38 U.S. 498
U.S.
1839
Mr. Justice Barbour

delivered the opinion of the 'Court:

This is a writ of error to the Supreme Courbof the state of Illinois, prosecuted under the 25th section of the judiciary act of 1789. It was an action of ejectment, brought by the defendant in error against the plaintiff in error.

From an agreed case stated in the record, the following appear to be the material facts upon which the questions to be decided arise. The land in question is part of fractional section 10, in township 39, north of range 14, east of.the third principal meridian, in the county of Cook, and state of Illinois; and embraces the military post called Fort Dearborn, of which post, at the time of bringing the suit, Wilcox was in possession, as the commanding officer of the United States; which post was established by the United State's.iri. 1804, and was thereafter occupied by the troops of the United States until the 16th August, 1812, when the troops were massacred, and the post taken by the enemy. It was re-occüpied in 1816, when the United States built upon said fractional section some factory houses for the use of the Indian department.

The troops continued to occupy it until May, 1823, when it was evacuated by order of the government, and was left in possession of the. Indian agent at Chicago. In ■ August, 1828, it was again occupied by the troops, acting under the orders of the Secretary of War, as one of the military posts of the United States.- It was again evacuated by the .troops in. May, 1831; but the government never gave .up possession'of it, but left it in possession of one Oliver Newberry, who authorized a certain George Dole to take and keep it in repair; which he accordingly did. It was again occupied by the troops of the. government in June, 1832, under command of an officer of the army of the United States. It has been occupied by the troops, and was generally known at Chicago to be so occupied, from that time up to the commencement of the suit; and was at the time of the trial still used for that purpose. When it was evacuated in 1831, the quartermaster at the post, acting under orders, sold-the greater part of the movable property in and about the-garrison belonging to the government, but sold none of the buildings. In the year 1817; John B. Beaubean bought of one John Dean, who was an army contractor at the post, a house built upon the land by Deán, at the price of $1000: there, was attached to the house an enclosure occupied by Deanas a garden andfield; Beaubean thentookpossession of the house and enclosure, and continued in possession, cultivating a part of the. enclosure every year, from 1817 to 1836.' In 1823, the factory-houses on the land at said post were sold by order of the Secretary of the Treasury, which, after an intermediate sale, were bought by Beaubean at @500; who took possession, and. continued to occupy the same, together with a part of the quarter section of land, until the commencement of this suit. Beaubean continued to occupy the houses and enclosure, and to cultivate a part of the land, without interruption, from 1817 to the commencement of this suit. The land was surveyed by government in 1821. Since it was reoccúpied by the troops in J 832, and' before the 1st of May, 1834, the United States built a lighthouse on part of ..the land, and have kept at .least twenty acres constantly enclosed and cultivated for the use of the garrison. In the year 1824, at the instance of the then Indian agent at Chicago, who suggested that it would be convenient for the accommodation of the persons and protection of-the property of the agency, the Secretary of War requested the Commissioner of the General Land'Office to direct a reservation to be made for the use of the Indian department at that post; and in October, 1824, the Commissioner answered, saying that he had directed the section now in question to be reserved frqm sale, for military purposes. In May, 1831, Beaubean made a claim for pre-iemption of the land in question. at the land office in Palestine, which was rejected. In February, 1832, in answer to a letter from Beaubean on the subject, the. Commissioner of the General Land Office informed him .that the land in question was reserved for military purposes. • The same information was given to others who made application in behalf of Beau-bean. In 1834, he made claim for a pre-emption in the same, at the Danville land office, which was also rejected. In 1835, Beau-bean applied to the land office at Chicago, when his claim to preemption was allowed; and he paid the.purchase money, and procured the Register’s certificate thereof. Wilcox went into and continued in possession, claiming no-right of ownership; but as an officer of the United States'only, in command of said post, acting ■under’the orders of the Secretary of War, his superior officer, and the United States. Beaubean sold and conveyed his interest to the lessor' of the plaintiff.

Upon this state of facts two questions arise which, in our opinion, embraces the whole merits, of the case; and which wb will now proceed to examine. The first is, whether under the, facts of the case, and the law applying to them, Beaubean acquired any title whatsoever to the land in question ? The second is, whether if he did acquire any title at all, is it such an one- as will enable the lesser of the plaintiff to recover in this action ?

■As to.the first question. The ground of the claim is the right of Beaubean as a settler, to a pre-emption under the act of the' 19th June, 1834, entitled, “An act to revive an act. granting pre-emption rights to settlers on the public lands, passed 29th of May, 1830.” Nqvt, as this act gives to, the persons claiming under ft the benefits; and privileges provided by the act of 1830, which it revives* we must look to this last act in order to ascertain what are those benefits and privileges,-or, in other words, what is the character of the. pre-emption right thus claimed; and on what lands the claim is allowed to operate. It authorizes every settler or occupapt of the public lands, under the circumstances thérein stated] to enter with the Register of the land office in which the land lies, by légal sub-, divisions, a quantity of land not exceeding a quarter section subject •to the -following limitations and restrictions: — “ That no entry or sale of any land shall be made under the provisions of the act, . which shall have been reserved for the use of the United States, or either of the' several states, or which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for-any purpose whatsoever.”

Before we proceed to' inquire whether the land in question falls within the scope of any one Of these prohibitions, it is necessary to examinp.;a,preliminary objection which was urged at the bar, which, if .su^faináble. wquld render, that inquiry wholly unavailing. It is this: — that’the acts of Congress, have given to the Registers and Receivers .of the land offices the power of deciding upon claims to the right Ofpfe-emption — that upon these questions they act judicially — that no appeal having been given from their decision, it follows as á,consequence that it is conclusive and irreversible. This proposition is true in-relation'to every tribunal acting judicially, whilst acting within the sphere of. their jurisdiction, where no appellate tribunal is created; and even’when there is such an appellate power, the” judgment is conclusive when it only comes collaterally into question; so long as it is unreversed. B.ut directly the reverse of this is true in relation to the judgment of any Court acting beyond-the pale of its authority. The principle upon -this subject is ..concisely and accurately stated by this Court in the case of Elliott et al. vs. Peirsol et al., 1 Peters, 340, in these words: “where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed is regarded as binding in every other Cburt. But if it act without authority, its judgments and orders are’ regarded as nullities. . They • are not voidable, but simply void.” Now to apiply this. -. Even assuming that the decision of the Register and Receiver, in the .absence of frauds, Nvould be conclusive as to the facts of the applicant then being in possession, and his cultivation during the preceding year, because these questions are directly submitted to them; yet if they undertake to grant pre-emptions m land in which the law declares they shall not be granted, then they are acting upon a subject mat-' ter clearly not within their jurisdiction ; as much so as if a Court, whose jurisdiction was declared not to extend beyond a.given sum, should-attempt to take cognizance of a’case beyond that.sum.

We nowreturn to the inquiry whether thje land in question falls within any of the prohibitions contained in the act of Congress. Amongst Others,-lands, which may have been appropriated for any purpose; whatsoever, are exempt from liability to the right of pre-emption. Now, that the landfin question has been appropriated in point of fact there can be no doubt, for the case agreed states that it has been used from the year 1804 until and after the institution of'this suit,.as well for the purpose of a'military post as for that of an Indian agency, with some occasional interruption. Now this is appropriation, for that is nothing more nor less than setting apart the thing for some particular use. But it is said that this appropriation must be made by authority of law. .We' think that the -appropriation in this case, was made by authority of law. As far back as the year 1798, see act of May 3d of that year, vol. iii. Laws U, S. 46, an. appropriation rwas made for the purpose, amongst other things, of enabling the President' of the United States- to erect fortifications in such place or places as the public .safety should,- in- his opinion, require. By the act of 21st of April., 1806, vol. iv. Laws U. S., 64, the President-was authorized to,establish trading houses at such posts and -places, on the. frontiers or in the Indian country on either or both sides of the Mississippi river, as he should judge most convenient for' carrying on trade with the Indians. And. by act of June 14, 1809, he was authorized- to erect such fortifications as might, in 'his opinion, be necessary for the protection of the northern and western frontiers. ’ We thus' see that tfte. establishing trading houses with the Indian tribes, and--tho erection of fortifications in the west, are purposes authorized by law; and that;they ' were to be established and erected by the President. But the place in question is one at which a trading house' has been established, and a fortification' or military post erected. It would not.be doubted, we. suppose, by any one, that if Congress had- by law directed the 'trading house to be established and the military post erected .'at Fort Dearborn, by name; that this would-have been by authorityof law. But instead of designating the place themselves, -they left if to- the discretion of the President, which is precisely the'Same thing in effect. Here then is an appropriation, hot only for one but for two purposes, of the same place, by authority of law. ■ But there has been a third' appropriation in this case by authority of law. Congress, by law, authorized the erection of a lighthouse at the mouth of Chicago river, which is within the; limits of the land in question, and appropriated $5000 for its erection; and' the case agreed states that the lighthouse was built on part of the. land in dispute before the 1st of May, 1834. We think, then, that there has been an appropriation, not only in fact but in'law.

■ There would be difficulty in deciding to what extent this appropriation reached, if there were not materials furnished by the record which reduce it to precision. At the' request of the Secre-tary' of War, the Commissioner of the General Land Office in 1824, coloured and marked upon.the map this-very section, as reserved for military purposes, and directed it to be reserved from sale' for those purposes. . We consider this, too, as having been done .by authority of lawq for amongst other provisions, in the act of 1830, all lands are exempted from preemption which áre reserved from sale -by order of the President. , Now although the immediate agent in requiring this reservation was the Secretary of War, yet we feel justified in presuming that it was done by the approbation and,direction of the President. The President speaks and acts through the heads of the several, departments 'in relation to subjects which appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the war department. Hence we consider the act of the Avar department in requiring this, reservation to be made, as being in legal contemplation the act of the President; and; consequently, that the reservation ■ thus made was in legal effect, a reservation made by order of the President, within the terms, of the act of Congress.

It- is argued, however, that by the' 4th section of the act of the 26 th of June, 1834, the President Avas authorized to cause to be. sold all the lands in the north-east district of the state of Illinois, embracing the land in question with certain reservations only, within. which it is contended that the land in question is not- included — that a proclamation was issued directing various lands in said district to be sold, and that amongst the lands so proclaimed was the land in question,, unless excepted by the following exception: — “ the lands reserved by law for the use of schools, and for other purposes, will be excluded from the sale.” — And that an extended plat Avas forwarded from the general land office, marking and colouring certain lands to be reserved from sale; but that the land in question was not so marked or coloured, to be reserved from sale.

In the first place we remark, that we do not consider this law as applying at all to the case. That has relation to a sale of lands in the manner prescribed by general law at public auction, whilst the claim to the land’in question is founded on a right of .pre-emption, and governed by different laws. The very act'of 19th of June, 1834, under which this claim is made, was passed but ope week before the one of which we are noAv- speaking; thus shotving that the provisions of the one were not intended, to. have any effect upon thé subject matter on which- the other operated. But we go further, and say, that whensoever a tract of land shall have once been 'legally appropriated to any purpose, from'that moment the land thus appropriated .becomes severed from the mass of public lands; and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it.; although no reservation were made of it.

The very act which we are now considering will furnish an illustration of this proposition. -Thus, in that act there is expressly reserved from sale the land, within that district which had been granted-to individuals, and the state of-Illinois. Now suppose this reservation had not been made, either in the law, proclamation, or sale, could it be conceived that if that land Avere sold at auction, the title of the purchaser would avail against the individuals or state to whom the previous grants had been made ? If, as we suppose, this question must be answered in the negative, the same' principle will apply to any land which by authority of law shall have been severed from the general mass.. Let us for a moment consider to what results a contrary doctrine would-lead; and the case.before us will furnish a ver/-striking illustration of them. If the party claiming the pre-emption right here were to succeed, together with the land, he would recover all the improvements made upon it at the public expense. The lighthouse and improvements alone, it seems by reference to the act making an appropriation, for its erection, cost $5000. How-much was expended in the buildings at-the--military post we ' have no means of knowing,- but probably a.considerably larger sum, ..Thus, besides the land purchased, for the sum of $94 61, he would recover property, and that too property, necessary for-the military' defence, and commerce, of.the country, which cost-the United. States •many thousands of dollars; and if there had been expended upon it as many-hundreds pf thousands, as there have been thousands, the same result would, follow. A principle leadiug to such startling consequences cannot in -our..opinion be a sound one; The right, of preemption was. a bounty extended tó settlers and occupants of the public domain. We . cannot suppose that this bounty was designed to bé extended at the sacrifice of public establishments, or great public interests. When the aet of 1830. was pass'ed, Congress must have known of the authority which had by former laws been given to the President, to establish trading houses and military posts. • They must have known, for it was part of-the public history of the country, that a military post had been long established at Fort Dear-born ; and' was át the date of the law'occupied as such by the troops of the United Slates.. They seem therefore .to have been studious to use language of so comprehensive a kind, in the exemption from the right of pre-emption, as to embrace every description of reservation and appropriation which had been previously made for public purposes. We have already said, that we- think the -language in which these exemptions are expressed is comprehensive enough to embrace the present case, so as to place it beyond the reach of the right of pre-emption.

It is further argued-that this-case is embraced by the second section of thmact of July 2d, 1836, entitled, “An act to confirm the sales of public lands in. certain cases.’’ That section is in-these . words: “ And be it further enacted,.that' in all cases where an entry has been made under the pre-emption laws pursuant to instructions. sent to the Register and Receiver from the treasury department, and the proceedings have been (in all-other respects fair and regular, such ■ entries and sales are. hereby confirmed; and patents shall be issued thereon, as in other cases.” Now the first remark-we make' Upon this act is, that when the previous law had totally exempted certain lands'from the right of pre-emption, if there were, nothing else in the case, it would' be a very strong, not to say strained construction of this section, to .hold-that Congress meant thereby by implication to repeal the former law in so important a provision. -.But we are satisfied that there were other cases to which it was intended to apply; where the instructions from the treasury department assumed,' to say the least, a doubtful if not an illegal power. As, for example, the instructions of the 7th February and 17th October, .1831, by which entries were allowed to be-made and certificates issued under the act 1830; which was only in force for one year from its passage; after .the, expiration of the year, where the persons claiming had been deprived of the benefits of the act of 1830, by reason of the township plats not having been furnished by the surveyor-general, and where, nevertheless, proofs of the claim had been filed before the expiration of the year. To this case,’ and others similarly situated, the law may well apply; because without affecting the general principles of -the system, they present instances’ in which innocent parties would have been injured by the acts or. omissions of ■public officers, or by some .other, cause, as to which no fault was imputable to them. But, further,.the entries to be saved by this section must have been pursuant to instructions sent to the Register and. .Receiver.from the treasury department, Now it not only.is not shown that any instructions were so sent which would authorize this pre-émption; but, on 'the contrary, the-agreed case.shows that the Register and' Receiver-at the Palestine land office rejected it in .1831; that the Commissioner of the General Land Office, in the same year, in answer to a letter of Beaubedn complaining of that rejection, informed him that the land was reserved for military purposes; and that in July, 1834, after the passage of the pre-emption, law of that year, he applied to the Register and Receiver of the Dan-ville land office to prove a pre-emption to the same land, who also rejected the application,' and again informed him that it was reserved for military purposes. Finally, by the express terms of this section, entries under the. pre-emption laws, to be protected by it must be in all other respects fair and regular. Now as the patents were to be issued by the Commissioner of the General Land Office, and as they were only to issue where the proceedings were fair, and. regular, that' officer, must ’of necessity be the judge of that fairness and regularity. But as he refused to issue the patent, we know not whether he considered the proceedings in this case as being fair and regular. If they were .not so, then they were not confirmed. We •think.therefore that the claimant can derive no aid-from the act of 1836. Our conclusion then, in relation to the first question is, that under the facts of the case, and the law. applying to them; Beaubejan acquired no title whatsoever to the land in question. *

This being the .case,.it would not be absolutely necessary to dpcide the second question; but. as it arises in the case, and has been fully argued,-we’will bestow upon it a very brief examination. -That -question is, whether if he had acquired any title at all, it. was such an. one as would, enable the lessor of the plaintiff below to recover in this' action ? Wilcox, the defendant in the original suit, did not ■ claim, or pretend to set up any right or title in himself. He held possession as an officer of the United States; and for them, and under their orders. This being the state of the cases* the question which we are now examining is really this, whether a person holding a register’s certificate without a patent, can recover the land as' against the United States.

We think it unnecessary to go into a detailed examination of the .'various acts of Congress, for the purpose of showing what we consider to be true in regard to the public > lands,, that with the exception of a few cases, nothing but a patent passes a perfect and consummate title. . One class of cases to be excepted is where an act of Congress grants land,- as is sometimes done in words of present grant. But we need not go into these exceptions. The general rule is what we have stated; and it applies as well to pre-emptions as to other purchases of public lands. .■ Thus it will .appear by the very act of 1836 which we have been examining, that patents' are to issue in pre-emption cases. This then being the case, and this suit having been in effect against the United States; to hold that, the party could recover as against them, would- be to hold that a party having an inchoate and imperfect title could recover against the one in whom resided the perfect title. This, as a general proposition of law, unquestionably,- cannot be maintained.

But it is argued thát a law of the state of Illinois declares that a ..Register’s certificate shall be deemed'evidence of title in the party sufficient to recover possession of the lands described in such certificate, in any action of ejectment of forcible entry and detainer; but the same law declares that this shall bé the case, unless a better legal . and paramount title be exhibited for the samé. Upon the construction of the law itself it would not apply to this case, because the' United States' not having parted with-a consummate legal title by issuing a patent, a better legal and paramount title was exhibited for the same. Where that was not the case;, but the suit should be against any person not having the right of- possession, or against a trespasser, these are the kinds of eases in which it would seem to us,, by the proper construction of the act, that it was intended to’ operate.

A much stronger ground however has been taken iii argument. It has been said that the state of Illinois has a right to declare by law that a title derived from the United States* which by their laws is only inchoate and imperfect, shall be deemed as perfect a title hs if g, patent had issued from the United States; and the construction of her own' Courts seems to give that effect to her statute. That state has an-undoubted right to legislate as she may please in regard to the remedies to be prosecuted in her Courts, and to' regulate the disposition of the property.of her citizens by descent, devise, or alienation.' But the. property in question was a part of the public domain of the United States: Congress is invested by the Constitution with the power of disposing of, and making needful rules and regulations respecting it. Congress has declared, as we have said, .by its' legislation, that in such a case as this a patent is necessary to complete the title. But in this case no patent has issued;- and therefore by the laws of the United States the'legal title has. not passed, but remains in the United States. Now if it were competent for a state legislature to say; that notwithstanding this, the title shall be deemed to hafe passed; the effect of this would he, not that Congress had the power of disposing of the public lands, and prescribing the rules and regulations concerning that disposition, but that Illinois possessed it. That would be to make the laws of Illinois paramount to those of Congress, in relation to a subject confided by the Constitution to Congress only. And the practical result in this very case would be, by force of state legislation to take from the United States their own land, against their own will, and against their own laws. We hold the.true principle to.be this, that'whenever the question in' any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that' legislation is consistent with the admission that the title passed and vested according to the laws of the United States.

It was urged at the bar, that the case of Ross vs. Doe on the de- ■ mise of Barland and others, in this Court, 1 Peters, 656, sustained the ground taken as to the obligatory force' of the law of Illinois. A very, brief examination of that-case will show that it falls greatly short of what it is supposed to decide. That was a conflict-between two patentees, both claiming under the' United States. The elder' patent was founded upon a certificate of the Register -of the land office west -of Pearl river. The junior patent was issued on a certificate of the board of Commissioners west of Pearl river, The Court below instructed . the jury that the junior patent of the plaintiff in ejectment, emanating upon a certificate for a donation claim prior in date to the patent under which the defendant claimed, would overreach the elder patent of -the defendant, and in point of law, prevail against it. It appears, that by the mode of proceeding in-Mississippi, they look beyond the grant This Court, remarking upon that, said, that in-so doing, and in applying their peculiar mode of proceeding to titles derived through and under the laws of the United States, they violated no provisions of any statute, of the United States.

But the Court then proceeded to say: “ The important .question in the case is this ;.'in applying its own principles and practice in the action of ejectment, as might well be done in this .case, has the Court misconstrued the act of Congress in deciding that the grant of- the plaintiff, emanating upon the donation certificate of the oard of Commissioners west of Pearl river set forth in the record, would overreach the defendant’s grant, and should prevail against, it in the action of ejectment.” . They then proceed to examine the various acts of Congress upon the subject; declare their opinion to be, that the determination of the Commissioners was final ; and come to the conclusion, that the Supreme Court of Mississippi -had not misconstrued the acts of Congress, from- which the rights of the parties weje derived; arid, consequently, affirmed the judgment. Thus it will appear, that in that case, whilst the form and mode of proceeding by the law of Mississippi were recognised, yet the -rights of the parties depended exclusively upon the construction of acts of Congress; and that this Court thought that the Court below had construed them correctly. This case, then, affords no countenance whatever to the argument founded upon it.

Upon the whole, we are of opinion that the judgment of the Supreme Court of Illinois is erroneous : it is. therefore, reversed, with costs.

. This cause came on to be heard on- the transcript of the record from the Supreme Court of the state of Illinois, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Supreme Court in this cause be, and the saíne is hereby,' reversed and annulled, with., costs; and that this cause be, and the same is hereby, remanded to the said Supreme Court, that siich further proceedings may be had therein, in conformity to the opinion and judgment of this Court, and as. to law and justice may appertain.