Whether a patent is wrongfully issued or can be set aside is a
matter to be settled between the state and the patentee, but no
individual is authorized to act for the state.
Even if the state could set aside a patent for having been
issued on illegal or inadequate consideration, the matter is
between it and the patentee, and, until set aside, one tendering
the statutory price does not thereby become entitled to receive
such land from the state, nor does the tender create a contract
with the state within the protection of the contract clause of the
federal Constitution. Where the state court so holds, public land
of a state, as is the case of public land of the United States,
held under patent or certificate of location, is not, until such
patent or certificate be set aside at the instance of the state,
subject to other entry or purchase.
In the matter of sale and conveyance, each state may administer
its public lands as it sees fit, so long as it does not conflict
with rights guaranteed by the federal Constitution; nor is any
state obliged to follow the legislation or decisions of the federal
government or of any other state.
120 La. 712 affirmed.
Congress, by an act entitled, "An Act to Aid the Louisiana in
Draining the Swamp Lands Therein," approved March 2, 1849 (9 Stat.
352, c. 87), granted to that state "the whole of those swamp and
may be or are found unfit for cultivation."
See also Act
of September 28, 1850, 9 Stat. 519, c. 84. In 1880, the General
Assembly of the State of Louisiana, by an act known as "Act 23 of
1880," approved March 8, 1880 (La.Laws 1880, c. 84, p. 25),
authorized the governor of the state to institute proceedings to
recover all of those lands not already conveyed to the state, or,
if improperly failed to be conveyed, their value in money or
government scrip, "provided, that the state shall
Page 217 U. S. 72
incur no cost or expense in the prosecution of the said claims
other than an allowance to be made by the governor out of the
lands, money, or scrip that may be recovered." On March 20, 1880,
the governor made a contract with John McEnergy to recover from the
United States the unconveyed balance of the lands, or their value
in money or scrip, and agreed to pay him "fifty percentum of the
lands, money, or scrip recovered, to be paid as provided in said
Act 23." It also provided:
"Where lands in kind are recovered, the compensation, as
aforesaid, of the said McEnergy shall be represented in scrip or
certificates, to be issued by the register of the land office of
the state, and locatable upon any lands owned by the state."
A large amount of lands were recovered, and the register of the
state land office issued to John McEnergy certificates in terms
made locatable upon and vacant land granted to the state by the act
of Congress heretofore referred to. These certificates were sold
and assigned by McEnergy, and his assignees located them upon
public lands, some of which had not been recovered by McEnergy
under his contract. To some of the assignees patents were
thereafter issued, while others held simply certificates of
location. By Act 106 of 1888 (Laws La., 1888, p. 171), Act 23 of
1880 was repealed, and by § 2 of the repealing act it was
provided
"that the act or agreement made between Louis A. Wiltz, Governor
of the state, and John McEnergy, made March 20, 1880, purporting to
be under the authority of said Act No. 23, is hereby abrogated and
terminated."
This repealing act took effect January 1, 1889. By Act No. 125,
approved July 8, 1902 (Laws La., 1902, p. 209), it was provided
that the swamp and overflowed lands donated by Congress to the
state should be subject to entry and sale at the rate of $1.50 per
acre. On July 7, 1906, the legislature passed Act No. 85 of 1906
(Laws La., 1906, p. 141), declaring
"that present holders and owners of patents for public lands,
issued by the State of Louisiana, their heirs, assignees, or
transferees, shall be confirmed as applicants for said lands, from
the date of the issuance of said patents, where the said
patents
Page 217 U. S. 73
were not paid for in money, but were paid for by certificates or
warrants for scrip, which were not legally receivable in payment
for such patents, and authorizing such present holders and owners,
their heirs, assignees, or transferees, of said patents, to
validate and perfect their title to the lands covered by said
patents, or to any part or subdivision of such lands, within one
year from date of passage of this act, by paying therefor, in cash,
the price of $1.50 per acre."
The act further provided that, upon payment of such amount "the
said patents shall be valid and legal for all purposes, as if
payment therefor had been made in cash at the date of their
issuance."
Petitioners, claiming that the location of these certificates
upon lands not recovered by McEnergy, and the issuance of patents
therefor, were illegal, tendered on March 28, 1905, to the proper
officers $1.50 per acre for a large body of lands which were
covered by these certificates and patents. They demanded that
warrants should be issued to them for the lands, which was refused.
On July 11, 1906, they filed their petition in the Twenty-second
Judicial District Court for the Parish of East Baton Rouge, State
of Louisiana, averring that they were the first and only applicants
for said lands under the provisions of said Act No. 125 of 1902, or
of any other law of the state since the date of the issuance of
said illegal certificates and patents, and that, by making the
legal tender, they became vested with the right to acquire said
lands.
The district court sustained the exception of no cause of
action, and entered judgment dismissing the suit. This judgment was
affirmed by the supreme court of the state, 120 La. 712, and from
that court was brought here on writ of error.
Page 217 U. S. 75
MR. CHIEF JUSTICE FULLER delivered the opinion of the court,
after reading the following memorandum:
This opinion, including the preliminary statement, was prepared
by our Brother Brewer, and had been approved before his lamented
death. It was recirculated and again agreed to, and is adopted as
the opinion of the court.
Petitioners contend that, by their tender, they made a contract
with the state for a conveyance of the lands in controversy; that
this contract was broken, and that they were deprived of their
rights thereunder by the legislation of the state and the action of
its officers in pursuance thereof; that thus a federal question
arises under art. 1, § 10, of the Constitution of the United
States, which forbids a state to pass a "law impairing the
obligation of contracts." Their argument is briefly this: The lands
were not obtained by McEnergy under his contract with the state;
the statute authorizing that contract provided that his payment
should be solely out of the lands obtained by him from the United
States. Notwithstanding this limitation, certificates were issued
to him authorizing location upon any lands included within the
grant of Congress by the Act of 1849, and they were in fact located
upon the lands in controversy -- lands which were not obtained by
McEnergy; that this location, even when followed by patent, did not
segregate these lands from the public domain of the state, and they
remained therefore open to purchase by anyone complying with the
statutes; that petitioners were the first and only parties who
tendered to the state the prescribed price; that thereby they
acquired a vested right to a conveyance by the State of the legal
title.
But it is not contended that the patents were not signed by the
proper officers and in due form to convey the title of the state to
the patentees. It is not suggested that McEnergy received any
greater amount of lands than he was entitled to receive under his
contract, and it does not appear from the
Page 217 U. S. 76
record that the patents, on their face, disclosed any invalidity
in the title conveyed. While an examination of the records would,
if the facts stated in the petition are true, show that they were
improperly issued, yet this could be ascertained only by looking
beyond the face of the patent. Now whether the patents were
wrongfully issued or could be set aside was a matter to be settled
between the state and the patentee. The state undoubtedly received
something, for the acceptance of every McEnergy certificate
released the state
pro tanto from its obligation under the
contract to McEnergy. Whether it should remain satisfied with that
payment or not was for the state to determine. If it were not
satisfied, it could take proper proceedings to set aside the
patent, but no individual was authorized to act for the state.
The rule in respect to the administration of the public domain
of the United States is well settled. In
Doolan v. Carr,
125 U. S. 618,
125 U. S. 624,
Mr. Justice Miller said:
"There is no question as to the principle that, where the
officers of the government have issued a patent in due form of law
which, on its face, is sufficient to convey the title to the land
described in it, such patent is to be treated as valid in actions
at law, as distinguished from suits in equity, subject, however at
all times, to the inquiry whether such officers had the lawful
authority to make a conveyance of the title. But if those officers
acted without authority, if the land which they purported to convey
had never been within their control, or had been withdrawn from
that control at the time they undertook to exercise such authority,
then their act was void -- void for want of power in them to act on
the subject matter of the patent, nor merely voidable, in which
latter case, if the circumstances justified such a decree, a direct
proceeding, with proper averments and evidence, would be required
to establish that it was voidable, and should therefore be
avoided."
In
Hastings &c. Railroad Company v. Whitney,
132 U. S. 357,
132 U. S. 363,
Mr. Justice Lamar, who had been Secretary of the
Page 217 U. S. 77
Interior, discussed the question of a homestead entry, and,
after referring to
Kansas Pacific Railway Company v.
Dunmeyer, 113 U. S. 629,
added:
"Counsel for plaintiff in error contends that the case just
cited has no application to the one we are now considering, the
difference being that in that case the entry existing at the time
of the location of the road was an entry valid in all respects,
while the entry in this case was invalid on its face and in its
inception, and that this entry, having been made by an agent of the
applicant, and based upon an affidavit which failed to show the
settlement and improvement required by law, was, on its face, not
such a proceeding in the proper land office as could attach even an
inchoate right to the land."
"We do not think this contention can be maintained. Under the
homestead law, three things are needed to be done in order to
constitute an entry on public lands. . . . If either one of these
integral parts of an entry is defective -- that is, if the
affidavit be insufficient in its showing, or if the application
itself is informal, or if the payment is not made in actual cash --
the register and receiver are justified in rejecting the
application. But if, notwithstanding these defects, the application
is allowed by the land officers, and a certificate of entry is
delivered to the applicant, and the entry is made of record, such
entry may be afterwards cancelled on account of these defects by
the Commissioner, or, on appeal, by the Secretary of the Interior,
or, as is often the practice, the entry may be suspended, a hearing
ordered, and the party notified to show by supplemental proof a
full compliance with the requirements of the Department, and on
failure to do so, the entry may then be cancelled. But these
defects, whether they be of form or substance, by no means render
the entry absolutely a nullity. So long as it remains a subsisting
entry of record whose legality has been passed upon by the land
authorities, and their action remains unreversed, it is such an
appropriation of the tract as segregates if from the public domain,
and therefore precludes it from subsequent grants. "
Page 217 U. S. 78
In
In re Emblen, 161 U. S. 52,
161 U. S. 56,
Mr. Justice Gray thus stated the law:
"After the patent has once been issued, the original contest is
no longer within the jurisdiction of the Land Department. The
patent conveys the legal title to the patentee, and cannot be
revoked or set aside except upon judicial proceedings instituted in
behalf of the United States. The only remedy of Emblen is by bill
in equity to charge Weed with a trust in his favor. All this is
clearly settled by previous decisions of this Court, including some
of those on which the petitioner most relies.
Johnson v.
Towsley, 13 Wall. 72;
Moore v. Robbins,
96 U. S.
530;
Marquez v. Frisbie, 101 U. S.
473;
St. Louis Smelting Company v. Kemp,
104 U. S.
636;
Steel v. Smelting Company, 106 U. S.
447;
Monroe Cattle Company v. Becker,
147 U. S.
47;
Turner v. Sawyer, 150 U. S.
578,
150 U. S. 586."
See also McMichael v. Murphy, 197 U.
S. 304,
197 U. S.
311.
Obviously in this case, the Supreme Court of Louisiana followed
the practice obtaining in respect to the public lands of the United
States. But if it had not, and had declared simply the law of the
State of Louisiana, its decision would doubtless be controlling on
this Court, for, in the matter of the sale and conveyance of lands
belonging to the public, no one state is obliged to follow the
legislation or decisions of another state, or even those of the
United States, but may administer its public lands in any way that
it sees fit, so long as it does not conflict with rights guaranteed
by the Constitution of the United States.
Counsel criticize the opinion of the Supreme Court of Louisiana
in that it speaks of all the lands as having gone to patent, while
it is said in the petition that some of the assignees "stood upon
the certificates." Whether the language of the petition technically
justifies the construction placed upon it by the supreme court of
the state is immaterial. Certainly there is no naming of any single
tract as covered by certificate alone, and not patented, and if any
tract was held under a certificate of location, it was, within the
scope of the ruling
Page 217 U. S. 79
of the supreme court, not subject to other entry or
purchase.
We see no error in the ruling of the Supreme Court, and its
judgment is
Affirmed.
