Saltmarsh v. Crommelin , 39 Ala. 54 ( 1863 )

A. J. WALKER, C. J.

Tbe court below instructed tbe jury, tbat tbe plaintiffs’ patent was void, if it was issued in pursuance of an entry made only under authority of tbe letter of tbe commissioner of tbe general land-office, of 11th October, 1834. In support of tbis charge it is contended, first, tbat tbe entry could not have been lawfully made without tbe special direction of tbe secretary of tbe treasury; secondly, tbat if tbe commissioner of tbe land-office bad authority to direct tbe entry, be has not done so in bis letter of 11th October, 1834; thirdly, tbat tbe land was not subject to entry, until it bad been offered at public sale; and, fourthly, tbat by an endorsement upon tbe mar-gin of tbe certificate of entry it appears, tbat tbe entry was in fact made upon tbe authority of instructionjgiven on the 29th December, 1838, and that, therefore, the entry cannot be justified by the letter of 11th October, 1834. We> propose to consider these points in the order in which they are presented.

[1.] The land in controversy is part of a tract reserved, under the first section of the treaty made at Fort Jackson, on 9th August, 1814, to Tallasse Fixico, which, upon his> voluntary abandonment, by the terms of the treaty, “ devolved to the United States.” — 7 U. S. Statutes at large, 121. By the 6th section of an act of congress, approved March 8d, 1817, it was enacted, that the register should not offer such a reservation for sale, unless specially directed by the secretary of the treasury. — 3 U. S. Statutes at large, 382; 1 U. S. L. L. 289. By the act of congress of 4th July, 1836, the executive duties appertaining to the sale of the public lands, or in any wise respecting the public lands, were imposed upon the commissioner of the general land-office. — 6 U. S. Statutes at large, 107; 1 Dub. L. L. 552. By this latter act, the authority to direct the sale of reservations under the treaty of Fort Jackson was transferred from the secretary of the treasury to the commissioner of the general land-office. We cannot agree that the authority of the commissioner of the general land-office is, by virtue of the phrase “ executive duties,” restricted to matters purely ministerial. That phrase has never been understood as having that effect; and the validity of the acts of the commissioner of the general land-office, in reference to questions of a judicial nature, has been repeatedly recognized. — Bates v. Herron, 35 Ala. 117; Mims' Heirs v. Higgins, in MSS. The intent that the commissioner should have authority to pass upon questions of a legal character is clearly shown by the 5th section of the act of 1836 above referred to; for that section creates the office of solicitor of the general land-office, for the purpose of aiding the commissioner in the decision of such questions.

[2.] The commissioner’s letter of ¡11th October, 1834, asserts that, as the voluntary abandonment of the land by Tallasse Fixico satisfactorily appeared from certain papers,in his opinion the land was subject to entry under the pre-emption law. We think tbis letter is a “special direction” to allow tbe entry of tbe land under tbe pre-emption law. Tbe commissioner of tbe general land-office stands in tbe light of a superior and revising tribunal to tbe registers of tbe local offices. Tbe announcement of tbe liability to entry of land reserved under tbe treaty of 1814, must necessarily baye been tbe result of an opinion, founded upon evidence, that tbe reservee bad voluntarily abandoned tbe land, and that tbe law and interest of tbe government permitted tbe entry of tbe land. These things being involved in, and imphed by what is said in tbe letter, it must be understood as authorizing tbe sale of tbe land, in accordance with tbe terms of tbe pre-emption law.

[8.] Tbe third point is founded upon a total misapprehension of tbe statute. Tbe right to enter land under tbe pre-emption law does hot depend upon tbe fact that tbe land has been exposed to public sale. Tbis is shown by tbe whole scope of tbe pre-emption law, by tbe practice under it, and by tbe provision in tbe act of 1830, that tbe preemption right shall not delay tbe pubbc sales appointed by tbe president’s proclamation. — Public L. L. 473, 525, 574. If the letter of' 11th October 1834 authorized tbe entry of tbe land under tbe pre-emption law, tbe entry subsequent to that date could not be invalid, because tbe register bad received other instructions, unless it bad been shown that those instructions were inconsistent with tbe opinion given in tbe letter of 11th of October, 1834. Tbe fact that tbe commissioner of tbe general land-office bad cumulated bis instructions for tbe sale of tbe land certainly cannot vitiate tbe entry.

[4.] Besides tbe points which we have noticed, it is insisted that tbe right of pre-emption, under tbe act of 1834, only continued for two years after tbe passage of that act; and that tbe entry in tbis case, having been made in 1839, and purporting to have been made under tbe act of 1834, is void. To tbis it is a sufficient reply that, by tbe third section of that act, entries by a certain class of persons are allowed to which tbe limitation of two years does not apply. We must presume in favor of tbe legality of tbe entry, and are not authorized to pronounce it invalid when it appears that it may have been consistent with the law.

Note by Reporter. — This ease was decided at the June term, 1861.

Reversed and remanded.