Brief for the United States — United States v. Poland
Supreme Court brief1920
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INDEX.
Page.
Statement... 1
Assignments of Error. re baste oe 4
Specification of Errors.......... Pye ea Pere ceases Ee 4
BOGUEOME. «2.2.56 ccc cece een c nee cwerereescennressensers 5
I. Where the language of the act is unambiguous and clear,
the obvious meaning controls, and construction or in-
terpretation limiting the same is not pe rmnissible..... D
Il. The language of the act is clear in its restriction of the
acreage to be acquired in a single body, by the use of
serip, lieu-selection or soldiers’ additional homestead
rights A re er ee ne Mee rrr Pere s
111. Even if 1 be cone ote’ that the language of the statute
requires construction, we invoke the rule that due
weight should be given to the rulings of the Land
Department. These rulings have uniformly been
to the effect that the ac quisition of land in Alaska by
use of soldiers’ additional scrip is limited to 160 acres
ies 6 Oe GONG ooo since cides redennide se ceceasires 15
IV. The construction making the first proviso applicable
only to lands lying along navigable water does violence
to its plain terms, and involves holding, in effect, that
it is superfluous ......-------- 2-22 e ee eee eee eee 21
Ec isceaidaweacareversteerseresmapenucs¥hencatehes 26
CITATION
Caminetti v. United States (242 U.S. 470).......-.------- 220-22 -+-- 7
Mackenzie v. Hare (239 U.S. 299).....-----22ee cece cree cece eeeeeee 7
United States v. First National Bank (234 U.S. 245)......-.-------- 7
United States v. Hammers ~ U. 8. 220).. 17
Webster v. Luther (163 U.S. 331}.....---.------- eee eee eee: Pace 9
Land Department Circ ae of Instructions oS | eee 5
Land Department Circular of Instructions , i Seer 16
Land Department Circular of Instructions (31 L. D. 441)..-...----- 24
Land Department Circular of Instructions (27 L. te} See 23, 24
STATUTES.
Act of May 14, 1898 (30 Stat. 409).. rer rr he
Act of March 3. 1903 (32 Stat. 1028).......-.-.----- 2,3. 5.8, 10, 19, 22, 24
REVISED STATUTES
Section 2306 .... 10
OR FIDO coc contre sire rseesens See pres Eee reer ery 13
I SE ois ob ae veers Bes Firs tog iar Giana arate atte wet eee aaa 3
Section 2330... pace ee EL naedae Padea sawed iaw eer 12
EP Sogo cw decent vervestetervare panes 12
134124—19-——1
Hun
ne eR EEE IPN
Inthe Supreme Court of the United States,
OcToBer TERM, 1919.
Tue UNITED Srares, PETITIONER,
v.
Wiiutam B. PoLanp AND FREDERICK Lo. 39.
WituraM Low. J
ON WRIT OF CERTIORARI TO THE UNITED STA TES CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT.
BRIEF FOR THE UNITED STATES.
STATEMENT OF THE CASE.
This case presents for review a judgment of the
Circuit Court of Appeals for the Ninth Circuit affirm-
ing a judgment of the District Court for the Third
Division of Alaska dismissing on demurrer a bill filed
by the Government to cancel one of two patents
issued to William B. Poland on two entries made
simultaneously, each embracing 160 acres made by
use of soldiers’ additional homestead rights, the two
aggregating 320 contiguous acres.
The bill, with the exhibits, showed that William B.
Poland was the assignee of the unlocated and unen-
tered soldiers’ additional homestead rights, acquired
from four different parties.
2
On April 26, 1906, Poland filed at the Juneau,
Alaska, land office, simultaneously, two applications,
one based on the soldiers’ additional homestead
rights of two of his assignors, the other on the like
rights of the remaining two assignors.
By one application he sought to enter a tract des-
ignated as survey No. 241, covering 159.25 acres; by
the other, a tract designated as survey No. 242, con-
taining 160 acres. Defendant Poland filed, or caused
to be filed, in support of his application for a patent
to survey No. 242, an affidavit stating that the land
applied for did not exceed 160 acres in extent, fronts
less than 160 rods along the shore of any navigable
water, and is more than 80 rods distant from any
other survey or entry, under the provisions of the
act of May 14, 1898 (30 Stat. 409), as amended by
the act of March 3, 1903 (32 Stat. 1028). Patents
were issued to Poland as follows: For survey No.
241 on January 20, 1908, and for survey No. 242 on
March 22, 1909.
The bill alleged that the patent covering survey
No. 242 had been obtained by fraud because the
allegation in this affidavit that the land covered by
survey No. 242 was more than 80 rods distant from
any other survey or entry was false, and that the
entry was in violation of the express prohibition con-
tained in the act of March 3, 1903, against the loca-
tion in a single body of more than 160 acres by the
use of soldiers’ additional homestead rights (R. 4-6).
3
The defendant Low is made a party as the pur-
chaser of the land in controversy from the patentee,
Poland.
Defendants demurred generally to said bill (R. 13,
14). The district court sustained said demurrers,
holding substantially that the prohibition of the
statute related to the entry of more than 160 acres of
land in a single body under one application, and that
inasmuch as not more than 160 acres was contained
in survey No. 242, the entry was not in contravention
of law, notwithstanding the fact that it was immedi-
ately contiguous to the land embraced in survey No.
241 (R. 14, 23), and was applied for and entered at
the same time by the same person. The Circuit
Court of Appeals by a divided court (Judge Rudkin
dissenting, R. 40) affirmed this judgment (R. 34). The
majority held that the limitation in the act of March
3, 1903, restricting the area to be acquired under
soldiers’ additional homestead rights applied only
where the entry lay along the shore of any navigable
water. That the bill as originally passed by the
House and the Senate did not contain this limita-
tion; that it was added in conference committee;
and that as under established parliamentary law a
conference committee is not authorized to consider
matters not incerporated in the bill as passed by the
two Houses of Congress, unless those matters are
germane to someting already in the bill, this addition
must be construed as relating to the restriction on
location along the shore of a navigable water. (Opin-
RE balla a ca
-
ME nT Gat ee bn
EL Ee I SE ORE, BS SL
4
ion of District Court, R. 14; opinion of Circuit Court
of Appeals, R. 34; 231 Fed. 810.)
Assignments of Error.
The assignments of error state that the court
erred in dismissing the bill of complaint (R. 25, 26).
Specification of Errors.
The Government contends:
1. The prohibition of the act is so clear as not to
permit limitation by construction or interpretation.
2. That the act, properly construed, prohibits the
acquisition of more than 160 acres in a single body
by the use of soldiers’ additional homestead rights,
regardless of location or the number of assigned
rights presented by the defendant.
3. That the construction of the statute has been
followed by the Land Department, is sustained by
the history of such legislation as evidencing the con-
gressional intent, and will be persuasive with this
court.
4. That the construction of the statute here com-
plained of disregards and renders unnecessary the
first proviso of said act.
5. That the affidavit that No. 242 was 80 rods
distant from any other survey or entry under the
acts of Congress was misleading to the public officers
on the question whether more than 160 acres were
being entered by Poland in a single body.
5
s
ARGUMENT.
Where the language of the act is unambiguous and
clear, the obvious meaning controls, and con-
struction or interpretation limiting the same is
not permissible.
That part of the act of March 3, 1903 (32 Stat.
1028), material here, is as follows:
That all the provisions of the homestead
laws of the United States not in conflict with
the provisions of this act, and all rights inci-
dent thereto, are hereby extended to the dis-
trict of Alaska, subject to such regulations as
may be made by the Secretary of the Interior;
and no indemnity, deficiency, or lieu-land se-
lections pertaining to any land grant outside
of the district of Alaska shall be made, and no
land scrip or land warrant of any kind what-
soever shall be located within or exercised
upon any lands in said district except as now
provided by law: And provided further, That
no more than one hundred and sixty acres
shall be entered in any single body by such
scrip, lieu selection, or soldier’s additional
homestead right: And provided further, That
no location of scrip, selection, or right along
any navigable or other waters shall be made
within the distance of eighty rods of any
lands, along such waters, theretofore located
by means of any such scrip or otherwise: And
provided further, That no commutation privi-
leges shall be allowed in excess of one hundred
and sixty acres included in any homestead
entry under the provisions hereof: Provided,
That no entry shall be allowed extending more
a PAYA OAR T RIREENICEY EERIE
6 Pile 2 SRE
Qescerres
AA LEO ERNIE DAEMON LO MR OE NEP LG, NB et ei
6
than one hundred and sixty rods along the
shore of any navigable water, and along such
shore a space of at least eighty rods shall be
reserved from entry between all such claims;
and that nothing herein contained shall be so
construed as to authorize entries to be made
or title to be acquired to the shore of any
navigable waters within said district; and no
patent shall issue hereunder until all the re-
quirements of sections twenty-two hundred
and ninety-one, twenty-two hundred and
ninety-two, and twenty-three hundred and
five of the Revised Statutes of the United
States have been fully complied with as to
residence, improvements, cultivation, and
proof, except as to commuted lands as herein
provided: And it is further provided, That every
person who is qualified under existing laws to
make homestead entry of the public lands of
the United States who has settled upon or who
shall hereafter settle upon any of the public
lands of the United States situated in the dis-
trict of Alaska, whether surveyed or unsur-
veyed, with the intention of claiming the same
under the homestead laws, shall, subject to
the provisions and limitations hereof, be en-
titled to enter three hundred and twenty acres
or a less quantity of unappropriated public
land in said district of Alaska.
The portion of the act particularly important is
the proviso “That no more than one hundred and
sixty acres shall be entered in any single body by
such scrip, lieu selection, or soldier’s additional home-
stead right.”
—— PMS pe A Nee ROME aE AE A laa Sel wide -jtedihe res y wre sen, ae
7
We contend that the language of this proviso is so
plain, certain, and unambiguous as to make limitation
thereof by construction erroneous. It is well settled
that where the legislative intent is plain and the
language is without ambiguity, there is no ground for
judicial construction, and that a statute will be
enforced according to its obvious meaning. This
doctrine has been reiterated often by this court. A
few of the later cases are: United States v. First
National Bank (234 U. S. 245, 258); Mackenzie v.
Hare (239 U. S. 299, 307, 308); and Caminetti v.
United States (242 U.S. 470, 485-490).
The opinion in the Caminetti case thus states the
rule (p. 485):
It is elementary that the meaning of a
statute must, in the first instance, be sought in
the language in which the act is framed, and
if that is plain, and if the law is within the
constitutional authority of the law-making
body which passed it, the sole function of the
courts is to enforce it according to its terms.
Lake County v. Rollins, 130 U.S. 662, 670, 671;
Bate Refrigerating Co. v. Sulzberger, 157 U.S.
1, 33; United States v. Lexington Mill and
Elevator Co., 232 U. 8. 399, 409; United
States v. Bank, 234 U.S. 245, 258.
Where the language is plain and admits of
no more than one meaning the duty of inter-
pretation does not arise and the rules which
are to aid doubtful meanings need no dis-
cussion. Hamilton v. Rathbone, 175 U. 8.
414, 421.
134124—19——2
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.
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&
PERE REE GENEL PIO LIT NER IL 2
II.
The language of the act is clear in its restriction of
the acreage to be acquired in a single body, by the
use of scrip, lieu-selection or soldiers’ additional
homestead rights.
In the portion of the act of March 3, 1903, relevant
to this case, there are five provisos. They provide:
(1) That no more than 160 acres shall be
entered in a single body by such scrip, lieu
selection or soldiers’ additional homestead
right.
(2) No location of scrip, selection or right
along any navigable or other water shall be
made within the distance of 80 rods of any
lands along such water, theretofore located by
means of any such scrip or otherwise.
(3) No commutation privileges shall be al-
lowed in excess of 160 acres included in any
homestead entry under the provisions hereof.
(4) No entry shall be allowed extending
more than 160 rods along the shore of any
navigable water, and along such shore a space
of at least 80 rods shall be reserved from entry
between all such claims, and nothing herein
contained shall be so construed as to authorize
entries to be made or title acquired to the
shore of any navigable water within said dis-
trict. (The remaining portion relates to other
matters not important here.)
(5) Every person who is qualified under ex-
isting laws to make homestead entry of the
public lands of the United States who has
settled upon or shall hereafter settle upon any
of the public lands . . . situated in the
. FO NET A = TEE AI SR 8 i Oe De al PO SES hie eo CR res, ay oO is ae eal
district of Alaska . . . with the intention
of claiming the same under the homestead laws
shall . . . be entitled to enter 320 acres
or a less quantity of unappropriated public
lands in said district of Alaska.
It is quite clear that the subject matter of the pro- '
visos (1) and (5) (our numbers) relate to different ;
subjects.
No. (1) restricts the acreage to be acquired in a
single body by the use of scrip, lieu selection, or sol-
dier’s additional homestead rights.
One contrasting incident to these several rights and
the homestead right spoken of in No. (5) is that scrip,
lieu selection, and soldiers’ additional rights require
no residence to perfect the same. They are an asset
like a chose in action, and are subject to sale and
MERE EEE TEE ELS
assignment at pleasure. No duty of residence or im-
provement rests on either assignor or assignee. (Web-
ster v. Luther, 163 U.S. 331, 337, 339, 341.)
The proviso (5) relates solely to a homestead right
to be perfected by residence, cultivation, and im-
provements required of homestead settlers by the
homestead laws.
Taking the remaining parts of the statute, the lan-
guage in proviso (1) is not that “no entry” shall be
made containing more than 160 acres. It is “no
more than 160 acres shall be entered in a single body.”
An entry might well be construed to be the “right
’ of each claimant. This definition is not
ae
be a ROPER OPE OE a
te,
bi ik nraca us <4 Sai
erg
of entry’
applicable to the proviso.
10
The difference of language in this act of 1903 and
the former act of May 14, 1898 (80 Stat. 409), is
significant. The former act reads “No entry (italics
ours) shall be allowed extending more than 80 rods
along the shore,” ete. The present act reads, “No
more than 160 acres shall be entered in a single body
by such scrip, lieu selection, and soldiers’ additional
homestead right.”
Each soldier, under additional homestead right,
would be entitled only to the difference between his
original homestead and 160 acres. Each separate
claim would therefore be less than 160 acres. (Rev.
Stats., sec. 2306.)
These rights were assignable at will, and claims
calling for much more than 160 acres in the aggregate
could well become the property of one assignee.
Language similar to that inserted in proviso (1)
had not existed in the statutes regulating these
matters before the act of March 3, 1903. (See dis-
senting opinion of Rudkin, J., in this case reviewing
previous legislation, R. 40-42.)
The conclusion seems to be inevitable that the
purpose of this act and the provisos is—
First. To extend to Alaska the homestead system
of the United States.
Second. To provide that a settler might acquire an
original homestead not exceeding 320 acres on com-
plying with the laws as to residence upon the home-
stead, etc., as contained in said statutes.
ee hie eta oad APL I DIE, NEP Cs eI LE OM LP Kale
_ — TUE 6 EOE LO ILE BILATERAL — MON pig DD.
11
No commutation privileges shall be allowed in
excess of 160 acres included in any homestead entry
under the provisions of the statute.
Third. That persons seeking to enter lands under
scrip, lieu selection, or soldiers’ additional homestead
rights (such persons not being required by law to
reside upon, cultivate, or improve the lands), can
not by means of such scrip have more than 160 acres
of land entered in a single body; that whether this is
attempted by one or two entries (so called) is imma-
terial.
Fourth. That no patents shall issue until all re-
quirements of law are complied with.
Fifth. That no location by scrip, selection, or
right shall be made along the shore of any water
within 80 rods of any other located lands along said
water.
Sixth. That no entry shall be allowed extending
more than 160 rods along the shore; that at least 80
rods along such shore shall be kept free from entry
between such claims; that entries of the shore can
not be made, or title to such shore acquired.
The District Court placed stress upon the word
“entered” in the proviso. The court overlooked the
fact that “an entry” is not the thing prohibited, but
is that “more than 160 acres shall not be entered in a
single body”’ by the use of scrip, etc. It is clear from
the entire proviso that what was aimed at was the
prevention of the acquisition through soldiers’ addi-
tional homestead rights of more than 160 acres in a
12
single body, and not an entry under each separate
right without regard to the acreage in a single body
which one person might thus acquire.
The District Court in its opinion undertakes to draw
an analogy between the provisions here under dis-
cussion and the United States Mining Law (R. 16).
Under the latter, “no such location [placer] shall
include more than twenty acres for each individual
claimant’’ (R. 8S. 2331), but “two or more persons,
or associations of persons, having contiguous claim
of any size * * * may make joint entry thereof,
but no location of a placer claim * * *- shall
exceed one hundred and sixty acres for any one person
or association of persons.”’ (R. 8. 2330.) (Italics
supplied.)
The District Court points out that such provisions
have never restricted a person or association of per-
sons from making two locations immediately ad-
joining, and holds that the “same reasoning would
apply to one case as to another.”’ (R. 16.)
There perhaps would be justification for this view
if the provision of law applicable in the instant case
read, “No entry under such scrip, lieu selection or
soldier’s additional homestead right shall exceed
one hundred and sixty acres,” thus following the pro-
visions of the placer mining law.
But the language under consideration does not
follow those provisions. Instead, it provides “that
no more than one hundred and sixty acres shall be
entered in any single body by such scrip,” ete.
13
By contrast, the difference in meaning is obvious.
It is apparent that the provision was designed to pre-
vent the very thing the District Court holds that it
sanctions.
This statute did not seek to restrict the right of an
individual to more than one claim, but only to pre-
vent an individual from holding more than 160 acres
in a single body under scrip, lieu selection, or soldier’s
additional homestead right.
The argument that it would be useless to provide
that not more than 160 acres of land shall be entered
in a single body under scrip, etc., if two such loca-
tions adjoining each other could be entered and
patented, is met in the opinion of the District Court
by another reference to placer mining locations.
The court asks why such locations should be limited
to 160 acres when two or more may be entered by the
same locators notwithstanding the fact that they
adjoin each other, and answers this question by
stating that a limitation must be made somewhere
and that it was probably placed “at 160 acres
as being a reasonable area to be included in one
location, the presumption being that the additional
expense of locating, surveying and other expenses
attendant upon holding and patenting the grant will
operate as a check on excessive locating or patenting
by one individual or association.”’ (R. 16.)
It is apparently overlooked that discovery is made
a prerequisite to a mineral location (R. 8., 2320, 2329),
which requirement of necessity operates as a limita-
TPE LLOEGR ETS
Pe ey
Sprererresrcenyeremomenr ser
tie al. ws em o Sm ares epee a ee eT
14
tion on the amount of land which such discovery
entitles a claimant to locate, whilst in the case of
homestead lands acquired under soldier’s additional
homestead right, the acreage that can be entered
thereunder is fixed by the instrument itself before
entry is made.
The theory of the District Court is that the two
tracts were separate and distinct bodies of land under
our system of land measurement. Presumably, the
court considered that the imaginary and arbitrary
line between the two surveys constituted sufficient
separation of the land to exclude them from the inhi-
bition against the acquisition of land in a single
body in excess of 160 acres.
It is inconceivable that Congress intended such a
construction to be placed on the term “single body,”’
for the provision thus construed would be applicable
to no lands other than those contained in the unsur-
veyed portion of the public domain in Alaska, and,
even when so applied, the terms of the provision could
be circumvented, as in this case, by causing an official
survey to be made (R. 3) before making application
to enter the land. Moreover, this construction of the
provision would have placed Congress in the position
of prohibiting the doing of an act directly, which by
indirection it intended to allow.
Since the language of the statute is plain, it was
not necessary for the Circuit Court of Appeals to
take into consideration the legislative history of the
bill as it passed the two houses of Congress, to ascer-
lo
tain the intention of Congress with respect to it.
There being no ambiguity or uncertainty in the lan-
guage of the statute, construction is not permissible.
III.
Even if it be conceded that the language of the statute
requires construction, we invoke the rule that due
weight should be given to the rulings of the Land
Department. These rulings have uniformly been
to the effect that the acquisition of land in Alaska
by use of soldiers’ additional scrip is limited to
160 acres in a single body.
In Circular of Instructions (32 L. D. 424, 426), it
was stated:
The amendatory act does not specifically
reenact that portion of the act of 1898 which
granted the right to enter unsurveyed lands
in the district of Alaska under the provisions
of law relating to the acquisition of title
through soldiers’ additional rights, but it is
provided thereby “that no more than one
hundred and sixty acres shall be entered in
any single body by such scrip, lieu selection,
or soldier’s additional homestead right,”’ which
seems to negative any intention to modify or
repeal the existing law with regard to the ex-
ercise of such rights in the district of Alaska
further than to limit the amount which may
be entered in a single body to 160 acres.
Further, that portion of the amendatory act
which provides that “no indemnity, deficiency,
or lieu-land selections pertaining to any land
grant outside of the district of Alaska shall
be made, and no land scrip or land warrant of
we Re ore,
a i ee
ae ee ae oe
16
any kind whatsoever shall be located within
or exercised upon any lands in said district,
except as now provided by law,” seems to
recognize that there are some such outstanding
rights; but, unless soldiers’ additional home-
stead rights are thereby considered as scrip
rights, this Department is not advised as to
any other law permitting the exercise of any
such rights in the district of Alaska. You will
therefore continue to receive soldiers’ addi-
tional homestead applications under sections
2306 and 2307, Revised Statutes, as hereto-
fore, bearing in mind the limitation that not
more than 160 acres can be taken in a single
body.
In circular dated July 7, 1918 (42 L. D. 213, 214),
the following occurs:
No more than 160 acres shall be entered in
any single body by scrip, land warrant, or
soldiers’ additional right in any part of the
District of Alaska, and between any of such
claims aggregating more than 160 acres there
must be a space of 80 rods.
There are no reported decisions of the Land De-
partment involving this proviso, but there are several
decisions of the General Land Office unreported that
are in accord with what we understand to be its
plain meaning. These rulings and decisions of the
executive department charged with its administra-
tion are entitled to respect and should be given
weight by the courts in considering the statute,
17
This rule is well stated in United States v. Hammers
(221 U. 8. 220) as follows (pp. 228, 229):
Conceding then that the statute is ambigu-
ous, we must turn as a help to its meaning,
indeed in such case, as determining its mean-
ing, to the practice of the officers whose duty
it was to construe and administer it. They
may have been consulted as to its provisions,
may have suggested them, indeed have written
them. At any rate their practice, almost co-
incident with its enactment, and the rights
which have been acquired under the practice,
make it determinately persuasive.
The history of the legislation which resulted in
this enactment will be found to support the con-
struction which is contended for by the Government.
The Circuit Court of Appeals, in the majority opinion,
gives a correct statement of what transpired while
the bill was being considered by Congress, but the
history thus given is not complete. As first intro-
duced in and passed by the House, the bill provided
only for raising the acreage which might be acquired
in Alaska under the homestead law from 80 to 320
acres. (H. R. 778, 57th Cong., Ist sess. on H. R.
12098.) See also Congressional Record, volume 36,
part I, Fifty-seventh Congress, second session, page
81, which contains the brief diseussion of the bill in
the House and indicates that only the ordinary
homestead entry was considered. When the bill was
presented to the Senate Committee on Public Lands,
an amendment was made to it which practically was
a Se
ogee
LNA ED YEE EEE LEO FNORAGE SPA ote” A Ne
Ph ep erterrer
Aird tute AL AEB LI EBT ON Hom ne
1s
a rewriting of the bill. An important provision in
this amendment was that excepting from the pro-
visions of the bill the allowance of acquisition of
title by soldiers’ additional homestead rights, and the
following specific mention was made of that pro-
vision in the Senate (Rept. No. 2755, 57th Cong.;
2d sess.) :
Third. All this land is, by the operation of
this proposed bill, taken out of the operation
of the law which allows the entry of land of
like character in the United States and Ter-
ritories by means of the various classes of land
scrip which may now be applied to that
purpose.
It passed the Senate in substantially the form
| presented by the committee (Cong. Rec., vol. 36,
pt. 2, pp. 1679-1681, 2028). After the bill went to
conference on the nonconcurrence by the House in
the Senate amendments, and the insistence by the
Senate upon its amendments, the bill was reported
by the conferees with amendments, one of them
being the proviso against the acquisition of more
than 160 acres in a single body under the soldiers’
additional homestead rights. In submitting this
report to the House, the House conferees made a
statement (Cong. Rec., vol. 36, pt. 3, p. 2859, 57th
Cong., 2d sess.), the first paragraph of which is as
follows:
The Senate provision prohibiting the use of
soldiers’ additional homestead rights in Alaska
is stricken out, leaving the existing law, and
- ae - SS ety eee SAN » - bs 2 a rt 6 ia. ee ee ee
19
also limiting the use of all scrip or lieu selec-
tions to tracts of not exceeding 160 acres, and
reserving from such locations along navigable
or other waters tracts of not less than 80 rods
in width between such entries.
From the foregoing it is clearly apparent that the
intention of Congress in adopting this amendment was
to prohibit the acquisition of more than 160 acres in
a single body by means of soldiers’ additional home-
stead rights.
The point made by the Circuit Court of Appeals
that under parliamentary law Congress could not
put into a bill a provision which was not germane to
that already in it, is not important here. That was
solely a point of parliamentary practice upon which,
on a point of order, the clause as written might have
been objectionable. An amendment not germane to
a bill is bad on a point of order, but if enacted as a
part of the bill is as valid and is to be considered as
any other portion of the statute.
The construction given to the language of the first
proviso of the act of March 3, 1903, rests upon the
supposed presumption that the Congress would not
violate the rule prohibiting the insertion of new
matter not germane to a provision in one or the other
of the conflicting bills. In the first place, it is not
clear that the proviso is not germane to that pro-
vision of the Senate bill which excepted from its
provisions the right to acquire lands in Alaska by
means of soldiers’ additional homestead _ scrip.
iranting, however, that the proviso was not ger-
‘
&
.
Ma
4
remem PE SOLS TOK
mane to any provision in either of the bills, the pre-
sumption that the conferees had not violated the
rule referred to is a very slender reed to lean upon.
The rule referred to has been habitually violated, a
fact that recently led to an extended discussion in
the Senate. Among other things said about the
rule on that occasion are the following (57 Cong.
Rec., pp. 5620, 5622):
It [meaning a conference report] has the
right of way; it has a supreme legislative
prerogative; it sets aside whatever the Senate
is considering; and here is the troublesome
thing about it: It may be brought up for
immediate consideration by the Senate. It
need not be printed; it need not have appeared
in type form; it may be 40 pages long; it may
deal with everything vital to the future life of
the people of this country, regarding heat,
light, and power. It may be as important as
that; and vet, under the rules, it has the right
to brush aside all pending legislation when it
first comes into the Senate, and be read from
the desk, and the demand made that we pro-
ceed to consider and pass upon it.
* * * * *
Mr. La Fouierre. Suppose a conference
report comes in here, like this report, of 20 or
30 pages. It comes in under a privilege that
does not require it to be printed. When it is
presented it can be read from the desk, and
Senators have to sit there and by their ears
judge whether new matter has been put in by
the conferees or not. What protection is
that?
21
As Judge Rudkin in his dissenting opinion said, it
is immaterial how the proviso got into the act; it is
sufficient that it is there and was enacted deliberately
by Congress. It clearly was put into the bill by way
of compromise, the House yielding in its position
against the proposition in the bill as passed by the
Senate prohibiting entirely the use of soldiers’ addi-
tional rights in Alaska, and the Senate yielding to
the extent of allowing such acquisition within the
limitation expressed as to acreage. Such compro-
mises by conferees in attempting to settle differences
between the two Houses with respect to proposed
legislation are not unusual but are common.
IV.
The construction making the first proviso applicable
only to lands lying along navigable water does
violence to its plain terms, and involves holding,
in effect, that it is superfluous.
The Circuit Court of Appeals is of the opinion that
“what the statute was seeking to protect was the
shores of the navigable waters of Alaska, and not
to prohibit the entry of a tract of land more than
160 acres and not more than 320 acres elsewhere
than along the shore.” (R. 36.) Granted that this
was one of the purposes of the statute, it is clear
that such purpose was fulfilled by other provisions
(Nos. 2 and 4, our numbers) without the aid of the
first proviso, the obvious purpose of which is simply
to prevent the acquisition of more than 160 acres in
H
i
:
t
FE Te IE aie ne oe ee
ecg
pats
BES HI:
7
aE BPS ROG MEI CNR RT ER FS
2, ee a Sie Mp et ota, ea Sie
22
any single body under scrip, lieu selection, or soldier’s
additional homestead right. It could have no other
purpose, if it is to be given any meaning at all.
The court held that the limitation of 160 acres
placed upon the acreage which could be acquired by
soldiers’ additional rights had application only where
the land sought to be entered lay along navigable
waters. If this construction be correct, it follows
that the proviso was also purposeless for the fol-
lowing reasons:
The act of May 14, 1898 (30 Stat. 409), of which
the act of March 3, 1903 (32 Stat. 1028), is an amend-
ment, provided:
That the homestead land laws of the United
States and the rights incident thereto, includ-
ing the right to enter surveyed or unsurveyed
lands under provisions of law relating to the
acquisition of title through soldiers’ additional
homestead rights, are hereby extended to the
District of Alaska, subject to such regulations
as may be made by the Secretary of the In-
terior; * * * Provided, That no entry
shall be allowed extending more than eighty
rods along the shore of any navigable water,
and along such shore a space of at least eighty
rods shall be reserved from entry between
all such claims * * *.,
The fourth proviso in the act of March 3, 1903,
contained the exact language of the proviso in the
act of 1898, which is quoted above, except that it
allowed an entry to extend along navigable water
PL POR SI REE BEE) i LR ITS TEN ON LE RE AL AE ec? ORT ETE LE PM SPER gi Dt
.
23
160 instead of 80 rods, as in the former act. The
Land Department had held under the 1898 act that
all entries, whether ordinary homestead or other-
wise, were limited to 80 rods along the shore of
any navigable water. (Regulations concerning en-
tries, rights of way, timber, etc., Alaska, June 8,
1898; 27 L. D. 248, particularly par. 5, p. 249.) The
Land Department having construed the act of 1898
to limit the acquisition of soldiers’ additional rights
along navigable waters to 80 rods, it is both fair and
logical to say that under the fourth proviso of the
act of 1903 it would have limited such entries to 160
rods along navigable waters. Congress must be
presumed to have legislated with knowledge of the
departmental holdings with respect to the acquisi-
tion of lands in Alaska. This being so, it follows
that proviso No. (1) would be wholly unnecessary
if limited to each entry and not to the acreage which
could be entered in a single body by the use of
soldiers’ additional homestead right, etc., and if the
sole purpose was to limit the proviso here under
consideration to lands lying along navigable waters,
and also if the sole thing in the mind of Congress
was to prevent a monopolization of the water front,
instead of a restriction on the use to be made of such
soldier’s additional homestead rights, as well as
prohibiting all use of them as proposed.
The same is true of the construction of the proviso
given by the district court, which appeared to find
the word “entered” a stumblingblock to the Gov-
a a, Sr FER R
24
ernment’s maintaining the suit. Under the Land
Department construction of the act of May 14, 1898,
all entries, soldiers’ additional or other, were limited
to 80 acres in area. (Instructions of June 8, 1898,
27 L. D. 248, particularly par. 6, p. 249; Instrue-
tions of December 4, 1902, Secretary of the Interior
to Commissioner of the General Land Office, 31
L. D. 441, 442.)
If the word “entered”? was intended to be con-
sidered in the narrow meaning given it by the dis-
trict court, Congress need not have enacted the
proviso, for any number of entries contiguous to
each other away from the shore could have been
made under the 1898 act, provided only each indi-
vidual entry did not exceed 80 acres. There would
scarcely be any point in limiting the area under each
entry and it certainly would serve no purpose; nor
would it have any relevancy to the proposition which
was before the Senate and House conferees, namely,
whether the use of soldiers’ additional rights should
be prohibited entirely as to lands in Alaska.
It is clear from the terms of the proviso itself, as
well as in the light of the situation, both as to pre-
vious legislation and construction by the Land De-
partment, and also in view of the legislative history
of the 1903 act, that Congress meant to limit the
acquisition of lands under soldiers’ additional rights
to 160 acres in a single body in Alaska, regardless of
whether or not the entry bordered on navigable
Ta Pte ogee eo ZS TARO Ne INN PT al CORRS APE AIT AOD ir SPIO Be ta TO Mica tah BE tip
25
water or arose under one or more claims of right
presented by a single holder.
The affidavit that survey No. 242 was 80 rods
distant from any other survey or entry under said
act of Congress was misleading to the public officer
in determining whether more than 160 acres were
being entered by Poland in a single body. Assuming
that the statute prohibited more than 160 acres being
located in a single body by one person, by means of
more than one application filed simultaneously based
on separate assignments, this affidavit made a false
statement to the public officer. It in effect stated
that these tracts did not constitute a single body.
It stated as to No. 242 that it was 80 rods away
from any other survey or entry applied for under
said act, when it adjoined No. 241 being then applied
for under said act. '
|
:
f
ee a ee
Even if the separation of 80 rods was not required
between these two tracts to protect the water front,
as the court below decides, the affidavit asserted the
separation of survey No. 242 from all other surveys
and thus asserted a compliance with the limitation
on the extent of single bodies permitted to be entered
by the use of soldiers’ additional homestead rights.
As pointed out by the dissenting opinion, this
statement, if false, was a fraud on the officials; if
innocent, it was a mistake of fact.
UOTE INE SNE FELL NT PEN TEL LETT
FEAT! bai
| Oe ee Neat aie 3
26
CONCLUSION.
It is respectfully submitted that the decision dis-
missing the bill of complaint should be reversed
and the case sent back for further proceedings there-
under.
ALEXANDER C, KING,
Solicitor General.
FRANK K. NEBEKER,
Assistant Attorney General.
eo
” er okt
OCT 18 1919
: JAMES D. MANER
; OLEew
No. 29
Iu the Supreme Court of the United States
OCTOBER TERM, 1919
THE UNITED STATES, PETITIONER,
Vv.
WILLIAM B. POLAND AND FREDERIC WILLIAM LOW
ON WRIT OF CERTIORARI TO THE UNITED STATES
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
BRIEF OF WILLIAM B. POLAND AND FREDERICK
WILLIAM LOW
THE ARGUS PRESS, SEATTLE
INDEX.
Page
ee tere ete Ash cy cicss sah <emiee see 42 a 599s 1
ce Coen ree h a naib sh av letew wees ex eees 4
Re RUE Sa Sn eg ae 4q
cet ot ee kur aces kc ook ewes e the ditels ex menw anes 5
I. Where the language of the act is unambiguous and clear,
the obvious meaning controls, and construction or in-
terpretation limiting the same is not permissible... .. 5
Il. The language of the act is clear in its restriction of the
acreage to be acquired in a single body, by the use of
serip, liew-seleetion or soldiers’ additional homestead
rights Ee reat Oba baa Kine eee amet he a eS 8
III. Even if it be conceded that the language of the statute
requires construction, we invoke the rule that due
weight should be given to the rulings of the Land
Department. These rulings have uniformly been
to the effect that the acquisition of land in Alaska by
use of soldiers’ additional scrip is limited to 160 acres
ee een watakn sands hey eas 2 ho 15
1V. The construction making the first proviso applicable
only to lands lying along navigable water does violence
to its plain terms, and involves holding, in effect, that
IN oC ioe ard oy once cet vis xe kon samo e he 21
ee Ete dameto it asin cvacec Seana Gh eeae ston ee ew a 26
CITATIONS
Caminetti v. United States (242 U.S. 470)....................2.05.. 7
I Wc MN IE ED cn cays vv eda veweieeevevvseeseses 7
United States v. First National Bank (234 U.S. 245)................ 7
ER ee - 17
oe cui cove wedeWwdbewviestebeas 9
Land Department Circular of Instructions (32 Eee DD. SBE)... ee scvnee 15
Land Department Circular of Instructions fd. ee ee 16
Land Department Circular of Instructions (31 L. D. 441).......... 24
Land Department Circular of Instructions (27 L. D. 248)........... 23, 24
STATUTES.
Act of May 14, 1898 (30 Stat. 409)... Brees ike has ea eo & 2, 10, 22, 24
Act of March 3, 1903 (32 Stat. 1028).................. 2,3, 5, 8, 10, 19, 22, 24
REVISED STATUTES.
Section _ FEE eT OTE EE REE 10
Section 2820 .. SURRSSAN FAREAEAN Shee Mab Onin Rewer eyes Sees 13
ee ee tee ani eh Genk: Gilg te aa tea ie see ae ane oe 13
Section 2330 . . eae Saas aera Rh ak aes oa ON a SRS eas Riera oe 12
Ra ett se lagna ott es Wee Waki cha oa e CRA ERAS 12
IM1M—19—1
Guthe Supreme Court of the Wnited States.
OcTOBER TERM, 1919.
THE UNITED STATES, PETITIONER,
v.
WiiuramM B. PoLanp AND FREDERICK
WiLuiaM Low.
No. 29.
ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT
COURT OF APPEALS FOR THE NINTH CIRCUIT.
BRIEF FOR THE UNITED STATES.
STATEMENT OF THE CASE.
This case presents for review a judgment of the
Circuit Court of Appeals for the Ninth Circuit affirm-
ing a judgment of the District Court for the Third
Division of Alaska dismissing on demurrer a bill filed
by the Government to cancel one of two patents
issued to William B. Poland on two entries made
simultaneously, each embracing 160 acres made by
use of soldiers’ additional homestead rights, the two
aggregating 320 contiguous acres.
The bill, with the exhibits, showed that William B.
Poland was the assignee of the unlocated and unen-
tered soldiers’ additional homestead rights, acquired
from four different parties.
. on eT hppa
“ptt tus jase tis Mi BIE: aaa opiteih plot
On April 26, 1906, Poland filed at the Juneau;
Alaska, land office, simultaneously, two applications,
one based on the soldiers’ additional homestead
rights of two of his assignors, the other on the like
rights of the remaining two assignors.
By one application he sought to enter a tract des-
ignated as survey No. 241, covering 159.25 acres; by
the other, a tract designated as survey No. 242, con-
taining 160 acres. Defendant Poland filed, or caused
to be filed, in support of his application for a patent
to survey No. 242, an affidavit stating that the land
applied for did not exceed 160 acres in extent, fronts
less than 160 rods along the shore of any navigable
water, and is more than 80 rods distant from any
other survey or entry, under the provisions of the
act of May 14, 1898 (30 Stat. 409), as amended by
the act of March 3, 1903 (32 Stat. 1028). Patents
were issued to Poland as follows: For survey No.
241 on January 20, 1908, and for survey No. 242 on
March 22, 1909.
The bill alleged that the patent covering survey
No. 242 had been obtained by fraud because the
allegation in this affidavit that the land covered by
survey No. 242 was more than 80 rods distant from
any other survey or entry was false, and that the
entry was in violation of the express prohibition con-
tained in the act of March 3, 1903, against the loca-
tion in a single body of more than 160 acres by the
use of soldiers’ additional homestead rights (R. 4-6).
3
The defendant Low is made a party as the pur-
chaser of the land in controversy from the patentee,
Poland.
Defendants demurred generally to said bill (R. 13,
14). The district court sustained said demurrers,
holding substantially that the prohibition of the
statute related to the entry of more than 160 acres of
land in a single body under one application, and that
inasmuch as not more than 160 acres was contained
in survey No. 242, the entry was not in contravention
of law, notwithstanding the fact that it was immedi-
ately contiguous to the land embraced in survey No.
241 (R. 14, 23), and was applied for and entered at
the same time by the same person. The Circuit
Court of Appeals by a divided court (Judge Rudkin
dissenting, R. 40) affirmed this judgment (R.34). The
majority held that the limitation in the act of March
3, 1903, restricting the area to be acquired under
soldiers’ additional homestead rights applied only
where the entry lay along the shore of any navigable
water. That the bill as originally passed by the
House and the Senate did not contain this limita-
tion; that it was added in conference committee;
and that as under established parliamentary law a
conference committee is not authorized to consider
matters not incorporated in the bill as passed by the
two Houses of Congress, unless those matters are
germane to someting already in the bill, this addition
must be construed as relating to the restriction on
location along the shore of a navigable water. (Opin-
4
ion of District Court, R. 14; opinion of Circuit Court
of Appeals, R. 34; 231 Fed. 810.)
Assignments of Error.
The assignments of error state that the court
erred in dismissing the bill of complaint (R. 25, 26).
Specification of Errors.
The Government contends:
1. The prohibition of the act is so clear as not to
permit limitation by construction or interpretation.
2. That the act, properly construed, prohibits the
acquisition of more than 160 acres in a single body
by the use of soldiers’ additional homestead rights,
regardless of location or the number of assigned
rights presented by the defendant.
3. That the construction of the statute has been
followed by the Land Department, is sustained by
the history of such legislation as evidencing the con-
gressional intent, and will be persuasive with this
court.
4. That the construction of the statute here com-
plained of disregards and renders unnecessary the
first proviso of said act.
5. That the affidavit that No. 242 was 80 rods
distant from any other survey or entry under the
acts of Congress was misleading to the public officers
on the question whether more than 160 acres were
being entered by Poland in a single body.
ite
— =e Pope at ers ome ae i aot a TF ¥ * 4
ARE kk IS pa re ’
5
I.
ARGUMENT.
Where the language of the act is unambiguous and
clear, the obvious meaning controls, and con-
struction or interpretation limiting the same is
not permissible.
That part of the act of March 3, 1903 (32 Stat.
1028), material here, is as follows:
That all the provisions of the homestead
laws of the United States not in conflict with
the provisions of this act, and all rights inci-
dent thereto, are hereby extended to the dis-
trict of Alaska, subject to such regulations as
may be made by the Secretary of the Interior ;
and no indemnity, deficiency, oT lieu-land se-
lections pertaining to any land grant outside
of the district of Alaska shall be made, and no
land scrip or land warrant of any kind what-
soever shall be located within or exercised
upon any lands in said district except as now
provided by law: And provided further, That
no more than one hundred and sixty acres
shall be entered in any single body by such
scrip, lieu selection, or soldier’s additional
homestead right: And provided further, That
no location of scrip, selection, or right along
any navigable or other waters shall be made
within the distance of eighty rods of any
lands, along such waters, theretofore located
by means of any such scrip or otherwise: And
provided further, That no commutation privi-
leges shall be allowed in excess of one hundred
and sixty acres included in any homestead
entry under the provisions hereof: Provided,
That no entry shall be allowed extending more
6
than one hundred and sixty rods along the
shore of any navigable water, and along such
shore a space of at least eighty rods shall be
reserved from entry between all such claims;
and that nothing herein contained shall be so
construed as to authorize entries to be made
or title to be acquired to the shore of any
navigable waters within said district; and no
patent shall issue hereunder until all the re-
quirements of sections twenty-two hundred
and ninety-one, twenty-two hundred and
ninety-two, and twenty-three hundred and
five of the Revised Statutes of the United
States have been fully complied with as to
residence, improvements, cultivation, and
proof, except as to commuted lands as herein
provided: And it is further provided, That every
person who is qualified under existing laws to
make homestead entry of the public lands of
the United States who has settled upon or who
shall hereafter settle upon any of the public
lands of the United States situated in the dis-
trict of Alaska, whether surveyed or unsur-
veyed, with the intention of claiming the same
under the homestead laws, shall, subject to
the provisions and limitations hereof, be en-
titled to enter three hundred and twenty acres
or a less quantity of unappropriated public
land in said district of Alaska.
The portion of the act particularly important is
the proviso “That no more than one hundred and
sixty acres shall be entered in any single body by
such scrip, lieu selection, or soldier’s additional home-
stead right.”
7
We contend that the language of this proviso is 80
plain, certain, and unambiguous as to make limitation
thereof by construction erroneous. It is well settled
that where the legislative intent is plain and the
language is without ambiguity, there is no ground for
judicial construction, and that a statute will be
enforced according to its obvious meaning. This
doctrine has been reiterated often by this court. A
few of the later cases are: United States v. Furst
National Bank (234 U. S. 245, 258); Mackenzie V.
Hare (239 U. S. 299, 307, 308); and Caminetti. Vv.
United States (242 U.S. 470, 485-490).
The opinion in the Caminetti case thus states the
rule (p. 485):
It is elementary that the meaning of a
statute must, in the first instance, be sought in
the language in which the act is framed, and
if that is plain, and if the law is within the
constitutional authority of the law-making
body which passed it, the sole function of the
courts is to enforce it according to its terms.
Lake County V. Rollins, 130 U.S. 662, 670, 671,
Bate Refrigerating Co. V- Sulzberger, 157 U. 8.
1, 33; United States v. Lexington Mill and
Elevator Co., 232 U. 8S. 399, 409; United
States Vv. Bank, 234 U.S. 245, 258.
Where the language is plain and admits of
no more than one meaning the duty of inter-
pretation does not arise and the rules which
are to aid doubtful meanings need no dis-
cussion. Hamilton Vv. Rathbone, 175 U. S.
414, 421.
134124—19——2
8
Il.
The language of the act is clear in its restriction of
the acreage to be acquired in a single body, by the
use of scrip, lieu-selection or soldiers’ additional
homestead rights.
In the portion of the act of March 3, 1903, relevant
to this case, there are five provisos. They provide:
(1) That no more than 160 acres shall be
entered in a single body by such scrip, lieu
selection or soldiers’ additional homestead
right.
(2) No location of scrip, selection or right
along any navigable or other water shall be
made within the distance of 80 rods of any
lands along such water, theretofore located by
means of any such scrip or otherwise.
(3) No commutation privileges shall be al-
lowed in excess of 160 acres included in any
homestead entry under the provisions hereof.
(4) No entry shall be allowed extending
more than 160 rods along the shore of any
navigable water, and along such shore a space
of at least 80 rods shall be reserved from entry
between all such clair , and nothing herein
contained shall be so construed as to authorize
entries to be made or title acquired to the
shore of any navigable water within said dis-
trict. (The remaining portion relates to other
matters not important here.)
(5) Every person who is qualified under ex-
isting laws to make homestead entry of the
public lands of the United States who has
settled upon or shall hereafter settle upon any
of the public lands . . . situated in the
Bos PR ns ey cnc gl ahaa
Sl ceaey RA aE Dish qe RUN ERE el eS
plan So SM AE oh ew a
EES ROA eae es ial .
district of Alaska . .-. - with the intention
of claiming the same under the homestead laws
shall . . . be entitled to enter 320 acres
or a less quantity of unappropriated public
lands in said district of Alaska.
It is quite clear that the subject matter of the pro-
visos (1) and (5) (our numbers) relate to different
subjects.
No. (1) restricts the acreage to be acquired in a
single body by the use of scrip, lieu selection, or sol-
dier’s additional homestead rights.
One contrasting incident to these several rights and
the homestead right spoken of in No. (5) is that scrip,
lieu selection, and soldiers’ additional rights require
no residence to perfect the same. They are an asset
like a chose in action, and are subject to sale and
assignment at pleasure. No duty of residence or im-
provement rests on either assignor or assignee. ( Web-
ster v. Luther, 163 U. 8. 331, 337, 339, 341.)
The proviso (5) relates solely to a homestead right
to be perfected by residence, cultivation, and im-
provements required of homestead settlers by the
homestead laws.
Taking the remaining parts of the statute, the lan-
guage in proviso (1) is not that “no entry”’ shall be
made containing more than 160 acres. It is “no
more than 160 acres shall be entered ina single body.”
An entry might well be construed to be the “right
of entry’’ of each claimant. This definition is not
applicable to the proviso.
10
The difference of language in this act of 1903 and
the former act of May 14, 1898 (80 Stat. 409), is
significant. The former act reads “No entry (italics
ours) shall be allowed extending more than 80 rods
along the shore,” ete. The present act reads, “No
more than 160 acres shall be entered in a single body
by such scrip, lieu selection, and soldiers’ additional
homestead right.”’
Each soldier, under additional homestead right,
would be entitled only to the difference between his
original homestead and 160 acres. Each separate
claim would therefore be less than 160 acres. (Rev.
Stats., sec. 2306.)
These rights were assignable at will, and claims
calling for much more than 160 acres in the aggregate
could well become the property of one assignee.
Language similar to that inserted in proviso (1)
had not existed in the statutes regulating these
matters before the act of March 3, 1903. (See dis-
senting opinion of Rudkin, J., in this case reviewing
previous legislation, R. 40-42.)
The conclusion seems to be inevitable that the
purpose of this act and the provisos is—
First. To extend to Alaska the homestead system
of the United States.
Second. To provide that a settler might acquire an
original homestead not exceeding 320 acres on com-
plying with the laws as to residence upon the home-
stead, etc., as contained in said statutes.
ad
».------—
Z
——_
—— — —
11
No commutation privileges shall be allowed in
excess of 160 acres included in any homestead entry
under the provisions of the statute. |
Third. That persons seeking to enter lands under
scrip, lieu selection, or soldiers’ additional homestead
rights (such persons not being required by law to
reside upon, cultivate, or improve the lands), can
not by means of such scrip have more than 160 acres
of land entered in a single body; that whether this is
attempted by one or two entries (so called) is imma-
terial.
Fourth. That no patents shall issue until all re-
quirements of law are complied with.
Fifth. That no location by scrip, selection, or
right shall be made along the shore of any water
within 80 rods of any other located lands along said
water.
Sixth. That no entry shall be allowed extending
more than 160 rods along the shore; that at least 80
rods along such shore shall be kept free from entry
between such claims; that entries of the shore can
not be made, or title to such shore acquired.
The District Court placed stress upon the word
“entered” in the proviso. The court overlooked the
fact that “an entry”’ is not the thing prohibited, but
is that “ more than 160 acres shall not be entered in a
single body”’ by the use of scrip, etc. It is clear from
the entire proviso that what was aimed at was the
prevention of the acquisition through soldiers’ addi-
tional homestead rights of more than 160 acres in a
12
single body, and not an entry under each separate
right without regard to the acreage in a single body
which one person might thus acquire.
The District Court in its opinion undertakes to draw
an analogy between the provisions here under dis-
cussion and the United States Mining Law {R. 16).
Under the latter, “no such location [placer] shall
include more than twenty acres for each individual
claimant’’ (R. S. 2331), but “two or more persons,
or associations of persons, having contiguous claim
of any size * * * may make joint entry thereof,
but no location of a placer claim * * *- shall
exceed one hundred and sixty acres for any one person
or association of persons.”’ (R. S. 2330.) (Italics
supplied.)
The District Court points out that such provisions
have never restricted a person or association of per-
sons from making two locations immediately ad-
joining, and holds that the “same reasoning would
apply to one case as to another.”” (R. 16.)
There perhaps would be justification for this view
if the provision of law applicable in the instant case
read, “No entry under such scrip, lieu selection or
soldier’s additional homestead right shall exceed
one hundred and sixty acres,” thus following the pro-
visions of the placer mining law.
But the language under consideration does not
follow those provisions. Instead, it provides “that
no more than one hundred and sixty acres shall be
entered in any single body by such scrip,”’ etc.
OSE —
13
By contrast, the difference in meaning is obvious.
It is apparent that the provision was designed to pre-
vent the very thing the District Court holds that it
sanctions.
This statute did not seek to restrict the right of an
individual to more than one claim, but only to pre-
vent an individual from holding more than 1€0 acres
in a single body under scrip, lieu selection, or soldier’s
additional homestead right.
The argument that it would be useless to provide
that not more than 160 acres of land shall be entered
in a single body under scrip, etc., if two such loca-
tions adjoining each other could be extered and
patented, is met in the opinion of the District Court
by another reference to placer mining locations.
The court asks why such locations should be limited
to 160 acres when two or more may be entered by the
same locators notwithstanding the fact that they
adjoin each other, and answers this question by
stating that a limitation must be made somewhere
and that it was probably placed “at 160 acres
as being a reasonable area to be included in one
location, the presumption being that the additional
expense of locating, surveying and other expenses
attendant upon holding and patenting the grant will
operate as a check on excessive locating or patenting
by one individual or association.” (R. 16.)
It is apparently overlooked that discovery is made
a prerequisite to a mineral location (R. S., 2320, 2329),
which requirement of necessity operates as a limita-
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tion on the amount of land which such discovery
entitles a claimant to locate, whilst in the case of
homestead lands acquired under soldier’s additional
homestead right, the acreage that can be entered
thereunder is fixed by the instrument itself before
entry is made.
The theory of the District Court is that the two
tracts were separate and distinct bodies of land under
our system of land measurement. Presumably, the
court considered that the imaginary and arbitrary
line between the two surveys constituted sufficient
separation of the land to exclude them from the inhi-
bition against the acquisition of land in a single
body in excess of 160 acres.
It is inconceivable that Congress intended such a
construction to be placed on the term “single body,”
for the provision thus construed would be applicable
to no lands other than those contained in the unsur-
veyed portion of the public domain in Alaska, and,
even when so applied, the terms of the provision could
be circumvented, as in this case, by causing an official
survey to be made (R. 3) before making application
to enter the land. Moreover, this construction of the
provision would have placed Congress in the position
of prohibiting the doing of an act directly, which by
indirection it intended to allow.
Since the language of the statute is plain, it was
not necessary for the Circuit Court of Appeals to
take into consideration the legislative history of the
bill as it passed the two houses of Congress, to ascer-
—
lo
tain the intention of Congress with respect to it.
There being no ambiguity or uncertainty in the lan-
guage of the statute, construction is not permissible.
Il.
Even if it be conceded that the language of the statute
requires construction, we invoke the rule that due
weight should be given to the rulings of the Land
Department. These rulings have uniformly been
to the effect that the acquisition of land in Alaska
by use of soldiers’ additional scrip is limited to
160 acres in a single body.
In Circular of Instructions (32 L. D. 424, 426), it
was stated:
The amendatory act does not specifically
reenact that portion of the act of 1898 which
granted the right to enter unsurveyed lands
in the district of Alaska under the provisions
of law relating to the acquisition of title
through soldiers’ additional rights, but it is
provided thereby “that no more than one
hundred and sixty acres shall be entered in
any single body by such scrip, lieu selection,
or soldier’s additional homestead right,’’ which
seems to negative any intention to modify or
repeal the existing law with regard to the ex-
ercise of such rights in the district of Alaska
further than to limit the amount which may
be entered in a single body to 160 acres.
Further, that portion of the amendatory act
which provides that “no indemnity, deficiency,
or lieu-land selections pertaining to any land
grant outside of the district of Alaska shall
be made, and no land scrip or land warrant of
Gb POLE RAL SIO RGAE REALL IEE SON
SHA MA? os
Kiiiabigh PR Pa stat tes ct Batok
16
any kind whatsoever shall be located within
or exercised upon any lands in said district,
except as now provided by law,” seems to
recognize that there are some such outstanding
rights; but, unless soldiers’ additional home-
stead rights are thereby considered as scrip
rights, this Department is not advised as to
any other law permitting the exercise of any
such rights in the district of Alaska. You will
therefore continue to receive soldiers’ addi-
tional homestead applications under sections
2306 and 2307, Revised Statutes, as hereto-
fore, bearing in mind the limitation that not
more than 160 acres can be taken in a single
body.
In circular dated July 7, 1913 (42 L. D. 218, 214),
the following occurs:
No more than 160 acres shall be entered in
any single body by scrip, land warrant, or
soldiers’ additional right in any part of the
District of Alaska, and between any of such
claims aggregating more than 160 acres there
must be a space of 80 rods.
There are no reported decisions of the Land De-
partment involving this proviso, but there are several
decisions of the General Land Office unreported that
are in accord with what we understand to be its
plain meaning. These rulings and decisions of the
executive department charged with its administra-
tion are entitled to respect and should be given
weight by the courts in considering the statute.
17
This rule is well stated in United States v. Hammers
(221 U.S. 220) as follows (pp. 228, 229):
Conceding then that the statute is ambigu-
ous, we must turn as a help to its meaning,
indeed in such case, as determining its mean-
ing, to the practice of the officers whose duty
it was to construe and administer it. They
may have been consulted as to its provisions,
may have suggested them, indeed have written
them. At any rate their practice, almost co-
incident with its enactment, and the rights
which have been acquired under the practice,
make it determinately persuasive.
The history of the legislation which resulted in
this enactment will be found to support the con-
struction which is contended for by the Government.
The Circuit Court of Appeals, in the majority opinion,
gives a correct statement of what transpired while
the bill was being considered by Congress, but the
history thus given is not complete. As first intro-
duced in and passed by the House, the bill provided
only for raising the acreage which might be acquired
in Alaska under the homestead law from 80 to 320
acres. (H. R. 778, 57th Cong., Ist sess. on H. R.
12098.) See also Congressional Record, volume 36,
part I, Fifty-seventh Congress, second session, page
81, which contains the brief diseussion of the bill in
the House and indicates that only the ordinary
homestead entry was considered. When the bill was
presented to the Senate Committee .on Public Lands,
an amendment was made to it which practically was
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a rewriting of the bill. An important provision in
this amendment was that excepting from the pro-
visions of the bill the allowance of acquisition of
title by soldiers’ additional homestead rights, and the
following specific mention was made of that pro-
vision in the Senate (Rept. No. 2755, 57th Cong.}
2d sess.):
Third. All this land is, by the operation of
this proposed bill, taken out of the operation
of the law which allows the entry of land of
like character in the United States and Ter-
ritories by means of the various classes of land
scrip which may now be applied to that
purpose.
It passed the Senate in substantially the form
presented by the committee (Cong. Rec., vol. 36,
pt. 2, pp. 1679-1681, 2028). After the bill went to
conference on the nonconcurrence by the House in
the Senate amendments, and the insistence by the
Senate upon its amendments, the bill was reported
by the conferees with amendments, one of them
being the proviso against the acquisition of more
than 160 acres in a single body under the soldiers’
additional homestead rights. In submitting this
report to the House, the House conferees made a
statement (Cong. Rec., vol. 36, pt. 3, p. 2859, 57th
Cong., 2d sess.), the first paragraph of which is as
follows:
The Senate provision prohibiting the use of
soldiers’ additional homestead rights in Alaska
is stricken out, leaving the existing law, and
19
also limiting the use of all scrip or lieu selec-
tions to tracts of not exceeding 160 acres, and
reserving from such locations along navigable
or other waters tracts of not less than 80 rods
in width between such entries.
From the foregoing it is clearly apparent that the
intention of Congress in adopting this amendment was
to prohibit the acquisition of more than 160 acres in
a single body by means of soldiers’ additional home-
stead rights.
The point made by the Circuit Court of Appeals
that under parliamentary law Congress could not
put into a bill a provision which was not germane to
that already in it, is not important here. That was
solely a point of parliamentary practice upon which,
on a point of order, the clause as written might have
been objectionable. An amendment not germane to
a bill is bad on a point of order, but if enacted as a
part of the bill is as valid and is to be considered as
any other portion of the statute.
The construction given to the language of the first
proviso of the act of March 3, 1903, rests upon the
supposed presumption that the Congress would not
violate the rule prohibiting the insertion of new
matter not germane to a provision in one or the other
of the conflicting bills. In the first place, it is not
clear that the proviso is not germane to that pro-
vision of the Senate bill which excepted from its
provisions the right to acquire lands in Alaska by
means of soldiers’ additional homestead scrip.
Granting, however, that the proviso was not ger-
mane to any provision in either of the bills, the pre-
sumption that the conferees had not violated the
rule referred to is a very slender reed to lean upon.
The rule referred to has been habitually violated, a
fact that recently led to an extended discussion in
the Senate. Among other things said about the
rule on that occasion are the following (57 Cong.
Rec., pp. 5620, 5622):
It [meaning a conference report] has the
right of way; it has a supreme legislative
prerogative; it sets aside whatever the Senate
is considering; and here is the troublesome
thing about it: It may be brought up for
immediate consideration by the Senate. It
need not be printed; it need not have appeared
in type form; it may be 40 pages long; it may
deal with everything vital to the future life of
the people of this country, regarding heat,
light, and power. It may be as important as
that; and yet, under the rules, it has the right
to brush aside all pending legislation when it
first comes into the Senate, and be read from
the desk, and the demand made that we pro-
ceed to consider and pass upon it.
* 7 * * *
Mr. La Fo.erre. Suppose a conference
report comes in here, like this report, of 20 or
30 pages. It comes in under a privilege that
does not require it to be printed. When it is
presented it can be read from the desk, and
Senators have to sit there and by their ears
judge whether new matter has been put in by
the conferees or not. What protection is
that ?
2?
21
As Judge Rudkin in his dissenting opinion said, it
is immaterial how the proviso got into the act; it is
sufficient that it is there and was enacted deliberately
by Congress. It clearly was put into the bill by way
of compromise, the House yielding in its position
against the proposition in the bill as passed by the
Senate prohibiting entirely the use of soldiers’ addi-
tional rights in Alaska, and the Senate yielding to
the extent of allowing such acquisition within the
limitation expressed as to acreage. Such compro-
mises by conferees in attempting to settle differences
between the two Houses with respect to proposed
legislation are not unusual but are common.
B
The construction making the first proviso applicable
only to lands lying along navigable water does
violence to its plain terms, and involves holding,
in effect, that it is superfluous.
The Circuit Court of Appeals is of the opinion that
“what the statute was seeking to protect was the
shores of the navigable waters of Alaska, and not
to prohibit the entry of a tract of land more than
160 acres and not more than 320 acres elsewhere
than along the shore.” (R. 36.) Granted that this
was one of the purposes of the statute, it is clear
that such purpose was fulfilled by other provisions
(Nos. 2 and 4, our numbers) without the aid of the
first proviso, the obvious purpose of which is simply
to prevent the acquisition of more than 160 acres in
Biren. Kalyan ERG ASE Ua SAE EE TALE REMERON
22
any single body under scrip, lieu selection, or soldier’s
additional homestead right. It could have no other
purpose, if it is to be given any meaning at all.
The court held that the limitation of 160 acres
placed upon the acreage which could be acquired by
soldiers’ additional rights had application only where
the land sought to be entered lay along navigable
waters. If this construction be correct, it follows
that the proviso was also purposeless for the fol-
lowing reasons:
The act of May 14, 1898 (30 Stat. 409), of which
the act of March 3, 1903 (32 Stat. 1028), is an amend-
ment, provided:
That the homestead land laws of the United
States and the rights incident thereto, includ-
ing the right to enter surveyed or unsurveyed
lands under provisions of law relating to the
acquisition of title through soldiers’ additional
homestead rights, are hereby extended to the
District of Alaska, subject to such regulations
as may be made by the Secretary of the In-
terior; * * * Provided, That no entry
shall be allowed extending more than eighty
rods along the shore of any navigable water,
and along such shore a space of at least eighty
rods shall be reserved from entry between
all such claims * * *.,
The fourth proviso in the act of March 3, 1903,
contained the exact language of the proviso in the
act of 1898, which is quoted above, except that it
allowed an entry to extend along navigable water
23
160 instead of 80 rods, as in the former act. The
Land Department had held under the 1898 act that
all entries, whether ordinary homestead or other-
wise, were limited to 80 rods along the shore of
any navigable water. (Regulations concerning en-
tries, rights of way, timber, etc., Alaska, June 8,
1898; 27 L. D. 248, particularly par. 5, p. 249.) The
Land Department having construed the act of 1898
to limit the acquisition of soldiers’ additional rights
along navigable waters to 80 rods, it is both fair and
logical to say that under the fourth proviso of the
act of 1903 it would have limited such entries to 160
rods along navigable waters. Congress must be
presumed to have legislated with knowledge of the
departmental holdings with respect to the acquisi-
tion of lands in Alaska. This being so, it follows
that proviso No. (1) would be wholly unnecessary
if limited to each entry and not to the acreage which
could be entered in a single body by the use of
soldiers’ additional homestead right, etc., and if the
sole purpose was to limit the proviso here under
consideration to lands lying along navigable waters,
and also if the sole thing in the mind of Congress
was to prevent a monopolization of the water front,
instead of a restriction on the use to be made of such
soldier’s additional homestead rights, as well as
prohibiting all use of them as proposed.
The same is true of the construction of the proviso
given by the district court, which appeared to find
the word “entered” a stumblingblock to the Gov-
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24
ernment’s maintaining the suit. Under the Land
Department construction of the act of May 14, 1898,
all entries, soldiers’ additional or other, were limited
to 80 acres in area. (Instructions of June 8, 1898,
27 L. D. 248, particularly par. 6, p. 249; Instrue-
tions of December 4, 1902, Secretary of the Interior
to Commissioner of the General Land Office, 31
L. D. 441, 442.)
If the word “entered’’ was intended to be con-
sidered in the narrow meaning given it by the dis-
trict court, Congress need not have enacted the
proviso, for any number of entries contiguous to
each other away from the shore could have been
made under the 1898 act, provided only each indi-
vidual entry did not exceed 80 acres. There would
scarcely be any point in limiting the area under each
entry and it certainly would serve no purpose; nor
would it have any relevancy to the proposition which
was before the Senate and House conferees, namely,
whether the use of soldiers’ additional rights should
be prohibited entirely as to lands in Alaska.
It is clear from the terms of the proviso itself, as
well as in the light of the situation, both as to pre-
vious legislation and construction by the Land De-
partment, and also in view of the legislative history
of the 1903 act, that Congress meant to limit the
acquisition of lands under soldiers’ additional rights
to 160 acres in a single body in Alaska, regardless of
whether or not the entry bordered on navigable
water or arose under one or more claims of right
presented by a single holder.
The affidavit that survey No. 242 was 80 rods
distant from any other survey or entry under said
act of Congress was misleading to the public officer
in determining whether more than 160 acres were
being entered by Poland in a single body. Assuming
that the statute prohibited more than 160 acres being
located in a single body by one person, by means of
more than one application filed simultaneously based
on separate assignments, this affidavit made a false
statement to the public officer. It in effect stated
that these tracts did not constitute a single body.
It stated as to No. 242 that it was 80 rods away
from any other survey or entry applied for under
said act, when it adjoined No. 241 being then applied
for under said act. ;
Even if the separation of 80 rods was not required
between these two tracts to protect the water front,
as the court below decides, the affidavit asserted the
separation of survey No. 242 from all other surveys
and thus asserted a compliance with the limitation
on the extent of single bodies permitted to be entered
by the use of soldiers’ additional homestead rights.
As pointed out by the dissenting opinion, this
statement, if false, was a fraud on the officials; if
innocent, it was a mistake of fact.
oer ety
26
CONCLUSION.
It is respectfully submitted that the decision dis-
missing the bill of complaint should be reversed
and the case sent back for further proceedings there-
under.
ALEXANDER C, KING,
Solicitor General.
FRANK K. NEBEKER,
Assistant Attorney General.
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No. 29
eo
—_—
3u the Supreme Court of the Rnited States
OcToRER TERM, 1919 |
THE UNITED STATES, PETITIONER,
‘ oO.
Wni1aM B, POLAND AND Frevertc Wuusam Low
ON WRIT OF CERTIORARI TO THE UNITED STATES
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
BRIEF OF WILLIAM B. POLAND AND FREDERICK
WILLIAM LOW |
INDEX
PAGE
NNN 0 acide ca'casns ankedacabeantaetns bisdadaueadvautes: tearesekiveakernunusek cous |
Ee SETI IIS BIg Aol Ten BAB One A ae SE ta Silom 2
I. Considering the purpose of the affidavit and the
actual statute to which it referred it is neither
TUNG HOP TOP OOS «sisicwkis cae ee vakn eam ewe e eye 2
II. The language of the act does not prohibit two ad-
joining entrics of separate surveys and tracts 10
lll. There have been no authoritative official decisions
or opinions of the Land Department upon the
question at issue, entitled to weight before this
CEC pasts a tae Sak Ne ee ayaa Ce a ae eR ee 8 ll
IV. By analogy the administration of the mining laws
by the Department for many years supports our
contention that we are within not only the let-
ter ut Che winds OF Ge IAW. coos scics.censcenas 15
V. Assuming that the granting of the patent to sur-
vey 242 resulted from a mistake of fact and law
in the minds of the officers of the Land Depart-
ment, but without any act of fraud on the
part of the Respondent Poland, we urge that the
complaint is open to demurrer for want of an
allegation of the return or tender of the return
of the consideration paid for the entry....... 17
VI. The complaint is wanting in the necessary alle-
gations to charge the Respondent Low with
knowledge of or to subject his title to the in-
firmities or irregularities of the entryman’s
RM Gc EU MRR CT ev Teer er ara anh eee <
IRE oc econ corde cs nvsdeveetiees co ocsc han eed iasinine sn Da ake 23
CITATIONS,
Atlantic Delaine Company v. James (94 U.S. 207) .......... 16
Brent v. Bank of Washington (85 U. S. 596).............2.4. 20
Causey v. United States (240 U. S. 399) .......ccececceees 17, 19
Sete 0. Berean 0GF RI Bes css vi eres ccein es saves 21
Shuts oe; Beer Ce Bic FO see cane xdsars\wenewe enews 21
United States v. Detroit Timber & Lumber Co. (200 U.S. 321) 22
I'nited States v. Maxwell Land Grant Co. (121 U.S. 325) 16
United States v. Trinidad Coal and Coking Co. (187 U.S. 160) 17
ee a Ee |, Sete eerie erin tre ore 22
STATUTES
Act of Zane 16, 1600 Cal Bees Ga Bee x ose vaecawasunasses 18
Act of May 16, 2006 (BO BORG. Bae sin svcsces cs inswncens 2, 4 ¥
Act of Marah 3; 1006 (G2 GtGe TGR): os ence cc ccineveacces 2, 3, 10
Act ot Ae. 1, TOTE COT Bene Ea Pee hk vic cds taceeenes a 15
REVISED STATUTES
DOORN ROO nik op dd a's cURCER SC AOTAOWAR GINO SNORE © 15
ae Wee: Beeb. VR. Ee okie eines when tae saucs 4
TRA
PELE EB OG 0 BRL AGS
Inthe Supreme Court of the United States
OCTOBER TERM, 1919
THE UNITED STATES, PETITIONER,
v. No. 29
WILLIAM B. POLAND AND FREDERICK
WILLIAM LOW
ON WRIT OF CERTIORARI TO THE UNITED STATES
CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
BRIEF OF WILLIAM B. POLAND AND FREDERICK
WILLIAM LOW
STATEMENT OF THE CASE
In view of the allegations of fraud contained
in the amended complaint in this case, the Re-
spondents deem it important to correct an inad-
vertent error in the Statement of the Case as
set forth in the brief for the United States. On
page two of the brief, it is stated that the affidavit
alleged to contain a false statement recited that
the land in question, among other things, “is more
than eighty rods distant from any other survey
or entry under the provisions of the Act of May 14,
Rd
ae
eo
3
5
2
1898, (30 Stat. 409) as amended by the Act of
March 3, 1908, (32 Stat. 1028).”
The affidavit did not contain the words ital-
icized. (R. 4.)
Comment upon this important distinction will
be made in the course of the argument.
ARGUMENT
Considering the purpose of the affidavit and the actual
Statute to which it referred it was neither false nor
incorrect.
The defendant Poland had received from the
United States a patent for the premises included
in Survey Number 241, as shown upon the plat
inserted between pages thirty-eight and _ thirty-
nine of the record, being lands within the Terri-
torial District of Alaska. Said Patent was issued
January 20, 1908. (R. 4.)
On March 22, 1909, the defendant Poland se-
cured from the United States a patent for the
premises described as Survey Number 242, also
shown on the plat above referred to; and for the
cancellation of which patent this action was
brought; no such action, however, being taken
with reference to the patent for Survey Number
241.
The applications for the allowance of both en-
tries were made at the same time. (R. 4.)
Did the defendant Poland by reason of the lo-
cation and entry of these two tracts, one of which
contained one hundred fifty-nine and seventy-five
hundredths acres of land, and the other of which
e
3
contained one hundred and sixty acres of land,
fraudulently acquired from the United States more
than one hundred sixty acres of land by one entry
in a single body as prohibited by the Act
of May 14, 1898, as amended by the Act of
March 3, 1903? (32 Stat. 1028.)
The respondents contend that fraud is an essen-
tial part of the case for the United States in the
absence of an allegation of the return, or a tender
thereof, of the consideration paid for the patent.
The act of fraud alleged in the amended com-
plaint is that the defendant Poland at the time
of the filing of his application for the entries of
the tracts in question filed with the officers of
the land office an affidavit which contained the
following language:
“Said tract of land (referring to the
land embraced in said survey No. 242) does
not exceed 160 acres in extent and is in
frontage less than 160 rods along the shore
of any navigable water, and is more than
eighty rods distant from any other survey
or entry under the provisions of said Act
of May 14th, 1898.” (Italice ours.)
And that such statement was false and misled
the officers of the various land departments and
induced them to issue the patent for Survey Num-
ber 242.
Manifestly the statement that Survey 242 did
not contain more than one hundred and sixty
acres was not false. Nor is the statement that
eer OETA IIRL LEM TG
Be
4
said Survey 242 is in frontage less than one
hundred and sixty rods along the shore of any
navigable water false, for the plat shows that it
has no frontage on any water.
But it is urged that the further statement “that
it is more than eighty rods distant from any other
survey or entry under the provisions of the Act
of May 14, 1898” is false.
Is it? This brings us to the correction sug-
gested by the respondents as to the statement of
the case in the Brief for the United States. If
we add to what the affidavit really says, the
words italicized in our correction of the record,
to-wit: “As amended by the Act of March 3,
1903,” we not only fall into the same error as
counsel for the United States, but we make the
affidavit refer to another, and for the purposes of
the question of fraud, a totally different law.
Whether or not the affidavit in question was made
upon a form prepared by the land office with ref-
erence to the Act of May 14, 1898, it bears upon
its face most persuasive evidence that it was
drawn only with relation thereto; for the act re-
ferred to places no limitations whatever upon the
amount of land which may be entered by soldiers
additional homestead right except as regards lands
along the shore of navigable waters, and this pro-
vision is repeated as a part of the enacting clause
and repeated as a proviso to sections two and ten
of said act of May 14, 1898. (Supp. Rev. Stat.
YY
ALS eT Ann SR tba nig as eta te .
Vol. 2, p. 755. 30 Stat. at L. 409.) Read as it
was actually written and applied to the lands to
which it referred, the affidavit is exactly true.
Indeed, we do not believe that the Court will ser-
iously consider its having been intended for any
other purpose than exactly as above suggested.
The amendatory act of 1903, which is Section
101 Compiled Laws of Alaska, 32 Stat. L. p. 1028,
reads as follows:
Section 101. “That all the provisions
of the homestead laws of the United States
not in conflict with the provisions of this
act and all rights incident thereto, are
hereby extended to the District of Alaska,
subject to such regulation as may be made
by the Secretary of the Interior; and no
indemnity, deficiency, or lieu land selec-
tions pertaining to any grant outside of
the District of Alaska shall be made, and
no land scrip or land warrant of any kind
whatsoever shall be located within or exer-
cised upon any lands in said district except
as now provided by law; and provided
further that no more than one hundred
and sixty acres shall be entered in any
single body by such scrip, lieu selection, or
soldier’s additional homestead right; pro-
vided further that no location of scrip, sel-
ection, or right along any navigable or
other waters shall be made :ithin the dis-
tance of eighty rods of any lands, along
such waters, theretofore located by means
29 er eter |
COP ANY PINON ERIM ONE BIR SC OTH USE
ald
6
of any such scrip or otherwise; and pro-
vided further that no commutation privi-
leges shall be allowed in excess of one
hundred and sixty acres included in any
homestead entry under the provisions here-
of; Provided, That no entry shall be al-
lowed extending more than one hundred
and sixty rods along the shore of any
navigable water, and along such shore a
space of at least eighty rods shall be re-
served from entry between all such claims;
and that nothing herein contained shall be
so construed as to authorize entries to be
made or title to be acquired to the shore of
any navigable waters within said district;
and no patent shall issue hereunder until
all the requirements of sections twenty-
two hundred and ninety-one, twenty-two
hundred and ninety-two, and twenty-three
hundred and five of the Revised Statutes
of the United States have been fully com-
plied with as to residence, improvements,
cultivation, and proof except as to com-
muted lands as herein provided.”
It will be seen that under the provisions of the
Statute above quoted no location of scrip, selec-
tion, or soldier’s right, along navigable or other
waters, shall be made within the distance of eighty
rods of any lands along such waters theretofore
located by means of any such scrip or otherwise.
We do not find, however, any provision of the
law in said section, nor has our attention been
called to any provision of the law anywhere, which
“ SS RPP A URE MEE A AEEMONE TTS Ca LE NDE RE GEES BMT 2 ANSE EI. ARAB?
7
prohibits an entryman from taking up land within
eighty rods, or any other distance, from any other
land therefore located by him, or any one else,
except along navigable waters.
A reference to the plat at once discloses the fact
that Survey No. 242 is not along any navigable
or other water. (R. 33.)
We think, therefore, that we may disregard the
immaterial statement referred to in the affidavit,
to the effect that Survey No. 242 is more than
eighty rods distant from any other survey, or
entry, under the provisions of the Act of May
14th, 1898.
The maker of the affidavit, and the defendant
Poland, were attempting to comply with the re-
quirements of the Act of May 14, 1898, with ref-
erence to the location of claims along the shore
and were not otherwise making reference to the
relative location of the claims to each other.
As a matter of fact, read in connection with the
Act of May 14, 1898, to which it refers, the affi-
davit is entirely accurate, for it is obvious that
within the meaning of that act, i. e. along the
shore of any navigable or other water, Survey No.
242 is not within eighty rods of any other entry.
It has been contended in the lower courts in
the language of the Amended Complaint:
“That the said statement was false and
fraudulent in that it concealed from the
officials of the Land Department of the
wor SRA REEL III
United States the fact that land in excess
of one hundred and sixty acres in a single
body was entered by soldier’s additional
homestead right under the application of
the said defendant, William B. Poland, in
support of which application said affidavit
was filed.”
The plaintiff further alleges that this fraud
deceived the various officers of the Government
including the aflicials of the Land Department
and the President of the United States as to the
quantity of land included therein.
If these two surveys do not constitute a single
entry, the statement is wholly immaterial. If, on
the other hand, they do constitute a single entry,
the statement is absurd on the face of the surveys,
descriptions and plats. The language of the affi-
davit is not that the land sought by entry, under
Survey No. 242, is not in excess of 160 acres,
including the prior entry under Survey No. 241.
It is, that the survey in question, No. 242, does
not exceed 160 acres, which statement is true.
It has been suggested that notwithstanding the
apparent purpose of the affidavit, and the refer-
ence to the Act in compliance with which
it was made, yet the statement that Claim
No. 242 is more than 80 rods distant from
any other survey, or entry, under the provisions
of said Act, might lend color to the impression in
the minds of the Government officials, that Claim
8
No. 242 could not be a part of another entry in any
event, because it was at least 80 rods distant
from any other claim.
It is hard to conceive of such an idea in the mind
of any Government official when we take into con-
sideration the following language contained in
the patent itself:
“Beginning at Corner No. 1 near the
North shore of Resurrection Bay, identical
with Corner No. 5 U. S. Survey No. 241.”
(R. 9.)
(It will be noted that corner No. 1 is not on the
shore. )
This is the language contained in the _intro-
ductory clause of the patent, which is now sought
to be annulled, and which is set forth as Exhibit
“B” to the complaint herein.
In other words, this patent shows upon its face
as did the survey upon which it was based, that
these two location—these two claims—were iden-
tical in a common corner, and that they abut each
other on a line drawn East and West.
To say that the affidavit under such circum-
stances, deceived the land office officials, is to
accuse them of a lack of ordinary intelligence, a
supposition which seems to us impossible to be
entertained,
We submit therefore that the facts pleaded are
wanting in an allegation of either fraud intended
or exercised or relied upon.
a
A
10
II.
The language of the act does not prohibit two adjoining en-
tries of separate surveys and tracts.
We submit that the language of the Act of
March 3, 1903, above referred to, is not vague
or ambiguous or in need of interpretation, and
that only an attempt to construe it against the
plain meaning of simple english has made _ pos-
sible the bringing of this action.
All bodies of land except such as nature divides
are subject to division only by the intangible
lines created by man. Whether a portion of the
earth’s surface is one body of land or is composed
of several bodies is dependent upon human action;
whether we have made such portion into several
depends upon our arbitrary survey. To say that
two land descriptions having a common boundary
line must ipso facto constitute one body of land,
if carried to its logical conclusion would eliminate
all boundaries in many instances and make of a
whole State or County one body of land. The
divisions between private owners; the boundaries
of states and nations are no more or less. The
survey of these two tracts by the Government en-
gineers and their separate entry by the respon-
dent Poland; the patent by the government of
first one, and a year later of the other, were all
acts evidencing and confirming the creation of
separate tracts.
It has been urged that the result thus contended
RO hn ee Hem » * a
™ e eer — OE OR eS ORLY iT MDE Or ee ae PEENTAITIN
Ke 2 a She nae oo
11
for, does by indirection what the statute was in-
tended to prohibit. We submit that this position
is based upon the assumption that the pleader
incorporates into his argument not what the sta-
tute says, but what he thinks Congress proposed
to do.
What the purpose of Congress was in enacting
this statute might be an interesting specula-
tion, but it does not assist in support of the
argument that our entering one hundred sixty
acres in each of two bodies under two separate
surveys, applications and all the subsequent pro-
ceedings leading up to two patents issued more
than a year, a part in time, violated the plain lan-
guage of the statute in question.
In passing it may be noted that the real purpose
of the bill as introduced in Congress was to extend
the homestead laws in Alaska increasing the acre-
age which could be located by one person to three
hundred twenty acres. This and the safe-guarding
of the approaches to navigable waters would
seem to have been the final purposes in view as
shown by references to the Congressional Record
set forth in the opinion of the Circuit Court of
Appeals. (R. 38.)
III.
There have been no authoritative official decisions or opin-
ions of the Land Department upon the q-estion at issue
entitled to weight before this Court.
It has been urged at great length in the
= PAAR Ra PPR ORS MENON TEA
“i 7
12
court below that the Land Department of the
United States has placed a construction upon the
law now invoked for the cancellation of the patent
in question and that such interpretation should
have weight with the Courts in construing the
same, and the inference follows that the language
of the statute must be in need of such assistance
in spite of the contention to the contrary, Indeed
certain informal, and, as we think, wholly ex
parte opinions of officers of the Land Department
have been quoted in the briefs in the lower Court.
The respondents are unadvised as to any Official
rulings of the department covering the point at
issue in this case.
However, if weight is to be given to the decisions
of the Land Department upon the theory that
the act under consideration is in need of con-
struction, what more persuasive decision can we
obtain than the action of the Department in grant-
ing us the very patent under discussion? Indeed,
the action of the Land officers of the Government
not only persuade us of the good faith of the appli-
cant in the beginning, but of the entire concur-
rence of the Land Department in our opinion at
the time when the entries were made and the
patents subsequently issued, that the entryman
was clarly entitled to make the two entries along-
side of each other.
The Department, when our patent was issued,
agreed with our present contention.
—s
~_
13
Now, it is urged that not only is one entryman
prohibited from taking up adjoining locations,
but that no one can enter a location within eighty
rods of any other location irrespective of its
relation to navigable waters. The result of such
an interpretation of the law results in the follow-
ing checkerboard.
80
160 Rods Rods
160-A
———<aHm—e ee =
3
.
i
é
a
5
2
a
bY
14
Such a procedure not only serves no useful pur-
pose, but impairs the utility of the intervening
spaces.
We think we need hardly comment further upon
the effect of such a ruling if carried out to its
legitimate conclusion, and applied to a territory
like Alaska, almost wholly unsurveyed and having
an area of over five hundred and ninety thousand
square miles, with a population of one individual
to every ten square ™iles.
On the other hand, a glance at the map in-
stantly apprises one of the fact that access to
the interior of this vast and almost untenanted
domain is only possible at a very few natural
harbors where the sea meets the land on any-
thing like a level strand.
It would not appear to be necessary to say more
as to the propriety of this eighty-rod reservation
between claims on naviga!lle waters, and which
Congress has made a part of the law.
The contrast with reference to lands not on
navigable waters and the consequent Conzres-
sional intent in plain.
Whatever weight may be attached to the long
continued and established decisions of the Land
Department, and we are not unmindful of the
decisions of this Court thereon, yet we submit
that in the instant case no such established deci-
sions are available, the only real decision being
the one in our favor when the patent was granted.
a
a
IV.
By analogy the administration of the mining laws by the
department for many years supports our contention that
we are within not only the letter but the spirit of the law.
The respondents are quite confident that the
plain language of the statute can not be success-
fully attacked by seeking to interpret it in the
light of a supposed public policy, even assuming
that it were possible to present a convincing theory
thereof.
But even if we accept that ground of debate,
we submit that the established policy of the Gov-
ernment in an analogous statute or succession
of statutes, still affords us support.
We refer to the law with regard to placer min-
ing claims (Rev. Stat. 2330) which prohibits
the location of claims exceeding one hundred sixty
acres in extent by any one person or association
of persons.
We think it will be admitted that the common
practice of the Department has permitted adjoin-
ing claims to be located by such persons or asso-
ciations in Alaska, at least prior to the Act of
August Ist, 1912,
Conceding for the sake of argument, the policy
of the Government to discourage the aggregation
of large holdings in a few hands, we see no
greater danger of monopolization in the non-min-
eral lands of Alaska than in the mineral lands.
Both are of vast extent and almost wholly
LORRI IONS
16
unoccupied. It has been contended that the
necessity of discovery and location as to min-
eral lands might constitute a distinction as re-
gards mining locations. But in view of the fact
that the mineral belts in Alaska are of such large
dimensions as to cover many square miles in con-
tinuous extent, the discovery and location consist
mainly in surveying claims upon the same mineral
belt.
As to the principles which in the last analysis
should apply to the peculiar facts of this case,
failing any sufficient allegation of fraud; we re-
spectfully cite the opinion in the case of
Atlantic Delaine Company vs. James, 94
U.S. p. 207. Mr. Justice Strong uses the follow-
ing language:
“Cancelling an executed contract is an
exertion of the most extraordinary power
of a court of equity. The power ought not
to be exercised except in a clear case, and
never for an alleged fraud, unless the fraud
be made clearly to appear; never for al-
leged false representations, unless their
falsity is certainly proved, and unless the
complainant has been deceived and injured
by them.”
This case was quoted in the case of U. S. vs.
Marwell Land Grant Company, 121 U.S., p. 325;
and on pages 380-381 Mr. Justice Miller uses
the following language:
“We take the general doctrine to be that
RED HT
17
when in a court of equity it is proposed to
set aside, to annul or to correct a written
instrument, for fraud or mistake in the
execution of the instrument itself, the testi-
mony on which this is done must be clear,
unequivocal, and convincing, and that it
cannot be done upon a bare preponderance
of evidence which leaves the issue in doubt.
If the proposition, as thus laid down in the
cases cited, is sound in regard to the ordi-
nary contracts of private individuals, how
much more should it be observed where the
attempt is to annul the grants, the patents
and other solemn evidences of title emanat-
ing from the Government of the United
States under its official seal.”
V.
Assuming that the granting of the patent to survey 242
resulted from a mistake of fact and law im the minds of the
officers of the Land Department, but without any act of
fraud on the part of respondent, Poland, we urge that
the complaint is open to demurrer for want of an allega-
tion of the return or tender of the return of the considera-
tion paid for the entry.
If fraud were found to exist on the part of the
respondents, no contention would be made that a
tender is necessary. The decisions of this Court
in the case of the United States vs. Trinidad Coal
and Coking Co., 187 U. S. 160, and the recent
case of Causey vs. the United States, 240 U. S.
399, are conclusive upon that point. But if no
fraud is found, we submit that the government
Se a St ne
OR
SSeS | aaa Cental
18
should be bound to do equity the same as any other
litigant.
In this case there is no presumption that the
United States sold the premises for a nominal
consideration under the policy of stimulating the
development of latent mineral resources, and that
the real consideration to the entryman was the
opportunity to profit out of the exploitation thereof.
In fact, the entryman here was the assignee
of the most worthy class of citizens, who for the
secrifices made for their country in time of war
were granted the slight compensation involved in
the land right exercised by the assignee herein.
To belittle the worth of his standing is to attach
the same character to that of his soldier assignor.
Moreover, while the facts in this case do not
come within the terms thereof insomuch as our
entry had gone to patent, we desire to call the
Court’s attention to the Act of June 16, 1880 (21
Stat. at L. 287, Paragraph 2, Chap. 244):
“Tn all cases where homestead or timber-
culture or desert-land entries or other en-
tries of public lands have heretofore or
shall hereafter be cancelled for conflict, or
where, from any cause, the entry has been
erroneously allowed and cannot be con-
firmed, the Secretary of the Interior shall
cause to be repaid to the person who made
such entry, or to his heirs or assigns, the
fees and commissions, amount of purchase
money, and excesses paid upon the same,
19
upon the surrender of the duplicate re-
ceipt and the execution of a proper relin-
qiushment of all claims to said land, when-
ever such entry shall have been duly can-
celled by the Commissioner of the General
Land Office.”
Stripped of any sufficient allegation of fraud,
we earnestly urge upon the Court the great in-
justice which the granting of the relief asked
herein must inflict upon one who is thereby made
the victim of a mutual mistake wherein his posi-
tion has been supported by the concurring opinions
of officers of the Land Department through all
Stages, and by the far higher authority of the
Courts so far.
In view of the statute above referred to and
the policy of the Government announced therein,
we submit that this is far more appealing to the
spirit of a Court of Equity than the ordinary rule
with regard to cases involving fraud.
What the Congress has seen fit to expressly
provide where theproceedings have not gone to
Patent, and where the Government can withdraw
of its own accord, ought not a Court of equity to
require as a condition for the destruction of our
position wherein we are not at fault; and more
especially when the statute provides for the return
of the expenses incurred, whereas we have paid
those and the purchase price as well. While recog-
nizing the principle laid down in the case of Causey
:
é
;
€
iy
Ft FT Eee RC irre repiy, rety iy
vs. the United States, we think the instant case
distinguishable therefrom and cite from the opin-
ion in the case of Brent vs. Bank of Washington,
35 U. S. 10, Pet. 596, 615:
“Thus compelled to come into equity for
a remedy to enforce a legal right, the
United States must come as other suitors,
seeking in the administration of the law
of equity, relief, to give which, courts of
law are wholly incompetent, on account of
the legal bar interposed by the bank. This
court, in The United States vs. Mitchell
(9 Peters, 743), have recognized the prin-
ciple in the common law that through the
law gives the king a better or more con-
venient remedy, he has no better right in
court than the subject through whom the
property claimed comes to his hands. (2
Co. Inst., 573; 2 Vess., Sen., 296, 397,
Hard., 60, 460.) This principle is also
carried into all the statutes, by which the
appropriate courts are authorized to de-
cide, and under which they do decide on
the rights of a subject in a controversy
with the king, according to equity and good
conscience between subject and subject. (7
Co., 19; 6 Hard, 27, 170, 230, 502; 4 Co.
Inst. 190.)”
“There is no reason why the United
States should be exempted from a funda-
mental rule of equity.”
The principles announced therein have not
20
wh SS RLY
21
wanted in application to cases brought to cancel
land patents. This case was cited and followed in
State vs. Morgan (52 Ark. 157) which held a bill
in equity by which the state sought to cancel a
patent, insufficient unless it offers to restore the
purchase price, and in the case of State vs. Snyder,
(66 Tex. 700) which held that the state must
tender the purchase money as a pre-requisite to
recovery of title.
VI.
The complaint is wanting in the necessary allegations to
charge the Respondent Low with knowledge of or to
subject his title to the infirmities or irregularities of the
entryman’s t'tle.
The allegations of the complaint in this case
set forth the transfer from Poland to Low in
paragraph eight thereof, (R. 6) in language which
must be conceded to admit that Low was a pur-
chaser for value of the premises in question,
subsequent to the issuance of the patent. The
language is, that the Respondent Poland “conveyed,
bargained, sold and confirmed * * * to the
Defendent Low and to his heirs and assigns the
lands in question,” with a covenant of general
warranty.
There is no allegation in the complaint that the
Respondent Low had any knowledge whatsoever
of the alleged defects in the title, or of the facts
_ set forth in the complaint.
a EEE SEMEL IRD ANTS TERI HEINE BLS EARS ARBRE SEE PRE ANNEAL =e
Poe PLEO,
22
In the case of UU. S. vs. Detroit Timber & Lum-
ber Co., 200 U. S. 321, this court held that a pur-
chaser from an entryman was not charged with
knowledge of the wrongful character of the acts
of the entryman. Mr. Justice Brewer in the
course of the opinion at page 331 says:
“We do not understand the law to be as
stated, or that one who enters into an or-
dinary and reasonable contract for the
purchase of property from another is bound
to presume that the vendor is a wrong-
doer, and that, therefore, he must make
a searching inquiry as to the validity of
his claim to the property. The rule of
law in respect to purchases of land or
timber is the same as that which obtains
in other commercial transactions, and such
a rule as is claimed by counsel would shake
the foundations of commercial business.”’
In said opinion the Court quotes with approval
from Wilson vs. Wall, 73 U. S. 83:
“A chancellor will not be astute to charge
a constructive trust upon one who has acted
honestly and paid a full and .fair con-
sideration without notice or knowledge. On
this point we need only refer to Sugden
on Vendors, p. 622, where he says: ‘In
Ware vs. Egmonth, 4 De G. M. & G, 460,
the Lord Chancellor Cranworth expressed
his entire concurrence in what, on many
occasions of late years, had fallen from
judges of great eminence on the subject
The
23
of constructive notice, namely, that it was
highly inexpedient for courts of equity to
extend the doctrine. When a person has
not actual notice, he ought not to be treated
as if he had notice, unless the circum-
stances are such as enable the court to say,
not only that he might have acquired, but
also that he ought to have acquired it, but
for his gross negligence in the conduct of
the business in question. The question,
then, when it is sought to affect a pur-
chaser with constructive notice, is not
whether he had the means of obtaining, and
might, by prudent caution, have obtained
the knowledge in question, but whether
not obtaining was an act of gross or cul-
pable negligence’.”
Court further on page 339, says:
“It is a mistake to suppose that for the
determination of equities and equitable
rights we must look only to the statutes
of Congress. The principles of equity exist
independently of, and anterior to, all con-
gressional legislation, and the statutes are
either annunciations of those principles or
limitations upon their application in par-
ticular cases. In passing upon transac-
tions between the government and its ven-
dees we must bear in mind the general
principles of equity, and determine rights
upon those principles, except es they are
limited by special statutory provisions.”
It is respectfully submitted that the decision
OF INTER
24
sustaining the demurrer should be sustained.
IRA BRONSON,
H. B. JONES,
Attorneys for Respondents.
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