The true Democrat., 1857-03-17
Little ROcf. Febrnarv 1S57

of Arkansas. Little Rock, February, 1857. SIR-The principle question submitted in your letter of the 4th inst, is difficult one, rather pertaining to fact than to law, and it is to be regretted that 1t has not been settled by positive legislation.
 h substance the question submitted to me is this: What $ Q be unlerst0oa Jy Hse term "HacigaJle 'oater-course," used in the swamp land act approved January l2th, 1853?
 
 By the swamp land act of the 6th January, 1851, (Acts l85O, ?. I'D the governor was authorized and required to appoint three com petent persons to De known and to act as the board Of swamp land commissioners.
 Power WAS given, am 1t was expressly made the duty ol the commissioners to fix the price of swamp ani overhowed lands donated 10 this State " tAe ao, of Congress of the 23,h September, 1850; in their then condition, talk ing into consideration the locality aul ,he value that would be added to such lands bv their re- clamation, subject to the approval of the go- vernor. Three commissioners were appointed in accordance with tile Nv, who were dulv qualified as such.
 On the 2d of September 1851, in the exercise of the authority thus delegated to them, the board Of swamp land commissioners passed ma Iromul- gated the following ordinances, viz. E. H ar}1ael 5y tie Boqrd Of S.c7n1D Lan9 Commissioners That all that portion of the swamp lands, donated 10 the State of Arkan- sss hF an act of Congress approved the 18th day ot September, l0jO lying and being with 'n o,N mileS VI any uaylEable stream in this Sat-, shall be anJ they are hereby chased in the first class, anI the price fixed at seventy. lve cents per acre.
 E. < Jmttey o,alajnel, That all swamp land lylug and being over Six miles from any navi. gable stream jn this State, and all lands between the rivers aud Ievees, are hereby chased in the second class and the price thereof fixed at fifty cents per acre.
 B. f fwtlcr orIqtneI, That the following named streams running through and bordering upon this State are hereby declared navisable streams, aS coming within the perview of this order viz:
 Mississippi, St. Francis, White, Arkansas, Bartholomew, $ lime, OuAchlta, Little River, Little Missouri. Petit Jean, Cashe, Spring, Red and Black rivers.
 TAi, ordinance IS understood to have receiv "a the approval Of tho governor (John 6elden Roane,) and i, was communicated by him to the legislature at the session of 1852 and will De found n the printed report of tine commis- soners at page 20.
 On the 29,h of November, 1852, the gover- nor, (Elias x C1nway) in message to the Ieg stature set out this ordinance in hgc verJu. callin5 special attention 10 t Is subject of sui. hcien. import,uce ,o be definitely settled by an act of the legislature. The recommendation, however, was not followed further than to en- act among other things in general manner that the mrium value Of all swamp and over. flowed lands which are not sold at public sale should be seventy-ive cents per acre, for al lands 0ithia sir males ofa aavigaJle ,oatsr course and fifty cents per acre for all lands being nor, than SIX miles from " nougaJ1e tcqter course.' This act was approved on the 18th of January 1853, (acts of 1852, page 165)
 It will be seen that the act substantial, adopts the language of the ordinance, and cou sidering all the attending circumstances must as l think, be regarded as recognition an, confirmation of the ordinance as fully as if had been actually incorporated into the law ii sell The commissioners had the authority tt thus flX the price of swamp lands. They di, so by declaring in substance, that within si, miles oi certain streams specified by them seventy-tive cents should be the minimum, an, at greater distance fifty cents per acre fo swamp land. Their action having been an proved by the constituted authorities. wa brought to the special notice of the le,islaturf and there being no dissent or the establishment ot any new system, the presumption is aImos irresistible, tha1 iu using the term "raaviqaJl '0ater course" the legislature intended to em brace these streams so declared navigable b, the ordinance of 1851, for the purpose of clas slfylng and fixing the price of swamp lands, an, under which ordinance the board and other had acted
 Therefore the act of the legislature of 12th January, 1853, must be construed as legis lative adoption of that ordinance, and the tern " nauigat1e ,oater courss' as meaning such stream as had been 50 declared in the ordinance abov mentioned
 And for the purpose of classifying and fixin. the miniu'n price of swamp lands, it seems t me that the streams mentioned in that orli nance must be considered as navigable wate courses, ior their entire length in th,s State whether actually navisable or not. And I ar rive at this conclusion, because, while I an mindful, that the discrimination in the pr;ca n swamp land was most probably based on tb ldea that land proxmatlng to streams capable Q and used for the purposes of commerce an navigation, were more valuable than lands m near enough to be directly affected by those ad vantages; yet itis also true, that the diferenc between the miuum on the one class and tb other IS small aud not very material; and it also true that the importance of having a ce, 'aih and definite standard for the land officers state ofnclals and the public, would far out weigh any consideration of loss or gain. in re gard to lands or streams. above the point C navigation It was quite as necessary to hay certain standard, although arbitrary it mich oe' as It was to have minimum price for tn lands. To leave the actual nayigableness q