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SILVER v. LADD.

December 1, 1868

SILVER
v.
LADD.



ERROR to the Supreme Court of Oregon. An act of Congress of 27th September, 1850, providing for the survey and for making donations to settlers of public lands in Oregon,–commonly called the Donation Act,–provides by a part (here quoted verbatim) of its fourth section as follows: 'There shall be, and hereby is, granted to every white settler or occupant of the public lands, American half-breed Indians included, above the age of eighteen years, being a citizen of the United States, or having made a declaration according to law of his intention to become a citizen, or who shall make such declaration on or before the first day of December, 1851, now residing in said Territory, or who shall become a resident on or before the first day of December, 1850, and who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one-half section, or 320 acres of land, if a single man, and if a married man the quantity of one section, or 640 acres; one-half to himself and the other half to his wife, to be held in her own right, and the surveyor-general shall designate the part enuring to the husband and that to the wife, and enter the same on the records of his office.' The fifth section of the same act is thus: 'That to all white MALE citizens of the United States, or persons who shall have made a declaration of intention to become such, above the age of 21 years, emigrating to and settling in said Territory, between 1 December, 1850, and 1 December, 1853, and to all white MALE American citizens not hereinbefore provided for, becoming 21 years of age in said Territory, and settling there between the times last aforesaid, who shall in other respects comply with the foregoing section and the provisions of this law, there shall be, and hereby is granted, the quantity of one-quarter section, or 160 acres of land, if a single man, or if married, or if he shall become married within one year from the time of arriving in said Territory, or within one year after becoming 21 years of age as aforesaid, then the quantity of one-half section, or 320 acres, one-half to the husband and the other half to the wife, in her own right, to be designated by the surveyor-general as aforesaid,' &c. With these provisions in force, Elizabeth Thomas, an aged widow, went with her son, an unmarried man, to Oregon Territory, and settled there. They leved in the same house. It stood upon the line dividing two parcels of land; the line running through the centre of the building. Cultivation was made on both tracts, one being claimed by the mother, the other by the son. On the 17th of May, 1861, the register and receiver of the proper land office issued a donation certificate, declaring Mrs. Thomas to have made the proof which entitled her to a patent for the tract which she claimed. The son received also a certificate for the adjoining tract, which he claimed. There was no dispute about that tract. Mr. Thomas had been a widow for more than twenty years when the settlement was made under which she received the certificate. The certificate granted to Mrs. Thomas was subsequently, June 25, 1862, set aside by the Commissioner of the Land Office, on the ground that she was not the head of a family. On appeal to the Secretary of the Interior, the action of the commissioner was affirmed, on the ground that she was not a settler on the land. In January, 1865 (Mrs. Thomas being now dead, and the land in possession of one Silver, legal representative of her son, and only heir, Fenice Caruthers, who died soon after her), the United States sold the land and granted a patent for part of it to one Ladd, and for the residue to a certain Knott. These brought ejectment against Silver in the Circuit Court of the United States upon the patent. Silver thereupon filed a bill in one of the courts of Oregon against them, setting forth the title of Mrs. Thomas, of her son, and of himself, representing that the patents were clouds on the true title, and praying an injunction against the suit at law. The prayer asked further: 'That the said patents may each be declared to be fraudulent, and as being procured by misrepresentation and fraud, and in favor of the rights of plaintiff, and that they be, and each of them, declared cancelled and set aside, and declared fraudulent and void, and that the claims of said defendants, and each of them, be adjudged fraudulent and void, and without authority of law, and that the title of the said premises be adjudged to be in the estate of Fenice Caruthers, deceased, and that the same be quieted, and that the possession thereof be decreed to the plaintiff.' The court in which the bill was filed dismissed it; and on appeal to the Supreme Court of Oregon the decree was affirmed; that court holding that the donation certificate was void, because Mrs. Thomas, having been an unmarried female, was not such a person as could take lands under the Donation Act. The question here now was the correctness of the affirmance.

The opinion of the court was delivered by: Mr. Justice Miller delivered the opinion of the court.

Mr. J. S. Smith, for the plaintiff in error:

The grounds taken by the Commissioner of the Land Office and by the Secretary of the Interior seem to be without force. We reply to the argument of the Supreme Court of Oregon.

The word man is to be read in a generic sense, and as meaning person. There is probably not an essay or work of any considerable length published in the English language, alluding to the human race, that does not employ the word constantly in this way. The words 'he' and 'man' are used also frequently in acts of Congress to denote both males and females, especially in many prohibitory and penal sections. So, the naturalization laws–like this act a voluntary concession of favors–use the words 'he,' 'him,' and 'man,' constantly to denote and include both men and women.

The expression 'single man,' in this act, points to the quantity of land rather than the classification of persons.*fn1

The qualifications mentioned in section 4 are repeated in section 5, with the addition of the word 'male,' and with a further limitation of persons, by leaving out 'American half-breed Indians.' The age limit is also changed from 18 to 21 years. It is difficult to avoid the conclusion that the difference in phraseology of the two sections was intentional, and the word 'male' was inserted in section 5 and omitted in section 4 for a purpose. To make a word which in common use has both a generic and specific meaning, assume its specific meaning when such meaning is not favored by its position in the context, and is repugnant to the manner in which the legislature have employed other words, would make Congress guilty of discriminating in language without a difference in meaning, and is opposed to the general spirit of the act. Everywhere, through all its parts, the act shows a liberal design and disposition toward making provision for women.

If our view is right, the patent must be cancelled as void. An idea seems to obtain that there is some magic about a patent of the United States which precludes investigation of its validity. But from the beginning, our State courts have entertained a bill to avoid a patent in favor of previously acquired rights, upon precisely the same principles that it would lie to avoid the deed of a private individual, and the United States Supreme Court has taken the same course without exception. The only debatable ground has been to what extent and upon what grounds a patent can be attacked in a court of law.

Messrs. Ashton, Coffey, and Lander, contra:

1. If the word 'man,' as used in section 4, is a generic term, and includes woman as well as man, then it must be a generic term when qualified in the same sentence by the adjective single, as well as when qualified by the adjective married. It cannot have two meanings in the same act, the same section, the same sentence. If by the word man, man alone is meant, the section and sentence have force and meaning; if both are included, the meaning of the clause is destroyed. It would read thus:

'There shall be, and hereby is, granted to every white settler or occupant of the public lands, American half-breed Indians included, &c. If a single man (or woman), and if a married man, (or woman), or if he (or she) shall become married within one year from the 1st of December, 1850, the quantity of one section, or six hundred and forty acres, one half to himself (or herself) and the other half to his wife, to be held by her in her own right.'

This reading is absurd on its face.

2. The state of the Territory of Oregon at the time this law was passed, and the condition of its laws with reference to land, forbid the construction set up by the appellant. Oregon, by treaty, was open to the joint occupation of the subjects of Great Britain and the United States. Under the treaties, citizens of the United States, as is well known, had braved the dangers and endured the privations of an overland journey across the continent, and settled among tribes of Indians which were both hostile and treacherous. Without government or protection, they created a provisional government, and enacted a land law suitable to their wants, and proper to the condition of the country, where a man had to defend as well as to labor upon the land which he claimed and allotted to himself. Under such circumstances, the words 'any person,' in the provisional land law, could hardly be intended to include a single woman. This court, in Stark v. Starrs,*fn2 goes far to sustain the doctrine that Congress had this land law in view when they passed the act of 27th of September, 1850. The construction put upon the act by the Supreme Court of Oregon, whose judgment it is now sought to reverse, is, in effect, an interpretation of a State law by the courts of the State itself.

3. Confessedly Mrs. Thomas was an old woman when she went to Oregon, how old don't clearly appear, but certainly aged. She could not have made the cultivation required. In fact she lived in her son's hourse; he made the settlement, if any was made, but confessedly it was not on this tract. He, not she, was the head of a family. The objections of the commissioner and secretary are, therefore, not without force, though less conclusive than those of the Supreme Court of Oregon.

The donation certificate granted to Elizabeth Thomas was set aside by the Commissioner of the Land Office, June 25, 1862, on the ground that Elizabeth Thomas was not the head of a family. On appeal to the Secretary of the Interior, the action of the commissioner was affirmed, on the ground that she was not a settler on the land. The Supreme Court of Oregon, whose judgment we are now to review, held the ...


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