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. It is obvious that the provision in the
latter case is made for certainty only; since, by the general rules of
statute construction, no ordinary claim of preemption could attach to
reservations made by authority of the United States. The effective
provision in the enactment quoted, must be selections not made by the
authority of the United States.
In point of fact the provision was construed by the Department to
include all voluntary selections: lands, says the circular of the
General Land Office of July 8, 1838, "which settlers have selected
with a view of building thereon a village or city."
It seems to me that the same considerations which induced this
construction of the word "selection" in the act of 1838, dictate a
similar construction of the same word in the subsequent act. Besides
which, when a word or words of a statute, which were of uncertain
signification originally, but which have been construed by the proper
authority, are repented in a subsequent statute, that is understood as
being not a repetition merely of the word with the received
construction, but an implied legislative adoption even of such
construction.
II. The second question is of the construction of the act of 1844,
supplemental to that of 1841; and as the construction of the elder
derives aid from the language of the later one, so does that of the
latter from the former. The question is divisible into sub-questions.
1. Does the phrase "that the entry (for a town-site) 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?
2. What is the meaning of the phrase in the act "legal subdivisions of
the public lands," in "conformity" with which the entry must be made?
I put the two acts together and find that they provide for a system of
preemptions for, among other things, agricultural occupation,
commercial or mechanical occupation, and municipal occupation.
In regard to agricultural occupation, the laws provide that, in
certain cases and conditions, one person may preempt one hundred and
sixty acres, and that in regard to municipal occupation a plurality of
persons may, in certain cases and conditions, preempt three hundred
and twenty acres. In the latter contingency, there is no special
privilege as to quantity, but a disability rather; for two persons
together may preempt three hundred and twenty acres by agricultural
occupation, and afterwards convert the land into a town site, and four
persons together might in the same way secure six hundred and forty
acres, to be converted ultimately into the site of a town; while the
same four persons, selecting land for a town site, can take only three
hundred and twenty acres.
