# Brief for the United States — United States v. Poland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0200%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1920 - **Citation:** 251 U.S. 221 ## Text 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 j & y . EE & 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