The words "and including" following a description do not
necessarily mean "in addition to," but may refer to a part of the
The words "110,000 acres of land . . . and including all the
saline lands in the state" as used in § 8 of the Utah Enabling Act
are not to be construed as a grant of such salines in addition to
the 110,000 acres, but simply as conferring on the state the right,
which it would not otherwise have, of including saline lands within
its selections for the 110,000 acres.
This construction is in harmony with the uniform policy of
Congress in connection with grants to the states of saline
34 Utah 458 reversed.
The facts, which involve the construction of § 8 of the
Page 221 U. S. 453
Utah Enabling Act and the effect to be given to the words "and
including all saline lands in the state" in connection with the
grant of public lands for the University of Utah, are stated in the
Page 221 U. S. 458
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question in the case is whether § 8 of the Enabling Act of
the State of Utah granted to the state all of the saline lands
within the state, or only enabled them to be selected as part of
other lands granted and not specifically located.
Section 8 reads as follows (Act of July 16, 1894, c. 138, 28
Stat. 107, 109):
"That lands to the extent of two townships in quantity,
authorized by the third section of the Act of February twenty-one,
eighteen hundred and fifty-five, to be reserved
Page 221 U. S. 459
for the establishment of the University of Utah, are hereby
granted to the State of Utah for university purposes, to be held
and used in accordance with the provisions of this section, and any
portions of said lands that may not have been selected by said
territory may be selected by said state. That, in addition to
the above, one hundred and ten thousand acres of land, to be
selected and located as provided in the foregoing section of this
act, and including all saline
lands in said state, are hereby
granted to said state, for the use of said university, and two
hundred thousand acres for the use of an agricultural college
therein. That the proceeds of the sale of said lands, or any
portion thereof, shall constitute permanent funds, to be safely
invested and held by said state, and the income thereof to be used
exclusively for the purposes of such university and agricultural
We have italicized the clause upon which the answer to the
question turns. The special stress of it comes on the words "and
including," and whether they carry a grant of all the saline lands,
or permit merely the selection of such lands as part of the 110,000
Construing the statute as granting all of the saline lands, the
state brought suit against the Montello Salt Company, herein called
the salt company, in the District Court of the Third Judicial
District, alleging that the salt company was in possession of
certain of the lands, specifically describing them, claiming title
under certain placer mining locations, and was threatening to take
up and remove valuable deposits of salt therefrom. It was prayed
that the salt company be adjudged to have no right, title, or
interest in the lands, and that the state be decreed their owner.
An injunction pending the trial was also prayed, and general
A preliminary injunction was issued. The answer of the salt
company admitted that the lands were saline, and alleged that it
was the equitable owner of them by
Page 221 U. S. 460
virtue of conveyance from the original owners, about 1,500 in
number, all of whom were qualified to enter mineral claims under
the land laws of the United States, including saline lands, and
that such persons in groups of eight entered upon 160 acres of the
lands, discovered salt thereon, and did all that was necessary for
the location of the same, including the filing of a notice of
location, to be recorded in the office of the recorder within and
for Tooele County, where the lands were situated. And it is alleged
that thereafter, for the purpose of more economically developing
the property, the locators conveyed by quitclaim deeds their
interest to the company and became stockholders of it.
It alleged that, on the July 16, 1894, date of the passage of
the Enabling Act, the lands were not known to be saline, but were
so covered with soil and other earthly substances that their true
character was concealed, and were not discovered to be saline until
"whereas, it is alleged, in truth and fact, that, under such
substances and soil the said lands are covered by a deposit of salt
varying from four to eight feet deep;"
that, prior to the discovery of their character, the state had
selected and received grants from the United States for the full
amount of the 110,000 acres selected and located as provided in §§
7 and 8 of the Enabling Act, and the grant by the United States for
the university satisfied. It is further alleged that, at the time
of the passage of the Enabling Act, only acres had been classified
by the Surveyor General of the United States within and for the
then Territory of Utah as saline lands, and that said amount was in
the contemplation of Congress when it passed the act, and that the
same was duly approved.
The lands, it is alleged, were subject to location under the
placer laws of the United States.
A demurrer by the state to the answer was sustained, and, the
salt company refusing to proceed further, judgment
Page 221 U. S. 461
was entered for the state in accordance with the prayer of the
complainant, and the injunction was made perpetual. The judgment
was affirmed by the supreme court of the state.
Three interpretations of the act are presented. The state
insists that all of the saline lands were granted, known and
unknown. The salt company presents two views, either of which, it
is contended, determines in its favor. (1) If there is a grant of
saline lands in addition to the grant of 110,000 acres, it is only
of lands known to be saline at the date of the act. (2) There is no
grant of saline lands except as they may be selected as part of the
grant of the 110,000 acres.
The state puts its reliance on the word "including," and urges
that Congress used the word -- (1) "in its true and proper sense,
as defined by lexicographers; (2) in the sense of
In support of the first ground, the following definitions are
given from Webster:
"1. To confine within; to hold; to contain; to shut up, as, the
shell of a nut includes
the kernel; a pearl is
in a shell. 2. To comprehend, as a genus the
species, the whole a part, an argument or reason the inference; to
contain; to embrace; to relate to; to pertain to; as Great Britain
England, Scotland, and Wales."
And then the argument is that Congress grants, first, two
townships in a county (this was an affirmation of a prior grant to
the territory), and in addition 110,000 acres of land, to be
selected and located in legal subdivisions (§ 7 referred to in § 8
for the manner of selection) within the state in such manner as the
legislature may provide, with the approval of the Secretary of the
Interior (§ 6 referred to in § 7 for the manner of selection). It
is hence argued that the 110,000 acres was a grant of an
undesignated portion of the public domain, and provision for its
selection was necessary and was made, but no provision
Page 221 U. S. 462
was made for the selection and location of saline lands, because
all were granted "irrespective of their area or locality.'"
They are determined by their character, it is said, and "when the
grant is of all, and not of a part, selection and location become
superfluous terms." It is further urged that, if Congress intended
to make the saline lands subject only to be selected as part of the
110,000 acres, the phrase "including all saline lands" is awkwardly
and ungrammatically placed, but properly and grammatically placed
if an independent grant is intended, and that Congress is supposed
to know the rules of grammar -- citing United States v.
Goldenberk, 168 U. S. 95,
168 U. S.
The argument is further developed by pointing out that the word
"all" is comprehensive and excludes the idea of a limitation of
quantity or the selection of a part. If such limitation or
selection had been intended, it is said, the word "any" would have
been used, not "all," and it cannot be supposed that Congress again
used a word inappropriate to its purpose.
"Of still greater significance," it is urged, "is the use of the
conjunction and' in the phrase `and including all saline
lands,'" and that from its frequent use and ready understanding no
ambiguity can ever arise from its employment, it being "always
employed to express the relation of addition."
The state further urges that the word "including" may be taken
as signifying "also," and illustrations are given, some from the
statutes, some from decisions, federal and state.
In United States v. Pierce,
147 F. 199, a provision in
a tariff act was considered which provided as follows: "Woods: Logs
and round manufactured timber, including pulp woods. . . ." The
court (United States Circuit Court of Appeals, Second Circuit)
said: "We think the word including' was used as the equivalent
of `also,' a sense in which it is frequently used in tariff
Page 221 U. S.
Hiller v. United States, 106 F. 73, was referred
to. The latter case was also concerned with a tariff act. The
provision passed upon was "embroideries, and all trimmings,
including braids," etc. The construction given to the provision by
the importer was that it covered "all trimmings, including braids"
used for that purpose. The government, on the other hand, contended
that it meant "all trimmings, among which are included braids,"
etc., and that the word "including" was not used by way of
specification, but by way of addition. The court said:
"It would be somewhat difficult to infer the legislative
intention from the language of the paragraph without reference to
the history of this part of the cotton schedule, because in the
tariff acts the word 'including' is sometimes used merely to
specify particularly that which belongs to the genus, and is
sometimes used to add to the general class a species which does not
naturally belong to it."
The court resorted for explanation to the cotton schedule, and
decided in favor of the government's contention, one member of the
In In re Goetz's Will,
75 N.Y.Supp. 750, a testator
bequeathed to his wife all of his "personal property, including
furniture, plate, and household effects." The court held the
bequest was of all the personal property, saying
"'including' is not a word of limitation; rather is it a word of
enlargement, and in ordinary signification implies that something
else has been given beyond the general thing which precedes
The state, in the case at bar, concedes that the definition is
too broad, and says that what the court probably meant was that, as
commonly used, the word had such meaning.
The state reinforces its interpretation of the words of § 8 by
other considerations. It is urged that if Congress intended the
saline lands to be a part of another grant, it is the first
instance of the kind. Fourteen states are enumerated to which all
of the salt springs within them respectively
Page 221 U. S. 464
were granted. In twelve of the states, there was a limitation of
the number of springs. To Illinois, the grant was of "all springs
within such state;" to New Mexico, the grant was of 65,000 acres of
nonmineral lands, "together with all the saline lands in said
territory." To eighteen states, no saline lands or salt springs
The Enabling Act of Utah, it is suggested, was the guide to the
grant to New Mexico. The latter, it is said, is more explicit, but
indicates the same purpose to convey to each all of the saline
lands within their respective borders.
The salt company opposes the contentions of the state, and
invokes against the meaning attributed to § 8 the rule of strict
construction of grants by the government. The purpose of the grant
is, it is urged, to constitute a fund by the sale of the lands, the
income from which is to be used exclusively for a university and
agricultural college, and that the result of the grant as construed
by the state would be to endow them as no other educational
institution is endowed. And, so construed, it is said, even by the
decision in this case, the grant of 110,000 acres will be increased
40,000 acres, and as the demurrer concedes the deposit of salt is
from four to eight feet thick, there will be the further increase
of two or three million tons of salt, worth in the aggregate an
almost fabulous sum. Future discoveries, it is suggested, will
increase the grant still more.
Such consequences of the state's contention at once challenges
its soundness, and we recall that counsel for the state asserted at
the oral argument that its title attached to all lands having salt
deposits, no matter what thickness of arable soil lay above the
deposits, and as it is insisted that no selection of saline lands
is necessary, embarrassment in the administration of the land laws
and serious conflicts of title may arise. However, let us consider
the words of § 8. The determining word is, of course, the word
"including." It may have the sense of addition,
Page 221 U. S. 465
as we have seen, and of "also;" but, we have also seen, "may
merely specify particularly that which belongs to the genus."
Hiller v. United States,
106 F. 73, 74. It is the
participle of the word "include," which means, according to the
definition of the Century Dictionary, (1) "to confine within
something; hold as in an enclosure; enclose; contain." (2) "To
comprise as a part, or as something incident or pertinent;
comprehend; take in; as the greater includes the less; . . . the
Roman Empire included many nations." "Including," being a
participle, is in the nature of an adjective and is a modifier.
What, then, does it modify as used in § 8? Necessarily, we think,
the preceding substantive phrase "one hundred and ten thousand
acres of land," and we have the meaning of the section to be that
the saline lands are to be contained in or comprise a part of the
110,000 acres of land. We see no particular awkwardness in the
expression of the purpose, and it well may be contended that it
needs not for its support the rule of strict construction. And such
purpose is in harmony with grants of saline lands to other states.
It is also sustained by the reports of the committees of the House
In the case of Brainard v. Darling,
132 Mass. 218, it
was held that a legacy of $100, "including money trusteed in a
certain bank," could not be construed as meaning that the sum of
$100 was in addition to the sum in bank.
In Henry v. Henry,
81 Ky. 342, a bequest of $14,000,
"including certain notes," was held to mean that the notes formed a
part of the $14,000, and were not in addition thereto.
In Neher v. McCook County,
11 S.D. 422, it was held
that a certain section of the laws of the state which provided that
the sheriff's fees should be $16 for summoning a jury, "including
mileage," did not entitle him to mileage in addition to the
Page 221 U. S. 466
We have seen that the state urges that the word "and" is always
employed to express the relation of addition, and it is said, with
words of emphasis, that Congress cannot be supposed to have been
ignorant of its meaning. The supreme court of the state also gave
special significance to the use of "and," as adding something to
that which preceded. The court also considered that the word
"including" was used as a word of enlargement, the learned court
being of opinion that such was its ordinary sense. With this we
cannot concur. It is its exceptional sense, as the dictionaries and
cases indicate. We may concede to "and" the additive power
attributed to it. It gives in connection with "including" a quality
to the grant of 110,000 acres which it would not have had -- the
quality of selection from the saline lands of the state. And that
such quality would not exist unless expressly conferred we do not
understand is controverted. Indeed, it cannot be controverted.
Under the applicable statutes and uniform policy of the government,
saline lands would not have been subject to selection in
satisfaction of the 110,000-acre grant, in the absence of a special
provision authorizing their selection. Rev.Stat. § 2318; Act of
January 12, 1877, 19 Stat. 221, c. 18; Morton v.
21 Wall. 660; Cole v. Markley, 2 L.D.
847; In re Salt Bluff Placer, 7 L.D. 549; On re Southwestern Mining
Co., 14 L.D. 597; Jeremy v. Thompson, 20 L.D. 299; In re Geissler,
27 L.D. 515.
Something is attempted to be made of the fact as militating
against the selection of saline lands as part of the grant of
110,000 acres that no time limit was fixed, as in grants of such
lands in other states. The fact has some force, and, giving it and
the other contentions of the state proper weight, they cannot
prevail against the considerations to which we have adverted.
It is finally contended that, if the saline lands are included
in the 110,000 acres, the state has the right to select
Page 221 U. S. 467
all of them, and that, until it declares its intention, no
rights can be acquired by others under the mining laws. We are not
called upon to discuss the contention. It is alleged in the answer
that the state has selected and received grants from the United
States for the full amount of 110,000 acres, "selected and located
as provided in §§ 7 and 8 of the Enabling Act." As the state
demurred to the answer, the truth of the allegation must be
considered as admitted.
Judgment reversed and the cause remanded for further
proceedings in accordance with this opinion.
MR. JUSTICE HARLAN dissents.