
    DAVID W. MADDUX ET AL. v. THE UNITED STATES.
    [No. 14447.
    Decided. March 2, 1885.]
    
      On the Proofs.
    
    The War Department orders an extension of a military reservation. The “improvements" of squatters on the extension are appraised by a military board, and the report is approved by the Secretary of War.
    I.The Army Regulation, 1881 (art. 139), which provides a method for compensating squatters on military reservations for “ valuable improvements," having been recognized and in legal effect ratified by acts of Congress, must be deemed a lawful regulation of an executive department.
    II.When Congress permit the orders of an executive department to be formulated as regulations, and published, and carried into effect, the legislative ratification must be implied.
    III.Where the legislative intention is that the War Department shall ascertain whether, settlers on the public lands dispossessed by executive authority should be compensated for their equity known as “ improvements,” and the value thereof, the power is analogous to that which authorizes the Commissioner of Internal Revenue to determine whether taxes have been illegally collected and the amount which should be refunded. And an action may be maintained on the award of the Secretary of War, as upon the award of the Commissioner of Internal Revenue.
    
      
      The Reporters statement of the ease:
    The following are the facts, so far as they are involved in the decision of the case:
    I. The settlements of these claimants were on a part of the public domain north of the line of the United States military reservation of Huaclmea, which was located and proclaimed by executive order of October 29, 1881, in pursuance of the act of June 14, 1809 (2 Stat. L., 547). It had been the original intention to make the northern boundary of the reservation coincide with the southern boundary of said grant, “ for the purpose of securing to the government the valuable grazing lands in the vicinity of the post,” but, owing to an error in the first surveys, the part on which these claims were located, was not included; therefore, the enlargement of the reservation to include all the lands between these two boundaries was made and proclaimed by executive order of May 14, 1883. On the extension of this reservation to include the settlements of these claimants, they fell under the regulations of the War Department, General Order No. 74, headquarters of the Army, Adjutant-General’s Office, November 2, 1869, which provide as follows:
    ###**# #
    “Hereafter no squatter or citizen will be permitted to enter or reside upon a military reservation unless he be in the employment of the government or permitted by the department commander, in which case his residence thereon must cease upon his being discharged or the permission withdrawn.
    “ Departmental commanders will exercise a general supervision of all military reservations within the limits of their commands, and will use force to remove squatters or trespassers when, in their judgment, it becomes necessary.
    “Where parties are already in possession, with valuable improvements, the department commander will'cause an investigation to be made, and submit each case separately for the decision and orders of the Secretary of War.” (Arts. 137, 138, 139, Army Beg., 1881.)
    In pursuance of these regulations the commander of the Department of Arizona issued the following order:
    
      “[Special Orders No. 76.]
    “ HEADQUARTERS DEPARTMENT OP ARIZONA,
    “ Whipple Bárreteles, Prescott, July 6, 1881.
    “A board of officers to consist of—
    “ 1. Oapt. T. C. Tupper, Sixth Cavalry,
    “ 2. First Lieut. T. A. Touey, Sixth Cavalry,
    “ 3. Second Lieut. B. H. Cheever, jr., Sixth Cavalry, is appointed to meet at Oanrp Hnaclmca, A. T., at 10 o’clock
    а. m. on Tuesday the 12th instant, or as soon thereafter as practicable, to investigate and report upon the claims to the lands occupied by certain citizens located upon the military reservation at that post; to appraise the value of any improvements made by them, and to assess the amount of damage, if any, done to timber or other public property. The board will make such recommendations as to the settlement of all claims pertaining thereto as it may deem advisable.”
    This board made, among others, the following awards:
    “ No. 4. Improvements consist of two log cabins, two gardens fenced in with brush fence, 10 or 15 acres, broken up and partly under cultivation, and about 1 mile of irrigating ditch.
    “ The board appraised the value of these improvements at $750, and recommends that amount be [mid Tauner and Hayes or their legal representatives.
    
      “ No. 5. Improvements found to be as set forth in statement, the value of which the board appraises at $500, and recommends that amount be paid to John Conley or his legal representatives.
    “No. 7. Improvements found to consist of a log house, the cutting and grading of road up the canon about 3 miles over rocky and difficult country. The board appraised the value of these improvements at $650, and recommends that amount be paid to Morgan and Maddux or their legal representatives.”
    The proceedings of the board were duly forwarded, through department, division, and Army headquarters, to the Secretary of War, who, after submitting the same to the Quartermaster-General, and after a favorable report from that officer, approved the same, as follows:
    “ The proceedings of the board of officers convened by Special Orders No. 76, headquarters Department of Arizona, July
    б, 1881, are approved, and the awards of the board will be included in the estimates to be submitted to Congress in December next.
    “Robert T. Lincoln,
    “ Secretary of War.
    
    “War Department, July 15, 1882.”
    
      An estimate for tbis purpose was submitted to tbe second session Forty-seventh Congress (Ex. Doc. No. 60), and again to the first session of the Forty-eighth Congress (Ex. Doc. No. 82), but said award remains unpaid, as no appropriation has yet been made.
    
      Mr. J. T. Powers and Mr. A. Rutherford for the claimants:
    1. The claimants settled upon lands belonging to the United States, to which the Indian title had been extinguished, and which were subject to the right of pre-emption and homestead settlements, under the conditions, restrictions, and stipulations provided by law, and were not, therefore, trespassers. (Sections 2257,2259, 2289, B. S.; 3 Opinions Att’y-Gen’l, 456; Shepley v. Gowam., 91 U. S. B., 330.) The land system recognizes the superior equity of actual settlers to become the purchasers. (Clements v. Wa/rner, 24 Howard, 394.)
    It is trespass to interfere with this right of the first occupant. (Atherton v. Fowler, 96 U. S. B., 513; Hosmer v. Wallace, 97 U. S. E., 575; United States v. Stanley, 6 McLean, 409.)
    2. These claimants had an inchoate right, which would have ripened into a legal one on the extension of the public surveys to include this land, when could the proper entries be made as required by law. (Sections 2266, 2274, 2275, 2280, 2281; act of June 1,1874, 18 Stat. L., 50; Starlc v. Starrs, 6 Wall., 402.)
    A pre-emptor cannot be undermined by a subsequent purchaser. (3 Opin. Att’y-Gen’l, 139.) The settler has an equity which he can transfer or pledge-. Wright v. Shumway, 2 Am. Law Beg., 20, Dist. Wis., 1853.)
    3. Their claims rest upon the offer or tender of the government, which they in good faith accepted and delivered peaceable possession. The facts, therefore, raise an implied contract if the Seci etary of War did not exceed his authority. (Section 1059, B. S.)
    4. The power of the Executive, as recognized by Congress, to reserve from sale and set apart for public use lands belonging to the United States, is not illegally exercised by recognizing the rights of these claimants and by executing that power on condition of payment of value of claimants’ improvements. (Grisar v. McDowell, 6 Wall., 363.)
    5. This regulation under which this award was made is based upon legislation, and it has legislative sanction. (Act of September 27, 1850, sec. 14, 9 Stat. L., 497; act of February 14, 1853, sec. 9, 10 Stat. L., 158; act of February 19, 1873,17 Stat. L., 467.)
    6. The subject-matter of this claim is a matter submitted to the jurisdiction and control of the Secretary of War by the Constitution and the laws, and his judgment thereon is binding on the government. {United, States v. Jones, 18 Howard, 92.) He was exercising a function imposed upon him by law. (Act of June 14, 1809, 2 Stat. L., 547; 10 Opin. Att’y-Cend, 359.)
    7. This was private property taken for public use within the meaning of the Constitution, and every proper effort has been made by the War Department to secure the' payment of these claims. Had an appropriation applicable to this expenditure been within the control of the Secretary, these .claims would have been paid without question.
    
      Mr. F. R. Roive (with whom was the Assistant Attorney-General) for the defendants :
    1. The lands occupied by the claimants belonged to the defendants. The latter entered upon them not only with claim of title, but with actual title. The property in the lands has never been divested from the United States.
    2. No contract subsists between the United States and the settlers on their public lands to pay the latter for the improvements they may put thereon. The subsequent granting of a patent passes the title, not only to the land but to the house, to the patentee. Neither the President nor the Secretary of War had the authority to promise these settlers payment for their improvements if they would deliver peaceable possession. The claimants must be referred to Congress for such relief as they may be equitably entitled to.
   Nott, J.,

delivered the opinion of the court:

The Army Regulations, 1881 (arts. 137, 138, 139), provide in cases of military reservation that “ where parties are already in possession, with valuable improvements, the department commander will cause an investigation to be made, and submit each case separately for the decision and orders of the Secretary of War.”

In this case the claimants were “ already in possession, with valuable improvements ”; the department commander caused an investigation to be made; the military board examined and reported the improvements to be worth $650, and the Secretary of War approved the report and included the amount in the estimates which he submitted to Congress.

The only question is whether the Army regulation is the lawful regulation of an exeeuti ve department. If it be, this court has jurisdiction of the action under Revised Statutes (section 1059), and the claimants are entitled to recover.

The Army regulation referred to had its inception in General Orders No. 74, Adjutant-General’s Office, November 16, 1869. Subsequently Congress recognized the existence and propriety of the order, in at least one instance, by the Act 19th February, 1873 (17 Stat. L., 467), which appropriated the sum of $14,219 “for private property taken by the government in the extension of the military reservation at Camp Mohave, in the Territory of Arizona, under General Orders No. 74, Adjutant-General’s Office, November 2, 1869, said sum being the total amount awarded by a board of military officers convened by proper authority at said camp in September, 1870, as per their report duly approved by the War Department.”

Still later, by the Act 23d June, 1879 (21 Stat. L., 30, § 2), Congress enacted “ that the Secretary of War is authorized and directed to cause all the regulations of the Army and general orders now in force to be codified and published to the Army.”

The legislative authority, therefore, has directed that this general order be incorporated into and made one of the Army regulations, and has allowed the regulation to remain as a safeguard for all settlers upon the public lands who make improvements thereon before they acquire a title to the premises. It does not comport with national honor to allow such a regulation of on executive department to exist, and the government to acquire the improvements of a settler upon the faith thereof, and then to withhold payment and question the legality of the regulation.

When Congress permit regulations to be formulated and published and carried into effect year after year, the legislative ratification must be implied. Congress, moreover, has always recognized the equitable rig’hts of settlers upon the public domain, and the regulation is in harmony with public policy.

On the part of these settlers, it appears that they acquiesced in the award of the military board, surrendered their improvements to the government, and now seek to recover only the amount awarded them. On the part of the government, it appears that its officers did not assume to evict the settlers, except upon the terms and in the manner prescribed by the regulation, and that the Secretary of War approved their action and authorized the taking of the property upon those terms. Both parties acted upon the faith of the regulation, and each has accepted the result. Their proceedings make a contract in substance, if not in form.

But the Bevised Statutes (section 1059) confer upon this court “jurisdiction to hear and determine” “all claims founded upon” “any regulation of an executive department.” By the term “any regulation” is doubtless intended any regulation within the lawful discretion of the head of an executive department. The present claim certainly is “ founded” upon the regulation; the court is authorized to hear and determine claims founded upon “any regulation”; and the only defense to the action is to hold that the regulation was not authorized by law and is wholly void. This we are not prepared to do. The case seems to us to be one where Congress intended that the War Department should ascertain whether settlers on public lands dispossessed of their holdings by authority of the Executive should be compensated for their equity, know as “improvements,” and the value thereof. The power is akin to that which authorizes the Commissioner of Internal Bevenue to determine whether taxes have been illegally collected and to certify the amount which should be refunded.

The court has not passed upon the value of the improvements in this case. That fact is one that was properly investigated and ascertained by the War Department, and its award, in the absence of fraud or mistake, must be deemed conclusive upon both parties.

The judgment of the court is that the claimants recover the sum of $650.

In the case of John Conley v. The United States, which was submitted at the same time upon similar facts, the judgment of the court was that the claimant recover the sum of $500.

In the case of Francis M, Tanner, snrmving partner, &o., v. United States, which was likewise submitted at the same time and upon similar facts, the judgment of the court was that the claimant recover the sum of $750.  