Restored to docket April 20, 1914.
All public lands containing petroleum or other mineral oils and chiefly valuable therefor, have been declared by Congress to be "free and open to occupation, exploration and purchase by citizens of the United States . . . under regulations prescribed by law." Act of February 11, 1897, c. 216, 29 Stat. 526; R.S. 2319, 2329.
As these regulations permitted exploration and location without the payment of any sum, and as title could be obtained for a merely nominal amount, many persons availed themselves of the provisions of the statute. Large areas in California were explored; and petroleum having been found, locations were made, not only by the discoverer but by others on adjoining land. And, as the flow through the well on one lot might exhaust the oil under the adjacent land, the interest of each operator was to extract the oil as soon as possible so as to share what would otherwise be taken by the owners of nearby wells.
The result was that oil was so rapidly extracted that on September 17, 1909, the Director of the Geological Survey made a report to the Secretary of the Interior which, with enclosures, called attention to the fact that, while there was a limited supply of coal on the Pacific coast and the value of oil as a fuel had been fully demonstrated, yet at the rate at which oil lands in California were being patented by private parties it would "be impossible for the people of the United States to continue ownership of oil lands for more than a few months. After that the
This recommendation was approved by the Secretary of the Interior. Shortly afterwards he brought the matter to the attention of the President who, on September 27, 1909, issued the following Proclamation:
"Temporary Petroleum Withdrawal No. 5."
"In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in the accompanying lists are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public-land laws. All locations or claims existing and valid on this date may proceed to entry in the usual manner after field investigation and examination." The list attached described an area aggregating 3,041,000 acres in California and Wyoming — though, of course, the order only applied to the public lands therein, the acreage of which is not shown.
On March 27, 1910, six months after the publication of the Proclamation, William T. Henshaw and others entered upon a quarter section of this public land in Wyoming so withdrawn. They made explorations, bored a well, discovered oil and thereafter assigned their interest to the Appellees, who took possession and extracted large quantities of oil. On May 4, 1910, they filed a location certificate.
As the explorations by the original claimants, and the
The case has twice been fully argued. Both parties, as well as other persons interested in oil lands similarly affected, have submitted lengthy and elaborate briefs on the single and controlling question as to the validity of the Withdrawal Order. On the part of the Government it is urged that the President, as Commander-in-Chief of the Army and Navy, had power to make the order for the purpose of retaining and preserving a source of supply of fuel for the Navy, instead of allowing the oil land to be taken up for a nominal sum, the Government being then obliged to purchase at a great cost what it had previously owned. It is argued that the President, charged with the care of the public domain, could, by virtue of the executive power vested in him by the Constitution (Art. 2, § 1), and also in conformity with the tacit consent of Congress, withdraw, in the public interest, any public land from entry or location by private parties.
The Appellees, on the other hand, insist that there is no dispensing power in the Executive and that he could not suspend a statute or withdraw from entry or location any land which Congress had affirmatively declared should be free and open to acquisition by citizens of the United States. They further insist that the withdrawal
1. We need not consider whether, as an original question, the President could have withdrawn from private acquisition what Congress had made free and open to occupation and purchase. The case can be determined on other grounds and in the light of the legal consequences flowing from a long continued practice to make orders like the one here involved. For the President's proclamation of September 27, 1909, is by no means the first instance in which the Executive, by a special order, has withdrawn land which Congress, by general statute, had thrown open to acquisition by citizens. And while it is not known when the first of these orders was made, it is certain that "the practice dates from an early period in the history of the government." Grisar v. McDowell, 6 Wall. 381. Scores and hundreds of these orders have been made; and treating them as they must be (Wolsey v. Chapman, 101 U.S. 769), as the act of the President, an examination of official publications will show that (excluding those made by virtue of special congressional action, Donnelly v. United States, 228 U.S. 255) he has during the past 80 years, without express statutory authority — but under the claim of power so to do — made a multitude of Executive Orders which operated to withdraw public land that would otherwise have been open to private acquisition. They affected every kind of land — mineral and nonmineral. The size of the tracts varied from a few square rods to many square miles and the amount withdrawn has aggregated millions of acres. The number of such instances cannot, of course, be accurately given, but the extent of the practice can best be appreciated by a consideration of what is believed
They show that prior to the year 1910 there had been issued
In the sense that these lands may have been intended for public use, they were reserved for a public purpose. But they were not reserved in pursuance of law or by virtue of any general or special statutory authority. For, it is to be specially noted that there was no act of Congress providing for Bird Reserves or for these Indian Reservations. There was no law for the establishment of these
But when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain, nothing was more natural than to retain what the Government already owned. And in making such orders, which were thus useful to the public, no private interest was injured. For prior to the initiation of some right given by law the citizen had no enforceable interest in the public statute and no private right in land which was the property of the people. The President was in a position to know when the public interest required particular portions of the people's lands to be withdrawn from entry or location; his action inflicted no wrong upon any private citizen, and being subject to disaffirmance by Congress, could occasion no harm to the interest of the public at large. Congress did not repudiate the power claimed or the withdrawal orders made. On the contrary it uniformly and repeatedly acquiesced in the practice and, as shown by these records, there had been, prior to 1910, at least 252 Executive Orders making reservations for useful, though non-statutory purposes.
This right of the President to make reservations, — and thus withdraw land from private acquisition, — was expressly recognized in Grisar v. McDowell, 6 Wall. 364 (9), 381, where (1867) it was said that "from an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses."
But notwithstanding this decision and the continuity of this practice, the absence of express statutory authority was the occasion of doubt being expressed as to the power
Similar views were expressed by officers in the Land Department. Indeed, one of the strongest assertions of the existence of the power is the frequently quoted statement of Secretary Teller made in 1881:
"That the power resides in the Executive from an early period in the history of the country to make reservations has never been denied either legislatively or judicially, but on the contrary has been recognized. It constitutes in fact a part of the Land Office law, exists ex necessitati rei, is indispensable to the public weal and in that light, by different laws enacted as herein indicated, has been referred to as an existing undisputed power too well settled ever to be disputed." 1 L.D., 338 (1881-3.)
2. It may be argued that while these facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department — on the presumption that unauthorized acts would not have been allowed to be so
This principle, recognized in every jurisdiction, was first applied by this court in the often cited case of Stuart v. Laird, 1 Cranch, 299, 309. There, answering the objection that the act of 1789 was unconstitutional in so far as it gave Circuit powers to Judges of the Supreme Court, it was said (1803) that, "practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled."
Again, in McPherson v. Blacker, 146 U.S. 1 (4), where the question was as to the validity of a state law providing for the appointment of Presidential electors, it was held that, if the terms of the provision of the Constitution of the United States left the question of the power in doubt, the "contemporaneous and continuous subsequent practical construction would be treated as decisive" (36). Fairbank v. United States, 181 U.S. 307; Cooley v. Board of Wardens, 12 How. 315; The Laura, 114 U.S. 415. See also Grisar v. McDowell, 6 Wall. 364, 381, where, in 1867, the practice of the Executive Department was referred to as evidence of the validity of these orders making reservations of public land, even when the practice was by no means so general and extensive as it has since become.
3. These decisions do not, of course, mean that private rights could be created by an officer withdrawing for a Rail Road more than had been authorized by Congress in the land grant act. Southern Pacific v. Bell, 183 U.S. 685;
These rules or laws for the disposal of public land are necessarily general in their nature. Emergencies may occur, or conditions may so change as to require that the agent in charge should, in the public interest, withhold the land from sale; and while no such express authority has been granted, there is nothing in the nature of the power exercised which prevents Congress from granting it by implication just as could be done by any other owner of property under similar conditions. The power of the Executive, as agent in charge, to retain that property from sale need not necessarily be expressed in writing. Lockhart v. Johnson, 181 U.S. 520; Bronson v. Chappell, 12 Wall. 686; Campbell v. City of Kenosha, 5 Wall. 194 (2).
For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress "may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale." Camfield v. United States, 167 U.S. 524; Light v. United States, 220 U.S. 536. Like any other owner it may provide when, how and to whom its land can be sold. It can permit it to be withdrawn from sale. Like any other owner, it can waive its strict rights,
The Executive, as agent, was in charge of the public domain; by a multitude of orders extending over a long period of time and affecting vast bodies of land, in many States and Territories, he withdrew large areas in the public interest. These orders were known to Congress, as principal, and in not a single instance was the act of the agent disapproved. Its acquiescence all the more readily operated as an implied grant of power in view of the fact that its exercise was not only useful to the public but did not interfere with any vested right of the citizen.
4. The appellees, however, argue that the practice thus approved, related to Reservations — to cases where the land had been reserved for military or other special public purposes — and they contend that even if the President could reserve land for a public purpose or for naval uses, it does not follow that he can withdraw land in aid of legislation.
When analyzed, this proposition, in effect, seeks to make a distinction between a Reservation and a Withdrawal — between a Reservation for a purpose, not provided for by existing legislation, and a Withdrawal made in aid of future legislation. It would mean that a Permanent Reservation for a purpose designated by the President, but not provided for by a statute, would be valid, while a merely Temporary Withdrawal to enable Congress to
But the question need not be left solely to inference, since the validity of withdrawal orders, in aid of legislation, has been expressly recognized in a series of cases involving a number of such orders, made between 1850 and 1862. Dubuque & Pac. R.R. v. Litchfield, 23 How. 66; Wolcott v. Des Moines Co., 5 Wall. 681; Wolsey v. Chapman, 101 U.S. 755; Litchfield v. Webster County, 101 U.S. 773; Bullard v. Des Moines &c. R.R., 122 U.S. 167.
It appears from these decisions, and others cited therein, that in 1846 Congress made to the Territory of Iowa, a grant of land on both sides of the Des Moines, for the purpose of improving the navigation from the mouth of the river to Raccoon Fork, 5 Wall. 681. There was from the outset a difference of opinion as to whether the grant extended throughout the entire course of the river or was limited to the land opposite that portion of the stream which was to be improved. In Dubuque & Pac. R.R. v. Litchfield, 23 How. 66, decided in 1861, it was held that the grant only included the land between the mouth of the river and Raccoon Fork. But for eleven years prior to that decision there had been various and conflicting rulings by the Land Department. It was first held that the grant included land above the Fork and certificates were issued to the Territory as the work progressed. That ruling was shortly followed by another that the grant extended only up to the Fork.
"On April 6, 1850, Secretary Ewing, while concurring with Attorney General Crittenden in his opinion that the
The withdrawal was made in 1851. The hoped-for legislation was not passed until several years later. Between those dates various private citizens made settlements by which, under various statutes they initiated rights and acquired an interest in the land — if the withdrawal order was void. But by such settlements they obtained no rights if the withdrawal order was valid. A subsequent ratification could have related back to 1851, but if the withdrawal was originally void, the ratification of course, could not cut out intervening rights of settlers. Cook v. Tullis, 18 Wall. 338.
There was litigation between settlers claiming, as here, under existing land laws, and those whose title depended upon the original validity of the withdrawals made in aid of legislation. (Riley v. Welles, 154 U.S. 578; Bullard v. Des Moines R.R., 122 U.S. 173; Wolcott v. Des Moines, 5 Wall. 681.) In those suits, the withdrawal orders were not treated as having derived their validity from the legislation subsequently passed in aid of Iowa and its assignees, but they were treated as having been effective from their dates, regardless of the fact that the land included therein had not originally been granted to Iowa. In one of them it was said that:
"This Court has decided in a number of cases, in regard to these lands, that this withdrawal operated to exclude from sale, purchase, or preemption all the lands in controversy. . . ." Bullard v. Des Moines R.R., 122 U.S. 170.
5. Beginning in 1850 with this order of Secretary
For, if any distinction can be drawn between the principle decided in the Iowa cases and this; or if the power involved in making a Reservation could differ from that exercised in making a Withdrawal — then the Executive practice and congressional acquiescence, which operated as a grant of an implied power to make Permanent Reservations, are also present to operate as a grant of an implied power to make Temporary Withdrawals. It may be well to refer to some of the public records showing the existence and extent of the practice.
Withdrawals in aid of legislation were made in particular cases (26 L.D. 347; 28 L.D. 361; 35 L.D. 11), and many others more general in their nature and much more extensive in their operation.
For example: The Land Department passed an order suspending the location and settlement of certain islands and all isolated tracts containing less than 40 acres "with a view to submitting to Congress" the question as to whether legislation on the subject was not needed. 34 L.D. 245.
Reports to the 56th and 57th Congresses (26 Sen. Doc. 87; 22 House Doc. 108, 445) contained a list of "Temporary Withdrawals" made to prevent the disposal of land pending the consideration of the question of the advisability of setting the same apart as forest reservations."
Phosphate land was "temporarily withdrawn, pending action by Congress." House Doc. 43, 10, 61st Cong., 2d Sess.
There were also temporary withdrawals of oil land from
In pursuance of a like practice and power, public land containing coal was withdrawn "pending the enactment of new legislation" 35 L.D. 395; 43 H. Doc. 8, 13. In the Message of the President to the 2d session of the 59th Congress attention was called to the withdrawal of coal lands in aid of legislation. There was no repudiation of the order or of the practice either at that session or at any succeeding session of Congress. It was claimed in the argument that the act of 1908 (35 Stat. 424) was the legislation contemplated by the Executive when coal lands were temporarily withdrawn by the order of 1906; and reference has already been made to the act of 1861 concerning the Iowa lands withdrawn in 1849. There were other instances in which there was congressional action at a more or less remote period after the order of temporary withdrawal. The land for the Wind Cave Park was withdrawn in 1900 and the Park was established in 1903 (32 Stat. 765); Bird Reserves were established in 1903 and, in 1906 (34 Stat. 536), an act was passed making it an offense to interfere with birds on Reserves established by law, proclamation or Executive Order. See also 35 L.D. 11; 34 Stat. 517. But in the majority of cases there was no subsequent legislation in reference to such lands, although the withdrawal orders prevented the acquisition of any private interest in such land until after the order was revoked.
Whether, in a particular case, Congress acted or not, nothing was done by it which could, in any way, be construed as a denial of the right of the Executive to make temporary withdrawals of public land in the public interest. Considering the size of the tracts affected and the length of time they remained in force, without objection, these orders by which islands, isolated tracts, coal, phosphate and oil lands were withdrawn in aid of legislation,
But that the existence of this power was recognized and its exercise by the Executive assented to by Congress, is emphasized by the fact that the above-mentioned withdrawals were issued after the Report which the Secretary of the Interior made in 1902, in response to a resolution of the Senate calling for information "as to what, if any, of the public lands have been withdrawn from disposition under the settlement or other laws by order of the Commissioner of the General Land Office and what, if any, authority of law exists for such order of withdrawal."
The answer to this specific inquiry was returned March 3, 1902, (Senate Doc. 232, 57th Cong., 1st Sess., Vol. 17). On that date the Secretary transmitted to the Senate the elaborate and detailed report of the Commissioner of the Land Office, who in response to the inquiry as to the authority by which withdrawals had been made, answered that:
"the power of the Executive Department of the Government to make reservations of land for public use, and to temporarily withdraw lands from appropriation by individuals as exigencies might demand, to prevent fraud, to aid in proper administration and in aid of pending legislation is one that has been long recognized both in the acts of Congress and the decisions of the court; . . . that this power has been long exercised by the Commissioner of the General Land Office is shown by reference to the date of some of the withdrawals enumerated. . . . The attached list embraces only such lands as were withdrawn by this office, acting on its own motion, in cases where the emergencies appeared to demand such action in furtherance of public interest and does not include lands withdrawn under express statutes so directed."
The list, which is attached, refers to withdrawal orders about 100 in number, issued between 1870 and 1902.
This report refers to Withdrawals and not to Reservations. It is most important in connection with the present inquiry as to whether Congress knew of the practice to make temporary withdrawals and knowingly assented thereto. It will be noted that the Resolution called on the Department to state the extent of such withdrawals and the authority by which they were made. The officer of the Land Department in his answer shows that there have been a large number of withdrawals made for good but for non-statutory reasons. He shows that these 92 orders had been made by virtue of a long-continued practice and under claim of a right to take such action in the public interest "as exigencies might demand. . . ." Congress with notice of this practice and of this claim of authority, received the Report. Neither at that session nor afterwards did it ever repudiate the action taken or the power claimed. Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress.
6. Nor is the position of the appellees strengthened by the act of June 25, 1910 (36 Stat. 847), to authorize the President to make withdrawals of public lands and requiring a list of the same to be filed with Congress.
It was passed after the President's Proclamation of September 27, 1909, and months after the occupation
True, as argued, the act provides that it shall not be construed as an "abridgment of asserted rights initiated in oil lands after they had been withdrawn." But it likewise provides that it shall not be considered as a "recognition of such rights." There is however nothing said indicating the slightest intent to repudiate the withdrawals already made.
The legislative history of the statute shows that there was no such intent and no purpose to make the Act retroactive or to disaffirm what the agent in charge had already done. The proclamation of September 27, 1909, withdrawing oil lands from private acquisition was of far-reaching consequence both to individuals and to the public. It gave rise to much discussion and the old question as to the authority of the President to make these orders was again raised. Various bills were introduced on the subject and the President himself sent a message to Congress calling attention to the existence of the doubt and suggesting the desirability of legislation to expressly grant the power and ratify what had been done. A bill passed the House containing such ratification and authorizing future withdrawals. When the bill came to the Senate it was referred to a committee and, as its members did not agree in their view of the law, two reports were made. The majority, after a review of the practice of the Department, the acquiescence of Congress in the practice and the decisions of the courts, reported that the President already had a general power of withdrawal and recommended the passage of the pending bill inasmuch
In other words, if, notwithstanding the withdrawal, any locator had initiated a right which, however, had not been perfected, Congress did not undertake to take away his rights. On the other hand, if the withdrawal order had been legally made under the existing power, it needed no ratification and if a location made after the withdrawal gave the Appellees no right, Congress, by this statute, did not legislate against the public and validate what was then an invalid location. The act left the rights of parties in the position of these Appellees, to be determined by the state of the law when the proclamation was issued. As heretofore pointed out the long-continued practice, the acquiescence of Congress, as well as the decisions of the courts, all show that the President had the power to make the order. And as was said in Wolsey v. Chapman, 101 U.S. 769, the "withdrawal would be sufficient to defeat a settlement . . . while the order was in force. . . ."
The case is therefore remanded to the District Court with directions that the decree dismissing the Bill be
MR. JUSTICE McREYNOLDS took no part in the decision of this case.
This case originated in a bill filed by the United States in the United States District Court for the District of Wyoming to restrain trespasses on a certain tract of public petroleum lands in the State of Wyoming and to obtain an accounting for petroleum claimed to have been wrongfully extracted therefrom. The bill sets up ownership in the United States of the land in question, being a tract of 160 acres, and alleges that the land is chiefly valuable for petroleum; that on September 27, 1909, the tract in controversy in common with many others was withdrawn from mineral exploration and from all forms of location, settlement, selection, filing, entry or disposal under the mineral or nonmineral public land laws of the United States; and that this was done by an order promulgated on that day by the Secretary of the Interior pursuant to the direction of the President. The order listed townships and sections aggregating more than 3,000,000 acres situated in the States of Wyoming and California. The terms of this order, styled "Temporary petroleum withdrawal No. 5," are:
"In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in the accompanying lists are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land laws. All locations or claims existing and valid on this date may proceed to entry in the usual manner after field investigation and examination."
It appears from the averments of the bill that the lands were originally located by certain individuals after the order of withdrawal and on March 27, 1910; that they were entered upon, explored and a well drilled, thereby
The law under which the location in question was made (29 Stat. 526) reads:
"That any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims."
Under Rev. Stat., § 2329 provision was made for entering and patenting placer mining claims in like manner as vein or lode claims; and by Rev. Stat., § 2319 "all valuable mineral deposits" were opened to exploration and purchase and the lands containing them to occupation and purchase under regulations prescribed by law and according to the local customs or rules of miners.
While the allegations of the bill do not set out all the steps which led up to the President's order of withdrawal of September 27, 1909, we may not only look to its allegations but read them in the light of public documents embodying the history of the transaction, of which we may take judicial notice. On September 27, 1909, the Secretary of the Interior by direction of the President issued the temporary petroleum withdrawal order No. 5, above set forth.
"Have conferred with President respecting temporary withdrawals covering oil lands. If present withdrawals permit mining entries being made of such lands wish the withdrawals modified at once to prohibit such disposition pending legislation."
The following day the Acting Secretary telegraphed to the Secretary at Helena, Montana:
"Telegram 26th received. California and Wyoming petroleum withdrawals heretofore made permit mining locations. Following your direction I have temporarily withdrawn from all forms of location and entry 2,871,000 acres in California and 170,000 acres in Wyoming, all heretofore withdrawn for classification. My withdrawal prevents all forms of acquisition in future and holds the land in statu quo pending legislation."
And thereupon the withdrawal order of September 27, 1909, above set forth, was promulgated.
It is to be observed that the lands here in controversy are situated in the State of Wyoming. There was no
From this statement it is evident that the first question to be decided concerns the validity of the President's withdrawal order of September 27, 1909, and it is necessary to determine whether that order was within the authority of the President and had the effect to withdraw the land in controversy from location under the mineral land law, or whether, as held in the court below, that order had no force and effect to prevent persons from acquiring rights under the then existing statutes of the United States concerning the subject.
The Constitution of the United States in Article IV, § 3, provides: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." In this section the power to dispose of lands belonging to the United States is broadly conferred upon Congress, and it is under the power therein given that the system of land laws for the disposition of the public domain has been enacted. United States v. Gratiot, 14 Pet. 526, 536-7; United States v. Fitzgerald, 15 Pet. 407, 421; Van Brocklin v. Tennessee, 117 U.S. 151, 168; Wisconsin R.R. v. Price County, 133 U.S. 496, 504. In the last case this court said:
"The Constitution vests in Congress the power to `dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' And this implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise."
It is contended on behalf of the Government that the power of the President to make such orders as are here in
It is true that many withdrawals have been made by the President and some of them have been sustained by this court, so that it may be fairly said that, within limitations to be hereinafter stated, executive withdrawals have the sanction of judicial approval, but, as we read the cases, in no instance has this court sustained a withdrawal of public lands for which Congress has provided a system of disposition, except such withdrawal was — (a) in pursuance of a policy already declared by Congress as one for which the public lands might be used, as military and Indian reservations for which purposes Congress has authorized the use of the public lands from an early day, or (b) in cases where grants of Congress are in such conflict that the purpose of Congress cannot be known and therefore the Secretary of the Interior has been sustained in withdrawing the lands from entry until Congress had opportunity to relieve the ambiguity of its laws by specifically declaring its policy.
It is undoubtedly true that withdrawals have been made without specific authority of an act of Congress, but those which have been sustained by this court, it is believed, will be found to be in one or the other of the categories above stated. On the other hand, when the executive authority has been exceeded this court has not hesitated to so declare, and to sustain the superior and exclusive authority of Congress to deal with the public lands.
The first decision of this court which has come to our attention in which this matter was dealt with is Wilcox v. Jackson, 13 Pet. 498, decided in 1839. That case involved a controversy concerning the lands occupied by the military post called Fort Dearborn in Cook County, Illinois. The lands had been used for many years as a military post and an Indian agency, and in 1824 were reserved by
"We thus see that the establishing [of] trading houses with the Indian tribes, and the erection of fortifications in the west, are purposes authorized by law; and that they were to be established and erected by the President. But the place in question is one at which a trading house has been established, and a fortification or military post erected. It would not be doubted, we suppose, by any one, that if Congress had by law directed the trading house to be established and the military post erected at Fort Dearborn, by name; that this would have been by authority of law. But instead of designating
The court, after remarking that Congress must have known of the authority which had been given to the President by former laws to establish trading houses and military posts and that a military post had long been established at Fort Dearborn, said (p. 514): "They seem therefore to have been studious to use language of so comprehensive a kind, in the exemption from the right of preemption, as to embrace every description of reservation and appropriation which had been previously made for public purposes."
With reference to the reservation of 1824 the court merely said (p. 512): "We consider this, too, as having been done by authority of law; for amongst other provisions in the act of 1830, all lands are exempted from preemption which are reserved from sale by order of the President." (And the court held that the act of the Secretary of War was that of the Executive.) But the court later laid down the rule that when lands have been legally appropriated, they immediately become severed from the mass of public lands and that no subsequent law or proclamation would embrace them, although no reservation had been made of them. From that case, therefore, the following propositions are deduced: That where there
Grisar v. McDowell, 6 Wall. 363, is another case relied upon. There had been a controversy between the City of San Francisco and the United States with reference to the extent of the pueblo lands belonging to the former, which had been determined by an order of court confirming the title of the City subject to the exception of lands "reserved or dedicated to public uses by the United States" and by the Act of Congress of March 8, 1866 (c. 13, 14 Stat. 4), relinquishing the claim of the United States subject to the reservation in the decree. Grisar, claiming title from the City, sought to recover possession of land which had been reserved by order of the President for public purposes and which was held by the defendant, an officer in the army of the United States, commanding the military department of California, who had entered upon the premises and held them under the order of the Secretary of War as part of the public property of the United States reserved for military purposes. In dealing with the right of the President to make the reservation the court first held that it made no difference whether or not the President possessed sufficient authority to make the reservation, because being a part of the public domain they were excluded from lands affirmed to the State under which the plaintiff claimed. In dealing with the power of the President the court said (6 Wall., p. 381):
"But further than this: from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to
In this connection the court cited acts of Congress recognizing the authority of the President, among others, the preemption act of May 29, 1830, supra, in which it was provided that the right of preemption should not extend to lands reserved from sale by act of Congress or by order of the President, and the act of September 4, 1841 (c. 16, 5 Stat. 453, 456), exempting lands reserved by any treaty, law or proclamation of the President, and of March 3, 1853 (c. 143, 10 Stat. 244, 246), excepting lands appropriated under authority of the act or reserved by competent authority, and held that this reservation by competent authority meant the authority of the President, and those acting under his direction. Furthermore, the court held that the action of the President in making the reservations had been indirectly approved by Congress by appropriating moneys for the construction of fortifications and other public works upon them, and that the reservations embraced lands upon which public buildings had been erected. The language of Mr. Justice Field above quoted as to the authority of the President has been frequently quoted in subsequent opinions of Attorneys General, and has been made the basis of opinions for broad authority in the President. It is to be observed, however, that in that case the law, recited in the opinion as giving the power of reservation, contained congressional authority directly to the President or competent authority, which it was held meant the President, and the statement was added that the action of the President had been approved by Congress appropriating money for fortifications and other public works.
The Government also relied upon a series of cases in this court which may be called the Des Moines River Cases, beginning with Wolcott v. Des Moines Co., 5 Wall. 681, and followed by Riley v. Welles, 154 U.S. 578; Williams v.
"It has been argued that these lands had not been reserved by competent authority, and hence that the reservation was nugatory. As we have seen, they were reserved from sale for the special purpose of aiding in the improvement of the Des Moines River — first, by the Secretary of the Treasury, when the Land Department was under his supervision and control, and again by the Secretary of the Interior, after the establishment of this department, to which the duties were assigned, and afterwards continued by this department under instructions from the President and Cabinet. Besides, if this power was not competent, which we think it was ever since the establishment of the Land Department, and which has been exercised down to the present time, the grant of 8th August, 1846, carried along with it, by necessary implication, not only the power, but the duty, of the Land Office to reserve from sale the lands embraced in the grant. Otherwise its object might be utterly defeated. Hence, immediately upon a grant being made by Congress for any of these public purposes to a State, notice is given by the commissioner of the land office to the registers and receivers to
It is therefore apparent that this reservation was sanctioned, because it had become the duty of the officers, who were by law charged with the administration of the grants and required to give effect to them, to withhold the lands from sale and reserve them because of the doubt of the extent of the grant of 1846. In other words, if the lands had been granted to the State of Iowa, it could not possibly have been the intention of Congress to subject them to selection or grant under other laws, and this court said that the power to reserve them arose by necessary implication from the grant of 1846.
In Riley v. Welles, supra, involving a claim of title under the preemption section of the act of September 4, 1841, to land covered by the withdrawal under the act of 1846, this court followed Wolcott v. Des Moines Co., supra, and repeated its decision as to the effect of the reservation.
In Williams v. Baker, 17 Wall. 144, and Homestead Co. v. Valley Railroad, 17 Wall. 153, both involving title to lands claimed under the grant of 1856, as against titles founded on the 1846 act, as did the Wolcott Case, the court affirmed the validity of the reservation under the act of 1846, for the reason that the proviso in the act of 1856 prevented the railroad from acquiring the land.
In Wolsey v. Chapman, 101 U.S. 755, where the controversy was, whether the grant to the Territory of Iowa, by the act of September 4, 1841, supra, of the right to select a quantity of lands for internal improvement purposes,
"They were reserved also in consequence of the act of 1846. The proper executive department of the government had determined that, because of doubts about the extent and operation of that act, nothing should be done to impair the rights of the State above the Raccoon Fork until the differences were settled, either by Congress or judicial decision. For that purpose an authoritative order was issued, directing the local land-officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in Riley v. Wells, was sufficient to defeat a settlement for the purpose of preemption while the order was in force, notwithstanding it was afterwards found that the law, by reason of which this action was taken, did not contemplate such a withdrawal.
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"The truth is, there can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the Executive Department of the government."
Litchfield v. Webster County, supra, involved the question as to whether the title to the lands above the Fork vested in the State by the act of 1846, for purpose of taxation, and, affirming the previous cases, the court held that the action of the Executive Department of the General Government reserved the land above the Fork so that it "did not pass to the State when selected as school lands under the act of 1841, or as railroad lands by the grant of 1856, and were not open to preemption entry," and the Executive order "simply retained the ownership in the United States."
The case of Dubuque &c. R.R. v. Des Moines Valley
The history of the matter was restated in Bullard v. Des Moines &c. R.R., supra, it being made to appear especially that the order withdrawing the land was in effect during all the time up to the passage of the act of July 12, 1862 (c. 161, 12 Stat. 543), and that after the decision in the case of Dubuque & Pacific R.R. v. Litchfield, 23 Howard, 66, had determined that Congress had not by the act of 1846 granted the land above the Fork to Iowa, the Commissioner of the General Land Office by notice of May 18, 1860, continued the reservation, notwithstanding the decision just referred to. And it was held that the resolution of Congress of March 2, 1861 (12 Stat. 251), did not end the reservation and that claims inaugurated after that resolution and before the passage of the act of July 12, 1862 were subject to the reservation. The court said (122 U.S., p. 170):
"This court has decided in a number of cases, in regard to these lands, that this withdrawal operated to exclude from sale, purchase, or preemption all the lands in controversy, and unless the case we are about to consider constitutes an exception, it has never been revoked.
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"During all this controversy there remained the order of the Department having control of the matter, withdrawing all the lands in dispute from public sale, settlement or preemption. This withdrawal was held to be effectual against the grant made by Congress to the railroad companies in 1856, because that act contained the following proviso:
"`That any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding
The court quoted the notice of the Commissioner of the General Land Office of May 18, 1860, that the land above the Fork "which has been reserved from sale heretofore on account of the claim of the State thereto, will continue reserved, for the time being, from sale or from location, by any species of script or warrants, notwithstanding the recent decision of the Supreme Court against the claim. This action is deemed necessary to afford time for Congress to consider, upon memorial or otherwise, the case of actual bona fide settlers holding under titles from the State, and to make such provision, by confirmation or adjustment of the claims of such settlers, as may appear to be right and proper." And the court said (p. 173):
"It will thus be seen that, notwithstanding the decision of the Supreme Court of the United States in the winter of 1860, the land office determined that the reservation of these lands should continue for the purpose of securing the very action by Congress which the State of Iowa was soliciting, and it is not disputed by counsel for the appellant in this case that this was a valid continuation of such reservation and that during its continuance the preemptions under which the plaintiff claims could not have been made. . . .
"We do not think the joint resolution had the effect to end the reservation of these lands from public entry. . . .
"This is not the way in which a reservation from sale or preemption of public lands is removed. In almost
The last of the Des Moines River Cases, United States v. Des Moines &c. Co., supra, was a suit instituted by the United States to quiet its title to certain of the lands conveyed by the State of Iowa to the Navigation Company and others, claiming that the trust had not been performed, and, after reviewing the history of the matter and the previous cases at considerable length, the court again stated the effect of the reservation (142 U.S., p. 528):
"The validity of this reservation was sustained in the case of Wolcott v. Des Moines Company, 5 Wall. 681, decided at December term, 1866. In that case it was held that, even in the absence of a command to that effect in the statute, it was the duty of the officers of the Land Department, immediately upon a grant being made by Congress, to reserve from settlement and sale the lands within the grant; and that, if there was a dispute as to its extent, it was the duty to reserve all lands which, upon either construction, might become necessary to make good the purposes of the grant. This ruling as to the power
In the case now before us Congress in the statutes referred to had expressly subjected these lands to the operation of the placer mining law and had authorized their exploration for oil and their location, entry and purchase as mineral lands. Congress had in this way exercised its power and manifested its will and such was the situation when the withdrawal in question was made. Deriving the aim of the Executive from the various documents to which we have referred it may be fairly deduced that the prevailing purpose (and that was the sole purpose so far as the lands here involved were concerned) in making the withdrawal was to anticipate that Congress, having the subject-matter brought to its attention, might and would provide a better and more economical system for the disposition of such public lands, and secondarily to preserve some of the oil lands in California as a basis of naval supply in the future, the latter purpose not at that time declared or recognized by Congress. For these purposes the President had no express authority from Congress; in fact, such is not claimed. The authority which may arise by implication, we think, must be limited to those purposes which Congress has itself recognized by either direct legislation or long continued acquiescence as public purposes for which such withdrawals could be made by the Executive. That the President might by virtue of his executive authority take action to preserve public property or in aid of the execution of the laws reserve tracts of land for definitely fixed public purposes, declared by Congress, such as military or Indian reservations, may be conceded; but we are unable to find sanction for the action here taken in withdrawing a large part of the public domain from the operation of the public land laws in the
The constitutional authority of the President of the United States (Art. II, §§ 1, 3), includes the executive power of the Nation and the duty to see that the laws are faithfully executed. "The President `shall take care that the laws be faithfully executed.' Under this clause his duty is not limited to the enforcement of acts of Congress according to their express terms. It includes `the rights and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.'" Cooley's Principles of Constitutional Law, p. 121; In re Neagle, 135 U.S. 1. The Constitution does not confer upon him any power to enact laws or to suspend or repeal such as the Congress enacts. Kendall v. United States, 12 Pet. 524, 613. The President's powers are defined by the Constitution of the United States, and the Government does not contend that he has any general authority in the disposition of the public land which the Constitution has committed to Congress, and freely concedes the general proposition as to the lack of authority in the President to deal with the laws otherwise than to see that they are faithfully executed.
As we have said, while this court has sustained certain withdrawals made by the Executive, in carrying out a policy for which the use of the public lands had been indicated by congressional legislation, and has sustained the right of withdrawal where conflicting grants had been made by Congress and additional legislation was needed to expressly declare the purpose of Congress, the court has refused to sustain withdrawals made by the Executive branch of the Government when in contravention of the
In Lockhart v. Johnson, 181 U.S. 516, 520, Mr. Justice Peckham, speaking for the court, tersely stated the rule:
"Public lands belonging to the United States, for whose sale or other disposition Congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws, unless some particular lands have been withdrawn from sale by Congressional authority or by an executive withdrawal under such authority, either expressed or implied."
We think the rule thus stated is the result of the previous decisions of this court, when properly construed, and is consistent with the authority over the public lands given to Congress under the Constitution, and properly rests with the executive power to deal with such lands by way of withdrawal upon the express or implied authority of the Congress. In other words, it may be fairly said that a given withdrawal must have been expressly authorized by Congress or there must be that clear implication of
The message of the President of January 14, 1910, indicates that he doubted his authority to make such withdrawals. In that message, after referring to the lax manner in which the Government had been disposing of the public lands under the mining and other acts and the need of properly classifying lands and revising the mode of disposing of the oil and other deposits in them with greater regard to the public interests, but without hindering development, he said:
"The power of the Secretary of the Interior to withdraw from the operation of existing statutes tracts of land, the disposition of which under such statutes would be detrimental to the public interest, is not clear or satisfactory. This power has been exercised in the interest of the public with the hope that Congress might affirm the action of the executive by laws adapted to the new conditions. Unfortunately, Congress has not thus far fully acted on the recommendations of the Executive, and the question as to what the Executive is to do is, under the circumstances, full of difficulty. It seems to me that it is the duty of Congress now by statute to validate the withdrawals that have been made by the Secretary of the Interior and the President, and to authorize the Secretary of the Interior temporarily to withdraw lands pending submission to Congress of recommendations as to legislation to meet conditions or emergencies as they arise. . . .
"I earnestly recommend that all the suggestions which he [the Secretary of the Interior] has made with respect to these lands shall be embodied in statutes, and, especially, that the withdrawals already made shall be validated so far as necessary and that the authority of the Secretary of the Interior to withdraw lands for the purpose
After the receipt of this message a considerable number of bills being before the Senate and House of Representatives upon the subject, the matter was taken up and in the House of Representatives a bill was passed providing for withdrawals under certain conditions and providing that "All withdrawals heretofore made and now existing are hereby ratified and confirmed as if originally made under this act." The bill in that form did not pass the Senate. It was, however, adopted in a materially modified form in the act of June 25, 1910 (c. 421, 36 Stat. 847); which reads:
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.
"SEC. 2. That all lands withdrawn under the provisions of this Act shall at all times be open to exploration, discovery, occupation, and purchase, under the mining laws of the United States, so far as the same apply to minerals other than coal, oil, gas, and phosphates: Provided, That the rights of any person who, at the date of any order of withdrawal heretofore or hereafter made, is a bona fide occupant or claimant of oil or gas bearing lands, and who, at such date, is in diligent prosecution of work leading to discovery of oil or gas, shall not be affected or impaired by such order, so long as such occupant or claimant shall continue in diligent prosecution of said work: And provided further, That this act shall not be construed as a
"SEC. 3. That the Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session after the date of the withdrawals."
The reports of the Senate Committee show that its members were divided as to the authority of the President to make the withdrawal order in question. The majority report stated that in any view the President had the authority without additional legislation; the minority reached the opposite conclusion.
It is to be noted that the act of June 25, 1910, conferred specific authority for the future upon the President, but gave no approval to the withdrawal of September 27, 1909, containing instead an express provision that the act should not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after the withdrawal of such lands made prior to the passage of the act. While the order of
The Government of the United States is one of limited powers. The three coordinate branches of the Government are vested with certain authority, definite and limited, in the Constitution. This principle has often been enforced in decisions of this court, and the apt words of Mr. Justice Miller, speaking for the court in Kilbourn v. Thompson, 103 U.S. 168, 190, have been more than once quoted with approval:
These principles ought not to be departed from in the judicial determinations of this court, and their enforcement is essential to the administration of the Government, as created and defined by the Constitution. The grant of authority to the Executive, as to other departments of the Government, ought not to be amplified by judicial decisions. The Constitution is the legitimate source of authority of all who exercise power under its sanction, and its provisions are equally binding upon every officer of the Government, from the highest to the lowest. It is one of the great functions of this court to keep, so far as judicial decisions can subserve that purpose, each branch of the Government within the sphere of its legitimate action, and to prevent encroachments of one branch upon the authority of another.
In our opinion, the action of the Executive Department in this case, originating in the expressed view of a subordinate official of the Interior Department as to the desirability of a different system of public land disposal than that contained in the lawful enactments of Congress,
For the reasons expressed, we are constrained to dissent from the opinion and judgment in this case.
The Government says, however, that "there is no publication which can be relied on in determining whether a given Executive order was preceded by statutory authority," and admits that it is possible that in some of the cases cited there was antecedent statutory authority.
The defendant appends to its brief a list of statutes giving discretionary power to the Executive to make withdrawals, those relating to military or analogous purposes being, 1 Stat. 252; 1 Stat. 352; 1 Stat. 555; 2 Stat. 453; 2 Stat. 547; 2 Stat. 750; 4 Stat. 687; 9 Stat. 500; 10 Stat. 27; 10 Stat. 608; those for Indian purposes being, 4 Stat. 411; 10 Stat. 238; 11 Stat. 401; 12 Stat. 819; 13 Stat. 40; for a lighthouse, 1 Stat. 54; with reference to salt springs, 2 Stat. 235; 2 Stat. 280; 2 Stat. 394; and lead mines, 2 Stat. 449; for town sites, 3 Stat. 375; 12 Stat. 754; for reservoirs, 25 Stat. 526; and irrigation work, 32 Stat. 388; for lands containing timber for naval purposes, 3 Stat. 347; and for forest reserves, 26 Stat. 1103; 30 Stat. 36.