The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-09

court so found, and the conveyance was so made
| by Valentine The act was not only grant but
law, not only law but contract for consid-
Grafton. soiemniy entered into, TO which the fun
! faith and credit of the United states was
| pledged, and which could not be abrogafed OF
repealed In such case the rule OF construction
between the government and the subject is the
| same as between private parties and the grant
should be most strongly construed against the
/ grantor. fwashburne on Real PROPERTY, vol. s,
| =. a2s ed: Hyma1n vs. Reed, IS Cal, IA, Az,
| ct sc. Of; Commonwealth vs.. Roxbury, Gray
! Mass. so; Martin IS Waddell, 10 Peters, Al;
/ Charles River Bridge vs. Warren Bridge, II Pc
| ters, 5s9l
| In the last cited case Mr. Justice story uses
| the following language:
'sWhat is the most important qualification OF
the rule, II never did apply 10 grants made Tor
valuable consideration by the crown, for IN such
grants the same rule has always prevailed, as IN
| cases between sub5eefs- The mere grant OF
bounty by the king may properly be restricted
/ To Its obvious intent. But the contracts OF the
| king for value are literally expounded. that the
| dignity and justice OF the government may
| never be ieopaEded by petty cvasions and
| technical subleties"
This doctrine Is undoubtedly the true one,
| and whenever directly passed upon has been at
all times recognized by the courts as well rs by
| writers on constitutional law and the theory OF
| government In his celebrated communication
| 70 the Senate, OF January %. l795, Alexander
Hamilton said:
sswhen government enters into contract
with an individual il deposes as TO the matter OF
| the contract its constitutional authority, and
exchanges the character OF a legislator for that
Of moral agent with the same rights and
obligations as an individual Its promises may
power TO legislete, except IN aid of them. It is
IN theory, impossible TO reconcile the idea OF a
promise which ohliges with q power to make q
law, which can vsry the effect OF H. Is Hamil-
tons Works. pp 5lS-5is.
The set Of April ), 1872. provided when the
grant should take effect. which was on the per
the issuance % the scrip. Prom that time moth
/ ing further remained 10 be done on the part of
| Valentine. except TO make the selection. which
IN the language OF the supreme court in LeSsieur
VS.. Price. gave urecision to the grant and at
tsched it 10 the land selected
The only grant At al resembling that TO VAL
entiae is in the act of July ~. 1851. commonly
STYLED the 'sSiaux Half-Breed Act" which pro-
vided for the issuance OF scrip To certain Sioux
half-breeds. on their making deeds 70 the United
States OF certain interests they had in lands in
Minnesota. which, we quote from the act,
(which said certificates or scrip may be located
upon any of the lands within said reservation,
| 10. D. sol
The case OF Iarriviere VS. Madegan. / Dillon,
2. 457, turned on the Interpretation OF this act.
The findings OF the court were made upon a
speciai verdict, showing the following facts:
The plaintiff selerted the land in controversy
and located It with piece of Sioux half breed
scrip. on August IL. 1857. The defendant settled
on the tract October s. 1855, WIS qualified pre-
emptor. and made final pre-emption entry of
L on June 2, 1879. The circuit court OF the
United states for the Eighth circuit said: "The
location OF the land with the scrip, under the
set OF congress OF Julv II, 1854. raised the fee
ont of the United States and vested it in plant
If rs grantee. The scrin End the application be-
came the instruments of title and conferred on
hin, the legal title effectually as could have
been done hv the Issuance OF the patent"
This decision Is in exact conformity with the
long line OF authorities we have read. and is we
think, in connection with them conclusive of
the proposition, that II the land selected BY
Baer- the appellant herein, was. at the time OF
It's selection by him. public lands OF the United
States. was unoccupied and unappropriated,
and was non-mineral in character. the fee, at
the date of plaintiffs location. passed out OF the
United States and vested in plaintiff as legal
representative OF Valentine and as grantee of the
| United States.
In [ complaint herein. Plaintiff below an
| pellant here. has alleged that at the time when
| plaintiff located the land in question. il was
| public land OF the United states. This would
be enough TO settle the SUFFICIENT of the COM
| paint on demurrer, had he stopped there but
Tor the purpose of bringing the issue souareiy
before the court. and permitting the real vital
| question of this action To be raised on the de-
murTer- II went further and qualified this by
the statement that the said tract was mud-fiats
below high water marx and above low water
marx, az the time OF appellants entry
On behalf of the defendant below appellant
here, II Is claimed that tracts OF land situated
Were not public lands of the United States, even
although in territory. and the court below So
found, and sustained the demurrer to the com
! plsinton that ground alone
We think the court below was in error and
that Its decision fnds its sole basis in some
| strained constructions of purely court made law
| and some loose dicta. The position cannot h.
sustained bya single decision of court of last
| resort OF any standing, and is repugnant to the
| principles of elementary law. The FIRST propo-
/ sifion we advance is: That au the lands in the
territory OF Washington. whether high or low,
| wet or dry. not held in private ownership prior
to the admission OF the state into the Union be-
longed to the United States absolutely That
all such lands were public lands. That any
portion of such lands, not.reseryed bv eounetent
authority, or not occupied in good faith BIZ in
tending claimants, under the United States land
laws, was subject to selection by Valentine or
his assigns IN satisfaction of his grant These
| propositions seem TO US too clear to be refuted
In support OF them we cite the following authori-
| ties Irwin vs.. Marshall, % Howard D. 55sl
All the lands in the territories not appropri-
ated by competent authority before they were
acquired. are in the first instance the exclusive
property OF the United States. to be disposed of
| to such persons and at such times ana in such
| modes snd by such titles as the government may
| deem advantageous" UNITED states VS. firatiot,
| II Peters. p. 5261
'The term territory as here used is merely de.
scrlptlye OF one kind OF property, and is equiva-
lent TO the word land. And congress has the
| belonging 10 the United states, and this power
is vested in congress without limitation" [Gib-
son vs.. Chotean, Is Wallace, p. s2l
with respect TO the public domain the con-
stitution vests in congress the power OF disrosi-
| ton, and OF making all needfui rules and reru-
lation. That power il subject TO no limitations
congress has the absolute right 10 prescribe the
time, the conditions, and the mode of transfer
ring this property any part OF IT, ard TO tiesig-
| nate the persons 10 whom tie transfer shall be
made tshiveiy vs.. Weleh, % Federal Repor-
1.-The lands in the territory Of Oregon. inelud.
ing the beds and shores of nayigable waters re-
low ordinary high TIDE o. water, belonged prior
| 10 the admission of the state into the Union 10
/ the nited states, proprietor. and was snb-
| 1ect 10 its jurisdiction as sovereign Upon adj
mission OF the stale into the Uuion. such bed or
shores, not otherwise disposed OF BY the United
/ states, became the property of the state i'm its
sovereign capacity. and subject 10 its iuris,iic-
/ tom and disposal. lease vs. Toftus. b Fed
/ eral, =. ISL
both the sovereign and proprietor Congress Mss
the power 10 govern them and in so doing ex-
I erciseS the combined power of the national and
( state governments, Insurance Company Is. cen
/ ter, Peters, r. SO, and as such sovereign and
prQprleto. u NAV NSpoSe absolutely OF an IRE
1 public land in The territory, whether HIGH or
| low, wet or dry. For the time being. IS sover-
elgu. II hiss the 5sS Bearaia or right og ilrfsiie
Ton and control of the shores for the benefit of
the public. as in the esse of public highway
over private land. while a. proprietor il has me
- pEa9ias'' or right o. private property subject
- Inc 1ss pubtcan1 Gould ". Waters. section
/ 10 his jas pN5sscsss, whether held By the
4 national government during the Territorial
/ pertod or the state thereafter. may be sold or
HsSfse. - y elmer y 10 represent the publie
/ sSoodhtte v. kfbbe Howard, .. al Opinion
/ bY chief Justice TansV.f
| = ncoubte1ly coYgFeSS might have granted
this land T. G, tide lands on Mobile hay. AlsI
70 me patentee. or confirmed his spanish
grant, before Alabama became a state But fbiS
was not done lNstionsl Bank Us. Counts Of
! lankton. iol L. s. .. ISS1
The territories sre but political subdivisions
| o. tne outlying dominion OF the United states
1 Their relation 70 the general government Is
1 F0ueh the San0e s. thsf which eaurtiss baar m
me respective states. and congress nav legisars
Tor theEa a state does for lis rngluicit1 grvsrs
1 zstiouS- The CrEauic law Of : te-rE.r-- So
/ TIE place 81 constitution. IS the Fundamental
/ ~ OF tae local government II Is obligatory on