On 20 May, 1826, Congress passed an Act, 4 Stat. 179, giving
school lands to such townships, in the various land districts of
the United States, as had not been before provided for, which were
to be selected for such townships by the Secretary of the Treasury,
out of any unappropriated public lands within the land district
where the township was situated for which the selection was
made.
The Secretary of the Treasury, through the Land Office, directed
the Registers to make selections and return lists thereof, to be
submitted to him for his approbation.
Under this direction, the land in question was selected and
reserved from sale.
Afterwards, the Register withdrew the selection by authority of
the Commissioner of the Land Office, and permitted a person to
enter and take it up, this person knowing the circumstances under
which it had been reserved from sale.
Finally, the Secretary of the Treasury selected the land in
question, under the authority given to him by the act of 1826.
This selection was good, and conferred a title, overruling the
intermediate entry.
Page 54 U. S. 245
The facts are all stated in the opinion of the Court.
Page 54 U. S. 247
MR. JUSTICE McLEAN delivered the opinion of the Court.
This action of ejectment is here on a writ of error to the
Supreme Court of Ohio, under the 25th section of the Judiciary Act.
The plaintiffs in error claim title to a quarter section of land
under an entry made with the Register of the Land Office; the
defendants claim the same as reserved for school purposes. As both
parties claim under an act of Congress, either, is entitled to a
writ of error to have the judgment against the right asserted,
revised in this Court.
By the Act of 20 May, 1826, Congress gave school lands to such
townships and fractional townships in the land districts of the
United States as had not been provided for, to be selected within
such townships by the Secretary of the Treasury, out of any
unappropriated public lands within the land district in which the
township was situated. Under that act, fractional township No. 1,
range No. 19, of the Chillicothe Land District of Ohio, was
entitled to 160 acres of land.
Page 54 U. S. 248
On the 24th of the same month the Treasury Department issued a
circular, through the General Land Office, to the Registers of the
different land districts directing them to make selections of the
lands granted and return a list to the General Land Office for the
approbation of the Secretary of the Treasury.
The Register of the Chillicothe Land District caused to be
selected the southeast quarter of section No. 15, township 2, range
18, the land now in controversy. A return of this selection was
made to the General Land Office 23 October, 1828. This return
contained other tracts not made as required by the law, and
consequently the list was returned to the Register for correction.
The errors being corrected the list was again returned to the
General Land Office. But afterwards, in 1832, a circular from the
Land Office was directed to the Register, accompanied by a printed
form and directions so that the returns of lands selected should be
uniform. The tracts selected were required to be noted and reserved
from sale. Where good land could not be procured in the township,
the selection was authorized to be made in the nearest adjacent
township which contained good land. The land above selected is not
in township No. 1, range No. 19, nor in the next adjacent township,
but in the nearest adjacent township in which good land could be
procured.
In pursuance of the above instruction, the Register withheld the
land from sale. On 7 March, 1833, he informed the commissioner that
"some of the selections which he had reported were half quarter
sections," and that others did not lie "either in the township or
in the nearest adjacent township where good land exists," "which
are not in accordance with the general rules laid down in the
commissioner's last circular;" and he says, "I have withheld from
sale all the lands selected which were embraced in my two reports,"
and he inquires whether the fact of his having reported them takes
them out of the general rule prescribed for his government, and
whether he should consider all the selections heretofore made, and
have them made in exact conformity to the instructions.
In answer to the above, the Commissioner says,
"On the subject of the school lands, selected by you in 1831, I
have to state that, as there has been no action of the department
on these selections, you are at liberty to withdraw them and select
other lands in their stead, in conformity to my circular of 30
August, 1832."
Under this letter, it seems, the Register permitted Hamilton to
enter the land in controversy, but no other school land was
selected in lieu of it. On this entry's being made the school
trustees
Page 54 U. S. 249
of the township appealed to the Secretary of the Treasury
against the sale of the land, and claimed the original selection.
And the same being laid before the Secretary, he sanctioned and
confirmed the original selection. This was done 9 January,
1834.
The decision of this case must depend upon the validity of
Hamilton's entry. He had full notice that the quarter section had
been selected for school purposes, and was reserved from sale. This
information was given him by the Register on his first application
to enter it. He then endeavored to purchase it from the trustees.
The selection of that tract was made at first, as the law required,
though other tracts on the same list had not been so selected.
The entry by Hamilton may have been permitted by the Register,
through inadvertence or mistake. This supposition is at least as
probable, and indeed more so, than that he withdrew the selection
and failed in his duty to select another tract in place of it. But
in whatever light this may be viewed, we are clear that the
Secretary of the Treasury had the power, under the act of Congress,
to make the selection, and his decision, declaring the entry of
Hamilton invalid was, under the circumstances, conclusive. This
tract, selected by the Secretary under the act of 1826,
"is held by the same tenure, as provided in the second section
of that act, and upon the same terms for the support of schools, in
such township, as section number sixteen is held."
By the Act of 3 March, 1803, it is declared that lands
appropriated for schools, shall be vested in the legislature of the
state in trust &c., and in the same act section number sixteen
in each township was designated for school purposes. If, therefore
the quarter section in dispute was legally selected for school
purposes, the legal title became vested in the Legislature of
Ohio.
The general duties of the commissioner of the General Land
Office are required to be performed "under the direction of the
head of the Treasury Department." And where a duty is especially
enjoined on the Secretary of the Treasury, although he may perform
it through the commissioner of the General Land Office, who may
well be presumed to act under his authority where the contrary does
not appear; yet where the Secretary has interposed and decided the
matter, as in the case under consideration, his decision must be
considered as the only one under the law. So far, then, as the
sanction of the Secretary was given to the appropriation of the
land in dispute, to school purposes, it must be considered as a
valid appropriation.
This view imposes no hardship on Hamilton, as he had notice of
the tract selected, and his repeated attempts to purchase the
Page 54 U. S. 250
same land cannot be favorably considered by the court. Under the
circumstances, no right became vested in him by reason of his entry
of the land, which could be regarded or enforced by a court of
equity. The judgment of the state court is, therefore
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Ohio, and was argued by
counsel. On consideration whereof it is now here ordered, and
adjudged by this Court that the judgment of the said supreme court
in this cause be and the same is hereby affirmed with costs.