The United States v. Gear.

emption laws, being all on the same subject, must be taken together, and so construed as to effectuate the intention of Congress. This is admitted. But does this rule of construction authorize the court to say, that where a subsequent law is repugnant to a prior one, they may both stand. It is impossible to give effect to both, as they are inconsistent. The truth of this is forcibly illustrated by the acts in question. By the 4th section of the act of 1807, the lead mines are reserved for the future disposal of the United States. By the 4th section of the act of 1834, these with all other lands, not specially reserved in that section, are authorized to be sold. It is true the lead mines are not named in the section as authorized to be sold, but they are not reserved from sale by it, and the authority to sell all other lands not reserved in the section necessarily includes them. Now how are these two laws to stand together. The one reserves the lands for the future disposal of Congress, and the other disposes of them. Can effect be given to both of these laws? Can we say that this repugnancy does not necessarily repeal the act of 1807? A negative answer to this inquiry would add, as I think, a new principle to the construction of statutes. Instead of following the rule on this subject, which is obvious, sensible and just, we should involve ourselves in the mysteries and uncertainties of the alchemist.

It is said Congress did not intend to dispose of the lead mines and the lands adjacent thereto by the act in question. To this I answer, that I have no other mode of ascertaining the intention of Congress except by the plain and unequivocal language which they have used in the solemn form of law. Whether the lead mines were valuable or not, is not a matter of any importance in regard to a right construction of the act. We cannot go out of the law to ascertain what is meant by it. If it were proper to investigate the policy of reserving lead mines, salt springs and mill seats, for the benefit of the United States, it would not be difficult to show that they had not been a source of revenue to the United States. In most instances, it is believed, if not in all, the expenses of superintendencies have absorbed the profits.

The case of Brown and Wife v. Hunt et al., decided at the present term, has a strong bearing upon the principles involved in this

case.

It is contended that the main point in this case was decided in Wilcox v. Jackson, 13 Peters, 509. In my judgment, that decision has no bearing on the present question. Beaubean in that case set up a pre-emption right to the tract of land in controversy, having obtained from the register and receiver of the proper land-office a certificate sanctioning his right. But the government showed that the land had been reserved for a military post in 1804, and was occupied as such until, in 1812, during the late war, the fort was taken by the enemy and the troops were massacred. It was re-occupied in 1816, and from that time the government continued to occupy it

The United States v. Gear.

for a military post, as a trading establishment with the Indians and also for a light-house, which had been built upon the ground at an expenditure of five thousand dollars. This possession was continued by the government up to the time the pre-emption was claimed. But in addition to these facts, the 4th section of the act of 1834 specially reserved from sale such places "as the President shall deem necessary for military posts." So that here was not only an express reservation of the land from sale, in the above section, but a reservation in fact was shown of more than thirty years, and a continued possession by the government.

Now, is there any similarity, as to the legal points, in the two cases? I can see none. It is true that Mr. Justice Barbour says, "We do not consider this law, (the act of 26th June, 1834,) as applying at all to the case. That has relation to a sale of lands in the manner prescribed by general law at public auction, whilst the claim to the land in question is founded on a right of pre-emption, and governed by different laws. The very act of the 19th of June, 1834, under which this claim is made, was passed but one week before the one of which we are now speaking; thus showing that the provisions of the one were not intended to have any effect upon the subject-matter on which the other operated. But we go further, and say, that whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment the land appropriated becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it; although no reservation were made of it."

But one of the points above stated was necessary to a decision of the case. The tract in question was reserved for a military post; and such reserves, by the 4th section of the act of 26th June, 1834, were excepted from the lands to be sold. Now, the reservation was fully proved by the evidence, and that, under the above section, ended the controversy. The remark, that the above act had no ap plication to the case, was correct in the sense only that it had no application to affect injuriously the title of the government; and that, it is presumed, was the sense in which it was used by the judge. It is strictly true, as stated, that the pre-emption right set up was assumed to be derived under a different law. But the statement, that the above act of 26th of June, 1834, could have no effect upon the pre-emption act which was passed on the 19th of the same month, was not in the case, was unauthorized, and is wholly unsustainable. It was not in the case, because the 4th section of the act of the 26th did reserve the land. No court can deliberately say, that an act, which is wholly repugnant to a preceding act, does not repeal it. And it can be of no importance whether the preceding act had been passed seven days or seven years before the last act; the effect is the same.

The United States v. Gear.

There can be no doubt, that when a tract of land is appropriated for a military post, or for any other permanent object, it becomes separated from the mass of the public lands, and need not be specially reserved in the president's proclamation for the sale of lands in the same district. And the illustration of Mr. Justice Barbour shows his meaning. "Thus, in the act of 26th June, 1834," he says, "there is expressly reserved from sale the land granted to individuals and the state of Illinois." "If such lands were sold," says the judge, "could the purchasers hold them? Certainly they could not. Having been previously granted by the United States, the second grant would be void."

But what is the case now under consideration? There was no appropriation of the lead mines, of a permanent character, which separated them from the mass of the public lands. "They were reserved for the future disposal, by the United States." And, as has been shown, the act of the 26th June, 1834, authorized the president to sell them. This, then, if there be any meaning in language, was a disposal of them within the act of 1807, by which they were reserved.

There seems to be an impression that pre-emption rights are without merit, and that the acts under which they arise should receive a strict construction. In my judgment, the acts granting these rights are remedial in their nature and policy, and should be so construed as to effectuate the intention of Congress. It is a right arising under the statute, and must, of course, be brought within it. But the policy of the statute was a benign one, and it was founded upon a meritorious consideration. That legislation which tends to make every citizen a freeholder cannot be unwise or impolitic.

This opinion has been submitted to Mr. Justice STORY, and Mr. Justice MCKINLEY, who have authorized me to say, that it coincides with their own views on the subject.

INDEX

OF THE

PRINCIPAL MATTERS.

ADMIRALTY.

1. An agreement of consortship between the masters of two vessels engaged in the business known by the name of wrecking is a contract capable of being enforced in an admiralty court, against property or proceeds in the custody of the court. Andrews v. Wall, 568.

2. The case of Ramsay v. Allegre, 12 Wheaton, 611, commented on, and explained. Ibid.

3. Such an agreement extends to the owners and crews, and is not merely personal between the masters. Ibid.

4. If made for an indefinite period, it does not expire with the mere removal of one of the masters from his vessel, but continues until dissolved upon due notice to the adverse party. Ibid.

5. Where there is no other evidence than the answer of its having been a part of the original agreement, that such removal should dissolve the contract, the evidence is not sufficient. Ibid.

6. Whenever proceeds are rightfully in the possession and custody of the admiralty, it is an inherent incident to the jurisdiction of that court to entertain supplemental suits by the parties in interest, to ascertain to whom those proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof. Ibid.

ASSUMPSIT.

Since the passage of the act of Congress of March 3, 1839, chap. 82, which requires collectors of the customs to place to the credit of the treasurer of the United States all money which they receive for unascertained duties, or for duties paid under protest, an action of assumpsit for money had and received will not lie against the collector for the return of such duties so received by him. Cary v. Curtis, 236.

ATTACHMENT.

The laws of Louisiana, allowing attachments for debts not yet due, relate only to absconding debtors. Black v. Zacharie, 483.

BANKRUPTS AND BANKRUPTCY.

1. In Kentucky, the creditor obtains a lien upon the property of his debtor by the delivery of a fi. fa. to the sheriff; and this lien is as absolute before the levy as it is afterwards. Savage's Assignee v. Best, 111.

2. Therefore, a creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor committed before the levy is made, but after the execution is in the hands of the sheriff. Ibid.

3. This court has no revising power over the decrees of the District Court sitting in bankruptcy; nor is it authorized to issue a writ of prohibition to it in any case except where the District Court is proceeding as a court of admiralty and maritime jurisdiction. Ex parte Christy, 292.

4. The District Court, when sitting in bankruptcy, has jurisdiction over liens and mortgages existing upon the property of a bankrupt, so as to inquire into their validity and extent, and grant the same relief which the state courts might or ought to grant. Ibid.

5. The control of the District Court over proceedings in the state courts upon

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