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prior thereto or not. We come now to the proviso. It declares that the act of March 2, 1855, is "hereby continued in force, and extended to all entries and locations of land, claimed as swamp lands, made since its passage." I think no greater effect should be given to the words "hereby continued in force," than if the provision had been, that the act of 1855 is "hereby re-enacted," but that the same effect must be given to them as if that had been the language of the proviso. What, then, would have been the construction of this proviso, if it had declared the act of 1855 to be re-enacted? It is a general rule of construction, that clauses of reference, incorporating the provisions of former statutes, take effect as fully as if they had been repeated and re-enacted in the body of the latter act with relation thereto. (Dwarris on Statutes, 602.) If we give, then, the same effect to the act of March, 1855, as if it had been in terms repeated and re-enacted on the 3d of March, 1857, we find that the cases of sales and locations of lands, claimed as swamp lands, which had occurred prior to March 3, 1857, and subsequent to March 2, 1855, are fully comprehended, and then we have a substantive provision made on the 3d of March, 1857, that the purchase money of any of the lauds sold, which the States may prove to be swamp lands within the meaning of the act of 1850 shall be paid over to the States, and that indemnity, in other equivalent lands, shall be given for those lands of the character mentioned, which were located by warrant or scrip. The grant was not exclusively of the purchase moneys of those swamp lands which had been selected and reported before March 3, 1857. Patents were directed to be issued for these, if they were unappropriated and unsettled. But the grant, by effect of the proviso, was of the purchase moneys of all lands claimed as swamp lands which had been sold by the government prior to March 3, 1857, and which the States could prove were of the character of lands granted by the original act of 1850. We have no right to import into the proviso, from the purview of the act, the words of limitation that are found there, than we would have to incorporate into the act of 1855 a provision that the lands purchased or located, for which the States, under that act, were entitled to indemnity, shall have been selected and reported as swamp lands to the Government before March 2, 1855.

It is fully implied in what I have said, that the provisions of the act of 1855, thus in effect re-enacted on the 3d of March, 1857, must be held to be strictly retrospective, as of that date, according to the view which I have expressed in regard to the statute of 1855.

While I affirm, therefore, the validity of the claim of the State of Iowa, under this legislation, to the purchase moneys of the public lands within her limits sold between March 2d, 1855, and March 3d, 1857, and which you may determine were swamp lands within the meaning of the act of 1850, and to indemnity in lands for the lands located with warrant or scrip during that period which you may likewise determine were swamp lands according to the true intent of that statue, I dismiss, as without legal merit, under the legislation referred to, any claim for indemnity for lands within that designation, which were sold or located subsequently to March 3d, 1857.

I am, sir, very respectfully,
Your obedient servant,
JAMES SPEED

Hon. James Harlan, Secretary of the Interior.

No. 289 B.

Swamp land grants-how affected by the act "for the disposal of public lands for homestead actual settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida."

DEPARTMENT OF THE INTERIOR,

May, 24, 1869.

SIR-I have received your communication of the 7th inst., returning the letter of Hon. T. W. Osborne, a Senator of the United States from Florida, in relation to swamp and overflowed lands in that State.

You submit for the consideration and opinion of the department certain questions as to the extent to which the grant of lands of this description is affected by the act entitled "An act for the disposal of public lands for homestead actual settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida," approved June 21st, 1866. This act declares that from and after its passage all public lands in those States shall be disposed of according to the stipulations of the homestead law of May 20th, 1862, and the act supplemental thereto, approved the 21st of March, 1864, and that the public lands in those States shall be disposed of in no other manner. My predecessor on the 5th of April, 1867, held, after careful consideration, that the act had no relation to lands where such beneficial interest had been lawfully acquired, or the status whereof had been previously so changed that they could no longer be justly considered as the property of the United States, and subject to its disposing power. Such lands as prescribed prior to the rebellion, might have been acquired by the various modes prescribed by law for obtaining title to a part of the public domain, could in view of the act, be entered only under the provisions of the homestead law; but if the status of a tract was such as to exclude it from entry or sale before the rebellion, it could not thereafter by reason of that act be entered as a homestead. In a communication of the 26th of June, 1867, the department ruled that the act does not impair any pre-existing valid rights of property, although a patent had not been issued for the lands to which such rights had attached I consider these views to be founded upon a sound interpretation of the act.

The act granting swamp lands, &c., was passed 28th September, 1850. Attorney-General Black held that the grant was, in itself, a present grant wanting nothing but a definition of boundaries to make it perfect, and to obtain that object the Secretary of the Interior was directed to make out an accurate list and plat of the lands, and cause a patent to issue therefor.

It is not necessary that a patent should issue to the State. The patent was merely the evidence of title; nothing more. Mr. Secretary Stuart, on the 2d of December, 1851, said that the grant of swamp and overflowed land was a grant in presenti; that when the selections were made and approved, or the patent issued, the title thereto became perfect, and had relation back to the date of the grant, and Mr. Secretary McClelland, in June, 1856, decided that land erroneously embraced in a private claim if swamp at the date of the act, would be subject to selection.

I have the foregoing opinions, although I am aware that a difference of opinion has existed as to the time when a complete and absolute title vested in the State. Parties located with warrants or scrip, or entered for cash, lands claimed as swamp prior to the issue of patents to the State, and this led to the enactment of the act March 2, 1855.

It required that patents should be issued to such purchaser or locator, notwithstanding any contrary decision of the Secretary of the Interior or

other officer. It, however, provided that where a State had sold or disposed of a tract, and at the same time it had been entered or located under the laws of the United States, no patent was to issue until the State, through its constituted authorities, released its claim thereto; but if the State did not, within ninety days after the passage of the act, return to the General Land Office of the United States a list of lands sold as aforesaid, together with the date of said sale and the names of the purchasers, the patents were to be issued immediately thereafter.

It further provided, that upon due proof that any lands purchased or located were swamp, the purchase money should be paid over to the State or States, and where the lands had been located by warrant or scrip the State was authorized to locate a quantity of like amount upon any public lands subject to entry at $1.25 per acre, or else a patent should issue therefor upon the terms and conditions above enumerated. Your decisions as to the character of the land were subject to the approval of the Secretary of the Interior. The act of March 3, 1857 (11 Stat. at Large, 25), conformed all sections of swamp and overflowed lands so far as the same remained vacant and unappropriated, and did not interfere with an actual settlement made under any existing laws of the United States. It directed such selections to be approved and patented, and continued in force and extended said act of 1855 to entries and locations of lands claimed as swamp made since its passage.

Attorney-General Speed held that the State of Iowa was entitled, under this legislation, to the purchase money of swamp lands within her limits which had been entered with cash and to indemnity, in land for such lands as had been located with warrants or scrip prior to the passage of the act of 1857, but that she had no claim on account of such lands as had been located subsequently to that date. The opinion was accepted by this department as the law of the case, and your office adjusted the account accordingly.

Upon the whole case I am of opinion that the act of 1866 does not, in any degree, interfere with your approving lists or issuing patents to the State of Florida for such as were, at the date of said act of 1850, and within its meaning, swamp or overflowed, and which were selected prior to the rebellion, and in conformity to the instructions of your office of September 28, 1850, were sold for cash or located with military warrants or scrip.

The letter from this department to you, bearing date the 13th February last (see 2 A. L. T. 39) furnishes an answer to the question you submit touching the relations which Florida sustains to the Federal Government.

Very respectfully, &c.,
J. D. Cox, Secretary.

Hon. Jos. S. Wilson, Commissioner of the General Land Office.

No. 290 B.

TITLE XII.

APPENDIX.

Circular.

Public notice to settlers on lands reserved for railroad purposes.

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DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, February 10, 1870.

WHEREAS, by an Act of Congress, approved 27th March, 1854, entitled "An Act for the relief of settlers on lands reserved for railroad purposes," every settler on lands which have been, or may be, withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them : Provided, They shall prove up their right, according to such rules and regulations as may be prescribed by the Secretary of the Interior."

And whereas the first section of the Act approved June 2, 1862 (12th Stat., 413), provides "That all the lands belonging to the United States to which the Indian title has been, or shall be, extinguished, shall be subject to the operation of the pre-emption Act of the fourth of September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned: Provided, however, That when unsurveyed lands are claimed by pre-emption, notice of the specific tracts claimed shall be filed within six months after the survey has been made in the field; and on failure to file such notice, or to pay for the tract claimed within twelve months from the filing of such notice, the parties claiming such lands shall forfeit all right thereto; provided said notices. may be filed with the Surveyor-General, and to be noted by him on the township plats, until other arrangements have been made by law for that purpose."

Therefore, in accordance with the instructions of the Secretary of the Interior, it is ordered that, from and after the publication of this notice for thirty days by the Register and Receiver, all settlers on unsurveyed lands within the lateral limits of withdrawals for railroad purposes, and who had settled thereon prior to the withdrawal, will be required, within six months after the survey in the field (or, if surveyed before said publication, within six months after publication), to file their declaratory statements with the Register of the proper local land office, and make proof and payment within twelve months from the filing of such notice.

The Supreme Court, in the case of Whitney vs. Frisbee, at the December Term, 1869, have sustained the views of Attorney-General Bates, expressed in opinion on page 274 of this volume (No. 256 B), and of Attorney-General Speed (see page 280, No. 261 B), in regard to the rights of pre-emption settlers prior to application to purchase and tender of purchase money.

to the local office, the settler will be required to file his notice with the Surveyor-General within six months after the survey in the field, and, upon the land office being opened and the plat filed therein, to make his proof and payment at such office within twelve months thereafter. If a land office has not been opened, or if the plat has not been returned 2d. That where lands were surveyed at the date of settlement, and are within the lateral limits of withdrawals for railroad purposes, and such settlement was made prior to withdrawal, the settler will be required to file his declaratory statement, giving therein the date of settlement, within three months from the date of publication hereof by the Register and Receiver, and thereafter make proof and payment as provided by law. In the case of settlers on surveyed lands, which may hereafter be included within the limits of withdrawals for railroad purposes, they will be required to file their declaratory statements, in conformity with the provisions of the pre-emption laws of 1841 and 1843, and to make proof and payment as provided by law.

A failure to file and make proof and payment, as specified herein, will forfeit the claim.

These rules will become operative, and be enforced in the several land districts from and after their publication for thirty days by the Register and Receiver, and a copy of the published notice will be forwarded for the information of this office.

Acknowledge date of receipt hereof.

Very respectfully, your obedient servant,

Jos. S. WILSON, Commissioner. Registers and Receivers U. S. Land Offices, and Surveyors-General of the United States.

No. 291 B.

Circular.

Public notice to settlers on lands not reserved for railroad purposes.

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, February 10, 1870. WHEREAS the first section of the Act of Congress, approved 2d June, 1862, provides "That all the lands belonging to the United States, to which the Indian title has been, or shall be, extinguished, shall be subject to the operation of the pre-emption Act of the fourth of September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned: Provided, however, That when unsurveyed lands are claimed by pre-emption, notice of the specific tracts claimed shall be filed within six months after the survey has been made in the field; and, on failure to file such notice, or to pay for the tract claimed within twelve months from the filing of such notice, the parties claiming such lands shall forfeit all right thereto; provided said notices may be filed with the Surveyor-General, and to be noted by him on the township plats, until other arrangements have been made by law for that purpose."

Therefore, in accordance with the instructions of the Secretary of the Interior, it is ordered that, from and after the publication of this notice. for thirty days by the Register and Receiver, all settlers on unsurveyed lands will be required, within six months after the survey in the field (or, if surveyed before said publication, within six months after publication),

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