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United States v. Gear. 3 H.

more manifest when it is considered if a contrary * interpre- [ * 131 ] tation is given, that the lead-mine lands in one district of the same territory would be liable to sale and preëmption, and those in another part of it would not be. Can any one possible reason be suggested to sustain even the slightest intention upon the part of congress, when it was passing the act of 1834, to make such differences in respect to lands within the same locality, as have just been mentioned ? Could congress have meant to say, under a power to sell, that it would be lawful to sell in the new land district what it was unlawful to sell in other land districts of the same territory of which the new land district was also a part? And that settlers upon the public lands within the new district, should have a right of preemption in lead-mine tracts, which settlers upon other lands within the same territory, but not within the new land district, could not have ? The mere fact of a new land district having been made out of a part of the territory in which the lead-mine lands had been reserved, with the authority to the President to sell all lands in the new district, can have no effect to lessen the force of the original reservation. In truth, the acts of 1834 and 1807 do not present a case of conflict in the sense in which statutes do, when, from some expression in a later act, it may seem that something was intended to be excepted from the force of the former, or to operate as a partial repeal of it. The rule is, that a perpetual statute, (which all statutes are unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act,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. Thus, in this case, all lands within the district mean lands in which there are, and in which there are not, minerals or lead mines; but a power to sell all lands, given in a law subsequent to another law expressly reserving lead-mine lands from sale, cannot be said to be a power to sell the reserved lands, when they are not named, or to repeal the reservation. In this case, there are two acts before us, in no way connected, except in both being parts of the public land system. Both can be acted upon without any interference of the provisions of the last with those of the first — each performing its distinct functions within the sphere, as congress designed they should do. But further, that the act of 1834 was not intended as a repeal of the act of 1807, in regard to lead mines, so as to grant a right of preëmption in them to settlers, is manifest from the fact that an act was passed only seven days before it, reviving an act to grant preëmption rights

United States v. Gear. 3 H.

to settlers on the public lands, which excludes settlers from the right of preëmption in any land reserved from sale by act of congress. Thus reasserting then what had been uniformly a part of every pre

emption law before, and what has been a limitation upon [ * 132 ] the right of preëmption in every act for that purpose since.

We do not think it necessary to pursue the subject further, except to say that the view we have here taken of the act of 1834, in respect to lands containing lead mines, and the right of preëmption in them, is coincident with the opinion given by this court in the case of Wilcox v. Jackson, 13 Pet. 513. That case was well and most carefully considered, and expressed in the deliberate language of this court. We determined, then, the point being directly in the cause, that the act of 1834 had relation to a sale of lands in the manner prescribed by law, at public auction, and that a right of preëmption was governed by other laws. The court said : “ The very act of 19th June, 1834, under which this claim is made, was passed but one week before the one of which we are now speaking, (meaning the act of 26th June, 1834,) thus showing that the provisions of the one were not intended to have any effect upon the subject-matter on which the other operated.” We see no reason to change what was then the view of the court. On the contrary, there is much in this case to confirm it. Let it be certified, therefore, to the judges of the circuit court of the United States for the district of Illinois, that this court is of the opinion that the act of congress, entitled " An act to create additional land districts in the States of Illinois and Missouri, and in the territory north of the State of Illinois," approved June 26, 1834, does not require the President of the United States to cause to be offered for sale the public lands containing lead mines situated in the land districts created by said act. 2. That the said act does not require the President to cause said lands, containing lead mines, to be sold, because the 5th section of the act of the 3d March, 1807, entitled “ An act making provision for the disposal of the public lands situated between the United States military tract and the Connecticut reserve, and for other purposes,” is still in full force.

To the third question, we reply that the lands containing lead mines in the Indiana territory, or in that part of it made into new land districts by the act of the 26th June, 1834, are not subject, under any of the preëmption laws which have been passed by congress, to a preëmption by settlers upon the public lands.

To the 4th question, we reply that the 4th section of the act of 1834 does in no way repeal any part of the 5th section of the act of the 3d of March, 1807, by which the lands containing lead mines were reserved for the future disposal of the United States, by which

United States v. Gear. 3 H.

grants for lead-mine tracts, discovered to be such before they may be bought from the United States, are declared to be fraudulent and null, and which authorized the President to lease any lead mine which had been, or might be, discovered in the Indiana territory, for a term not exceeding five years.

To the fifth question, we reply that the land containing lead mines in the districts made by the act of 1834, are not subject to preëmption and sale under any of the existing laws of congress.

* The foregoing answers apply also to the points upon [ * 133 ] which the judges were divided in opinion upon the bill in chancery, between the United States and the defendant, Gear, except the fourth question certified in that case; and to that we reply, that digging lead ore from the lead mines upon the public lands in the United States, is such a waste as entitles the United States to a writ of injunction to restrain it.

M'LEAN, J. I dissent from the opinion of the court.

The question certified, in my judgment, should be answered in the affirmative.

That it was the intention of congress to sell, at public sale, the land in question, is clear, if that intention is to be ascertained by their own language. In the 4th section of the act of 26th of June, 1834, it is provided: “That the President shall be authorized, as soon as the surveys shall have been completed, to cause to be offered for sale, in the manner prescribed by law, all the lands lying in said land districts, at the land-offices in the respective districts in which the land so offered is embraced, reserving only section 16 in each township, the tract reserved for the village of Galena, such other tracts as have been granted to individuals and the State of Illinois, and such reservations as the President shall deem necessary to retain for military posts, any law of congress heretofore existing to the contrary notwithstanding."

The land lies in one of the land districts above referred to, and is not within any one of the reservations named in the section. This being admitted, is there any ground to doubt that congress authorized the President to sell all lands covered by the section and not reserved in it. They have said so expressly. The language of the section is so clear as to admit of no other construction. And it would seem to me that such must be our judgment, unless we can judicially say, that when congress speak in the authoritative language of law, they do not mean what they say.

Such a decision would constitute a new rule for the construction of statutes.

It is said that the land occupied by the defendant was reserved by

United States v. Gear. 3 H.

the 5th section of the act of the 3d of March, 1807. This is admit. ted. But the question is, whether it was reserved by the act of 1834? The 5th section above referred to provides : “ That the several lead mines in the Indiana territory, together with as many sections contiguous to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States; and any grant which may hereafter be made for a tract of land containing a lead mine which had been discovered previous to the purchase of such tract from the United States, shall be considered fraudulent and null.” Now the tract in question had on it a lead mine, and, being then within the Indiana territory, of course, came within the reservation just cited. But such reservation was made only “ for the future disposal of the United States.” And the act of 1834 does authorize the President to dispose of this and all other tracts in the districts named not specially reserved in that act. This latter act then, by consequence, repeals the act of 1807. In this respect the acts are repugnant. They cannot stand together. The first act reserves the land for the future disposal of the United States, and the last act disposes of it. The President is, undoubtedly, bound, within a reasonable time after the surveys were executed, to issue his proclamation offering for sale, at public auction, the lands in the above districts. And after such sales all the lands not sold or reserved were open for entry as the law provides. A failure of the President to execute a duty enjoined by law cannot affect any individual right involved in this case.

It is not doubted that if no other consequence resulted from the above construction of the act of 1834, than the mere authority of the President to sell the land, there would have been little or no diversity of opinion on the subject; but a preëmptive right in the defendant may follow such a construction, and this creates the difficulty in the case. But when the law is clear we should follow it, without regard to consequences.

In my judgment the preëmptive right of the defendant, if he shall bring himself within the law, is as clear as that the President was authorized to sell the land.

By the 1st section of the act of 29th May, 1830, it is provided : “ That every settler or occupant of the public lands prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby authorized to enter, with the register of the land-office for the district in which such lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvement, upon paying to the United States the then minimum

United States v. Gear. 3 H.

price of said land: Provided, however, that no entry or sale of any land shall be made, under the provisions of this act, which shall have been reserved for the use of the United States," &c.

By the act of the 19th of June, 1834, every settler prior to the passage of that act, then in possession, and who cultivated any part of the land in 1833, was declared to be entitled to the benefit of the act of 1830, which act was continued in force two years. And by the act of the 22d of June, 1838, it is provided, that every actual settler of the public lands being the head of a family, or over twenty-one years of age, who was in possession and a housekeeper by personal residence thereon at the time of the passage of this act, and for four months next preceding, shall be entitled to all the benefits and privileges of the above act of the 29th May, 1830. And that act was declared to be in force two years. In the same section, it was declared that said right should not extends to any land specially occupied or reserved for town lots, or other purposes, by authority of the United States."

As the Preëmption Act of the 19th of June, 1834, passed seven days before the act which authorized the President to sell the land in question, and as, prior to this latter act, the land was reserved from sale by the acts of 1807 and 1830, the preëmption right may not have attached to the residence of the defendant. But if this be admitted, the act of 1807 having been repealed, as above shown, by the 4th section of the act of the 26th of June, 1834, there seems to me to be no doubt, that the preëmption right did attach under the law of 1838. After the land was authorized to be sold, it could no longer be considered as reserved from sale by the act of 1807; and the act of 1838 only excepted from the right of preëmption such tracts as were at that time reserved by the authority of the United States. In this view, then, it would seem the right of preemption is in the defendant, if he were a resident on the land within the provisions of the act of 1838.

It is said the law authorizing the sale of these lands and the preemption laws, being all on the same subject, must be taken together, and so construed as to effectuate the intention of congress. This is admitted. But does this rule of construction authorize the court to say, that where a subsequent law is repugnant to a prior one, they may both stand. It is impossible to give effect to both, as they are inconsistent. The truth of this is forcibly illustrated by the acts in question. By the 4th section of the act of 1807, the lead mines are reserved for the future disposal of the United States. By the 4th section of the act of 1834, these with all other lands, not specially reserved in that section, are authorized to be sold. It is true the

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