, 1862-11-17

eeuLISe, II nnlgut wen nappen inst through the
dishonest or mistaken act OF hts subordiaa.e,
tie most valuable aud important OF the mi|t-
ary reservations now held BY the government
out Of the public lands, might be sacridced
h'oagh h. presumption laws to enrich some
spcculative t4yor1te assuming tue disguise OF
riztd the sale Of these reservations, we have
not been without examples where the pubic
interests have suffered under circumstances
creating strong suspicion ot ons,
own will convert the military reserves into
,1hlic lands subject to ption, 1t must
be conceded that the government holds thsm
by a most precaT1uus tenure. The temptation
10 fraud and pecuiat1on which such q power
offers, certainly furnishes an over ~helning
reason in public policy against conceding its
But it will be found that the viesy which I
have taken Of this subject is sustained BY the
almost uniform practice Of the Government |
IN the disposition Of military reservations. |
Where they have become useless for military
1n1poses, Congress has almost invariably pro-
vlded the method OF dtsposing Of them, either
By directing that they should be sold by the
Secretary, or that they should be placed under
the control Of the General Land Office, &C.
coFding to circumstances.
The act OF March 8, 1919, e ST., 520), ar-
thor!zed the Secretary OF War, under the di-
rection Of the President, to cause to BE- sold
such military sites, belonging to the United |
States, as may have been found or BECOME
useless for military purposes, giving to the
Seeretary authority, on payment Of the con-
sideEstion money, TO execute Instruments Of
lille in fee. It having been held by various
| authorities that this act only authorized the
| sale OF military sites which had become use
! the 4.h section Of the act Of March 3, 1857,
III St., 203), extended its provisions t. to ali |
military sites, or such parts thereof which are
or may be ueelees for military purposts."
The act OF 18th August, 1856 u St. 81 pro-
for military pu1pose6 in the State Of Florida, ]
| which, in the opinion Of the Secretary OF War,
| we're no longer useful or desired for such pur |
! poses, or so much thereof as said Secretary /
| might designate, should be and were thereby !
1,}aced under the control OF the general land |
;tlice, to be disposed Of and sold in the same |
1nannsr and nndtr the same regulations as |
ether public lands Of the United States. III |
:lditlon to these general laws. various special |
acis CT Congress may be found scattered
through the Statute books, authoriziCy the |
sale ii whole OR in part, Of particular military
sites or approrriat;nG them to Other public
lists. Il review Of these statutes will show
beyond question that Congress- no more aban-
doped the power to control and dispose OF
military reservations than they did the same
power over the rest Of tie public lands, and
that the method by which, when no longer
needed for military purposes, they We're dis
posed cf, ws just as well de.ired and settled
j.; Congress Is the method BY which the gen
eral be1y OF the pn1l:c lands Was opened 1or
settlement or 81 c.
a striking proof Of the vigilance With which
i;o1 gfess exercised It's power Of control
useE military sites Is furnished by the Oh
section OF the act ot June II, 1858 I'll s..
. ;;;3G) Serious complaint having been made Of
+ tht manntr in which the power OF ssle ot
; 1htee s5ses, conferred By the act of March ),
1857, was exercised congress, By the section
: retired 10, tppalet the then existing laws,
, ar parts of laws, which authorized TIL: aa;e Of
Il 1nll-ar3 sites which we're OF might become
r.. Il Al
Il that said lands should not be subject to sale
r. | or presumption under any OF the LES OF the
10 UIltcd States, with 4 provl=O continuing in
il, force the act Of Augn=t is, 1856, relative to
=. certain reservations IN Flollda.
y. For these reasons am OF opinion that the
~, ]cter IF the secretary OF War to the Secretary
i OF the Treasury, Of tae 11th Of February, ISIS
ID ~as without authority oi law, and utterly void
h. tt the .1iect proposed, and thss tue island tex
ri cept those FRACTIONAL parts granted by &C 5 q
~ C.rgr.sE to certain private peFsons) reilain;
a. u reservation for milirar3 purposes: luis res
- crya1ion, in my opinion, included ori:5sGall,
h. the whole oi the island. do not undefstaas
~ that any doubt has eyer been expressed tha. i
of Lad this extent, but it SO, reference to ~
y. letter Of Secretary Calhoun OF q March. lS''
-, and the letter of Secretary Giss Of the lit
~ September, 1876. and the proceedings ot tn
.ar Land Officers hereunder, will put such dous
NJ | at rtst- But evel II the Island had not bee
tn1 designated as the ex1en: Of the reser:a ID;
nj still, under the principle applied in the CAS-
hr If Mitchell agt. the UujteG States, 8 F.
~ s6l, the whole would necessarily be embrace
~ in it.
~ It follows from this that the isIlud was NJ
,nn subject to presumption under the laws Of tt
ro- Tnitd States in the month Of April, 1S5
: If nei1ler is it at this time; reservations belu
IS. expressly exempted from the operation
a. II have thus far treated this question mo-
~ ~ | fully upon general considerations than vii
..si- reference to the special facts OF the case
thn band, it is because the principle it insoly
haJ / seemed to me- to require 4 fair txAtninas!f
H.. III discussion. Claiming for tue exevuti
~ d power ae think suhversiVe ot the Conat:t
,ct liun, this principle, ii it be correct, lnrss
-. tod far beyond the case in Which it is nc
r. iEei,hed, and if it bc erroneous, ought to
- I rejected as rule of administration
~ But there are certatu fIc;s disclosed in t
- papers yon have, submitted which show t1
of lie theory oi the Rock Island Rescfsati'
49, ~ had been relirquisled, aud had reverted
~; ny the body Of the public l.nds, WAS never !:
"a ~ ccpted by either the legislative eSccuti
IN departments of the goTe7n:icni--lot even
+Ia the war departments
.uS l. CorgTess treated it as reservation II
ac,s open to entry under tue pre-emptloa las
an5 Fur not only did they authoriz. George L
Il scEpolt 10 enter fractionI lua1ter-secti
;. ot Of the island prior to the alleged re:inq1i:
ttn ment Private act, End April, 1871, hut tu
n11r scquen11y thereto, by Private act Of 24:h j.
= q uary, 1866 no st. s43} David i. Sears Il
and grsnted the same privilege.
hr =. The secretary Of the interior, and
az officers Of the 1and-aflice, repeatedly refus
IN. 10 recognize any right Of presumption. a
that ~ 81 ~ az - 10 - us ~; =,
sam in letter 10 the secretary OF the interior,
It in ~ ~ 80 to - tso' s33 -
Wer ~ Laao ~ so d.. 1ass - :,
he tns lass " ane .atuS. -. - ~. ~
+ ;s letter to the House Of Representatives, da'
tion 24th JaIua1y, 1859, in rcspons to resolnt'
:. so @ uation Of the military reservation of Ro
nae Island; whittier the same has been transfers
aosa by the Wsr department to the Interior depR
M ment," &c, after detailing the facts re1at
lem to the reservation and alleged relinqulehme
;tsd and the attempts Of the war department
1reeT sell it, declares that, "the policy OF the
vrd Department., in taking measures for the s
> ~ Of the Rock Island military reservation at
'u-ar it had becone useless military site, 8
nder that Of the Department In charge Of the p1
uun. .rn. Lie lands in declining any action except
survey the island, has been ia accordal
hout with the executive policy in similar cases,
onId WAS, in my opinion, warranted by son
puo toos.iuctluu o4 .oe ia"s l1en ~ aotes.
X not provided any law Or prescribed any c
sni- ditions according to which lands reserved
d Tor M,ilta1y purposes can be reln4ui5hed
zsan H. at 5as dspol Of ths L'nd
ot do iorc, IN reply 10 the inquiry whether the II
Ither ta1y reservation ct Rock Island has been tn
!. Iba tcrrcd by the War Department. to the late
rnst Department, is, that II hts, not been s., tr
. The te1red.''-(Ez. Doc. 2 Sess. S6 Cong, Vol
been No el")
d by ) AttorneyGenera1 Gushing. IN caref
= has prepared opinion Of the 21ss August,
o the Il Up G10) held that Rock Island was
10 the subject to entry as public land because it
1tute, a military reservation.
own l. The var department, since the 1ette
:gisla- Secretary Marcy, has repeatedly and cout
. To ously exercised acts Of control aud jurit
re Ex- ton 6Ter the island quite Inconsistent
act CT the thtoSy of its REIMBURSEMENT True,
Armstrong was evacuated in 1885, and has
Of the since been gar1i5oaed, but the build
1899, which remained, after the sale Of q portle
|, and them in that year, together with the isl
For, in were tEen placed in charge of an agent,
Hilary Sc c.ntinued, at least until the 20sh OF
gation ctmber, 1858. Ietter sec sec War Of that
7ed By And in 1850 an order was Issued by
more secretary Of war to Colonel Mason to
ID :e- tie reservation, but it was never exec1
Z por- Ia conflict with this almost unbroken
lated rent Of legislative and executive action
public opinion, stands the oplnlon or ! Juo2e Mc
lplro ln tee case o. Inc Ch1led States against
Tue Railroad Bridge Company. (6 Mclean,
which. | With the highest respect for the opiuo
5 been HAT distinguished and lamented Judge,
other compelled to believe that, If he had give
tc1nu5 the question under con liberation more
which. full and thorough examination than
lsre:s. | opirion indicates, he would have been
,a.nnt | . different conclusion. As the case is
kno8 | septed, this point seems to have been bu
which | cidentally before hin, and without
plete view Of the facts On page 525 b
=, 4,o c!ares that tsihe abandonment Of Rock
as military post, and tor I'LL public purp