United States v. Garretson
| Decision Date | 20 March 1890 |
| Parties | UNITED STATES v. GARRETSON. [1] |
| Court | U.S. District Court — Southern District of Alabama |
L. H Faith, for demurrant.
M. D Wickersham, Dist. Atty., for the United States.
The first, second, and third counts in the information charge the defendant with unlawfully cutting, and procuring to be cut timber on lands of the United States, which, in pursuance of law, have been reserved for pre-emption, homestead, and cash entries; and the fourth and fifth counts charge him with wantonly destroying, and procuring to be wantonly destroyed timber on the same lands of the United States, with the same averment that they were lands which, in pursuance of law, had been reserved for pre-emption, homestead, and cash entries, and that the cutting and wanton destruction of the timber was by boxing and chipping the same for turpentine purposes. The demurrers are, in substance, that the information fails to aver that the timber alleged to have been unlawfully cut and to have been wantonly destroyed was on lands of the United States which, in pursuance of law, had been reserved or purchased for the use of the navy of the United States, or for military or other public purposes, and that it fails to aver the intent with which the alleged cutting was done. It is conceded by the district attorney that the information is not good under section 2461, Rev. St., under the latter clause of which it is necessary to aver the intent with which the cutting was done. But the contention is that the information is good under section 5388, Rev. St., which provides, as amended by act of June 4, 1888, that 'every person who unlawfully cuts * * * or wantonly destroys * * * any timber standing upon the land of the United States which, in pursuance of law, may be reserved or purchased for military or other purposes, or upon an Indian reservation, * * * shall pay a fine of' etc.. 'May be reserved' here means 'have been or shall be reserved,' which are the words used in the original act. See 11 St. at Large, 408.
Now can the information be maintained under this section, 5388, Rev. St.? This inquiry suggests two questions: First. What lands of the United States was this section designed to protect? All the lands, or certain lands, of the United States? Secondly. If certain lands, viz., lands reserved for particular purposes, do they include lands that are subject to pre-emption, homestead, and cash entries? It is a general rule, in the construction of statutes, that general words preceded or followed by particular words in the same or a subsequent clause, are qualified and restrained by the particular words. Or, to state it somewhat differently, 'when general words follow, in a statute, words of particular and special meaning, if there be not a clear manifestation of a different legislative intent, they are construed as applicable to persons or things, or cases of like kind, as are designated by the particular words. ' Bish. St. Crimes, Secs. 245, 246; Dwar. St. 69, 79; Chapman v. Forsyth, 2 How. 202; Woolsey v. Cade, 54 Ala. 385; Amos v. State, 73 Ala. 501. The more general words 'or other purposes,' following the more specific or particular words 'for military,' upon a settled rule of construction, larger legislative intention not being clearly expressed, must be construed as extending only to purposes ejusdem generis with military purposes; that is, governmental or public purposes. A military purpose is a public purpose. Public land directed by the president to be reserved for use as a military post is not liable to entry under a pre-emption claim because appropriated for a public purpose. Wilcox v. Jackson, 13 Pet. 496; Leavenworth Railroad Co. v. U.S., 92 U.S. 742. 'Land lawfully appropriated to any purpose becomes thereafter severed from the mass of public lands. ' Kansas Pac. Ry. Co. v. Atchison R. Co., 112 U.S. 414, 5 Sup. Ct.Rep. 208; Railroad Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112; U.S. v. Payne, 2 McCrary, 289-306, 8 F. 883. That is to say, land consigned to or set apart for any particular purpose, whether by reservation or purchase, becomes thereafter severed from the mass of public lands. Lands are appropriated by reservation for the establishment of trading houses, for fortifications or military posts, for light-houses, for cemeteries, for the use of schools, and the like; and, when thus appropriated, they become thereafter severed from the mass of public lands. See authorities, supra. 'Legislation which reserved it (land) for any purpose excluded it from disposal as the public lands are usually disposed of. ' Leavenworth Railroad Co. v. U.S., 92 U.S. 742, 748. And the court say that Now, if congress had intended by this section (5388) to protect the timber on all lands of the United States, and to provide for the punishment of depredators thereon, then why enumerate specially lands reserved for military purposes, Indian reservations, etc.? I think it is clear that congress intended by this provision of law to protect the timber on certain lands of the United States,-- lands reserved for special purposes. This, however, is virtually conceded by the prosectuion; fpr it is averred in the information that the lands on which the alleged depredation is said to have been committed were lands reserved for pre-emption, homestead, and cash entries. Now, do the reserved lands referred to in section 5388 include lands subject to pre-emption, homestead, and cash entries? Are there any lands of the United States reserved for any such purposes? Sections 2257 and 2258 of the Revised Statutes provide that all lands belonging to the United States are subject to the right of pre-emption, except 'lands included in any reservation, by any treaty, law, or proclamation of the president, for any purpose;' and section 2289, Rev. St., provides that lands subject to homestead entries are such 'unappropriated public lands' as may be subject to pre-emption. In the case of Wilcox v. Jackson, 13 Pet. 498, the court say that 'lands which may have been appropriated for any purpose whatsoever are exempt from liability to the right of pre-emption,' and that 'all lands are except from pre-emption which are reserved from sale, pursuant to law, for any purpose. ' When lands reserved to the United States for any public purpose are again put in the market so as to become subject to entry at private sale, they lose their character as reserved lands, and become subject to pre-emption. Clements...
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