United States v. Fitzgerald. 15 P. circuit court of the United States for the eastern district of Louisiana, to recover 160 acres of land, claimed by the defendants under the preemption law of the 19th of June, 1834.1 In their petition, the plaintiffs allege that the defendants, under the pretence that they were entitled to section No. 8, containing 160 acres in township 24 of range 30, by right of preemption, on the 18th day of June, 1836, entered it with the register of the land-office at New Orleans; that the defendant, John Fitzgerald, took possession of the land as an officer of the customs, by direction of the collector at New Orleans, and not as a settler; and that the land had, long previous to the entry, been appropriated for public purposes, and attached to the custom-house at New Orleans. The defendants admit in their answer, that John Fitzgerald was an officer of the customs, and discharged the duties of boarding-officer at the southwest pass; where, finding no accommodations or dwelling provided for them by the United States, they were under the necessity of procuring one for themselves, in which they expended their own money. That having complied with all the requisitions of the laws of the United States *granting preemption rights, [*419 ] they entered the said tract of land, and insist that, by the laws of the United States, they are entitled to it. It was proved on the trial that the defendant, John Fitzgerald, had been appointed by the secretary of the treasury, inspector of customs for the district of Mississippi; and, by the collector at New Orleans, he had been appointed boarding-officer at the southwest pass on the Mississippi River, and put into possession of the tract of land in controversy, which had been occupied by former boarding-officers. The collector was not instructed by the treasury department, to place the boarding-officer on that tract of land, nor was he bound to reside there, but might reside at any other place convenient for the discharge of his duties. The collector had never requested that this land should be reserved for the use of the boarding-officer. A letter from the acting commissioner of the general land-office, dated the 3d of November, 1836, directed to the register of the land-office at New Orleans, stating that the secretary of the treasury had directed that this tract of land should be reserved from sale for the use of the custom-house at New Orleans, and requesting the register to note upon his plats that it was so reserved from sale, and to give notice of the fact to the defendants, was also read as evidence. The defendants proved that they had made proof of their possession and cultivation of the tract of land in controversy before the register and receiver, according to law, and had entered it with the 14 Stats. at Large, 678. register and paid the purchase-money. Whereupon the court below, according to the usual form of rendering judgment in such cases in Louisiana, decreed that the defendants be quieted in their possession of the premises in dispute, and that the plaintiffs take nothing by their petition. To reverse this judgment, the United States have prosecuted this writ of error. Two objections have been taken to the judgment:1. The defendant, John Fitzgerald, being in the service of the United States while residing on the public land, could not by cultivation and possession acquire a right of preëmption; and if he could, this land was not subject to preëmption, it having been appropriated to public use. [*420] *2. The court had no power to quiet the defendants in their possession of the premises in dispute, the fee in the land being in the United States. No law has been produced to show that an officer of the United States is deprived of the benefit of the preëmption laws; nor do we know of any law which deprives him of the right to acquire a portion of the public land by any mode of purchase common to other citizens. Had this tract of land been severed from the public domain by a legal appropriation of it for any public purpose, Fitzgerald could have acquired no right to it by cultivation and possession; not because he was an officer of the United States, but because the land would not have been subject to the preëmption law. Was this land so appropriated? The preemption law of the 29th of May, 1830,1 which was revived by the act of the 19th of June, 1834, declares that the right of preëmption shall not extend to any land which is reserved from sale by act of congress, or by order of the President, or which may have been appropriated for any purpose whatever. 4 Story's Laws United States, 2213. The 1st section of the act of the 19th of June, 1834, gives to every settler or occupant of the public lands prior to the passage of that act, who was then in possession, and cultivated any part thereof in the year 1833, all the benefits and privileges provided by the act entitled an act to grant preëmption rights to settlers on the public lands, approved the 29th of May, 1830, and which act was thereby revived. The reservation and appropriation mentioned in the act of the 29th of May, 1830, must have been valid and subsisting at the date of the act of the 19th of June, 1834, to deprive the defendants of their right of preemption. It cannot be pretended that the land in controversy was reserved from sale by any act of congress, or by order of the President, unless 14 Stats. at Large, 420. United States v. Fitzgerald. 15 P. the direction of the secretary of the treasury to reserve it from sale, several months after it had been actually sold and paid for, could amount to such an order. As no reservation or appropriation of the land made after the right of the defendants accrued under the act of the 19th of June, 1834, could defeat that right, it is useless to inquire into the authority by which the secretary of the treasury attempted to make the reservation. The remaining question, under the first objection is, [ *421 ] whether there had been any appropriation of this land for any purpose whatever, prior to the passage of the act of the 19th of June, 1834. No appropriation of public land can be made for any purpose but by authority of congress. By the 3d section of the 4th article of the constitution of the United States, power is given to congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. As no such authority has been shown to authorize the collector at New Orleans to appropriate this land to any use whatever, it is wholly useless to inquire whether his acts, if they had been authorized by law, would have amounted to an appropriation. But it has been contended in argument, that the act of the 3d of March, 1831,1 authorizing the erection of a light-house at the mouth of the southwest pass, was an appropriation of this land for that purpose. By the plat, found in the record, it appears that there are between forty and fifty tracts of land containing one hundred and sixty acres each, including the tract in controversy, all fronting on the southwest pass. If the act had directed that the light-house should be built on this particular tract, according to the decision of this court in the case of Wilcox v. Jackson, 13 Pet. 498, it would have been such an appropriation within the meaning of the act of the 29th of May, 1830, as would have deprived the defendants of their right of preëmption. But the same plat shows that the light-house was built on Wagoner's Island, which appears to be at the mouth of the southwest pass, and not included or connected with this or either of the other tracts of land exhibited on the plat. From this examination of the case, it is clear that the land in controversy was neither reserved from sale nor appropriated to any purpose whatever. As the United States have placed their right to recover in this case upon the single ground that the land was not subject to the preemption right of the defendants, because it had been previously appropriated for the use of the officers attached to the custom-house at New Orleans, that point being decided against them, they ought not to prevail upon the second objection urged against the judg 14 Stats. at Large, 488. Minis v. United States. 15 P. [*422] ment, even if the judgment *were technically defective; but it being in the usual form of judgments in the courts of Louisiana, and not inconsistent with the justice of the case, we think it ought not to be disturbed. It has, however, been suggested that fraud has been practised in some way, by the defendants, in obtaining the land in controversy. Every thing on the face of the record appears to have been perfectly fair, and, as far as we can perceive, the defendants are legally entitled to a patent for the land. But if fraud has been practised upon the plaintiffs, the courts of chancery are open to them to seek a rescission of the contract. The judgment of the court below is affirmed. PHILIP MINIS, Plaintiff in Error, v. THE UNITED STATES, Defendants in Error. 15 P. 423. The proviso annexed to the act of March 3, 1835, (4 Stats. at Large, 754,) prohibiting extra allowances, is confined to the appropriations made by that act. Under the 4th and 13th sections of the act of June 30, 1834, (4 Stats. at Large, 736, 738,) a military officer performing the duties of Indian agent, could be allowed only the compensation provided for in that act. THE case is stated in the opinion of the court. Coxe and Jones, for the plaintiff. Gilpin, (attorney-general,) contrà. * [* 443 ] STORY, J., delivered the opinion of the court. This is the case of a writ of error to the circuit court for the district of Georgia. The original suit was brought by the United States against Dr. Philip Minis, (the plaintiff in error,) to recover the balance of $13,589.05, due from him to the United States. At the trial of the cause upon the general issue, a transcript of the account from the treasury department establishing the balance was given in evidence; and the sole question in controversy between the parties was, whether Doctor Minis was entitled to credit for certain items which had been disallowed by the treasury department. The principal item, and the only one now in controversy, was a claim by Doctor Minis, who was a surgeon in the army, and was appointed military disbursing agent for removing and subsisting the Cherokee Indians, of two and a half per cent. commissions on the sum of $514,237.61, actually disbursed by him in the course of his agency in 1836 and Minis v. United States. 15 P. 1837. No evidence was offered on the part of Dr. Minis, of any contract or of any usage of the government for the allowance of any such commission, in cases of this sort. The counsel for Dr. Minis, among other things, (not material in the present state of the case,) prayed the court to instruct the jury, 1. That the clause in the act of congress of the 3d of March, 1835,' c. 303, which was relied upon as the authority by which the defendant's claim for commissions was rejected, did not apply to the defendant's case; because it expressly refers to moneys appropriated during that session of congress, and, * therefore, that the second auditor erred in disallowing [* 444 ] the charge for commissions. 2. That the defendant was entitled to the commissions charged by him, as well from the longestablished practice of the government, as from the law of the land, there being no law prior to the act of the 3d of March, 1839,2 disallowing commissions or moneys disbursed for the government. 3. That the charge for commissions should be allowed, because the charge is made for the disbursement of moneys appropriated during the sessions of congress of 18363 and 1837;4 and, therefore, that neither the act of 1835 nor of 1839 was applicable. These instructions the court refused to give; but instructed the jury "that in the relations which the defendant had stood to the United States, as an officer in the army, he had no claim by law for commissions on the sum disbursed by him, whatever interpretation might be given to the concluding proviso of the act of the 3d of March, 1835, c. 303; and admitting that such proviso was limited to a prohibition per cent., additional pay, extra allowance or compensation, on account of disbursing any public money appropriated by law during the session of congress when the act was passed containing the proviso, that said proviso could not be interpreted to give commissions or per cent. upon disbursements of antecedent or subsequent appropriations of money by congress, unless the same were authorized by law; and that no law authorized the defendant to charge commissions, and, therefore, that the second auditor, had not erred in disallowing commissions to the defendant." To this opinion of the court the defendant excepted. The jury found a verdict for the United States, after deducting certain other disallowed items; and judgment was rendered, accordingly, for the United States, and the present writ of error is brought to revise that judgment. It is certainly true, as has been suggested at the bar, that the case is, as to the evidence necessary to raise some of the questions, very imperfectly and defectively stated; and, therefore, some of the instruc 14 Stats. at Large, 753. 2 5 Ib. 339. VOL. XIV. 34 Ib. 2, 17, 112. 4 Ib 163, 207. 12 |