Finally, the act of 1844 definitively construes the act of 1841, and proves that the "selection" for town sites there spoken of may be either by public authority or by individuals:— that the word is for that reason designedly general, and without qualification, but must be fixed by occupation. That act supposes public land to be "settled upon and occupied as a town site," and "therefore" not subject to entry under the existing preemption laws. This description identifies it with the land "selected for the site of a city or town," in the previous act. It limits the quantity so to be selected, that is, settled or occupied, to three hundred and twenty acres, and otherwise regulates the selection as hereinafter explained. It then provides how such town site is to be entered and patented. If the town be incorporated, then the entry is to be made by its corporate authorities. If the town be not incorporated, then it may be entered in the name of the judges of the county court of the county, in which the projected town lies, "in trust for the several use and benefit of the several occupants thereof, according to their respective interests." Here we have express recognition of voluntary selection and occupancy by individuals, and provision for means by which legal title in their behalf may be acquired and patented.
I am aware that by numerous statutes anterior to the act of 1841, provision is made for the authoritative selection of town sites in special cases; but such provisions do by no means exclude or contradict the later enactment of a general provision of law to comprehend all cases of selections for town sites, whether authoritative or voluntary. I think the act of 1841, construed in the light of the complementary act of 1844, as it must be, provides clearly for both contingencies or conditions of the subject. Among the anterior acts, however, is one of great importance and significancy upon this point, more especially as that act received exposition at the time from the proper departments of the Government. I allude to the act of June 22d, 1838, entitled "An act to grant preemption rights to settlers on the public lands." This act, like that of 1841, contains a provision reserving certain lands from ordinary preemption, among which are:
"Any portions of public lands, surveyed or otherwise, which have been actually selected as sites for cities or towns, lotted into smaller quantities than eighty acres, and settled upon and occupied for the purposes of trade, and not of agricultural cultivation and improvement, or any land specially occupied or reserved for town lots, or other purposes, by authority of the United States." (v Stat. at Large, p. 251.)
Here the "selection" generally, and the "selection" by authority are each provided for eo nomine. It is obvious that the provision in the latter case is made for certainty only; since, by the general rules of statute construction, no ordinary claim of preemption could attach to reservations made by authority of the United States. The effective provision in the enactment quoted, must be selections not made by the authority of the United States.
In point of fact the provision was construed by the Department to include all voluntary selections: lands, says the circular of the General Land Office of July 8, 1838, "which settlers have selected with a view of building thereon a village or city."
It seems to me that the same considerations which induced this construction of the word "selection" in the act of 1838, dictate a similar construction of the same word in the subsequent act. Besides which, when a word or words of a statute, which were of uncertain signification originally, but which have been construed by the proper authority, are repented in a subsequent statute, that is understood as being not a repetition merely of the word with the received construction, but an implied legislative adoption even of such construction.
II. The second question is of the construction of the act of 1844, supplemental to that of 1841; and as the construction of the elder derives aid from the language of the later one, so does that of the latter from the former. The question is divisible into sub-questions.
1. Does the phrase "that the entry (for a town-site) 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?
2. What is the meaning of the phrase in the act "legal subdivisions of the public lands," in "conformity" with which the entry must be made?
I put the two acts together and find that they provide for a system of preemptions for, among other things, agricultural occupation, commercial or mechanical occupation, and municipal occupation.