I. To return to the questions before me: the first is in substance
whether the words in the act of 1841, " portions of the public land
which have been selected as the site for a city or a town," are to
be confined to cases of such selection in virtue of some special
authority, or by some official authority?
I think not, for the following reasons:
The statute does not by any words of legal intendment say so.
The next preceding clause of the act, which speaks of lands "included
within the limits of any incorporated town," implies the contrary, in
making separate provision for a township existing by special or public
authority.
The next succeeding clause, which speaks of land "actually settled or
occupied for the purposes of trade and not agriculture," leads to the
same conclusion; for why should selection for a town site require
special authority any more than occupation for the purposes of trade?
The general scope of the act has the same tendency. Its general object
is to regulate, in behalf of individuals, the acquisition of the
public domain by preemption, after voluntary occupation for a certain
period of time, and under other prescribed circumstances. In doing
this, it gives a preference preemption to certain other uses of the
public land, by excluding such land from liability to ordinary
preemption. Among the uses thus privileged, and to which precedence in
preemption is accorded, are, 1. "Sections, or fractions of sections
included within the limits of any incorporated town;" 2. "Portions of
the public land which have been selected for the site of a city or
town;" and, 3. "Land actually settled or occupied for the purposes of
trade, and not agriculture." Now, it is not easy to see any good
reason why, if individuals may thus take voluntarily for the purposes
of agriculture, they may not also take for the purposes of a city or
town. The statute assumes that the purposes of a city or town have
preference over those of trade, and still more over those of
agriculture. Yet individuals may take for either of the latter
objects: a fortiori they may take for a city or town.
Why should it be assumed that individual action in this respect is
prohibited for towns any more than for trade or agriculture? It does
not concern the Government whether two persons preempt one hundred and
sixty acres each for the purposes of agriculture, or for the purpose
of a town, except that the latter object will, incidentally, be more
beneficial to the Government. Nor is there any other consideration of
public policy to induce the Government to endeavor to discourage the
formation of towns. Why, then, object to individuals taking up a given
quantity of land in one case rather than in the other?
Finally, the act of 1844 definitively construes the act of 1841, and
proves that the "selection" for town sites there spoken of may be
either by public authority or by individuals: that the word is for
that reason designedly general, and without qualification, but must be
fixed by occupation. That act supposes public land to be "settled upon
and occupied as a town site," and "therefore" not subject to entry
under the existing preemption laws. This description identifies it
with the land "selected for the site of a city or town," in the
previous act. It limits the quantity so to be selected, that is,
settled or occupied, to three hundred and twenty acres, and otherwise
regulates the selection as hereinafter explained. It then provides how
such town site is to be entered and patented. If the town be
incorporated, then the entry is to be made by its corporate
authorities. If the town be not incorporated, then it may be entered
in the name of the judges of the county court of the county, in which
the projected town lies, "in trust for the several use and benefit of
the several occupants thereof, according to their respective
interests." Here we have express recognition of voluntary selection
and occupancy by individuals, and provision for means by which legal
title in their behalf may be acquired and patented.
I am aware that by numerous statutes anterior to the act of 1841,
provision is made for the authoritative selection of town sites in
special cases; but such provisions do by no means exclude or
contradict the later enactment of a general provision of law to
comprehend all cases of selections for town sites, whether
authoritative or voluntary. I think the act of 1841, construed in the
light of the complementary act of 1844, as it must be, provides
clearly for both contingencies or conditions of the subject. Among the
anterior acts, however, is one of great importance and significancy
upon this point, more especially as that act received exposition at
the time from the proper departments of the Government. I allude to
the act of June 22d, 1838, entitled "An act to grant preemption rights
to settlers on the public lands." This act, like that of 1841,
contains a provision reserving certain lands from ordinary preemption,
among which are:
"Any portions of public lands, surveyed or otherwise, which have been
actually selected as sites for cities or towns, lotted into smaller
quantities than eighty acres, and settled upon and occupied for the
purposes of trade, and not of agricultural cultivation and
improvement, or any land specially occupied or reserved for town lots,
or other purposes, by authority of the United States." (v Stat. at
Large, p. 251.)
Here the "selection" generally, and the "selection" by authority are
each provided for eo nomine.
