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the lands upon the river above the Raccoon Fork to be open for sale and settlement under the land laws, and about 25,000 acres were sold to and preempted by settlers under said proclamation.
In 1849, and before the organization of the Department of the Inte. rior, the Secretary of the Treasury decided, upon a protest against opening said lands for sale and settlement, that the grant extended along the entire course of the river.
Pursuant to this decision, and on the ist day of June, 1849, the Commissioner of the General Land Office directed the reservation or the withholding from sale of all lands on the odd-numbered sections along the Des Moines River above the Raccoon Fork.
This reservation from entry and sale under the general land laws seems to have continued until a deed of the lands so reserved was made by the State of Iowa and until the said deed was supplemented and confirmed by the action of the Congress in 1861 and 1862.
In April, 1850, the Secretary of the Interior, that Department having then been created, determined that the grant extended no farther than the Raccoon Fork; but in view of the fact that Congress was in session and might take steps in the matter, the Commissioner of the General Land Office expressly continued the reservation.
In October, 1851, another Secretary of the Interior, while expressing the opinion that the grant only extended to the Raccoon Fork, declared that he would approve the selections made by the State of Iowa of lands above that point,“ leaving the question as to the construction of the statute entirely open to the action of the judiciary.”
In this condition of affairs selections were made by Iowa of a large quantity of land lying above the Raccoon Fork, which selections were approved and the land certified to the State. In the meantime the State had entered upon the improvement of the river and it appears had disposed of some of the land in furtherance of said improvement. But in 1854 the State of Iowa made a contract with the Des Moines Navigation and Railroad Company for the continuance of said work at a cost of $1,300,000, the State agreeing in payment thereof to convey to the company all the land which had been or should thereafter be certified to the State of Iowa under the grant of 1846.
In November, 1856, further certification of lands above the Raccoon Fork under the grant to the State of Iowa was refused by the Interior Department. This led to a dispute and settlement between the State of Iowa and the Des Moines Navigation and Railroad Company, by which the State conveyed by deed to said company
All lands granted by an act of Congress approved August 8, 1846, to the then Ter. ritory of Iowa to aid in the improvement of the Des Moines River which have been approved and certified to the State of Iowa by the General Government, saving and excepting all lands sold and conveyed, or agreed to be sold and conveyed, by the State, by its officers and agents, prior to the 23d day of December, 1853, under said grant.
This exception was declared in the deed to cover the lands above the Raccoon Fork disposed of to settlers by the Government in 1848 under the proclamation of the President opening said lands to sale and settlement, which has been referred to; and it is conceded that neither these lands nor the rights of any settlers thereto are affected by the terms of the bill now under consideration.
The amount of land embraced in this deed located above the Raccoon Fork appears to be more than 271,000 acres.
It is alleged that the company in winding up its affairs distributed this land among the parties interested, and that said land, or a large part of it, has been sold to numerous parties now claiming the same under titles derived from said company.
In December, 1859, the Supreme Court of the United States decided that the grant to the Territory of Iowa under the law of 1846 conveyed no land above the Raccoon Fork, and that all selections and certifications of lands above that point were unauthorized and void, and passed no title or interest in said lands to the State of Iowa. In other words, it was determined that these lands were, in the language of the bill under consideration, “improperly certified to Iowa by the Department of the Inte. rior under the act of August 8, 1846.”
This adjudication would seem to conclusively determine that the title to these lands was, as the law then stood, and notwithstanding all that had taken place, still in the United States. And for the purpose of granting all claim or right of the Government to said lands for the benefit of the grantees of the State of Iowa, Congress, on the 2d day of March, 1861, passed a joint resolution providing that all the title still retained by the United States in the lands above the Raccoon Fork, in the State of Iowa, “which have been certified to said State improperly by the Department of the Interior as part of the grant by act of Congress approved August 8, 1846, and which is now held by bona fide purchasers under the State of Iowa, be, and the same is hereby, relinquished to the State of Iowa."
Afterwards, and on the 12th day of July, 1862, an act of Congress was passed extending the grant of 1846 so as to include lands lying above the Raccoon Fork.
The joint resolution and act of Congress here mentioned have been repeatedly held by the Supreme Court of the United States to supply a title to the lands mentioned in the deed from the State of Iowa to the Navigation and Railroad Company, which inured to the benefit of said company or its grantees.
No less than ten cases have been decided in that court more or less directly establishing this proposition, as well as the further proposition that no title to these lands could prior to said Congressional action be gained by settlers, for the reason that it had been withdrawn and reserved from entry and sale under the general land laws. It seems to be perfectly well settled also, if an adjudication was necessary upon that question, that
all interest of the United States in these lands was entirely and completely granted by the resolution of 1861 and the act of 1862.
The act of 1862 provides for the setting apart of other lands in lieu of such as were covered by the act, but had been before its passage sold and disposed of by the United States, excepting such as had been released to the State of Iowa under the joint resolution of 1861.
It is claimed, I believe, that in a settlement of land grants thereafter had between the United States and the State of Iowa lands were allowed to the State in lieu or indemnity for some of the lands which it had conveyed to the Des Moines Navigation and Railroad Company. But if the title of the company is valid to lands along the river and above the Raccoon Fork, under the deed from Iowa and the joint resolution and act of Congress, it can not be in the least affected by the fact that the State afterwards, justly or unjustly, received other lands as indemnity.
The bill under consideration provides that all the lands “improperly certified to Iowa” under the grant of 1846, as referred to in the joint resolution of 1861, and for which indemnity lands were selected and received by the State, as provided in the act of 1862, “are, and are hereby, declared to be public lands of the United States.”
The claims of persons and their heirs who, with intent in good faith to obtain title under the preemption and homestead laws of the United States, have entered and remained upon any tract of said land prior to 1880 are confirmed and made valid to them and their heirs, not exceeding 160 acres; and upon due proof and payment of the usual price or fees it is directed that such claims shall be carried to patent.
It is further provided that the claims of settlers and claimants which do not come in conflict with the claims of the parties above mentioned are confirmed and made valid. By the second section of the bill it is made the duty of the Attorney-General, as soon as practicable, and within three years after the passage of the act, to institute legal proceedings to assert and protect the title of the United States to said lands and to remove all clouds from its title thereto.
One result of this legislation, if consummated and if effectual, would be to restore to the United States, as a part of the public domain, lands which more than twenty-five years ago the Government expressly granted and surrendered, and which repeated decisions of the Supreme Court have adjudged to belong by virtue of this action of the Government to other parties.
Another result would be not only to validate claims to this land which our highest judicial tribunal have solemnly declared to be invalid, but to actually direct the issue of patents in confirmation of said claims.
Still another result would be to oblige the Government of the United States to enter the courts ostensibly to assert and protect its title to said land, while in point of fact it would be used to enforce private claims to the same and unsettle private ownership,
It is by no means certain that this proposed legislation, relating to a subject peculiarly within the judicial function, and which attempts to disturb rights and interests thoroughly intrenched in the solemn adjudications of our courts, would be upheld. In any event, it seems to me that it is an improper exercise of legislative power, an interference with the determinations of a coordinate branch of the Government, an arbitrary annulment of a public grant made more than twenty-five years ago, an attempted destruction of vested rights, and a threatened impairment of lawful contracts.
The advocates of this measure insist that a point in favor of the settlers upon these lands and important in the consideration of this bill is found in the following language of the constitution of the State of Iowa, which was adopted in 1857:
The general assembly shall not locate any of the public lands which have been or may be granted by Congress to this State, and the location of which may be given to the general assembly, upon lands actually settled, without the consent of the occupant.
The State under its constitution was perfectly competent to take the grants of 1861 and 1862. The clause of the constitution above quoted deals expressly with “lands which have been or may be granted by Congress to the State," and thus of necessity recognizes its right to take such grants. This competency in the State as a grantee was all that was needed to create, under the joint resolution of 1861 and the act of 1862, a complete divestiture of the interests of the United States in these lands. It must be borne in mind, too, that prior to this time these lands had been conveyed by the State of Iowa in furtherance of the purposes of the original Congressional grants, and that the joint resolution of 1861 and the act of 1862 were really made for the benefit of those who held under grants from the State. After these grants by the Government it. had no concern with these lands. If in any stage of the proceedings the general assembly of Iowa was guilty of any neglect of duty or failed to act in accordance with the constitution of the State of Iowa, the remedy should be found in the courts of that State; and it is difficult to see how the situation in this aspect can be changed or improved by the bill under consideration.
I am not unmindful of the fact that there may be persons who have suffered or who are threatened with loss through a reliance upon the erroneous decisions of Government officials as to the extent of the original grant from the United States to the Territory of Iowa. I believe cases of this kind should be treated in accordance with the broadest sentiments of equity, and that where loss is apparent arising from a real or fairly supposed invitation of the Government to settle upon the lands mentioned in the bill under consideration such loss should be made good. But I do not believe that the condition of these settlers will be aided by encouraging them in such further litigation as the terms of this bill invite, nor do I believe that in attempting to right the wrongs of which
they complain legislation should be sanctioned mischievous in principle, and in its practical operation doing injustice to others as innocent as they and as much entitled to consideration.
EXECUTIVE MANSION, February 23, 1889. To the House of Representatives:
I herewith return without approval House bill No. 220, entitled "An act granting a pension to John J. Lockrey."
It is stated that this beneficiary enlisted April 11, 1865, but it appears from the muster roll of his company for May and June, 1865, that he was a recruit assigned, but who had not joined. There is nothing appearing on the record which positively shows that he ever reached his regiment.
It is conceded that his real and nominal connection with the Army extended only from April 11, 1865, when he was mustered in, until August, 1865, when he was discharged for disability, consisting of a disease of the eye, called in the surgeon's certificate "iritis with conjunctivitis.”
It seems that this claimant enlisted just at the close of the war, and was connected in a manner with the Army for four months. It is not probable that he ever saw any actual service, for none is stated in the papers before me; and it does appear that he spent a large part of his short term of enlistment in hospitals and under treatment for a trouble with his eye. As early as May 23, 1865, he was admitted to hospital with gonorrheal ophthalmia. His claim was rejected by the Pension Bureau on the ground that this was the cause of his disability, and the inferences from the proof presented make this extremely probable.
One of the witnesses who testified that the beneficiary caught cold in his eye in April, 1865, on the Mississippi River is shown to have been at that time with his regiment and company at Danville, Va.
The circumstances surrounding this case and the facts proved satisfy me that the determination of the Pension Bureau was correct, and there is certainly no sentiment in favor of the claimant which justifies the indulgence of violent presumptions for the purpose of overriding such determination.
EXECUTIVE MANSION, February 23, 1889. To the House of Representatives:
I return without approval House bill No. 5807, entitled "An act granting a pension to John McCool."
This beneficiary served in an Iowa regiment of volunteers from May 27, 1861, to July 12, 1865.
He filed a petition for pension, alleging an accidental wound in the right thumb while extracting a cartridge from a pistol in August, 1861.