The Statute Assumes That The Purposes Of A City Or Town Have
Preference Over Those Of Trade Or Of Agriculture.
ATTORNEY GENERAL'S OFFICE
July 2, 1856.
SIR: Your communication of the 20th May, transmitting papers regarding
Superior City (so called) in the State of Wisconsin, submits for
consideration three precise questions of law; two of them presenting
inquiry of the legal relations of locations for town sites on the
public domain, and the third presenting inquiry of another matter,
which, although pertinent to the case, yet is comprehended in a
perfectly distinct class of legal relations.
I propose, in this communication, to reply only upon the two first
questions.
The act of Congress of April 24, 1841, entitled "An act to appropriate
the proceeds of the sales of the public lands and to grant preemption
rights," contains, in section 10th, the following provisions: "no
lands reserved for the support of schools, nor lands acquired by
either of the two last treaties with the Miami tribe of Indians in the
State of Indiana, or which may be acquired of the Wyandot tribe of
Indians in the State of Ohio, or other Indian reservation to which the
title has been or may be extinguished by the United States at any time
during the operation of this act; no sections of lands reserved to the
United States alternate to other sections of land granted to any of
the States for the construction of any canal, railroad, or other
public improvement; no sections or fractions of sections included
within the limits of any incorporated town; no portions of the public
lands which have been selected for the site of a city or town; no
parcel of a lot of land actually settled or occupied for the purposes
of trade and not agriculture; and no lands on which are situated any
known salines or mines, shall be liable to entry under or by virtue of
this act." (v Stat. at Large, p. 456.)
An act passed May 28, 1844, entitled "An act for the relief of
citizens of towns upon the lands of the United States under certain
circumstances," provides as follows:
"That whenever any portion of the surveyed public lands has been or
shall be settled upon and occupied as a town site, and therefore not
subject to entry under the existing preemption laws, it shall be
lawful, in case such town or place shall be incorporated, for the
corporate authorities thereof, and if not incorporated, for the judges
of the county court for the county in which such town may be situated,
to enter at the proper land office, and at the minimum price, the land
so settled and occupied, in trust for the several use and benefit of
the several occupants thereof, according to their respective
interests; the execution of which trust, as to the disposal of the
lots in said town, and the proceeds of the sales thereof, to be
conducted under such rules and regulations as may be prescribed by the
legislative authority of the state or territory in which the same is
situated; Provided, that the entry of the land intended by this act be
made prior to the commencement of a public sale of the body of land in
which it is included, and that the entry shall include only such land
as is actually occupied by the town, and be made in conformity to the
legal subdivisions of the public lands authorized by the act of the
twenty-fourth of April, one thousand eight hundred and twenty, and
shall not in the whole exceed three hundred and twenty acres; and
Provided also, that the act of the said trustees, not made in
conformity to the rules and regulations herein alluded to, shall be
void and of none effect:" * * * (v Stat. at Large, p. 687.)
Upon which statutes you present the following questions of
construction: "1st. What is the legal signification to be given to the
words, 'portions of the public lands which have been selected as the
site for a city or town,' which occur in the preemption law of 1841,
and which portions of the public lands are by said act exempted from
its provisions? Do they authorize selections by individuals with a
view to the building thereon of a city or town, or do they contemplate
a selection made by authority of some special law?
"Do the words in the act of 23d May, 1844, 'and that the entry shall
include only such land as is actually occupied by the town,' restrict
the entry to those quarter quarter-sections, or forty acre
subdivisions, alone, on which houses have been erected as part of said
town, or do they mean, only, that the entry shall not embrace any land
not shown by the survey on the ground, or the plat of the town, to be
occupied thereby, and not to exceed 820 acres, which is to be taken by
legal subdivisions, according to the public survey, and to what
species of 'legal subdivisions' is reference made in said act of
1844?"
These questions, as thus presented by you, are abstract questions of
law, namely, of the construction of statutes. They are distinctly
and clearly stated, so as not to require of me any investigation of
external facts to render them more intelligible. Nor do they require
of me to attempt to make application of them to any actual case,
conflict of right, or controversy either between private individuals
or such individuals and the Government.
It is true that, accompanying your communication, there is a great
mass of representations, depositions, arguments, and other papers,
which show that the questions propounded by you are not speculative
ones, and that, on the contrary, they bear, in some way, on matters of
interest, public or private, to be decided by the Department. But
those are matters for you, not for me, to determine. You have
requested my opinion of certain points of law, to be used by you, so
far as you see fit, in aid of such your own determination.
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