McCord v. Hill

• Decision Date: 15 October 1901
• Court: Wisconsin Supreme Court
• Parties: MCCORD v. HILL.

111 Wis. 499

87 N.W. 481

MCCORD

v.HILL.

Supreme Court of Wisconsin.

Oct. 15, 1901.

On rehearing. Reversed.

For former opinions, see 84 N. W. 27, and 85 N. W. 145.Sanborn, Luse & Powell and William McKinnon, for appellant.

W. F. Bailey, for respondent.

DODGE, J.

1. The first question submitted for reargument, namely, whether, as conditions precedent to the confirmation under the act of June 3, 1896, of Jacobus' previous commuted pre-emption entry, there was necessary an application to the commissioner of the general land office, and proof of the necessary facts before him, and finding thereon by him, is predicated upon the first clause of the act of June 3, 1896, “Whenever it shall appear to the commissioner of the general land office that,” etc. The doubt suggested by these words, as pressed upon us in the motion for rehearing, was whether the purpose of congress was to create the commissioner of the general land office a special tribunal to pass upon the existence of the necessary facts for relieving certain applications for public lands from the effect of the act of March 3, 1891, or whether it was intended merely to provide in pari materia with the other land laws for an examination and decision of these questions by the land department, presided over by the secretary of the interior, and in which the commissioner of the general land office and all other officers are but subordinates of the secretary of the interior, and exercising one or another of the functions of that department, subject to direction, control, and supervision by the secretary. It is well known that in 1820 congress for the first time attempted something like general legislation which should affect and regulate the management and disposition of the then considerable public domain, which had been derived from various sources, and was obviously to increase vastly in extent and value. Since then legislation has been almost as frequent as the sessions of congress; some of it scientific and deliberate, but much of it seemingly accidental, and aimed at special details. Many of these acts, if construed according to their exact words, would have been subversive of certain phases of the obvious general policy of congress with reference to this important subject; and in this field, perhaps more than almost any other of congressional legislation, the construction placed upon the land laws from time to time enacted both by the department and by the courts has been that they were intended merely to be added to and become a part of a consistent system of legislation, and as enacted one by one were, so far as possible, to fall under and be controlled by those general provisions and regulations evidently intended to cover the whole field. A comparatively late illustration of this view is presented in the case of U. S. v. Healey, 160 U. S. 136, 16 Sup. Ct. 247, 40 L. Ed. 369, but there are many others which might be cited. Since the incorporation of the land department into the interior department, whereby the whole business of the former was placed under the supervision and control of the secretary of the interior, there has been no element of the policy of congress and of the public land system more prominent than that the secretary of the department of the interior should be the responsible head thereof; that through and by him spoke and acted the government of the United States with reference to the public domain; and an act which substituted some subordinate of his as the responsible and final representative of the government, free and independent of the secretary's control, would be a most startling innovation. It is therefore not surprising that we find that the act of 1896 under discussion was properly assumed by the interior department to be but one more of the many laws directing the conduct of the land department, to be controlled in its execution by the general policy above outlined, whereby the commissioner exercised no more absolute power or discretion than he did generally with reference to the conduct of the land business. On July 9, 1896,--about one month after the enactment of the law,--we find the commissioner, having first obtained the approval of the secretary, promulgating regulations for the execution of this act by a circular publication. 26 Land Dec. Dep. Int. 544. This circular provided that in certain cases then pending no application to any officers need be made, but that the general land office would at once take them up for consideration without application. As to other cases it was provided that application should be made, not to the commissioner as a responsible and special tribunal, but, as in the case of all other land matters, to the local land officers, who should examine and report thereon, as upon other applications, not to the commissioner, but to the general land office. This circular, while emanating from the commissioner of the general land office, did not purport to emanate from him as the source of authority, but, in accordance with the usual practice of the land department, bore upon its face the sanction of the approval of the secretary. It was wholly inconsistent with the understanding that the establishment of rights under the act of 1896 was intended to be treated otherwise than the rights of other applicants under the general system of public land laws. Two instances are cited to us by counsel of the treatment of applications under this law in exactly the same manner as other applicationsfor land, in that the power of the secretary of the interior to supervise, regulate, and control is recognized and exercised. In re Hasselquist, 24 Land Dec. Dep. Int. 351; Kuepper v. Tripp, 26 Land Dec. Dep. Int. 561. To these may be added Jacobus' own application, over which the secretary unhesitatingly took jurisdiction, without a thought that a new tribunal exclusive of himself had been vested with that authority. We find nothing to indicate that the line of construction thus adopted in the department has ever been varied, and these decisions, commencing at about the time of the passage of the act, and continuing thereafter, are, of course, very cogent in its construction. U. S. v. Healey, supra. In the case of Buena Vista Co. v. Iowa Falls & S. C. R. Co., 112 U. S. 165, 5 Sup. Ct. 84, 28 L. Ed. 680, an act of congress provided “that the commissioner of the general land office is hereby authorized and required to receive and examine the selections of swamp lands, * * * and allow or disallow said selections and indemnity provided for,” etc. A decision by him under such act was reversed by the secretary of the interior, and in the suit it was contended--as by the respondent here--that the decision of the commissioner was intended to be final, and not appealable to the secretary. This contention was overruled, the court saying, “There is nothing in the act which alters the relation between the two officers as otherwise established, or puts the decisions of the commissioner, under that act, upon a footing different from his other decisions.” In Knight v. Association, 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974, the question of the relation of the secretary to the execution of the land laws--not only those existing at the time his general authority was defined, but such as might be thereafter enacted--was exhaustively discussed by Lamar, J., who shortly before had been secretary of the interior. This discussion is so exhaustive, and the citation of statutes, precedents, and illustrations so complete, as to render further enlargement now unnecessary. The views there expressed are further supported by Orchard v. Alexander, 157 U. S. 372, 15 Sup. Ct. 635, 39 L. Ed. 737;Parsons v. Venzke, 164 U. S. 89, 17 Sup. Ct. 27, 41 L. Ed. 360;Stock Co. v. Smith, 165 U. S. 28, 17 Sup. Ct. 225, 41 L. Ed. 621; In re Sweayze,...