236 U.S. 459 (1915), 278, United States v. Midwest Oil Company

Docket Nº:No. 278
Citation:236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673
Party Name:United States v. Midwest Oil Company
Case Date:February 23, 1915
Court:United States Supreme Court

Page 459

236 U.S. 459 (1915)

35 S.Ct. 309, 59 L.Ed. 673

United States


Midwest Oil Company

No. 278

United States Supreme Court

February 23, 1915

Ordered for reargument before full bench April 20, 1914

Reargued May 7, 1914




Prior to initiation of some right given by law, the citizen has no enforceable interest in the public statutes and no private right in land which is the property of the people.

The practice of the withdrawal of public lands, both mineral and nonmineral, from private acquisition by the President without special authorization from Congress, after Congress has opened them to occupation, dates from an early period in the history of the government, and the power so exercised has never been repudiated by Congress, although it has always been subject to disaffirmance thereby.

The Land Department, charged with the administration of the public domain, has constantly asserted the power of the Executive to withdraw lands opened for occupation so long as they remain unappropriated.

Government is a practical affair intended for practical men, and the rule that long acquiescence in a governmental practice raises a presumption of authority applies to the practice of executive withdrawals by the Executive of lands opened by Congress for occupation.

While the Executive cannot, by his course of action, create a power, a long continued practice to withdraw lands from occupation after they have been opened by Congress, known to and acquiesced in by Congress, does raise a presumption that such power is exercised in pursuance of the consent of Congress or of a recognized administrative power of the Executive in the management of the public lands.

Laws and rules for the disposal of public lands are necessarily general in their nature, and Congress may by implication grant a power to the Executive to administer the public domain.

The power of Congress over the public domain is not only that of a legislative domain, but also that of a proprietor, and it may deal with it as an individual owner may deal with his property, and may grant powers to the Executive as an owner might grant powers to an agent, either expressly or by implication.

There is no distinction in principle between the power of the Executive

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to make reservation of portions of the public domain and the power to withdraw them from occupation.

The validity of withdrawal orders made by the President in aid of future legislation has heretofore been expressly recognized by this Court. Bullard v. Des Moines R. Co., 122 U.S. 170.

No action which Congress may have taken in any particular case can be construed as a denial of powers of the Executive to make temporary withdrawals of public land in the public interest, and the orders made and remaining in force are proof of congressional recognition of that power.

Silence of Congress after consideration of a practice by the Executive may be equivalent to acquiescence and consent that the practice be continued until the power exercised be revoked.

Nothing in the Act of June 25, 1910, 36 Stat. 847, authorizing the President to withdraw lands and requiring lists of the same to be filed with Congress, can be construed as repudiating withdrawals already made.

Congress did not, by the Act of June 25, 1910, take any rights from locators who had initiated rights prior to the withdrawal order of September 27, 1909, nor did it validate any location made after that date.

Quaere whether, as an original question raised before any practice had been established, the President can withdraw from private acquisition land which Congress had made free and open to occupation and purchase. This case has been determined on other grounds, and in the light of long continued practice.

The facts, which involve the power of the President of the United States to withdraw public lands from entry under Rev.Stat., §§ 2319, 2329, and the Act of February 11, 1897, and the effect of the withdrawal order No. 5 contained in the Proclamation of President Taft of September 27, 1909, are stated in the opinion.

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LAMAR, J., lead opinion

MR. JUSTICE LAMAR delivered the opinion of the Court.

All public lands containing petroleum or other mineral oils, and chiefly valuable therefor, have been declared by Congress to be "free and open to occupation, exploration, and purchase by citizens of the United States . . . under regulations prescribed by law." Act of February 11, 1897, 29 Stat. 526, c. 216, R.S. §§ 2319, 2329.

As these regulations permitted exploration and location without the payment of any sum, and as title could be obtained for a merely nominal amount, many persons availed themselves of the provisions of the statute. Large areas in California were explored, and petroleum having been found, locations were made, not only by the discoverer, but by others on adjoining land. And, as the flow through the well on one lot might exhaust the oil under the adjacent land, the interest of each operator was to extract the oil as soon as possible, so as to share what would otherwise be taken by the owners of nearby wells.

The result was that oil was so rapidly extracted that, on September 17, 1909, the Director of the Geological Survey made a report to the Secretary of the Interior which, with enclosures, called attention to the fact that, while there was a limited supply of coal on the Pacific coast, and the value of oil as a fuel had been fully demonstrated, yet, at the rate at which oil lands in California were being patented by private parties, it would

be impossible for the people of the United States to continue ownership of oil lands for more than a few months. After that, the

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government will be obliged to repurchase the very oil that it has practically given away. . . . In view of the increasing use of fuel by the American Navy, there would appear to be an immediate necessity for assuring the conservation of a proper supply of petroleum for the government's own use,


pending the enactment of adequate legislation on this subject, the filing of claims to oil lands in the State of California should be suspended.

This recommendation was approved by the Secretary of the Interior. Shortly afterwards, he brought the matter to the attention [35 S.Ct. 311] of the President, who, on September 27, 1909, issued the following proclamation:

Temporary Petroleum Withdrawal No. 5.

In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in the accompanying lists are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land laws. All locations or claims existing and valid on this date may proceed to entry in the usual manner after filing, investigation, and examination.

The list attached described an area aggregating 3,041,000 acres in California and Wyoming -- though, of course, the order only applied to the public lands therein, the acreage of which is not shown.

On March 27, 1910, six months after the publication of the proclamation, William T. Henshaw and others entered upon a quarter section of this public land in Wyoming, so withdrawn. They made explorations, bored a well, discovered oil, and thereafter assigned their interest to the appellees, who took possession and extracted large quantities of oil. On May 4, 1910, they filed a location certificate.

As the explorations by the original claimants, and the

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subsequent operation of the well, were both long after the date of the President's proclamation, the government filed, in the District Court of the United States for the district of Wyoming, a bill in equity against the Midwest Oil Company and the other appellees, seeking to recover the land and to obtain an accounting for 50,000 barrels of oil alleged to have been illegally extracted. The court sustained the defendant's demurrer and dismissed the bill. Thereupon the government took the case to the Circuit Court of Appeals of the Eighth Circuit, which rendered no decision, but certified certain questions to this Court, where an order was subsequently passed, directing the entire record to be sent up for consideration.

The case has twice been fully argued. Both parties, as well as other persons interested in oil lands similarly affected, have submitted lengthy and elaborate briefs on the single and controlling question as to the validity of the withdrawal order. On the part of the government, it is urged that the President, as Commander in Chief of the Army and Navy, had power to make the order for the purpose of retaining and preserving a source of supply of fuel for the Navy, instead of allowing the oil land to be taken up for a nominal sum, the government being then obliged to purchase at a great cost what it had previously owned. It is argued that the President, charged with the care of the public domain, could, by virtue of the executive power vested in him by the Constitution (Art. II, § 1), and also in conformity with the tacit consent of Congress, withdraw, in the public interest, any public land from entry or location by private parties.

The appellees, on the other hand, insist that there is no dispensing power in the Executive, and that he could not suspend a statute or withdraw from entry or location any land which Congress had affirmatively declared should be free and open to acquisition by citizens of the United States. They further insist that the withdrawal

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order is absolutely void, since it appears on its face to be a mere attempt to suspend a...

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