"Do the words in the act of 23d May, 1844, 'and that the entry shall include only such land as is actually occupied by the town,' restrict the entry to those quarter quarter-sections, or forty acre subdivisions, alone, on which houses have been erected as part of said town, or do they mean, only, that the entry shall not embrace any land not shown by the survey on the ground, or the plat of the town, to be occupied thereby, and not to exceed 820 acres, which is to be taken by legal subdivisions, according to the public survey, and to what species of 'legal subdivisions' is reference made in said act of 1844?"
These questions, as thus presented by you, are abstract questions of law,— namely, of the construction of statutes. They are distinctly and clearly stated, so as not to require of me any investigation of external facts to render them more intelligible. Nor do they require of me to attempt to make application of them to any actual case, conflict of right, or controversy either between private individuals or such individuals and the Government.
It is true that, accompanying your communication, there is a great mass of representations, depositions, arguments, and other papers, which show that the questions propounded by you are not speculative ones, and that, on the contrary, they bear, in some way, on matters of interest, public or private, to be decided by the Department. But those are matters for you, not for me, to determine. You have requested my opinion of certain points of law, to be used by you, so far as you see fit, in aid of such your own determination. I am thus happily relieved of the task of examining and undertaking to analyze the voluminous documents in the case: more especially as your questions, while precise and complete in themselves, derive all needful illustration from the very instructive report in the case of the present Commissioner of Public Lands and the able brief on the subject drawn up in your Department.
I. To return to the questions before me: the first is in substance whether the words in the act of 1841,— " portions of the public land which have been selected as the site for a city or a town,"— are to be confined to cases of such selection in virtue of some special authority, or by some official authority?
I think not, for the following reasons:
The statute does not by any words of legal intendment say so.
The next preceding clause of the act, which speaks of lands "included within the limits of any incorporated town," implies the contrary, in making separate provision for a township existing by special or public authority.
The next succeeding clause, which speaks of land "actually settled or occupied for the purposes of trade and not agriculture," leads to the same conclusion; for why should selection for a town site require special authority any more than occupation for the purposes of trade?
The general scope of the act has the same tendency. Its general object is to regulate, in behalf of individuals, the acquisition of the public domain by preemption, after voluntary occupation for a certain period of time, and under other prescribed circumstances. In doing this, it gives a preference preemption to certain other uses of the public land, by excluding such land from liability to ordinary preemption. Among the uses thus privileged, and to which precedence in preemption is accorded, are, 1. "Sections, or fractions of sections included within the limits of any incorporated town;" 2. "Portions of the public land which have been selected for the site of a city or town;" and, 3. "Land actually settled or occupied for the purposes of trade, and not agriculture." Now, it is not easy to see any good reason why, if individuals may thus take voluntarily for the purposes of agriculture,— they may not also take for the purposes of a city or town. The statute assumes that the purposes of a city or town have preference over those of trade, and still more over those of agriculture. Yet individuals may take for either of the latter objects: a fortiori they may take for a city or town.
Why should it be assumed that individual action in this respect is prohibited for towns any more than for trade or agriculture? It does not concern the Government whether two persons preempt one hundred and sixty acres each for the purposes of agriculture, or for the purpose of a town, except that the latter object will, incidentally, be more beneficial to the Government. Nor is there any other consideration of public policy to induce the Government to endeavor to discourage the formation of towns. Why, then, object to individuals taking up a given quantity of land in one case rather than in the other?