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Opinion of the Court.

An examination of these acts makes it clear that up to the revision of the statutes of the United States, it was the settled policy of the government to hold for sale, at a price not less than double the minimum price of public lands, all alternate reserved sections on the lines of railroads constructed with the aid of the United States.

That policy was recognized in section 2357 of the Revised Statutes, which provides that "the price at which the public lands are offered for sale shall be one dollar and twenty-five cents an acre; and at every public sale, the highest bidder, who makes payment as provided in the preceding section, shall be the purchaser; but no land shall be sold, either at public or private sale, for a less price than one dollar and twenty-five cents an acre; and all the public lands which are hereafter offered at public sale, according to law, and remain unsold at the close of such public sales, shall be subject to be sold at private sale, by entry at the land office, at one dollar and twenty-five cents an acre, to be paid at the time of making such entry: Provided, That the price to be paid for alternate reserved lands, along the line of railroads within the limits granted by any act of Congress, shall be two dollars and fifty cents per acre."

It is to be observed, in passing, that this proviso applies to all alternate reserved lands described in any act of Congress, and makes no exception of any lands of that class on account of their fitness or unfitness, in their natural condition, for agricultural purposes.

Thus the law stood at the date of the act of March 3, 1877, c. 107, providing for the sale of "desert lands" in certain States and Territories. 19 Stat. 377, c. 107. That act is as follows:

"That it shall be lawful for any citizen of the United States, or any person of requisite age who may be entitled to become a citizen, and, who has filed his declaration to be

72, c. 84, § 2; id. p. 365, c. 217, § 6; 1865, id. p. 526, c. 105, § 4; 1866, 14 Stat. 83, c. 165, § 3; id. p. 87, c. 168, § 2; id. p. 94, c.

§ 2; id. p. 236, c. 241, § 2; id. 239, c. 242, § 2; 1870, 16 Stat. 94, c. 69, § 4.

182, § 5; id. p. 210, c. 212, 1867, id. p. 548, c. 189, § 5;

Opinion of the Court.

come such' and upon payment of twenty-five cents per acre -to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter: Provided, however, That the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him: Provided, That no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres which shall be in compact form.

"SECTION 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated.

"SECTION 3. That this act shall only apply to and take

Opinion of the Court.

effect in the States of California, Oregon, and Nevada, and the Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office."

It is said that the administration of this act by the Interior Department for many years succeeding its passage was upon the theory that "desert lands" (unless they were timber and mineral lands) included all public lands in the States and Territories named that required irrigation even if they were alternate reserved sections along the lines of land-grant railroads. The object of this suggestion is to bring the present case within the rule, often announced, that when the meaning of a statute is doubtful great weight should be given to the construction placed upon it by the Department charged with its execution, where that construction has, for many years, controlled the conduct of the public business. Edwards v. Darby, 12 Wheat. 206; United States v. Philbrick, 120 U. S. 52, 59; Robertson v. Downing, 127 U. S. 607, 613.

Let us see what has been the practice in the Interior Department in cases arising, or which have been treated as having arisen, under the act of 1877.

As soon as that act was passed, the Commissioner of the Land Office issued a circular, addressed to the registers and receivers of land offices, in which he said that, after the applicant for a patent for "desert lands" had made the required proof, the officer should receive from him the sum of twenty-five cents per acre for the land applied for, and after the expiration of the period named in the statute, and upon proof that water had been conducted upon the land, he should receive the additional payment of one dollar per acre. But it does not appear that the Commissioner intended to make any ruling upon the specific question whether the act of 1877 embraced alternate reserved sections along the line of land-grant railroads. No reference is made by him to the proviso of section 2357 of the Revised Statutes. Nevertheless, for many years after the passage of the act of 1877 it was held

Opinion of the Court.

in the Department that "lands entered under that act should be paid for at the rate of $1.25 per acre without regard to railroad limits." 14 Land Dec. 75.

But the precise question before the court was considered by the Land Office at a later date and a new policy was inaugurated. In a circular from that office, of date June 27, 1887, it was distinctly stated that "the price at which lands may be entered under the desert land act is the same as under the preemption law, viz., single minimum lands at $1.25 per acre, and double minimum lands at $2.50 per acre" - the Commissioner referring, in his circular, to section 2357 of the Revised Statutes as his authority for that regulation. That circular received the approval of Secretary Lamar. 5 Land Dec. 708.

712.

In Tilton's case, decided March 25, 1889, the point was made that the desert land act of 1877, being subsequent in point of time to section 2357, must control as to all lands that required irrigation. Secretary Noble, after observing that these statutes were parts of one general system of laws regulating the disposal of the public domain, and, therefore, to be regarded as explanatory of each other and to be construed as if they were one law, said: "Under such construction, section 2357 of the Revised Statutes and the desert land act do not conflict, but each has a separate and appropriate field of operation; the former, regulating the price of desert lands reserved to the United States along railway lines; and the latter, the price of other desert lands not so located. There is nothing in the nature of the case which renders it proper that desert lands be made an exception to the general rule any more than lands entered under the preëmption laws. Lands reserved to the United States along the line of railroads are made double minimum in price because of their enhanced value in consequence of the proximity of such roads. Desert lands subject to reclamation are as much liable to be increased in value by proximity to railroads as any other class of lands, and hence the reason of the law applies to them as well as to other public lands made double minimum in price. To hold desert lands an exception to the general rule regulating

Opinion of the Court.

the price of lands reserved along the lines of railroads, would be to make the laws on this subject inharmonious and inconsistent." 8 Land Dec. 368, 369. The same ruling was made by the Interior Department July 2, 1889, in Knaggs' case, the Secretary saying that "the Department construes the desert land act as fixing the price of desert land within railroad limits at two dollars and fifty cents an acre." 9 Land Dec. 49, 50. A like decision was made in Wheeler's case, August 16, 1889, and in Reese's case, May 9, 1890. 9 Land Dec. 271; 10 Land Dec. 541.

This brings us to the act of Congress of March 3, 1891, entitled "An act to repeal timber-culture laws, and for other purposes." 26 Stat. 1095, c. 561.

The second section of that act provides that the above act of 1877, providing for the sale of desert lands in certain States and Territories, "is hereby amended by adding thereto the following sections." Then follow five sections, numbered four to eight inclusive, which were added to the statute of 1877. Sections 6 and 7 of the sections so added to the act of 1877 are in these words:

"SEC. 6. That this act shall not affect any valid rights heretofore accrued under said act of March third, eighteen hundred and seventy-seven, but all bona fide claims heretofore lawfully initiated may be perfected, upon due compliance with the provisions of said act, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed; or said claims, at the option of the claimant, may be perfected and patented, under the provisions of said act, as amended by this act, so far as applicable; and all acts and parts of acts in conflict with this act are hereby repealed.

"SEC. 7. That at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof to the register and receiver of the reclamation and cultivation of said land to the extent and cost and in the manner aforesaid, and substantially in accordance with the plans herein provided for, and that he or she is a citizen of the United States, and upon payment to the receiver of the

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