Campbell v. Doe

by John McLean

United States Supreme Court

54 U.S. 244

Campbell  v.  Doe

No. ORIGINAL SURVEYED TOWNSHIP, NO 1, IN RANGE NO 19, &c 

THIS case was brought up from the Supreme Court of the State of Ohio, by a writ of error, issued under the 25th section of the Judiciary Act.

The facts are all stated in the opinion of the court.

It was argued by Mr. Marsh, for the plaintiffs in error, and Mr. Vinton, for the defendant in error.

Mr. Marsh, for the plaintiffs in error, contended that the entry of Hamilton was legal; that the reservation from sale had been withdrawn, and consequently the land was open; that, if the Secretary of the Treasury must be supposed to have sanctioned the first order, reserving the land for sale, so he must be supposed equally to have sanctioned the second order, authorizing the withdrawal of the reservation; that, if Hamilton's entry was legal, the subsequent selection of the same land by the Secretary was void, because the act of Congress only authorized him to select unappropriated land, and this was not so; that there was no fraud, or any mistake, on the part of the Register or of Hamilton.

Mr. Vinton, for the defendant in error, contended,--

1st. That the selection of the land in controversy, as school land, by the Secretary of the Treasury, on the 9th of January, 1834, vested the legal title thereof in the State of Ohio. See act of the 20th of May, 1826, 4 Stat. at Large, 179, and act of the 3d of March, 1803, 2 Stat. at Large, 225.

2d. The prior sale to Hamilton and certificate of purchase cannot avail him, for several reasons:

1. Because the title thus vested in the State overreaches his certificate, and reaches back to the date of the original selection of the land for schools, and the report of it, as such, to the Commissioner of the General Land-Office. Lessee of Hammond, v. Warfield, 2 Harr. & Johns. Rep. 158; 17 Ohio Rep. 287, 288.

It will be insisted that this consequence results from the fact, that the duty of making the selections conferred on the Secretary, as incident to its proper discharge, a discretion, to be exercised by him in a manner most beneficial to the objects of the grant, consistent with a due regard to the interests of the United States; and that, to exercise this discretion wisely and intelligibly, he must have at his command the means of ascertaining every fact necessary to a proper selection; such, for example, as the ascertainment of the quality of the land, which could only be done through subordinate agencies. And that, therefore, the selection of the land, under the circular of the 24th of May, 1826, and the report of it, by the Register, to the General Land-Office, by direction of the Secretary, for his decision thereon, being necessary and proper preliminary steps towards carrying the act into execution, had the effect in law to sever the land, thus selected and reported, from the mass of the public lands, until his decision was had; and, when approved by him, the whole proceeding was in law one act, and constituted the selection by the Secretary required by the act of the 20th of May, 1826.

That the land was, from the commencement of the act of selection, severed from the mass of public lands. See Wilcox v. Jackson, 13 Pet. 513.

2. Because, whether the title of the State overreaches the sale to Hamilton or not, his purchase was void, for the reason that the land was at the time withheld from sale, and could not be entered by him.

In support of this position, it will be insisted that the selection and report of the land to the General Land-Office, being made by the direction of the Secretary, for his decision thereon, the question of its approval was in law pending before him, and under his consideration until his decision should be made; which pending consideration necessarily, for the time being, suspended the sale of the lands selected; and, whether this be so or not, the sale was expressly prohibited by the circular of the 30th of August, 1832, until the Register should be officially advised of the approval or rejection of the selection by the Secretary.

It will be claimed, also, that the power of reservation from sale, in such case, is incident to the proper execution of the act of May 20, 1826, making the grant of these school lands, and is also incident to the general supervisory power of the Secretary over the public lands given by the act of the 25th of April, 1812, entitled 'An act for the establishment of a General Land-Office in the Department of the Treasury,' which act wad at that time in force. 2 Stat. at Large, 716.

It will also be further insisted that, though the selection of these school lands was specially intrusted to the Secretary of the Treasury, by the law granting them, and required his express approval, yet the circulars of the 24th of May, 1826, and the 30th of August, 1832, issued by the Commissioner of the General Land-Office, prescribing the mode of selection and withdrawing the selected lands from sale, will, in the absence of proof to the contrary, be presumed to have been issued under the direction and sanction of the Secretary. Wilcox v. Jackson's Lessee, 13 Pet. 512.

This, however, is not a conclusive presumption of law, but belongs to that class of presumptions which may be rebutted by proof. 1 Greenleaf's Evidence, sects. 33 and 34, page 42.

And where the facts of a case are agreed, this court will apply and has applied to those facts the presumptions of law belonging to this class. Doddridge v. Thompson, 9 Wheat. 483; Wilcox v. Jackson, 13 Pet. 512, 513.

3d. The sale to Hamilton was void because the letter of the Commissioner of the General Land-Office of the date of the 19th of March, 1833, giving to the register permission to withdraw the selection and make another in its stead, was written without authority from the Secretary of the Treasury. That it was so, is shown by the facts that the said Commissioner subsequently recommended the approval of said selection to the Secretary, who, on appeal to him, confirmed it with a full knowledge of the sale to Hamilton, of said letter of the 19th of March, 1833, and of all the correspondence relating to the said tract of land existing at that date; which facts rebut the presumption that might otherwise arise that said letter was written by authority. 1 Greenleaf's Ev. sects. 33 and 34.

4th. Because, without the express permission of the Secretary, the Commissioner had no more authority to reject a selection duly made and reported, than he had to confirm it. 17 Ohio, Rep. 288.

5th. Because, if said letter of the 19th of March, 1833, were written by authority of the Secretary, the Register did not comply with its directions, inasmuch as he withdrew the selection theretofore made, and made no other in its stead, and thus, as far as in him lay, defeated the grant altogether.

Mr. Justice McLEAN delivered the opinion of the court.

Notes