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Hale v. Gaines/Opinion of the Court

THIS case was brought up from the Supreme Court of the State of Arkansas, by a writ of error, issued under the twenty-fifth section of the judiciary act.

It was an action of ejectment brought by William H. Gaines and the other defendants in error against John C. Hale, to recover the southwest quarter of section thirty-three, in township two south, of range nineteen west, containing one hundred and sixty acres. This claim was under the pre-emption act of Congress of the 29th of May, 1830, (4 Stat. at L., 420,) and the supplementary act of the 14th July, 1832, (4 Stat. at L., 603.)

The defendant below (Hale) claimed to hold by virtue of the fifth section of the pre-emption act of the 12th April, 1814, (3 Stat. at L., 122,) together with the act of 1st March, 1843, (5 Stat. at L., 603.)

The jurisdiction of this court was therefore clear.

The action was brought in the Hot Springs Circuit Court, (State court,) which, after a trial, gave the following judgment:

'It is therefore considered by the court that said plaintiffs. William H. Gaines and Maria Gaines his wife, Albert Belding, Henry Belding, and George Belding, do have and recover of and from the said defendant, John C. Hale, as well the possession of the tract or parcel of land described in their declaration in this behalf, as all that part of a certain tract or parcel of land designated on the public surveys as the southwest quarter of section thirty-three, in township two south, of range nineteen west, which lies between a dividing line sometimes called Mitchell's line, heretofore established by one Milus H. Wood and said Hale, between their respective possession on said quarter section and the northern or upper line of a place in Hot Springs Valley, commonly called Texas, and which part of said quarter section of land includes and embraces all the buildings, houses, out-houses, bath-houses, lots, enclosures, and gardens, connected with or pertaining to the tavern stand, sometimes and generally known as Hale's tavern stand, immediately below and south of the premises used and occupied by Warren & Stidham as a tavern stand during the summer of the year 1851, and the said sum of five hundred dollars for their damages sustained in this behalf, and so as aforesaid assessed by the jury, as also all their costs in this behalf expended to be taxed, &c. And it is ordered by the court, that said plaintiffs do have execution hereof, by writ of possession for said land and premises, with command by levy and collect the damages and cost aforesaid, as is by law in such cases provided.'

In the course of this trial, sundry bills of exceptions were taken, which, for the purpose of this report, it is not necessary to state particularly. Under them, the case was carried to the Supreme Court of Arkansas, which affirmed the judgment of the court below, except as to a question of damages, which need not be further mentioned.

The case was brought up to this court by a writ of error issued under the twenty-fifth section of the judiciary act.

It was argued in this court by Mr. Frederick P. Stanton for the plaintiff in error, and by Mr. May and Mr. Watkins, upon a brief filed by Mr. May, Mr. Brent, and Mr. Watkins, for the defendant in error.

Mr. Stanton, for the plaintiff in error, first attacked the title of the Beldings, as between them and the United States; but, as the court did not decide this point, the argument upon it is omitted.

The next point was to show that the act of 1843 extended to the benefit of pre-emptioners under the act of April 12th, 1814. As this was the principal point in the case, his argument is reported as follows:

The act of 1814, already referred to as the foundation of Hale's title, relates back to the act of February 5th, 1813.

Stat. at Large, 2 vol., 797, 798.

These earliest among the pre-emption laws have no prohibition against a sale or transfer of the right derived under them, and hence such transfers were always treated as valid until subsequent laws made them null. The record shows Hale's title to be regularly derived from John Percifull, who settled on the land in 1812, and continued to occupy it for many years afterwards.

Although in 1814 the land in question was in the county of Arkansas, one of the organized counties of the Missouri Territory, and therefore supposed to be subject to settlement and pre-emption, the General Land Office subsequently held the contrary, because the Indian title had not then been extinguished. By the treaty with the Quapaw Indians, made November 15th, 1824, the land was ceded to the Government.

The reservation act above quoted was passed April 20th, 1832.

The remedial act for the benefit of pre-emptioners under the act of 1814 was passed on the 1st March, 1843, (5 Stat., 603;) and as everything depends on the construction of this law, it is deemed proper to quote it at large, as follows:

'An act to perfect the titles to lands south of the Arkansas river, held under New Madrid locations and pre-emption rights under the act of 1814.

'Be it enacted, &c., That the locations heretofore made of warrants issued under the act of 17th February, 1815, entitled 'An act for the relief of the inhabitants of the late county of New Madrid who suffered by earthquakes,' which were made on the south side of the Arkansas river, if made in pursuance of the provisions of that act in other respects, shall be perfected into grants in like manner as if the Indian title to the lands on the south side of said river had been completely extinguished at the time of the passage of said act.

'SEC. 2. And be it further enacted, That in all cases in which the locations so made, &c., may have been sold, &c., the owner of the warrants, &c., shall have a right to enter other lands, &c.

'SEC. 3. And be it further enacted, That every settler on the public lands south of the Arkansas river shall be entitled to the same benefits accruing under the provisions of the pre-emption act of 1814, as though they had resided north of said river.

'SEC. 4. Be it further enacted, That all Cherokee pre-emptions which have been or may be located * *  * south of the base line in Arkansas, shall be confirmed, and patents shall issue as in other cases.'The Indian title to the lands north of the Arkansas river had been extinguished by the treaty with the Osages, made 10th November, 1808.

7 Stat., 107.

In view of the rights of a bona fide settler on the Hot Springs tract in 1814, does the act of 1843 repeal the reservation act of 1832? The department holds the negative. Yet it is believed that the repugnance of the two statutes is such that they cannot be construed to stand together.

Not only the title, but the whole scope of the law, indicates that the purpose of Congress was to remove the difficulty arising from the Indian title resting on the lands south of the Arkansas in 1814, and subsequently. As a historical fact bearing on this point, the court is referred to the report of the committee which introduced the bill into the Senate. They expressly say that, inasmuch as the Indian title south of the Arkansas river had not been extinguished in 1814, and some pre-emptions had on that account been decided to be unlawful, 'the bill therefore provides that the settlers on both sides of the Arkansas river shall be placed upon the same footing.'

Sen. Rep. No. 36, 2d sess. 27th Cong.

The act of 1843 intended to confirm the pre-emption rights south of the Arkansas river ab initio-that is to say, it intended to place the pre-emptor in the position he would have occupied if the Indian title had been previously extinguished. That Indian title was the only obstacle; and the professed object of the law of 1843 was to remove that obstacle, to cure that defect of title, and to give full force and effect to the law of 1814, south of the Arkansas as well as north of it.

'A remedial act shall be so construed as most effectually to meet the end in view, and to prevent a failure of the remedy.'

Dwar., Stat., 614.

'Beneficial statutes, therefore, have always been taken and expounded ultra the strict letter, but not, it is well and wisely said, contra the letter.'

Ibid., 623.

'Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former act 'in the very matter,' and the repugnancy such that the two acts cannot be reconciled; for then leges posteriores priores contrarias abrogant.'

Ibid., 530 to 531, and authorities there quoted.

The enactment of 1843 is, that 'every settler south of the Arkansas shall be entitled.' John Percifull was one of those settlers, and he is included in the very words of the law-as much so as if the settlers had been enumerated and called by name. The Hot Springs were reserved in 1832, but John Percifull was settled there in 1814. The repugnance of the two laws is 'in the very matter;' they cannot stand together.

Against this construction have been quoted:

Wilcox v. Jackson, 13 Pet., 513.

Gear v. United States, 3 How., 120.

Of these, the latter alone deserves consideration, having an apparent application to the case in hand.

In the case of Gear, a lead mine was claimed by pre-emption, upon the ground that all the lands in a certain district were directed to be sold by a law passed in 1834, which law made some special exceptions, but did not except lead mines. This court held that the general law of 1807, which reserved all lead mines and salt springs from sale, was operative in the district mentioned, notwithstanding the broad terms of the law of 1834.

The facts of this case are almost the reverse of those now before the court. The act of 1807 was a general law reserving all salt springs and lead mines, and the policy of that law had been thereafter uniformly and consistently maintained in the disposition of all the public lands. On the other hand, the act of 1832 was a special reservation of an isolated exceptional tract of land, which at that time was already occupied by a settler.

The act of 1834, in Gear's case, was an act of ordinary legislation, establishing a new district for the sale of lands, apparently not contemplating a departure from the general policy prevailing in other land districts, and only indirectly and in ferentially affecting rights of pre-emption, which were not the primary object of the law. On the contrary, again, the act of 1843 was a special act, designed to operate retrospectively upon a specified class of settlers, and to confirm a certain number of pre-emptions from their inception in 1814.

In Gear's case, from a series of laws in pari materia, and not necessarily repugnant, a presumption is attempted to be raised against the uniform well-settled policy of the laws, merely because the general terms of the last law do not exclude that presumption; while in the Hot Springs case there is no mere inference or implication to be drawn from general expressions or omissions, but there is an affirmative law, including this particular object in its very terms, and passed for that very purpose.

In the Gear case, the law might very reasonably be understood to mean, 'all the lands in this district shall be sold, an far as the general policy of the laws allow such sales, and no further.' In the present case, it would be necessary to interpolate in the law words of exception, thus: 'Every settler on the public lands south of the Arkansas river,' except the old pioneer, John Percifull, shall be entitled, &c.; the remedial policy of curing the defects of title under the act of 1814 shall not have its full effect; it shall cure everybody's title except John Percifull's.

Finally, in the one case, the general reservation was made long before the party had performed any act out of which his claim arose; in the other case, the act of settlement was performed long before the reservation, and the remedial act comes afterwards to recognise the meritorious character of the original act, and to remove an obstacle which prevented its operation at the time. The act of 1843 goes a quarter of a century behind the act of 1832, and legislates upon a particular state of facts known to have existed at that early day.

There is not a single argument used by the majority of the court in Gear's case, which has any bearing whatever on the present controversy. It is true there is one general expression, which is thought to cover this case, being a statement of the abstract rule or principle of construction applicable to the facts. It is as follows:'The rule is, that a perpetual statute, (which all statutes are, unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms on the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject matter, is considered still to be the law in force as to the particulars of the subject matter legislated upon.'

It has already been shown that in the Hot Springs case there is 'a section of another act directly bearing in terms on the particular matter of the first act,' inasmuch as the words 'every settler' necessarily comprehend the plaintiff in error. Indeed, so far as this court knows or can know from this record and the laws, John Percifull was the only settler in 1814 south of the Arkansas. There may have been others; but if there were not, then the law of 1843 would be without any operation, unless this case should be included. It can hardly be maintained that the construction of the law depends upon the number of cases included within it, or that Percifull's interest in the law of 1843 is to be defeated or established, according to the fact that the benefit of it is or is not to be shared by others.

But, again, referring to the abstract rule stated by the court, as quoted above, it is not a mere 'implication,' raised by the act of 1843 against the reservation of 1832. It is a special and direct contradiction or repugnancy 'in the very matter,' for the reason already stated, viz: that the pre-emption on the Hot Springs tract is as certainly included in the very words and in the necessary intendment of the law, as if it had been the only case of settlement south of the Arkansas river, in the year 1814.

Quere. Does the case of Gear v. the United States establish anything more than this: that a subsequent law directing lead mines to be sold does not so far repeal the act of 1807 as to make such mines subject to settlement and pre-emption?

The right of pre-emption not being the object of the law of 1834, but only an incident to the fact of lands being in market, that incident does not attach in the prohibited cases of lead mines and salt springs. If this be a fair statement of the point decided in Gear's case, it is evidently not at all like the case now before the court, because, in the latter, the very object of the law of 1843 was to confirm pre-emption rights themselves.

It has been already stated that the reservation act of 1832 presents a similar difficulty in the way of the Belding title under the act of 1830 and the supplementary act of the 14th July, 1832. But there is this difference in the two cases: the two acts that of the 20th April, and that of the 14th July, 1832-were passed at the same session of Congress, and of course, according to the established rule of construction, must have a more intimate relation than the acts of 1832 and 1843. Inasmuch as Belding had acquired no right under the act of 1830, the reservation act of April might well be considered as an exception from the terms of the act passed in July following.

Unless this act of 1843 be construed to repeal the reservation act of 1832, it is admitted that no right accrues under the act of 1814. The land office, having uniformly maintained the existing validity of the act of 1832, the parties to this record were never in a condition to make proof of their right to the satisfaction of the register and receiver. In 1851, the Secretary of the Interior authorized an investigation, and it was then that he allowed the heirs of Belding to make their entry, as stated above, although he still insisted that the land was reserved from sale or entry by the law of 1832.

In the record will be found the proceedings of the register and receiver on the pre-emption claim of John Percifull. They differed in his case, as they did in that of Belding's heirs. If these officers constitute a judicial tribunal, from which there was no appeal under the laws of 1814 and 1830, then both parties stand upon precisely the same footing; nor can it be of any importance that the Secretary of the Interior has undertaken to pronounce in favor of the one and against the other. It was not his province to decide at all.

All the later pre-emption laws provide for an appeal to the Commissioner, and finally to the Secretary. In the absence of any appellate power, the general principle of law applicable would pronounce the divided opinion to be equivalent to an adverse decision.

But it may be that the register and receiver, or either of them, have been so grossly partial, or so plainly regardless of credible testimony, as to give evidence of actual fraud. Is the false decision of the register and receiver, in such a case, to preclude forever the just claims which have been either corruptly, or capriciously and perversely, ignored?

In the case of Cunningham v. Ashley et al., 14 How., 377, the register and receiver had not acted on the proof at all; yet it was held that the proof ought to have been satisfactory to them, and this court decreed in favor of the pre-emption. What is the distinction between refusing to hear proof at all, and refusing to give it a fair and rational bearing upon the rights of parties? According to the principle laid down in Lytle v. the State of Arkansas, it is only when the register and receiver 'act within the law, and the decision cannot be impeached for fraud or unfairness,' that 'it must be considered final.'

In the cases quoted, however, the legal title had passed from the United States, and was in litigation betwen the parties. No such question is now presented to this court. Neither party to the record has the legal title; that still remains in the Government. The utmost result of the present proceeding will be to transfer the mere possession from one party to the other, without any power on the part of the court to compel the issuance of a patent. If, however, the jurisdiction be such as to authorize the court to determine the possession according to the equitable rights of the parties under all the acts of Congress, there can be no doubt that the department will recognise and act upon the decision.

The action of the register and receiver being incomplete, their judgment being inoperative, and the grant suspended, the courts must examine the facts, in order to ascertain which party, under the laws, is entitled to hold the land. If, upon the facts, the register and receiver ought to decide in favor of one, and the President ought to issue a patent accordingly, if the case is still in that condition which admits of doing justice through the action of the executive officers themselves, even undoing all that may have been improperly done, surely the court will not hesitate to leave the naked possession with that party which has the superior equity, and is entitled to remain on the land.

The court below refused to hear any testimony, either to invalidate the entry made by Belding's heirs, or to establish the pre-emption right of John Percifull. No opportunity was given to prove fraud, which would make void the title of the plaintiffs below. The case must be sent back, in order that the material facts may be determined by a jury.

This was not merely an outstanding title. Hale had purchased a portion of that interest, and produced it in his own right, as a defence to the action. All testimony on this point was excluded, although all formal objections to the New Madrid certificate and survey were waived.

Attorney General Reverdy Johnson thought this New Madrid location good and valid.

5 vol. Opinions, 237.

Cushing thought the contrary. See his opinion, 30th August, 1854.

The following points are taken from the argument of Mr. Watkins for defendants in error:

The New Madrid claim of Langlois, under which the plaintiff in error claims, is void, because it could not have been located as alleged in 1819. The title of the Juappan Indians to the land south of the Arkansas river had not been extinguished at the passage of the New Madrid act of 1815.

2. Ins. and Opin., pages 158, 81, 91, 28, 10, 11, 13, 25, and 816.

The claimant had only a floating certificate of a right to locate, and there was an application in his name, by third persons, whose authority has not been proved, for a survey to include the Hot Springs; but there was no official survey, nor any record of it. Until returned to the recorder of land titles at St. Louis, from whose quasi judicial office the title emanated, and approved by him, and the claimant had reconveyed his injured land to the United States, and received a patent certificate from the recorder, no location could take place, so to give him a vested right to the land in question. Down to that period, and until the exchange of land took place, the claimant was not bound, but might abandon his proposed location, or change it for another, or sell his float, or elect to keep his injured land; and so the United States would be free to grant or dispose of its own land in any lawful way. A location begun, but not ended, is no location.

Bagnell v. Broderick, 13 Peters, 436.

Barry v. Gamble, 3 Howard, 51.

Lessieur v. Rice, 12 Howard, 60.

Cabune v. Lindel, 12 Missouri, 184.

Kennett v. Cole, 13 Missouri, 140.

At the time of the alleged location, in 1820, no location could have been made in Arkansas Territory, because Congress, by the act creating that Territory, had diminished the area of location. Nor had the land in question been attached to any land office. It had not been surveyed, and was in no sense authorized to be sold.

Stoddard v. Chambers, 2 Howard, 284.

Mills v. Stoddard, 8 Howard, 365.

Easton v. Salsbury, 23 Missouri, 100.

None of the subsequent New Madrid acts affect this case, so as to cure a defective location where none had been made, or where, if made, it would have been void.

In 1838, on application to the surveyor general of Arkansas, a survey was made, and returned to the recorder of land titles in Missouri, who issued a patent certificate to Langlois. These proceedings were void, because those officers had no power over the subject. Arkansas was then a State, and no such location could be made. By the act of 26th April, 1822, the time for making locations had absolutely expired.

See Easton v. Salsbury, 21 Howard, 426.

So far as concerned the rights of the United States, this land had been reserved, and any location of it forbidden by act of 20th April, 1832. And the land was appropriated to the Belding pre-emption by the act of 29th May, 1830, at which time the right of the pre-emptor became vested. For like reasons, this New Madrid claim is not aided by the act of March 1st, 1843, which is in general terms, and might well apply to locations made during the life of the law, and valid in all other respects, except the one that act was intended to cure.

The Belding pre-emption is valid, notwithstanding the act of 20th April, 1832. The right of the pre-emptor had become vested on the 29th May, 1830. By the act of 14th July, 1832, he, as well as all persons so entitled, were allowed until after the completion of the public surveys to make proof and payment. Congress, no more than the settler, could know, in advance of the public surveys, on what tract his improvement would fall; and, taking the acts of the same session in pari materia, the reservation act must be construed to prohibit any future location or entry, but not to impair a right already vested, or to take the land of one man, and reserve or grant it to another. Unless the pre-emption vested on the 29th May, 1830, the grant was illusory; and Congress, by the act of 14th July, 1832, recognised its plain duty of completing the public surveys, so as to enable claimants to comply with the conditions of the original law. All the decisions sustaining pre-emption rights as against a subsequent grantee of the Government, proceed upon the idea, that pre-emption acts, like other laws offering rewards upon conditions, are proffered contracts. When the conditions are complied with, the preemptor has a title by contract, with relation to the acts done, determining the period of time when the right vested.

Lytle v. the State, 9 Howard, 334.

McAfee v. Keirn, 6 Smedes and Marsh., 789.

Taylor v. Brown, 5 Cranch, 234.

McArthur v. Browder, 4 Wheaton, 448.

Fenley v. Williams, 9 Cranch, 164.

Isaacs v. Steele, 3 Scam., 79.

Benner v. Manlove, ib., 339.

No reservation or appropriation can prevail against a preemption right, unless it existed at the passage of the act, as was expressly held in Wilcox v. Jackson, 13 Peters, 511, and United States v. Fitzgerald, 15 Peters, 407. This precise question was adjudicated by this court in Lytle v. the State, 9 Howard, 334, and Bernard v. Ashley, 18 Howard, 45, where the question was between a pre-emption claim under the act of 1830, and grants made by Congress, after that act had expired, and before the act of 14th July, 1832.

This court has jurisdiction to sustain an equitable title, made a legal one by State legislation, subordinate to the powers of Congress, even though the rights of the United States be incidentally drawn in question. The only inquiry is, have the State courts correctly interpreted the laws of Congress?

United States v. Fitzgerald, 15 Peters, 407.

Wilcox v. Jackson, 13 Peters, 511.

Carroll v. Safford, 3 Howard, 441.

Ross v. Barland, 1 Peters, 656.

Clark v. Smith, 13 Peters.

Bagnell v. Broderick, ib., 451.

Irvine v. Marshall, 20 Howard, 558.

Rector v. Gaines, 19 Ark., 80.

In Fenn v. Holme, 21 Howard, 481, the plaintiff in ejectment had no location, but a mere floating right; and the scope of the decision is limited to actions commenced in the United States courts.

Mr. Justice CATRON delivered the opinion of the court.

A contest for the ownership of the Hot Springs, in Arkansas, has been pending for some years before the General Land Office, and in the courts of that State. One party derive their title through a pre-emption claim, as an occupant under the acts of Congress of 1830 and 1832, and the other by the location of a New Madrid warrant on the same land.

In December, 1851, the heirs of Belding were allowed to enter the quarter section, including the springs. This entry was held to be valid by the State courts, and to clothe them with a sufficient legal title to sustain an action of ejectment, according to the laws of Arkansas. They held the decision of the register and receiver, in favor of the occupant claimants, to be conclusive evidence of title, as against all persons who could not show a better opposing claim.

As between the titles of the United States and Belding's heirs, the State courts did not decide; but only, that the outstanding title in the United States could not be relied on by the defendant in this action; nor is the validity of the entry of Belding's heirs drawn in question in this court.

The defendant relied on a survey made in June, 1838, founded on a New Madrid certificate for 200 arpens.

To support this survey, an application was produced, dated 27th January, 1819, signed by S. Hammond and Elias Rector, addressed to William Rector, surveyor of the public lands, &c., asking to have surveyed and to be allowed to enter the recorder's certificate for 200 arpens, granted by him to Francis Langlois, or his legal representatives, and dated the 26th November, 1818, (No. 467.) The survey to be made in a square tract; the lines to correspond to the cardinal points, and to include the Hot Springs in the centre. In 1818, the spring was in the Indian country, to which, of course, no public surveys extended. And as the act of 1815, providing for the New Madrid sufferers, only allowed them to enter their warrants on lands 'the sale of which was authorized by law,' the unsurveyed lands could not be legally appropriated; and, of necessity, the surveyor general disregarded the application to have a survey made for Langlois. And thus the claim stood from 1818 to 1838.

The defendant offered in evidence the certificate of a private survey of the claim of Langlois, made by James S.C.onway, D. S., dated July 16th, 1820, which includes the spring. This paper the court also rejected.

Until the survey on Langlois's claim was presented to the recorder of land titles at St. Louis, and recognised by him as proper and valid, it could have no force, as this was the only mode of location contemplated by the act of 1815. So it has been uniformly held. Bagnell v. Broderick, 13 Peters, 436; Lessure v. Price, 12 Howard, 9.

The act of April 26th, 1822, validated locations of New Madrid certificates then existing, and which had been made in advance of the public surveys; but the second section of the act declared that future locations should conform to the public surveys, and that all such warrants should be located within one year after the passage of that act.

As the public surveys then existing in Missouri and Arkansas Territory were open to satisfy these claims, there was no difficulty in complying with the act of 1822.

Reliance is placed on the act of Congress of March, 1843, to maintain the survey of 1838, of the New Madrid certificate. That act provides, that locations before that time made on New Madrid warrants, on the south side of Arkansas river, if made in pursuance of the act of 1815 in other respects, shall be perfected into grants, in like manner as if the Indian title to the lands on the south side of the river had been completely extinguished at the time of the passage of said act of 1815. The act of 1843 does not apply to the survey and location of Langlois made in 1838, for several reasons:

1. The sale of the land thus surveyed was not authorized by law; the act of April 20th, 1832, having reserved from location or sale the Hot Springs, and four sections of land including them as their centre.

2. The attempted location was void, because barred by the act of 26th April, 1822, which act was not repealed or modified by the act of 1843. This act referred to locations made on the south of the river Arkansas, of lands regularly surveyed and subject to sale, and which locations had been made on or before the 26th April, 1823, when the bar was interposed.

We are of the opinion that the New Madrid survey of 1838 was altogether invalid, and properly rejected by the State courts.

It has been earnestly pressed on our consideration, that the entry of Belding's heirs is also void, because the land it covers was not subject to entry by an occupant claimant, or any one else, after the act of April 20th, 1832, had reserved it from sale.

Admitting it to be true, that the act of April, 1832, was passed when no individual claimant had a vested right to enter the land in dispute, still the 25th section of the judiciary act only gives jurisdiction to this court in cases where the decision of the State court draws in question the validity of an authority exercised under the United States, and the decision is against its validity. Here, however, the decision was in favor of the defendant's entry, and sustained the authority exercised by the department of public lands, in allowing Belding's heirs to purchase. Moreover, the plaintiff in error is not in a condition to draw in question the validity of Belding's entry. He relies on an outstanding title in the United States to defeat the action. Being a trespasser, without title in himself, he cannot be heard to set up such title. 'To give jurisdiction to this court, the party must claim for himself, and not for a third person, in whose title he has no interest.' Henderson v. Tennessee, 10 How., 323. The plaintiff in error must claim (for himself) some title, right, privilege, or exemption, under an act of Congress, &c., and the decision must be against his claim, to give this court jurisdiction. Setting up a title in the United States, by way of defence, is not claiming a personal interest affecting the subject in litigation. This is the established construction of the 25th section of the judiciary act. Montgomery v. Hernandis, 12 Whea., 132.

If it was allowed to rely on the United States' title in this instance, the right might be decided against the Government, where it was no party, and had not been heard.

A claim is set up in defence, that John Percifull was entitled to a preference of entry under the act of 1814; which act, it is insisted, was revived by that of 1843, section 3. Suppose that Percifull's right to appropriate the land in dispute was undoubted, and that the register and receiver had allowed the heirs of Belding to enter wrongfully; still, the courts of Arkansas, in this action of ejectment, had no right to interfere, and set up Percifull's rejected claim.

But this is of little consequence, as, when the act of April, 1832, was passed, reserving the Hot Springs from sale, Percifull had no vested interest in the land that a court of justice could recognise. Then, the United States Government was the legal owner, and had the power to reserve it from sale; so that the offer to purchase in 1851, under the assumed preference to entry claimed for Percifull, was inadmissible. Had the entry been allowed, in face of the act of Congress, such proceeding would have been merely void.

These being the only questions within our jurisdiction worthy of consideration in the causes Nos. 15, 16, 17, 18, and 19, it is ordered that the respective judgments rendered there in by the Supreme Court of Arkansas be affirmed.

title: Hale v. Gaines/Opinion of the Court


text: Talk:Hale v. Gaines/Opinion of the Court

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1523

 1472 SEVEN TIETH C ONGRESS. SEss. IL CHs. 483, 484. 1929 . of photolithographic and other charts to copper ; purchase of equip- ment for the storage of plates used in making charts and for the storage of Hydrographic Office charts and publications ; modernization, care and repair to printing presses, furniture, instruments, and tools ; extra drawing and engraving ; translating from foreign languages ; Pilot charts. telegrams on public business ; preparation of pilot charts and their supplements, and printing and mailing same ; purchase of data for charts and sailing directions and other nautical publications ; books of reference and works and periodicals relating to hydrography, marine meteo rology, navig ation, surveyi ng, oceanogra phy, and terr estrial magnetism, and to other professional and technical subjects connected w ith the work of the Hydr ogra phic Off ice, $70 ,000. Branch offices. Contingent expenses of d esignat ed. Employees. Naval Observatory. Library, apparatus, repairs, miscellaneous supplies, etc. Grounds and roads. Vehicles. Solar eclipse of 1930. Preparation for, etc. BRANCH HYDROGRAPHIC OFFICES For con ting ent expe nses of bran ch h ydro grap hic offi ces at B osto n, New York, Philadelphia, Baltimore, Norfolk, Savannah, New Orleans, San Francisco, Portland (Oregon), Portland (Maine), Chi cago, Clevela nd, Detroit, Buffalo, Dulut h, Sault Sain te Marie, Seattle, Panama, San Juan (Porto Rico), Los Angeles, and Gal- ves ton, i ncludin g furni ture, fuel, l ights, works, and pe riodica ls rel at- ing to hydrography, marine meteorology, navigation, surveying, oceanography, and terrestrial magnetism, stationery, miscellaneous articles, rent and care of offices, care of time balls, car fare and ferriage in visiting merchant vessels, freight and express charges, telegrams, and other necessary expenses incurred in collecting the latest information for pilot charts, and for other purposes for which the offices were established, $16,000. For services of necessary employees at branch offices, $43,200. CONT INGE NT AND M ISCE LLA NEOU S EX PENS ES, NAV AL O BSER VATO RY For professional and scientific books, books of reference, peri- odicals, engravings, photographs, and fixtures for the library ; for apparatus and instruments, and for repairs of the same ; for repairs to buildings (including quarters), fixtures, and fences ; for cleaning, repair, and upkeep o f grounds and roads ; fu rnit ure and furn ishi ngs for off ices and quar ters, gas, che micals, paint s, and station ery, including transmission of public documents through the Smithsonian exchang e, foreign po stage ; plant s, seed s, and fertil izers ; for f uel, oil, grease, pipe, wire, and other materials needed for the maintenance and repair of boilers, engines, heating apparatus, electric lighting and power, and water supply ; purchase and maintenance of teams ; maintenance, repair, and operation of motor trucks and passenger automobiles, and of horse-drawn vehicles ; telegraph and telephone service ; and other absolutely necessary expenses, $25,700, of which sum $6,500 shall be available immediately. For preparation for and observation of total solar eclipse of October 21-22, 1930, $3,600, to remain available until June 30, 1931. Approved, March 2,1 .929. March 2, 1929. [II. R. 15570.]	CHAP. 484 .-An Act Authorizing S. R. Cox, his heirs, legal representatives, [Public, No. 910 .] and assigns, to construct, maintain, and operate a bridge across the Ohio River at or hear New Martinsville, West Virginia. Be it enacted by the Senate and House of Repr esen tati ves of t he Ohio River. United States o f America in Congress assembled, Tha t in order to S. R. Cox may bridge, at New Martinsviue, facilitate interstate commerce, improve the postal service, and pro- w.Va. vide for military and other purposes, S. R. Cox, his heirs, legal

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1524

 SEVENTIETH CONGRESS. SEsS. II. Ca. 484. 1929 . representatives, and assigns, be, and is hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across the Ohio River, at a point suitable to the interests of naviga- tion, at or near New Martinsville, Wetzel County, West Virginia, in accordance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved Mar ch 23, 1906, and s ubjec t to t he con ditio ns and limit ations contained in this Act. SEC. 2. There is hereby conferred upon S. R. Cox, his heirs, legal representatives, and assigns, all such rights and powers to enter upon lands and to acquire, condemn, occupy, possess, and use real estate and other property needed for the location, construction, operation, and maintenance of such bridge and its approaches as are possessed by railroad corporations for railroad purposes or by bridge corporations for bridge purposes in the State in which such real estate or other property is situated, upon making just compen- sation therefor, to be ascertained and paid according to the laws of such State, and the proceedings therefor shall be the same as in the conde mnation or exp ropriation of property for public purpos es in such State. SEC. 3. The said S. R. Cox, his heirs, legal representatives, and assigns, is hereby authorized to fix and charge tolls for transit over such bridge, and the rates of toll so fixed shall be the legal rates until changed by the Secretary of War under the authority contained in the Act of March 23, 1906. SEC. 4. After the completion of such bridge, as determined by the Secretary of War, either the State of Nest Virginia, the State of Ohio, any public agency or political subdivision of either of such States, within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, by purchase or by condemnation or expropriation in accordance with the laws of either of such States governing the acquisition of private prop erty f or pub lic p urpose s by c ondemn ation or ex propri ation. If at any time after the expiration of five years after the completion of such bridge the same is acquired by condemnation or expro- pria tion, the am ount of dam ages o r comp ensat ion to be al lowed shall not include good will, going value, or prospective revenues or profits, but shall be limited to the sum of (1) the actual cost of constructing such bridge and its approaches, less a reasonable deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests in real property ; (3) actual financing and promotion cost, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its approaches and acquiring such interests in real property ; and (4) actual expenditures for necessary improvements. SEC. 5. If such bridge shall be taken over or acquired by the States or public agencies or political subdivisions thereof or by either of them, as provided in section 4 of this Act, and if tolls are thereafter charged for the use thereof, the rates of toll shall be so adjusted as to provide a fund sufficient to pay for the reasonable cost of main- taining, repairing, and operating the bridge and its approaches under economical management, to provide a sinking fund sufficient to amor- tize the amount paid therefor, including reasonable interest and financing co st, as soon a s possible un der reasonable charges, but within a period of not to exceed twenty years from the date of acquir- ing the sa me. After a sinking fu nd sufficient to pay the co st of acquiring the bridge and its approaches shall have been so provided Constru ction. Vol.34,p.84. Right to acquire real estate, etc ., for location, approaches, etc. Condem nation pro - ceedings. Tolls authorized. Vol.34,p.85. Acquisition author- ized, a fter completi on, by west Virginia, Oh io, et c. 1473 Compensation if ac. quired by condemna - tion. Lim itati ons . Tol ls un der stat e, etc ., operation . Rates applied to op- eration, sinking fund, etc. Maintenance as fr ee bridge, etc ., after amor- tizing costs.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1525

 0 1474 SEVENTIETH CONGRESS. SEss. II. CFI. 484. 1929 . such bridge shall thereafter be maintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper repair, main- tenance, and operation of the bridge and its approaches under eeo- Record of expendi- tures and receipts. nomical management. An accurate record of the amount paid for acquiring the bridge and its approaches, the actual expenditures for operating, repairing, and maintaining the same, and of the daily tolls collected shall be kept and shall be available for the informa- tion of all persons interested. Sworn statement of SEC. 6. The said S. R. Cox, his heirs, legal representatives, and construction costs, etc ., to be riled after compie- assigns, shall within ninety days after the completion of such bridge tion. file with the Secretary of War and with the highway departments of the States of West Virginia and Ohio a sworn itemized statement show ing the actu al o rigi nal cost of cons truc ting suc h br idge and its Examination by Sec- approaches, the actual cost of acquiring any interest in real property retary of war. necessary therefor, and the actual financing and promotion costs. The Secretary of War may, and upon request of either of such highway departments shall, at any time within three years after the com- pletion of such bridge, investigate such costs and determine the accuracy and the reasonableness of the costs alleged in the statement of costs so filed, and shall make a finding of the actual and reason- able costs of constructing, financing, an d promoting s uch bridge ; for the purpose of such investigation the said S. R. Cox, his heirs, legal representatives, and assigns, shall make available all of the records in connection with the construction, financing, and promotion Findings of Secretary thereof. The findings of the Secretary of War as to the reasonable conclusive. costs of the c onstruction, financing, and promotion of the bridge shall be conclusive, for the purposes mentioned in section 4 of this Act, subject only to review in a court of equity for fraud or gross mistake. co ereato sell, etc ., SEC. 7. The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to S. R. Cox, his heirs, legal representatives, and assigns, and any corporation to which or any person to whom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. Construction c on- SEC. 8. All contracts made in connection with the construction of b tracts id de to be let to lowest bidde r. the bridge authorized by this Act and which shall involve the expend- iture of more than $5,000, shall be let by competitive bidding. Such Ad verti sing, etc. contracts shall be advertised for a reasonable time in some newspaper of general circulation published in the States in which the bridge is located and in the vicinity thereof ; sealed bids shall be required and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or Contracts void for bids accepted shall be promptly furnished to the highway depart- violations. ments of the States in which such bridge is located. A failure to comply in good faith with the provisions of this section shall render null and void any contract made in violation thereof, and the Sec- retary of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this section shall have been fully complied with. Amen dment. SEC. 9 . The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929.

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Gonzales v. United States (63 U.S. 161)

THIS was an appeal from the District Court of the United States for the northern district of California.

All the title papers are set forth in the opinion of the court.

It was argued by Mr. Hepburn, upon a brief filed by himself and Mr. Volney E. Howard, for the appellant, and by Mr. Stanton for the United States.

The counsel for the appellant said this claim will be found, on examination, to be one of the most meritorious that has ever been presented for confirmation.

The Government has never opposed it; yet, under the present decision, the claimant gains but little benefit from his title.

The land commissioners, in their opinion, say that it is a grant by metes and bounds, and that, consequently, no sobrante can result; but, in their decree, they limit the extent of the land from east to west to three-quarters of a league, a little more or less.

The District Court affirmed the decision of the commissioners.

The claimant contends that the land should be confirmed to the boundaries mentioned in the decree of concession, making him, in the language of the decree of concession, 'the owner of the land known by the name of San Antonio, or El Pescadero, bounded by the rancho of Antonio Buelna, the sierra, the coast, and the Arroyo del Butano,' without limitation as to quantity, there being none in the decree of concession.

The quantity of land mentioned in the grant was erroneously inserted, through a clerical error, as we will show hereafter.

But, even admitting that it was inserted correctly, it is insisted by the claimant that the quantity should be disregarded where all the boundaries are given in a grant, as in this case.

The naming of a quantity of land in a grant, and reservation of the surplus to the nation, does not prevent the title from passing to the grantee, if all the boundaries are given. A clause in the grant, naming quantity and reserving surplus, in such a case, is an unmeaning formula. The utmost effect that could be given to the clause would be to reserve the right to the Government, on proper proceedings, to divest the title as to the surplus; but, in the mean time, the title to the whole land is vested in the grantee.

This land is not claimed by any adverse claimant. The Government never interfered with Gonzales in any way.

It will be seen, by the testimony of Manuel Jimeno, that Gonzales had occupied the land from 1833. If the Government had the right to resume the ownership of the surplus, its non-action for so long a period raises a presumption of a relinquishment of the right.

The quantity named in the grant is a clerical error. It was taken from the marginal note on the map, written by some illiterate person, and which the court will perceive, by inspection of the traced copy in the record, is such as would readily mislead.

It describes the land as one league from north to south. We cannot make out the word which professes to give the distance from east to west.

The map was made as part of the petition of Gonzales to Figueroa for the land, and it was presented to Figueroa with the petition. Gonzales, in that petition, refers to the map, and says that the ranch delineated on it includes 'a square of about four leagues, extending from the coast to the sierra, and from the rancho of San Gregorio (rancho occupied by the citizen Antonio Buelna) to the rancho Punta de A no Nuevo,' and asks for the whole tract, without any limitation of quantity.

It may be remarked here that Gonzales states, in his petition to Figueroa, that he had a family of thirteen persons, and the grant recites that it is for his benefit and that of his family. He also states that he had five hundred head of cattle.

The rancho is pasture land. Four leagues was little enough to provide for Gonzales's family and the increase of his stock.

There can be no doubt the Governor would have granted him that quantity, or much more, if he had asked for quantity. The land had been abandoned by the mission of Santa Cruz, and it was a benefit to the country to have it occupied.

Witnesses were examined, by order of Figueroa, before he made the decree of concession. Salvio Pacheco says the rancho is one league to a league and a half from east to west. Manuel Larios says that it is two leagues from the beach to the hills.

We may presume that the marginal note had not then been written on the map, or, if written, it was not properly read by the clerk who made out the grant.

The decree of concession evidently intended to invest Gonzales with the title to the whole tract, and it calls upon the interested party again to 'present his title, that it may be revalidated.'

If the party is to get only the quantity named in the grant, he will be deprived by it, practically, of the greater part of his property.

The decree of concession gave him the whole tract. Does the grant, which was made by virtue of the decree, and in order to 'revalidate' it, take away the greater portion of the land given by the decree?

The grant refers to the map, to ascertain the land, and the map exhibits the natural objects which are its boundaries.

'When a deed of land describes the subject matter by monuments clearly defined, such as a river, a spring, a mountain, a marked tree, or other natural object, and courses, distances, and quantity, are likewise inserted, which disagree with the monuments, the description by monuments shall, in general, prevail; for it is more likely that a party purchasing or selling land should make mistakes in respect to course, distance, and quantity, than in respect to natural objects, which latter, from being mentioned in the deed, are presumed to have been examined at the time.

'The monuments which shall control course, distance, etc., under such circumstances, may be any objects which are visible and clearly ascertained, as lands of other individuals or their corners.'

4 Phillips on Evidence, Cowen and Hill's notes, page 548, and authorities there cited.

It is evident that the land commissioners thought that the extent of the land from east to west, as delineated on the map, was no more than three-quarters of a league, otherwise they would have confirmed the claim to a greater extent.

They have followed the phraseology of the grant, and added the words, 'a little more or less,' to the designation of quantity, and perhaps these words give the claimant the whole land; but as they would not enlarge the tract beyond three-quarters of a league, under the present ruling of those having charge of the making of surveys and the issuance of patents, a decision of this court is asked, to establish the rights of the claimant as to the extent of land to be confirmed to him.

Mr. Justice McLEAN delivered the opinion of the court.

title: Gonzales v. United States (63 U.S. 161)


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1526

 SEVENTIETH CONGRESS. SESS. II. CHs. 485-488 . 1929. 1475 CHAP. 485.-An Act To extend the times for commencing and completing the construction of a bridge across the Missouri River at or near Stanton, North Dak ota. March 2, 1929 . [H. R. 15717.] [Public, No. 911 .] Be it en act ed by the Senate and House of Representatives of the United States of America in Congress assembled, Th at the t imes Tame ri a River. for for commencing and completing the construction of a bridge across bridging, at Stanton, the Missouri River, at or near Stanton, North Dakota, authorized to zv. Dak' be built by Pa ul Leupp, his he irs, legal repre sentatives, or a ssigns, by Act of Cong ress approved May 1, 1928, are h ereby extended one and three years, respectively, from May 1, 1929. SEC. 2. The right to alter, amend, or repeal this Act is hereby express ly reser ved. A ppro ved, Mar ch 2, 1929 . Ante, p. 476. Amendmen t. March 2, 1929. [H. R. 15718.] C H A P. 48 6 .-An Act Granting the consent of Congress to the commissioners of the county of Lake, State of Indiana, to reconstruct, maintain, and operate a [Public, No. 912 .] free highway bridge across the Grand Calumet River, at or near Lake Street, in the city of Gary, county of Lake, Indiana. Be it ena ct ed by the Senate and House of Representatives of the Unite d Sta tes of Amer ica i n Cong ress assem bled, Th at the consent River. Calumet of Congress is hereby granted to the board of commissioners of the Lake Cou nty, Ind ., may reconstruct bridge county of Lake, State of Indiana, to reconstruct, maintain, and across, at G ar y. ope ra te a fre e hig hwa y bridge across the Gr and Calumet River, at a point suitab le to the intere sts of navigatio n, at or near La ke Street, in the city of Gary, Lake County, Indiana, in accordance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906 . SEC. 2. The right to alter, amend, or repeal this Act is hereby express ly reser ved. Approved, March 2, 1929 . CHAP. 487 .-An Act Granting the consent of Congress to the commissioners of the county of La ke, Sta te of I ndiana, to re constru ct, ma intain, and op erate a free highway bridge across the Grand Calumet River, at a point suitable to the interests of navigation, at or near Cline Avenue, in the cities of East Chicago and Gary, county of Lake, Indiana. Be it enacted by the Senate and House of Representatives of the United States of America in Con gress asse mbled, Th at the con se nt of Congress is hereby granted to the board of commissioners of the county of Lake, State of Indiana, to reconstruct, maintain, and ope ra te a fre e bridge across the Gr and Calumet River, ata point suitable to the interests of navigation, at or near Cline Avenue in the cities of East Chicago and Gary, Lake County, Indiana, in accord- ance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906 . SEC. 2. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929 . CHAP. 488.-An Act To change the title of the United States C ourt of Customs Appeals, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the title of the United States Court of Customs Appeals, c reated by the Act approved August 5, 1909, is hereby changed to the United States Court of Customs and Patent Appeals. Construction. Vol.34,p.84. Amendmen t. March 2, 1929. [H. R 16126.] [Public, No. 913 .] Grand Calumet River. Lake Cou nty, Ind ., may reconstruct bridge across, in East Chicago and Gary. Construction . Vol.34,p.84. Amendme nt. March 2, 1929. [H. R.6687.] [Public, No. 914.] Court of Cu st oms and Patent Appeals. Title of Court of Cus. tom s App eals cha nged to.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1527

 1476 SECT. 2 . (a) The jur isdiction now vested in the Court of App eals of the Di strict of Colu mbia in respe ct of appeals from the Pate nt Office in patent and trade-mark cases is vested in the United States Court of Customs and Patent Appeals. (b) Sections 4911 (Forty-fourth Statutes, page 1336), 4912 (section 60, title 35, United States Code), and 4915 (section 63, title 35, United States Code) of the Revised Statutes, as amended, and section 9 of the Act entitled "An Act to authorize the registration of trade-marks used in comm erce with for eign nations or among the s everal States or with Indian tribes, and to protect the same," approved February 20, 1905 (United States Code, title 15, section 89), are amended by striking out the words " Court of Appeals of the District of Colum- bia " wherever they occur therein and inserting in lieu thereof the wo rds " U nited States Court of C ustoms and P atent Appea ls " in each instance. (c) Where before the effective date of this Act an appeal from the decision of the Patent Office has been filed with the Court of Appeals of the Distr ict of Columb ia- (1) If any hearing before said court has been held in the case, or if the case has been submitted for decision, then further proceedings in respect of the case shall be had in the same manner and with the same effect as if this Act had not been enacted. (2) If no hearing before said court has been held in the case, and the case has not been submitted for decision, then the appeal, together with the original papers, printed records, and record entries duly certified, shall, by appropriate orders duly entered of record, be trans- ferred to the United States Court of Customs and Patent Appeals, and further proceedings in respect of the case shall be had in the same manner and with the same effect as if the appeal had been filed in said court. Equity jurisdiction of District Cour t of (d) Nothing contained in this Act shall be construed as affecting in Appeals not affected, any way the jurisdiction of the Court of Appeals of the District of Colu mbia in equi ty c ases. Opinions filed as part of record, etc. SEc. 3. The opinion of the Court of Customs and Patent Appeals in every case on appeal from the decision of the Patent Office shall be rendered in writing, and shall be filed in such case as part of the record thereof, and a certified copy of said opinion shall be sent to the Commission er of Patents and shall be entered of re cord in the Patent Office. SEc. 4. This Act shall take effect thirty days after its enactment. Approved, March 2, 1929. Patent and tra de mark appeals vested in new court. App eal s in patent and trade mar k cases. R.S . sees . 4911, 4912, 4915, 13 . 1336, amended. U. S. Code, p . 1170. Vol. 33, p.727, amend- ed. U.S. Code, p.364. Cou rt of Cu st oms and Patent Appeals substituted for District Court of Appea ls. Cases pend ing in Court of Appea ls. Continuance i f hear- ing has been held, etc. Transfer to C ourt of Customs and Patent Appeals, if no hearings, etc . Effective in 30 days. March 2, 1929. [H. R. 7930.] [Public, No. 915.] Naval, and Marine Corps Reserves. Naval Fleet Reserve . Vol.43,p.1087, amended. U. S. Code, p.1136. New matter. SEVENTIETH CONGRESS. SESS. II. Ciis. '488, 489 . 1929 . CHAP. 489.-An Act To amend section 24 of the Act approved February 28, 1925, ent itled "An ac t to provide for the crea tion, organi zation, admi nistra- tion, and maintenance of a Naval Reserve and a Marine Corps Reserve ." Be it e nacted by the Senate and Ho use of Repres entatives of t he United States of America in Congress assembled, That section 24 of the Act approved February 28, 1925 (Forty-third Statutes at Large, page 1087, United States Code, title 34, section 785), entitled "An Act to provide for the creation, organization, administration, and main- tenance of a Naval Reserve and a Marine Corps Reserve," be, and the same is hereby, amended by changing the period at the end of said section to a colon and by adding thereto the following proviso : "Provided further, That any pay which may be due any member of the Fleet Naval Reserve, transferred thereto prior to July 1, 1925, shall be forfeited when so ordered by the Secretary of the Navy upon the failure, und er such condi tions as may be p res crib ed by the

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Gonzales v. United States (63 U.S. 161)/Opinion of the Court

This is an appeal from the District Court of the United States for the northern district of California.

[Translation of Title.]

Provisionally authorized by the Administration of the Maritime Custom-House of Monterey, for the years 1832 and 1833.

Jose Figueroa, General of Brigade of the National Armies of Mexico, Commander General, Inspector, and Superior Political Chief of Upper California.

Whereas Juan Jose Gonzales, a Mexican by birth, has, for his own personal benefit and that of his family, petitioned for the land known by the name of San Antonio, or El Pescadero, bounded by the rancho Antonia Buelnos Sierra, the coast, and the Arroyo of Buntano, the proper measures and examinations being previously made, as required by laws and regulations, using the powers which are conferred on me in decree of the seventh of this month, in the name of the Mexican nation, I have granted him the aforesaid land, declaring to him the ownership of it by these presents-said grant being understood to be in entire conformity with the provisions of the laws, subject to the approval or disapproval of the most excellent territorial deputation and of the supreme Government, under the following conditions:

1. That he will submit to those which may be established by the regulation which is to be made for the distribution of vacant lands; and, in the mean time, neither the grantee nor his heirs can divide or alienate that which is granted to them, subject to any tax, entail, pledge, mortgage, or other encumbrance, even for pious purposes, nor convey it in mortmain.

2. He may enclose it, without prejudice to the crossings, roads, and servitudes; he will enjoy it freely and exclusively, making such use or cultivation of it as may best suit; but within one year, at furthest, he shall build a house, and it shall be inhabited.

3. When the ownership is confirmed to him, he will request the proper magistrate to give him juridical possession in virtue of this title, by whom the boundaries will be marked out-in which, besides the bounds, he will place some fruit or forest trees, of a useful character.

4. The land of which donation is made him is one league in length by three-quarters of a league in breadth, a little more or less, as shown by the map which goes in the expediente; the magistrate who may give the possession will cause it to be in conformity with the ordinance, in order to mark out the boundaries, leaving the surplus which may result to the nation, for its convenient uses.

5. If he contravene these conditions, he will lose his right to the land, and it will be subject to denouncement by another person.

In consequence I order, that the present serving him for a title, and being held as firm and valid, note be made of it in the corresponding book, and it be delivered to the person interested.

Given in Monterey, on the 24th December, 1833.

JOSE FIGUEROA.

(Signed) AGUSTIN V. ZAMORANO, Sec'y.

OFFICE OF THE SURVEYOR GENERAL OF THE UNITED STATES FOR     CALIFORNIA.

Samuel D. King, surveyor general, &c., and as such now having in my office and under my custody a portion of the archives of the former Spanish and Mexican Territory or Department of Upper California, do hereby certify that the fifteen preceding and hereunto annexed pages of tracing paper, numbered from one to _____, inclusive, and each of which is verified by my initials, (S. D. K.,) exhibit true and accurate copies of certain documents on file and forming part of the said archives in this office.

In testimony whereof, &c.

Provisionally authorized by the maritime custom-house of Monterey, for the years one thousand eight hundred and thirty-three and 1834.

(Signed) FIGUEROA.

(Signed) JOSE RAFAEL GONZALES.

I, citizen Juan Jose Gonzales, native of the mission of Santa Cruz, resident of the town of Branciforte, residing and employed in said mission of Santa Cruz, and mayor domo of the same; married, with a family of thirteen persons; having served the nation eight years and two months as a soldier, and having obtained my discharge from his excellency the commanding general Don Manuel Victoria, with the condition of furnishing a recruit, which I did at my own expense; and finding myself with 500 head of large cattle, and having no land or place to settle on; tired of the trouble of being together in the same village where I have been, and am unable to progress, on account of the same; living where I have rated a great loss in the stock which I have placed twelve years ago; and being now actually favored by the same mission of Santa Cruz, where my deceased father sacrificed himself for twenty years, and where I served in his place, the salaries of this post rent in the same mission, (Friar Antonio Real,) satisfied with my services and those of my deceased father, has wished to favor me, by assigning to me the rancho of San Antonio, formerly El Pescadero Realengo, which is not occupied by said mission, is distant twelve leagues to the northwest, bounded by the rancho of San Gregoria, which place _____ delineated on the accompanying paper, including a square of about four leagues, extending from the coast to the sierra, and from the rancho of San Gregoria (rancho occupied by citizen Antonio Buelna) to the rancho of La Punta de Nuevo, which is the further occupied by the mission, and desiring a security or guaranty in the same place, I apply, with the consent of the minister, to your excellency, with the due respect, praying that you will be pleased to give me in possession the aforesaid place, in consideration of my family, and which will confer favor and grace on your most attached subject and servant, who wishes you many years of life, &c.

JUAN GONZALES.

SANTA CRUZ, November 26, 1833.

MONTEREY, November 29, 1833.

In conformity with the laws on the matter, let the ayuntamiento of the town of Branciforte report whether the person interested in this petition possesses the requisites to the _____ attended to in his petition; whether the land he asked is included in the 20 leagues from the boundary, or 10 from the sea shore, referred to in the law of August, 1824; if it is irrigable, dependent on the seasons or pasture of land; if it belongs to the ownership of any private individual, corporation of pueblo, with everything else which may be proper to explain the matter.

This being concluded, it will pass this expediente to the reverend father minister of the mission of Santa Cruz, that he may report what he knows on the matter. Senor Don Jose Figueroa, general of brigade and commandant, inspector general, and superior political chief of the territory, thus ordered, decreed, and signed; to which I certify.

FIGUEROA.

AGUSTIN V. ZAMORANO, Sec'y.

In compliance with your excellency's _____ to this ayuntamiento, under your command in the decree of November 29th, 1833, to report whether the person interested in this petition possesses the requisites to be attended to in his request, and if the land he asks for be included in those referred to in the law.

The land asked for by the person interested in this petition may now be granted to him, for he has all the circumstances required to be attended to, and is entitled to it.

It is an unoccupied place; has no irrigable lands; has land dependent on the seasons; has been recognised as the property of the mission of Santa Cruz; and for the purposes it may serve, I sign this with the second regidor, on account of the absence _____, in the town hall of the town of Branciforte, on the 2d December, 1833.

(Signed) ANTONIO ROBLES.

(Signed) JOSE MARIA SALASON.

I agree to there being granted the petitioner, Juan Jose Gonzales, the place he asks for, as it is a place which this mission does not at present occupy; nor is it deemed necessary for it, in consideration of the fact that it has land enough for its cattle, and that, being unoccupied, it is considered public land; besides, when the mission occupied it _____ had abundance of cattle, _____ have died and diminished, and the few that remain do not need the land. He is a person of merit, and the mission ought to place him before any other person. He has all the requisites, and is entitled to it; and _____ testimony I sign, on the 7th December, 1833.

Friar ANTONIO SURRA DEL REAL, Minister of Santa Cruz.

MONTEREY, December 10, 1833.

Let it pass to the alcalde of this capital, before whom the party will produce, on information of three fit witnesses, who will be questioned upon the following points:

1. If the petitioner is a Mexican by birth; if he has served in the army; if he is married, and has children; if he is of good conduct.

2. If the land he asks for is of the ownership of any individual, or corporation or pueblo; if it is irrigable, dependent on the seasons, or pasture land, and what is its extension.

3. If he has cattle with which to stock it, or the possibility of acquiring them.

This examination being made, let him return the expediente for its decision. His excellency the political chief, commanding general, inspector and general of brigade, Don Jose Figueroa, thus ordered, decreed, and signed it, to which I certify.

(Signed) JOSE FIGUEROA.

(Signed) AUGUSTUS V. ZAMERANO.

Let the party interested in this expediente be notified to present the witnesses who are to be examined on the points included in the superior decree of the 10th instant which precedes this.

Thus I, the alcalde, decreed, ordered, and signed it, with the assisting witnesses, in the established form.

MARCELINO ESCOBAR.

(Signed) JOSE MARIA MALDORADO.

(Signed) JOSE ANTONIO ROMERO.

On the same day, present Juan Jose Gonzales, the foregoing act was made known to him, and having understood it, he said that he heard it, and that he presents citizens Salvio Pacheco, Manuel Larios, and Felipe Hernandez, and he signed it with me and the assisting witnesses.

(Signed) N. ESCOBAR.

(Signed) JUAN GONZALES.

(Signed) JOSE MARIA MALDORADO.

(Signed) JOSE ANTONIO ROMERO.

In the port of Monterey, on the 13th day of the month of December, one thousand eight hundred and thirty-three, present, Salvio Pacheco, witness presented on the part of the persons interested, oath was received in form of law.

The petitioner is a Mexican by birth; was in the army; has thirteen children. The land petitioned for has no private ownership; understood it belongs to the mission of Santa Cruz; that its extent is from a league to a league and a half from east and from north to south; he does not know how much of it is, as it is a canon which reaches to the rancho of citizen Antonio Buelna. He has two hundred head of cattle, a drove of mares and tame horses, &c.

Manuel Larios, a witness, says he is a Mexican; was in the army; is married; has children; knows that the land petitioned for pertains to the mission of Santa Cruz; that the said place is dependent on the seasons; that the land is about a league or more wide, and two from the beach to the hills.

A witness, Felipe Hernandez, repeats the same facts as stated by the prior witness.

MONTEREY, December 3, 1833.

The official acts ordered in the foregoing superior being finished, let the expediente be returned to the superior political chief for the superior decision.

N. ESCOBAR.

MONTEREY, December 17, 1833.

Having seen the petition with this expediente, commences the report of the municipal authority of the town of Branciforte, that of the Rev. father minister of Santa Cruz, the declarations of the witnesses, together with all other things which were presented and deemed proper to be seen, in conformity with the provisions of the laws and regulations on the matter, Juan Jose Gonzales is declared owner in fee of the land known by the name of San Antonio, (or El Pescadero,) bounded by the rancho of Antonio Buelna, the sierra, the coast, the Arroyo del Bratano, subject to the conditions which may be stipulated. Let the corresponding patent issue, let note be made in the proper book, and let this expediente be directed for the approbation of the most excellent territorial, in which case the person interested, who will be made to know this decree, will again present his title, that it may be revalidated.

JOSE FIGUEROA.

The committee on colonization and vacant lands, to whom was referred the expediente, the formation of which was caused by the petition of citizen Juan Jose Gonzales for the place named San Antonio, or El Pescadero, having examined it with the corresponding circumspection, taking into consideration at the same time the law of August 18th, 1824, those agreeing with it, and the general directions which, on the 24th November, 1828, the supreme Government of the Union gave for the better fulfilment of the first; from the examination of the expediente, the committee has become impressed with the opinion which it before held of the scrupulousness and tact with which his excellency the political chief ordered it to be made, so that neither in its formation, nor in the steps taken, in any essential requisite wanting; wherefore the committee concludes by offering to the deliberation of this most excellent deputation the following proposition:

1. Approved the grant made to citizen Juan Jose Gonzales of the place named San Antonio El Pescadero, on the 24th December, 1833, in entire conformity with the provisions of the law of August 18th, 1824, and article 5th of the regulation of November, 1828.

MONTEREY, May 10, 1834.

(Signed) CARLOS ANTONIO CARRILLO.

(Signed) JOSE CASTRO.

(Signed) JOSE T. ORTEGA.

(Signed) JOSE A. ESTUDILLO.

MONTEREY, May 17, 1834.

In sessions of this day, the proposition of the foregoing report was approved by the most excellent deputation ordering that the expediente be returned to his excellency the superior political chief, for the convenient purposes.

(Signed) JOSE FIGUEROA.

JUAN B. ALVARADO, Secretary.

GEORGE FISHER, Secretary.

Opinion of the Board by Com'r R. Aug Thompson.

For the place called San Antonio, or El Pescadero.-Claim of for one square league of land in the county of Santa Cruz.

This claim is founded on a grant made by Governor Figueroa, on 24th December, 1833, to the present claimant, which was duly approved by the territorial deputation on the 17th day of May following. The grant describes the land as that known by the name of San Antonio, or El Pescadero, bounded by the rancho of Antonio Buelna, the sierra, the coast, and the Arroyo de Butano. The fourth condition states that the land of which donation is made is one league in length and three-quarters of a league in breadth, a little more or less, as shown by the map which goes with the expediente, with the usual reservations of the sobrante or overplus to the use of the nation. The boundaries are distinctly marked out on the map; and although there is no scale on the map, by which the extent of the boundaries can be ascertained, yet there is a note made upon it, stating that they extend one league from north to south, and three-quarters of a league from east to west. This description, taken in connection with that contained in the grant, shows very clearly that it is a grant by metes and bounds, and that consequently no sobrante can result.

The original grant is in evidence, and the genuineness of the signatures of the Governor and Secretary appearing thereon are duly proved by the deposition of David Spence. Manuel Jimeno proves that the claimant has occupied the land since 1833; that he had a house, horses, and sowings on it, and he still lives on it.

Entertaining no doubt, from the facts of the case, that the grant is a valid one to the extent of one league in length, and three-quarters of a league in breadth, it is hereby confirmed to that extent; the three-fourths of a league to be surveyed within the out-boundary represented on the diseno.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1528

 SEVENTIETH CONGRESS. SESS. II. CHs. 489, 490 . 1929 . 1477 Secretary of the Navy, of such member to report for inspection Pro vided fur ther, That transferred members of the Fleet Naval Reserve found not physically qualified on reporting for inspection in accordance with this section, shall be transferred to the retired list of the regular Navy, with the pay they are then receiving, and upon the completion of thirty years' service, including naval service, time in the Fleet Naval Reserve, and time on the retired list of the Navy, they shall receive the allowances to which enlisted men of the regular Navy are entitled on retirement after thirty years' service," so that said section will read as follows "All enlisted men who heretofore have been transferred from the regular Navy to the Fleet Naval Reserve established by the Act of August 29, 1916, and who by section 1 of this Act are transferred to the Fleet Naval Reserve herein created, shall receive the rate of pay they were legally entitled to receive in the Naval Reserve Force Provided, That such enlisted men so transferred to the Fleet Naval Res erve h erein create d shal l, upo n comp leting thirty years ' serv ice, including naval service and time in the Fleet Naval Reserve of the Naval Reserve Force and in the Fleet Naval Reserve here in created, be transferr ed to the retired list of t he regula r Navy wi th the pa y they were then legally entitled to receive, plus the allowances to which enlisted men of the regular Navy are entitled on retirement after thirty years' naval service : Provided further, That any pay which may be due any member of the Fleet Naval Reserve, transferred thereto prior to July 1, 1925, shall be forfeited when so ordered by the Secretary of the Navy upon the failure, under such conditions as may be pre i cribed by the Secretary of the Navy, of such member to report for nspection : Provided further, That transferred members of the Fleet Naval Reserve found not physically qualified on reporting for inspection in accordance with this section, shall be transferred to the retired list of the regular Navy, with the pay they are then receiving, and upon the completion of thirty years' service, including on completi ng 30 naval service, time in the Fleet Naval Reserve, and time on the retired years' service. list of the Navy, they shall receive the allowances to which enlisted men of the regular Navy are entitled on retirement after thirty years' service ." Approved, March 2, 1929 . CHAP. 490 .-An Act For the relief of Marie Rose Jean Baptiste, Marius Section as amended . Pay of enlisted men transferred from former Fle et Reserve . Vol.39,p. 589. Provisos . Pay, etc., on transfer to Navy retire d list after 30 years' service . Pay due me mbers tra nsferred prior to July 1, 1925, forfeited on failure to report for inspection . If not phys ically q ualif ied on re porti ng, to be tran sfer red t o Navy retired list, with pay then receiving . March 2, 1929 . [H. R. 12189.] Francois, and Regina Lexima, all natives of Haiti . [Public, No . 916 .1 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $1,070 to pay for the purposes herein provided the Republic of Haiti as an act of grace and without reference to the question of liability therefor ; the sum of $1,000 thereof to pay Marie Rose Jean Baptiste, the mother of Andre Nelson ; the sum of $50 thereof to pay Marius Francois ; and the sum of $20 thereof to pay Regina Lexima ; the above sums to be in full compensation for the killing of Andre Nelson and wounding of Marius Francois and Regina Lexima by shooting by an enlisted man of the United States Marine Corps on July 19, 1927, at Port au Prince, Repub lic of Haiti. Approved, March 2, 1929. Hai ti. Payment to, as com- pensation for death of Andre Nelson, and wounding of Marius Francois, an d Regina Lexim a.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1529

 1478 March 2, 1929. [H. R. 13593.] [Public, No. 917 .] Fox River. Brid ge acro ss, by East Dundee, Ill ., legalized. Conditions. Cons tructi on. Vol.34,p.84. Amendment. March 2, 1929. [H. R. 16533.] [Public, No. 918.] Naval Air Station, Lakehurst, N. J. American Legion, permitted to erect me- morial chapel at. Conditions. CHAP. 492 .-An Act To authorize the Amer ican Legion, Dep ar tme nt of New Jersey, to erect a memorial chapel at the Naval Air Station, Lakehurst, New Jersey. Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That the Secretary of the Navy be, and he is hereby, authorized to permit the American Legion, Department of New Jersey, to erect at the Naval Air Station, Lakehurst, New Jersey, a memorial chapel in commemoration of those whose lives are lost in aviation and particularly in lighter-than-air- craft activities. The erection of this memorial chapel shall be subject to the following conditions Site, design, etc ., sub- First. The site of the memorial chapel shall be selected by the ject to approval of Sec- retary of the Navy. Secretary of the Navy, and its design and construction, with its individual memorials and memorial windows, shall be subject to his approval and supervision. No Government cost. Second. The design and construction of the memorial chapel shall be without cost to the United States. Acceptance as uncon- SEC. 2. Upon the completion and d edication of the mem orial pleted l and gift when codedicated. rn- chapel, the Secretary of the Navy is authorized to accept it as an leted unconditional gift to the United States from the American Legion, Department of New Jersey. Approved, March 2, 1929. March 2, 1929. [S. 2360.1 [Public, No. 919 .] Osage Indians, Okla. Vol . 41, p. 1249, amended. Oil, etc ., lands re- served to, until April 8, 1958. Vol.34,p.542. SEVENTIETH CONGRESS. SEss. II. Cxs. 491-493 . 1929 . CHAP. 49 1 .-An Act To legalize a bridge across the Fox River at East Dun- dee, Illinois. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the bridge now being constructed across the Fox River at the foot of North Street, East Dundee, Illinois, by the village of East Dundee, Illinois, if completed in accordance with plans accepted by the Chief of Eng ineers and t he Sec retary of Wa r, as providi ng sui table facili ties for navigation, shall be a lawful structure and shall be subject to the conditions and limitations of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906, other than those requiring the approval of plans by the Chief of Engineers and the Secretary of War before the bridge is commenced. SEC. 2 . The right to alter, amend, or repeal this Act is hereby exp ressly reser ved. Approved, March 2, 1929. CHAP. 493 .-An Act Relating to the tribal and individual affairs of the Osage Indians of Okl ahoma. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That section 1 of the Act of Congress of March 3, 1921 (Forty-first Statutes at Large, page 1249), relating to the Osage Indians of Oklahoma, be, and the same is hereby, amended to read as follows "That all that part of t he Ac t of June 28, 1906 (Thi rty-f ourth Statutes at Large, page 539), entitled `An Act for the division of the lands and funds of the Osage Indians in Oklahoma, and for other purposes,' which reserves to the Osage Tribe the oil, gas, coal, or other minerals, covered by the lands for the selection and divi- sion of which provision is made in that Act is hereby amended so that the oil, gas, coal, or other minerals, covered by said lands are

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1530

 SEVENTIETH CONGRESS. SEss. II. Crr. 493. 1929. 1479 reserved to the Osage Tribe, until the 8th day of April, 1958, unless otherwise provided b Act of Congress, and all royalties and bonuses Royalties therefrom y to be disbursed m arising therefrom shall belong to the Osage Tribe of Indians, and members of the tribe. shall be disbursed to members of the Osage Tribe or their heirs or assigns as now provided by law, after reserving such amounts as are now or may hereafter be authorized by Congress for specific purposes. The lands, m oneys, and ot her propertie s now or herea fter held Lands, etc., held in trust, continued sub- in trust or under the supervision of the United States for the Osage actt6er9' unt ilJan u- Tribe of Indians, the members thereof, or their heirs and assigns, shall continue subject to such trust and supervision until January 1, 1959, unless otherwise provided by Act of Congress. "The Secretary of the Interior and the Osage tribal council are o e d~foro pl anags hereby authorized and directed to offer for lease for oil, gas, and leases. other mining purposes any unleased portion of said land in such quantities and at such times as may be deemed for the best interest Pronisoa. of the Osage Tribe of Indians : Provided, That not less than twenty- oterng um yearly five thousand acres shall be offered for lease for oil and gas mining purposes during any one year : Provided further, That as to all lands Regulations for con- servation of gas to be hereafter leased, the regulations governing same and the leases contained in leases . issued thereon shall contain appropriate provisions for the conser- vation of the natural gas for its economic use, to the end that the highest percentage of ultimate recovery of both oil and gas may be Valid existing leases secured : Provided, however, That nothing herein contained shall continued. be construed as affecting any valid existing lease for oil or gas or other mineral s, but all su ch leas es sha ll cont inue as long as gas, oil, or other minerals are found in paying quantities. u Tax exe mptio n of Homestead allotments of Osage Indians not having a certificate homesteads of Ind ians of competency shall remain exempt from taxation while the title without competency remains in the original allottee of one-half or more of Osage Indian certificate. blood and in his unallotted heirs or devisees of one-half or more of Provi o. Osage Indian blood until January 1, 19 59 : Provid ed, Th a t th e t ax - Area limited. exempt land of any such Indian allottee, heir, or devisee shall not at any time exceed one hundred and sixty acres. Vol. 41, p. 1249, SEC. 2. That section 2 of the Act of March 3, 1921 (Forty-first amended. Statutes at Large, page 1249), entitled "An Act to amend section 3 of the Act of Congress of June 28, 1906, entitled `An Act for the division of the lands and funds of the Osage Indians in Oklahoma, and for other purposes,"' be, and the same is hereby, amended to read as follows " The bona fide owner or lessee of the surface of the land shall be paid fore owners to be damages from compensated, under rules and regulations prescribed by the Secretary mining operations . of the Interior in connection with oil and gas mining operations, for any damage that shall accrue after the passage of this Act as a result of the use of such land for oil or gas mining purposes, or out of damages to the land or crops thereon, occasioned thereby, but nothing herein contained shall be construed to deny to the surface Appeal to court . owner or lessee the right to appeal to the courts, without the consent of the Secretary of the Interior, in the event he is dissatisfied with the amount of damages awarded him . All claims for damages aris- Settlement by arbi- tration . ing under this section shall be settled by arbitration under rules and regulations to be prescribed by the Secretary of the Interior ; but either party shall have the right to appeal to the courts without consent of the Secretary of the Interior in the event he is dissatisfied with the award to or against him. The appeal herein authorized in county y cou rt appeals shall consist of filing an original action in any court of competent jurisdiction sitting at the county seat of Osage County, to enlarge, modify or set aside the award, and in any such action, upon demand of either party, the issues, both of law and of fact shall be tried de novo before a jury upon the request of either party. Arbitration, or

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United States ex rel. Crawford v. Addison

THIS was an application for a peremptory mandamus or for a rule to show cause why the judges of the Circuit Court of the District of Columbia should not execute a judgment in that court, by which Henry Addison had been directed to be ousted of the mayoralty of Georgetown. Addison had sued out a writ of error, returnable to December term, 1860, and filed the usual bond, which the Circuit Court decided to amount to a supersedeas, and accordingly suspended the judgment of ouster. Mr. Brent and Mr. Carlisle, counsel for Crawford, filed his petition, accompanied by a transcript of the record, and moved for a peremptory mandamus or a rule to show cause. The motion was opposed by Mr. Bradley and Mr. Henry Winter Davis. The reporter has only notes of the arguments of Mr. Carlisle and Mr. Bradley.

It was agreed by the counsel, that the office of mayor, referred to in the proceedings in this case, is elected for two years, and that the salary is $1,000 per annum, payable monthly. The record so stated.

Mr. Carlisle contended that the writ of error had been improvidently issued in this case, and consequently there was no supersedeas. The act of 1816 (3 Stat. at L., 261) provides that no cause shall hereafter be removed from the Circuit Court of the United States for the District of Columbia to the Supreme Court of the United States by appeal or writ of error, unless the matter in dispute in such cause shall be of the value of $1,000 or upwards, exclusive of costs. He then made the following points:

1. Whether, assuming that the Government is entitled to execution of the judgment of ouster, and the relator to his execution for costs, the proper remedy is by mandamus from this court. That it is the proper and only adequate remedy where execution is improperly denied by the court below, and in other like cases, has been repeatedly held by this court.

United States v. Peters, 5 Cranch, 115.

Livingston v. Dorgenois, 7 Cranch, 577.

Life and Fire Insurance Co. v. Wilson, 8 Peters, 303.

Postmaster General v. Trigg, 11 Peters, 173.

Stafford v. Union Bank of Louisiana, 16 Howard, 135.

Stafford v. Union Bank of Louisiana, 17 Howard, 276.

2. That it is mere matter of discretion, whether the rule to show cause or, to prevent delays, the alternative mandamus is to be granted. It must depend upon the nature of the case.

Life and Fire Insurance Co. v. Adams, 9 Peters, 571.

In the present case, the record shows in advance the sole cause against the mandamus. The question is concerning the title to an office of public trust, the term of which will be about immediately expiring at the commencement of the next term of this court. Nearly one-half the term has been consumed in the proceedings below; and as the record here shows, it is established by verdict and judgment, that during all the time which has elapsed, the office has been occupied without any lawful warrant, to the defeat of the popular will, in violation of the charter of the city, and to the prejudice of the relator's right. It seems not easy to imagine a case where the discretion of the court can be more appropriately exercised in dispensing with the rule, and proceeding at once to consider the cause shown.

It remains now to inquire whether the cause shown by the record is sufficient for the denial of the motion.

That cause is, that the judgment of ouster and for costs is superseded by reason of the matters in that behalf spread upon the record.

And the sole question now is, is the judgment effectually superseded under the statutes of the United States?

The means of determining the question are before the court, in the transcript filed with the petition.

It cannot be denied, that this court will entertain such a question, and determine the legality of the supposed supersedeas, where it is alleged as cause against the mandamus. The cases already cited abundantly show this. In the case in 16 Howard, this court itself suggested the remedy by mandamus, where a supersedeas had been improvidently allowed by the court below. And in the case in 5 Cr. (U.S. v. Judge Peters) the cause of refusing execution being shown to be an act of the Legislature of Pennsylvania, this court, upon the motion for mandamus, considered the constitutionality of that act, pronounced it unconstitutional, and awarded a peremptory mandamus.

So that it would seem, when the question of supersedeas or no supersedeas arises, and is necessary to be determined upon a mandamus for execution, this court will determine every question, of whatever nature, necessarily involved in the principal inquiry.

In other instances, the question of the validity of the supersedeas has arisen here in cases where there was an admitted jurisdiction of the cases on writ of error or appeal-the question being whether, notwithstanding such admitted jurisdiction, the judgment or decree below ought not to be executed, by reason of a failure to comply with the terms of the statute regulating the supersedeas.

Here we maintain that there could be no possible superdeas, because the case is not one in which a writ of error lies.

If that writ of error were here, a simpler and more obvious course would be, to move to dismiss it. But the judgment below was rendered since the commencement of the present term of this court, and the writ is returnable to the next term, when the office will have nearly expired.

If it be clear that no writ of error lies, it would seem to be a singular defect in the law, if the successful party below can be practically and absolutely defeated of his right by the suing out of such writ. With a court below, scrupulous of deciding, in the first instance, the question of the jurisdiction of this court, it would be easy to imagine examples and to put cases where the cause of justice would be entirely perverted.