APPEAL from the Supreme Court of the State of Ohio, being the highest Court of equity of that State, under the 25th sec. of the judiciary act of 1789, c. 20.
The bill filed by the plaintiff, Matthews, in the State Court, was brought for the purpose of obtaining from the defendants, Zane and others, a conveyance of a tract of land to which the plaintiff alleged that he had the equitable title, under an entry, prior to that on which a grant had been issued to the defendants. The validity of his entry descended on the construction of the act of Congress of May 19th, 1800, c. 209., the 6th section of the act of March 3d, 1803, c. 343., and the act of the 26th of March, 1804, c. 388., all relating to the sale of the public lands in the territory northwest of the river Ohio. The case stated, that on the 7th of February, 1814, the plaintiff applied to the Register of the Marietta District, and communicated to him his desire to purchase the land in controversy. The office of Receiver being then vacant, no money was paid, and no entry was made; but the Register took a note or memorandum of the application. On the 12th of May, 1804, soon after the Receiver had entered on the duties of his office, the plaintiff paid the sum of money required by law, and made an entry for the land in controversy, with the Register of the Marietta District. In pursuance of the 12th section of the act of the 26th of March, 1804, c. 388., and of instructions from the secretary of the treasury, the sale of the lands in the District of Zanesville, (which had been formed out of the Marietta District, and included the land in controversy,) commenced on the 3d Monday of May, 1804, and on the 21th of that month the defendants became the purchasers of the same land. There were several charges of fraud in the bill, and a contract between the parties was alleged; but as the opinion of this Court turned exclusively on the title of the parties under the act of Congress, it is deemed unnecessary to state these circumstances. The State Court having determined against the validity of the plaintiff's title under the act of Congress, and dismissed his bill, the cause was brought by appeal to this Court.
Mr. Doddridge, for the appellant, stated, that the cause depended upon the construction of three acts of Congress, which he insisted had been misconstrued by the State Court. The first of these acts, that of May 10th, 1800, c. 209, established the present system of selling the public lands in Districts, and by that statute the land in controversy was within the Marietta District. The 6th section of the act of the 3d of March, 1803, c. 343., created an additional District, and provided that the lands within it should be offered for sale, at Zanesville, under the direction of a register and receiver, to be appointed for that purpose, who should reside at that place. The 12th section of the act of the 26th of March, 1804, c. 388. directs the lands in the District of Zanesville to be offered for public sale on the third Monday of May in that year.
On the first view of the case, difficulties present themselves, on the side of the appellant, in the authority of previous decisions, and especially a decision of this Court, between the same parties.a But that decision resulted from an incorrect and imperfect statement of facts in the former case. Circumstances which are now disclosed did not appear in that case. Upon the present record the following points will be insisted on:
1. That even by a strict technical construction of
a Matthews v. Zane, 5 Cranch, 92. the statutes in question, the power of sale did not cease at Marieita, until after the 12th of May, 804, the date of the plaintiffs' purchase. (2.) That such was the practical construction given to those laws by executive officers, which ought in the present case to be conclusive, because it fulfils every object of the law, preserves the private rights of individuals, and if set aside by a mere technical objection, would open a door for the most extensive litigation and disturbance of titles acquired under the land laws of the United States. (3.) That supposing the act of March 30, 1803, had in express terms, or by necessary and inevitable implication, taken away the power of sale at Marietta, yet it could not begin to have that effect, until duly promulgated at that place, it not having in fact been transmitted to the officers at Marietta, until after the plaintiff's entry.
b 4 Hall's Laws Journal, 16. 2 Dall. 320. writers on the construction of statutes, and will be found in the common abridgments of the law.c All these rules necessarily resolve themselves into the intention of the law maker, which is sometimes to be collected from the cause or necessity of making the statute, and at other times from other circumstances of equal weight.d Sir William Jones has asserted the true principles on this subject.e 'Such is the imperfection of human language,' says he, 'that few written laws are free from ambiguity; and it rarely happens that many minds are united in the same interpretation of them.' And then, after relating an anecdote of Lord Coke, adds: 'I will here only set down a few rules of interpretation, which the wisdom of ages has established, when the sense of the words is at all ambiguous-1st. The intention of the writer must be sought, and prevail over the literal sense of terms; but penal laws must be strictly expounded against offenders, and liberally against the offense.
c 6 Bac. Abr. tit. Statute. (I.)(C.)
d Vere v. Thonipson, Hardr. 208.
e Ld. Teignmouth's Life of Sir W. Jones, 267. the words immediately preceding, but usually extended to the whole antecedent phrase.
f Letter to J. Macpherson, Esq. Governor-General of Bengal, Sir W. Jones' Life, 267.
g U.S. v. Fisher, 2 Cranch, 286. the sale of the public lands. The public policy is two-fold-first, revenue; second, national growth and prosperity, by the extension of population and improvement. The right of every individual is, to appropriate to himself any tract of land within the provisions of the system. Words are not necessary to show the importance of the public policy in both its branches; and the interest felt by the community, in the right to appropriate, is of equal extent, and as strong-as distinctly marked, too, as the policy itself; and, though a right peculiar to the American people, is, nevertheless, a general right; requiring, indeed, to be regulated by law; but none will say that the government might, or could wholly repress its exercise, any more than wholly to repress the exercise of the general right to carry on trade and commerce.
h Whitham v. Evans, 2 East. Rep. 135.
i 1 Bl. Com. 45. them public, says, 'all laws should, therefore, be made to commence in future, and be notified before their commencement, which is implied in the term prescribed.' The fair inference from this, and, indeed, from all that he and other writers have said, in treating on the elementary principles of law, is, that where unjust consequences result from the application of a general rule to a particular case, courts have the power to except such case and bring it under the control of equitable construction; and to ask, 'did the law-maker, supposing him to be an upright man, intend to include or except this case?'j
The land laws must certainly be considered as forming a part of the contract between the Government, and each individual who wishes to become a purchaser of the public domain. If contracts between the public and individuals are to be considered in the same light as contracts between individuals, then the principle applies that a bona fide and innocent purchaser, from an agent who has not received due notice that his authority is superceded, shall not be injured by the negligence of the principal, in not giving notice.b The rules of interpretation applicable to the present case, are laid down by the elementary
'2. All clauses, preceding or subsequent, must be taken together to explain any one doubtful clause.
'3. When a case is expressed to remove any doubt whether it was included or not, the extent of the clause, with regard to cases not so expressed, is by no means restrained.
'4. The conclusion of a phrase is not confined to
'These are copious maxims, and, with half a dozen more, are the stars by which we steer, in the construction of all public and private writings.'f
So, also, this Court has laid it down as 'a well established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that when great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.'g
1. In enforcing the construction we contend for, the further considerations which present themselves under the first point are That all the land laws passed previous to the act of May 10th, 1800, merged in that act; and by it, the system of selling the public lands in districts, through agents called registers and receivers, was settled: so that at the passage of the act of March 3, 1803, that system, in all its relations, was the law; and to all the provisions of the act of May 10th, 1800, and the rights established thereby, that of March 3, 1803, expressly refers, and for its operative capacity necessarily depends.
The whole system is laid in two important objects-public policy, and the rights of the community generally and individually; both terminating in
The second branch of the public policy-also the right to acquire and improve new lands-did not commence with the land laws of the United States; both existed under, and the latter was exercised through, the regulations of colonial and State government, are coeval with the settlement of America; and when the same policy and right fell within the jurisdiction of the national government, laws were immediately passed to regulate them, and have been continued from time to time, until they all merged in the act of May 10th, 1800; so that the right of every individual in the community to purchase and settle any part of the lands within the provisions of that act, may emphatically be called an existing right.
The first branch of the public policy, revenue, engaged the attention of the national government immediately after the termination of the revolutionary war, and has been pursued by it ever since, with an undeviating aim; and it may be here observed, that one condition in the cession from Virginia is, that the lands ceded shall be sold, and the proceeds go in discharge of the public debt. It is not denied that Congress may suspend the sale of the whole or any part of the public lands; but doubtless, in such case, there would appear some distinct and good reason for doing it, as in the act of May 10, 1800, in order to attain, more effectually, the objects of the whole system; and then the intention was expressed with irresistible clearness in the repealing clause. But where nothing of this kind is pretended, where no object or motive can be perceived leading to suspension, the implication must be strong indeed to induce a court of justice to suppose a design to depart from every principle of the law in the case.
The constitution and the law show, that the President had no power to establish the Zanesville offices until after the next meeting of Congress; for those offices were not vacancies to be filled during the recess; and it will not be contended, that he was bound to summon a special meeting of the Senate for that purpose. Furthermore, the President had no power to cause sales to commence at Zanesville, until, in some act subsequent to that of March 3, 1803, the time for opening sales should be appointed; and we shall now endeavour to show the correctness of that position. The words of the act of March 3, 1803, (sections 5. and 6.) refer, generally, to the act of May 10th, 1800, and embrace all the regulations prescribed, among which a prominent one is, that all the land must be offered at public sale before being offered at private sale, and that a day should be appointed by law when sales are to commence at each office. The object of public sale, when any tract of country is brought into market for the first time, is, principally, the enhancement of price above the legal limitation, by means of competition for the most valuable tracts; but it has another of some importance, that is, settling in this way the preference between competitors.
The fair inference from these considerations is, that no sale of any part of the unappropriated lands in the military tract could legally take place, either at Zanesville or Chillicothe, under the bare provisions of the act of March 3, 1803; that some farther legislative provision was necessary, appointing the time when sales should commence. This provision is found in the act of March 26th, 1804. It it true, that in another act passed, also, the 3d March, 1803, 'regulating the grants of land, and providing for the sale of the public lands south of Tennessee,' the time when sales are to commence is left with the President; but it is to be by proclamation, giving due notice. This is a modification only of the practice under the same principle and policy.
But it may be said, the act of May 10, 1800, excepts from public sale a part of the Marietta District, and all the Steubenville District. This is true; and the reason for this exception is not readily perceived. The only probable one is, that all the part excepted in the Marietta District was known to be a rough, hilly country, therefore no prospect of sales being immediately effected in it. The distinction, on any other account, between the west of the Muskingum, including the township intersected by it, and the lands lying east of those townships seems to be idle. With respect to the Steubenville District, all the most valuable lands in it had been sold in New-York, in 1787, and at Pittsburgh, in 1796; therefore, the competition to be expected at public sale was not thought of sufficient importance to be secured by statutory provision. But whatever may have been the reason for excepting these lands from public sale, the principle of fixing by law the time when the private sale of them shall commence is still preserved; thus securing the equitable mode of settling by lot the preference between applicants for the same tract, provided for in the act of May 10th. In fine, the reference of the act of March 3, 1803, to that of May 10, 1800, is general, therefore embraces the general provisions only; and the correct conclusion from a whole view of this matter is, that the act of March 3, 1803, was inchoate, inoperative of itself, in respect to sales at Zanesville, and, therefore, it would be absurd to give to it a constructive repeal of the preceding statute.
All that has been urged against suspending sales at Marietta until the operative organization of the Zanesville District took place, applies with equal force to the act of March 26, 1804, as to that of March 3, 1803. The absurdity is just as great in principle; the only difference is, its effects are not of so long continuance. Besides, the act of March 26, 1804, appoints the time when sales shall commence at Zanesville, and thus removes the only objection of the Register of the Zanesville District to the construction for which we contend.
There is no difference, in regard to construction, between a law which definitively appoints the time when a certain thing is to be done in future, and a law which leaves indefinite the future time when that certain thing is to be done; and practically, there is less reason to give the subsequent statute a repealing operation from the day of its passage, in the latter, than in the former case, because, there is less inconsistency in suspending the existing rights of individuals, and the public interest and policy for a certain, than for an uncertain time. Resting with some confidence in this position, we shall here introduce a case precisely in point, to show, that the repugnant words are not alone and abstractedly to be considered.h
'By a statute passed on the 9th of July, the jurisdiction of a Court of Requests is enlarged after the 30th of September following, from debts of 40s. to 5l.-and it is also enacted, that if any action shall be commenced in any other court for a debt not exceeding 5l. the plaintiff shall not recover costs: yet from a necessary construction of the whole act, a plaintiff shall recover costs in an action commenced in another court, for a debt between 40s. and 5l. after the passage of the act, and before the 30th of September. Till then he could not sue in the Court of Requests, and therefore had no other remedy but to sue in another court.'-
Here was an attempt made to give to the words 'if any suit shall be commenced,' &c. an abstract meaning and repealing force, from the day of passing the act; but they were not allowed to suspend the existing right to sue somewhere.
The admissions heretofore made, that is, that had the day been appointed when sales were to commence at Zanesville, they might have been continued at Marietta up to such day, seems to render a reference to the above case unnecessary, in respect to former arguments on the other side; but those admissions may not be extended to the present hearing: and, besides, the cited case shows that the same kind of reasoning has been resorted to on other occasions, that it has been put down by the court, and that the whole law and practical reason are the only sure guides to sound construction. In every proposition importing that the lands taken from the Marietta District 'shall be sold at Zanesville,' these repugnant words must be used; and when the object is to give them an abstract repealing effect from the moment they are used by the legislature, it matters not when 'sold at Zanesville.'
2. The second point in our argument is, that the complainant's purchase was made conformably to the practical construction given to the laws in question by the proper executive officers. This relates, principally, to the Secretary of the Treasury, the superintendant of the whole; but extends also to the Register of the Marietta District, who, being without instructions, had to act upon his own discretion.
The facts in the bill show, that laws affecting the land offices are received, by the respective officers, through the Treasury Department, with instructions; it therefore follows, that had the Secretary of the Treasury construed the act of March 3, 1803, as suspending sales at Marietta, he would have given instructions to that effect. This deduction flows by such strong implication from the facts and the nature of the case, that direct proof, if susceptible of being had, would be unnecessary: it is, in fact, involved in the acknowledgment of the Secretary of the Treasury, that his first impressions, (that is, that all sales made at Marietta, after the passing of the act of March 3, 1803, were void, as suggested by the private opinion of the Register of the Zanesville District,) were erroneous; and without saying any thing more than has been said, in relation to the act of March 26th, 1804, we may confidently assume the fact stated as the foundation of this point; and shall now endeavour to show that the conclusion drawn from it is correct.
The true doctrine of executive construction is, that, generally, it is to be considered and respected: for executive officers are officers of the constitution and laws, as well as the judges; and in the performance of their proper functions, the former are under the necessity of putting a construction on the acts of the legislature, as well as the latter: and it may be added, that they are always supposed to act under the advice of a high law officer, appointed for that purpose. When, in this necessary exercise of their judgment, they put such a construction on a statute as promotes its evident object, preserves all the rights of individuals, and which at the same time becomes a rule by which title to things real or personal is acquired, such construction ought not to be set aside by a rigid criticism of any kind; but where it injures the public interest, or abridges and restrains the rights of individuals, it should be strictly examined and corrected.
When executive constructions and regulations form the rule by which the most interesting of all titles, the title to land, is acquired, all must see and admit the reasonableness of preserving rights growing out of them. Executive construction, in such cases, acquires all the importance, and involves all the consequences, of judicial decisions. Could it be established, that the Secretary of the Treasury had misconstrued the act of March 3, 1803, in permitting sales to be made at Marietta, after its passing; and that this was so erroneous as to make void those sales; such a decision would reach, as has before been observed, two valuable interests, bona fide acquired as ours was, and long possessed as ours ought to have been: for their titles cannot, and ought not, to be preserved by the mere refusal of executive officers to act; neither, it is conceived, because the land cannot now be entered in tracts of the same size in which they were offered at public sale, by reason, that the law is modified in this respect; for, should this be admitted, the land officers might, through ignorance, or fraud, entangle titles to any extent. All lands, in fact, unsold at public sale are liable to be entered at private sale; and all tracts not legally sold are still public lands and liable to be entered.
The observations of Sir William Jones, before quoted, go to illustrate and support our reasoning on this point. It may readily be supposed, that a difference might take place in construing the minor provisions of a statute, though all should agree in its main object and intent: when this is attained, the minor provisions are of little moment.-Suppose the act of March 3, 1803, was actually couched in such ambiguous terms as, taken in their literal and grammatical sense, would raise a doubt whether sales were to continue at Marietta after its passage; but that the Secretary of the Treasury, in consequence of a construction formed from the exercise of his judgment, on a view of the whole law, had given actual instructions to continue them there. Would a sale made under such circumstances be declared void?-We think not; and certainly not in the present case, which stands clear of every literal and grammatical ambiguity-where the necessarily implied construction of the secretary of the treasury runs with the obvious intendment of the whole law.
In closing our argument on this point, we beg leave to press this view of the subject with some earnestness on the consideration of the Court; and confidently taking it for granted, that the not instructing the Marietta officers at all was equivalent to instructions to continue sales there, we again ask, that if actual instructions had been given, to continue sales at Marietta, until a few days before they commenced at Zanesville, giving sufficient time only, for the proper notice to the Zanesville officers; and the Register of the Zanesville district had thought proper to disregard these regulations, and sell the land over again, would the Court sanction his sales? or, in other words, would it now sanction a sale of the two tracts entered at Marietta, in July, 1803?
3. Our third point is, that supposing the act of March 3, 1803, had, in express words, or by necessary implication, taken away the power of the Marietta office to sell; yet, that it did not begin to have that effect, until duly promulgated at Marietta, conformably to the usual manner of promulgating such acts, &c., and the same of the act of the 26th of March, 1804.
The reason of the rule, that, where no day is appointed, statutes begin to have effect from the day of their passage, seems to be this: that it being practically impossible actually to notify every person in the community of the passage of a law, whatever day might be appointed for its taking effect, no general rule could be adopted less exceptionable. The general rule may, in some instances, produce injustice; but if ignorance of the law was admitted as an excuse, too wide a door would be left open for the breach of it. Where statutes are liable to produce injustice by taking immediate effect, the legislature will, except through inadvertence, appoint a future day from whence they are to be in force. Mr. Justice Blackstone,i treating of the promulgation of laws, and the duty of legislatures to make