and in 1841, the register at New Orleans was directed not to issue a patent certificate upon it. That certificate was issued by his successor, notwithstanding the prohibition. Mr. Spencer, the next secretary of the treasury, states officially that the patent certificate had been issued, not only without authority, but against the express instructions of the commissioner of the general land office, and that a knowledge of the erroneous and unauthorized issues is believed to have been brought home to the holders.

When Mr. Spencer was superceded by Mr. Bibb in the department of the treasury, a radical change took place in the policy of the deportment. The new secretary wrote out an elaborate decision in favor of the Houmas claim; approved the issuing the patent certificates and directed the patents to be issued : which was accordingly done.

In 1844, the acting commissioner wrote to the register at New Orleans, that in consequence of this decision another private claim included within the limits of the Houmas grant had been cancelled; and stated that all such entiles were necessarily void. The letter goes on to say: “I take this occasion to advise you of the determination of the Houmas claim, in order not only that you may be enabled promptly to dispose of any claims which may hereafter be made for any of the land within its limits, but also that the parties who are interested in entries already made may be advised by you that those entries have been cancelled, and that the purchase money will be refunded to them upon proper application.’’ No notice was given to the defendant, and he remained in possession of the land.

In 1845, the register at New Orleans wrote to the commissioner that an enquiry had been made by the locating agents of the State, whether the land in controversy could be taken up,, under theact of 1841, or whether the State was excluded, as well as preSmptors, from acquiring a title to these lands by the act of Congress of the 26th August, 1842. The reply was, that the cancelled entries were public lands, and could, as such, be'entered by the State. The location was accordingly made.

As soon as the defendant was apprised of these proceedings, he. filed a caveat in the State land office. Soon after, the commissioner of the general land office wrote to the chairman of the committee of private land claims in the House of Representatives, on the subject of the' floats arising from the claims within the Houmas grant, viewing them as not cancelled, and recommending that they should be confirmed in the hands of bond fide holders; he also addressed to the register and receiver at New Orleans the letter already mentioned, directing those officers to suspend all appropriations of the land covered by those claims.

On the 3d of August, 1846, and in the session of Congress pending which the floats on the Houmas claims had been recommended for confirmation, an act was passed entitled “an act providing for the adjustment of all the suspended preemption land claims in the several States and Territories.” It is under that act that the patents of the defendant were issued.

The plaintiff now contends, that the entries under which the defendant claims, were not suspended entries, within the meaning of that act; that they were made in violation of law upon lands not subject to entry, and therefore absolutely void from the beginning; that the entiles being void, the floating claims of which they were the basis fell with them ; and that the patents of the defendant were issued in violation of the proviso found in the act of Congress of the 3d March, 1811; that the department, whose special duty it was to pass upon the entries, had officially declared them to be void, and that the special tribunal created by the act of 1846, was without jurisdiction to recognise their validity.

We are not prepared to concede that the entries were originally made in violation of law. The proviso in the act of 1811 is, that until the final decision of Congress thereon, no tact of land shall be offered for sale, the claim to which has been in due time, and according to law, presented to the recorder of land titles in the district of Louisiana, &c. It is true that the Houmas claim had been thus presented. But the plaintiff admits that it was acted upon and confirmed by the act of the 18th of March, 1814. This confirmation satisfied the proviso of the act of 1811.

Congress, by the act of 1814, limited the grant to the number of acres con. tained in one league square, and as no further claim appears to have been made by the grantees during the twenty-two years which followed its passage, Mr. Commissioner Graham was justified in considering the decision of Congress as final upon the whole claim, and the lands not confirmed as public lands.

It is not pretended that the mother claims, out of which those of the defendant arose, were included within the extent confirmed. We are therefore of opinion that they were not originally illegal.

We cannot view the letter of the commissioner informing the register and receiver at New Orleans in 1844, that the entiles made on the Houmas grant ■were cancelled and his opinion that the land was subject to entry by the State, in the light of a judgment binding upon any body. He had no authority to make such a decree. In the alienation of the public domain, where there are no conflicting claims to be determined, the officers of the land office exercise a portion of the administrative power of government; their decision against a claim is nothing more than a refusal to recognise it, and does not prevent the claimant from renewing it at any subsequent time. The defendant never was notified as directed by the letter of the commissioner, but remained in possession and continued to urge his claim till he succeeded in having itrecognized. Notwithstanding the decision of the commissioner in this case, it is clear that his successor, Judge Shields, considered the claim as still in existence in 1846, when he directed the State entiles adverse to it to be suspended.

Mr. Secretary Walker also viewed it as an existing and suspended claim, when he proposed to approve it in preference to the State locations.

From the evidence in the record the inference is irresistible, that the act of 1846 was passed to meet this veiy class of cases; and there is nothing in the wording of it which limits the general import of the preamble. The first section provides that the commissioner of the general land office be, and he is hereby authorised and empowered to determine upon principles of equity and justice, and in accordance with general equitable rules and regulations, to be settled by the secretary of the treasury, the attorney general and commissioner, conjointly, consistently with such principles, all cases of suspended entries now existing in said land office, and to adjudge in what cases patents shall issue on the same. That section contains the following proviso: “Provided, however, that such adjudications shall be made within two years from the passage of this act, and be first approved by the secretary of the treasury and the attorney general, and shall only operate to divest the United States of the title to the land embraced by such entries, without prejudice to the rights of conflicting claimants.”

The patents of the defendant have issued in strict conformity with the requirements of this section ; and we are of opinion that he has the better title.

We have been induced to spend an unusual length of time in the investigation of this case, on account of the earnestness with which the claim of the plaintiff has been pressed upon us. We believe the decision to be correct; but supposing the case to be doubtful, and nothing more can be pretended, the doubt must inure to the benefit of the defendant.

It is therefore ordered that the judgment in this case be reversed, and that there be judgment in favor of the defendant for the land in controversy, with costs in both courts.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    The State of Louisiana v. N. H. Hackett.
    In a contest between two officers, as to which of them is entitled to perform certain duties and to receive the fees and emoluments therefor, the plaintiff may lay his damages at a sum over three hundred dollars; and the Supreme Court will take jurisdiction of the appeal. Prieur and Labatut v. Commercial Banh, 7 L. it. 509, affirmed.
    On the 16th of March, 1848, an act was approved entitled an act “ to regulate and define the fees to be paid by owners of runaway slaves for the taking up and confinement of the same,” &c. Under thiB act the custody and management of runaway slaves were changed from the previously existing laws : Held by the qourt, that all that part of the act making a change in these respects was in violation of ar.t. 118 of the State .Constitution, and consequently null.
    The intention of art. 118 of the Constitution was to mukeit obligatory on the legislature to state the object of every law in its title according -to the understanding of reasonable men. An act to regulate and define fees appears to exclude the general and sweeping object of the statute of 16th of Mar.ch, 1848.
    APPEAL by defendant from the Fourth District Court of New Orleans. Strawbridge, J..
    This was an application for a mandamus .upon the relation of JohnL. Lewis, the sheriff of .the parish of Orleans, against the defendant who was keeper of the workhouse of the Municipality No. Two.

      Grymes and C. S. Rees, for relator. Hunt and Carter, for defendant.
   The opinion of the court was pronounced by

Eustis, C. J.

The petition in this case is in the name of John L. Lewis, the sheriff of the parish ;of Orleans, averring, that he is by virtue of his office the keeper of the prison of said parish, and is entitled by virtue thereof to the custody of all slaves, runaway and apprehended within said parish, and of all free persons of color who may come within said parish with intent to reside in the State contrary to the statutes, and also of all free persons of color coming as mariners to the port of New Orleans, and to receive the fe.es and emoluments appertaining by law to said office; that the defendant takes upon himself to exercise the office of keeper of said parish prison, to the exclusion and injury of the petitioner in this; that he receives into his custody runaway slaves and free persons of color., and receives from .them and their owners, the fees and perquisites of said office; that he has confined divers free persons of color and runaway slaves, a list of which is appended; that he has demanded said prisoners of the defendant, who has refused to .deliver them ; and, by reason thereof, he is prevented from performing the duties imposed on him, as aforesaid, by the laws of the State, and made liable to the penalties thereof. He prays for a writ of mandamus, commanding the delivery of the prisoners into his custody, with the papers relating to their commitment, and that the defendant be prohibited from receiving other runaway slaves or free persons of color into his custody, &c.

The defendant contested the right of the plaintiff to the custody of the parties mentioned in the petition, and alleged, that by law, the Second Municipality had the sole and exclusive right to the custody of said persons, and to all fees arising from said custody, and that the defendant was gaoler of the said municipality, and retained the custody of said persons by its authority. There was judgment in the district court, by which it was decreed that the prisoners named in the list annexed to the petition, and all others, runaways and free persons of color residing without permission in .the State, or there coming by sea, be delivered to the sheriff, with the necessary documents, books and papers to them relating, and that the defendant Hackett be perpetually prohibited from receiving such persons as aforesaid in future. The-defendant has appealed.

Appended to the petition of appeal is an affidavit that the matter in controversy in this suit amounts to the sum of one thousand dollars. Under the authority of the case of Prieur and Lubatut v. The President and Directors of the Commercial Bank of New Orleans, 7 L. R., 509, this court has jurisdiction to examine and decide this case, as we consider it, in point of fact, a controversy concerning the fees and emoluments resulting from the custody of prisoners of the character mentioned.

The correctness of the judgment of the district court is not contested, .except so far as it relates to runaway slaves; the inquiry then is as to the custody of this class of prisoners, whether it rightfully belongs to the sheriff of the parish o.f Orleans, as keeper of the parish prison, or to the Second Municipality, the real party defendant in this suit.

It is admitted on behalf of the relator that by the act of 1806, slaves arrested within the city were to be disposed of as directed by the mayor and city council; and that on the division of the city, the control of this class of prisoners was reserved to the several municipalities. But it is contended, that by an act of the Legislature of the year 1848, this right on the part of municipalities has been taken away, and vested in the sheriff of the parish of Orleans. Previous to this act, the statutes on that subject provided fully for the discovery, arrest and custody of runaway slaves; depots were established at different points in the State, and certain municipal corporations were authorized to employ the said slaves at labor, on their public works. They formed a system of police for this class of prisoners. The law, which it is contended changes this system and makes the prison of each parish the sole place of custody of runaway slaves, was passed on the 16th of March, 1848, it is entitled an act “To regulate and define the fees to be paid by owners of runaway slaves for the taking up and confintment of the same,” &c.

It is contended that this act is unconstitutional: it being in conflict with the 118th article of the Constitution, which provides that “ every law passed by the Legislature shall embrace but one object, and that shall be expressed in the title.”

This statute, purporting to regulate and define the fees to be paid for the arrest and confinement of slaves, in its first section provides, that every person taking up a runaway slave, .shall immediately convey the same before the nearest justice of the peace, who shall either .commit said slave to the parish prison, or send him to the .owner, employer or overseer, if known ; who shall pay the person taking him up, the rates hereafter specified, to wit, &c.

Thus we see, that by making the parish prison the place of custody for runaway slaves, the legislation on this subject, which dates as far back as 1806, is completely and radically changed. In the 5th section of this statute, it is made expressly applicable to all incorporated towns and cities. This being the effect of the statute, what other object can be attributed to it, under a serious and sound construction 1 The object of this law, then, was to make a new provision for the custody and security of runaway slaves, to which the fees for their caption and support were infinitely subordinate. ¥e are not disposed to interpret the title of a law under the Constitution, in any strict or technical sense, but we think it must be admitted that the object of the 118th art. of the Constitution was to make it obligatory on the Legislature to state the object of eveiy aw in its title, according to the understanding of reasonable men. Had the title of this act been generally for the arrest and custody of runaway slaves, eveiy thing germain to that object would be fairly included under such a title; but the difficulty is, that the provision of this statute to regulate and define fees, appears to exclude the general and sweeping object of the statute itself. Who, for instance, in examining our statutes, passed in obedience to the provisions of our Constitution, could reasonably suppose that a law of this extensive and important operation, relating to this description of property, would be found under the title of this act ? Or, when the act was called up by its title in the Legislature, what member, unless he had heard the whole act read, could have any idea of its contents? We are bound to consider the letters “e t c” in an act, as having no meaning under our Constitution.

It is true, that, the art. 118 is, in its terms declaratory, and not prohibitory; but we consider its force is not the less on that account. As we stated in the case of Walker v. Caldwell, 4th Ann. 297, for the purpose of preventing future abuses in legislation, the Constitution has established its forms ; and we believe their observance is imperative on every branch of the government, as much so as any other provisions of the Constitution. Those who are aware of the abuses that existed, were united in opinion as to the absolute necessity of preventing their recurrence. It is idle to expect obedience to laws unless they are plain, simple and easy to be 'understood. A provision, hidden under a mass of verbiage of a statute relating to an object entirely different, is almost necessarily inoperative; unless among the few whose business it is to read statutes. To require the object of a law to be expressed in its title, with a reasonable degree of definiteness, is but an act of justice to those who are called upon to obey it. However averse we may be to the exercise of this delicate power of declaring laws unconstitutional, we cannot consider this act, so far as it purports to change the laws concerning the custody of runaway slaves, as constitutional.

If the title of this act be held to express its object, in the sense of the Constitution, the article 118 remains to all intents and purposes a dead letter.

In deciding that the portion of the law under which the sheriff claims is unconstitutional, we are not to be considered as saying that those portions- of the statute which are covered by the title, are unconstitutional; the decision of this latter point not being necessary.

It is therefore decreed, that that portion of the judgment of the district court decreeing the delivery of certain slaves to the sheriff of the parish of Orleans, and prohibiting the said defendant from-receiving that class of persons into custody, be reversed, and that the application of the plaintiff therefor be dismissed; the appellee paying the costs of this appeal.