United States v. Midwest Oil Company/Dissent R. Day
Mr. Justice Day, with whom concurred Mr. Justice McKenna and Mr. Justice Van Devanter, dissenting:

This case originated in a bill filed by the United States in the United States district court for the district of Wyoming to restrain trespasses on a certain tract of public petroleum lands in the state of Wyoming, and to obtain an accounting for petroleum claimed to have been wrongfully extracted therefrom. The bill sets up ownership in the United States of the land in question, being a tract of 160 acres, and alleges that the land is chiefly valuable for petroleum; that on September 27, 1909, the tract in controversy, in common with many others, was withdrawn from mineral exploration and from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land laws of the United States; and that this was done by an order promulgated on that day by the Secretary of the Interior, pursuant to the direction of the President. The order listed townships and sections aggregating more than 3,000,000 acres, situated in the states of Wyoming and California. The terms of this order, styled 'Temporary petroleum withdrawal No. 5,' are:

'In aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain, all public lands in the accompanying lists are hereby temporarily withdrawn from all forms of location, settlement, selection, filing, entry, or disposal under the mineral or nonmineral public land laws. All locations or claims existing and valid on this date may proceed to entry in the usual manner after field investigation and examination.'

It appears from the averments of the bill that the lands were originally located by certain individuals after the order of withdrawal and on March 27, 1910; that they were entered upon, explored, and a well drilled, thereby rendering subject to ready extraction large deposits of petroleum of great value; and that the original claimants caused to be filed and recorded in the records of Natrona county, Wyoming, a certain location certificate evidencing claim and location by them of the land as a petroleum placer-mining claim under and in pursuance of the mining laws of the United States. These parties subsequently assigned their rights to the defendant, the Midwest Oil Company, and certain other persons named. The bill also avers that after the withdrawal order of September 27, 1909, on July 2, 1910, a further order of withdrawal, described as 'Order of withdrawal. Petroleum reserve No. 8,' was made by the President, expressly affirming the order of September 27, 1909.

The law under which the location in question was made (29 Stat. at L. 526, chap. 216, Comp. Stat. 1913, § 4635) reads:

'That any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum of other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims.'

Under Rev. Stat. § 2329, Comp. Stat. 1913, § 4628, provision was made for entering and patenting placer-mining claims in like manner as vein or lode claims; and by Rev. Stat. § 2319, Comp. Stat. 1913, § 4614, 'all valuable mineral deposits' were opened to exploration and purchase, and the lands containing them to occupation and purchase under regulations prescribed by law, and according to the local customs or rules of miners.

While the allegations of the bill do not set out all the steps which led up to the President's order of withdrawal of September 27, 1909, we may not only look to its allegations, but read them in the light of public documents embodying the history of the transaction, of which we may take judicial notice. On September 27, 1909, the Secretary of the Interior, by direction of the President, issued the temporary petroleum withdrawal order No. 5, above set forth. The making of this order was preceded by certain correspondence leading up to it. On February 24, 1908, the Director of the Geological Survey addressed a letter to the Scretary of the Inerior, setting forth his opinion as to the superiority of liquid fuel for the Navy, the inadequacy of the coal supply on the Pacific coast, and the fact that the demand for oil was greater than the supply, and that but little oil land remained under governmental control, and that this was being rapidly patented, and his recommendation that the filing of claims to oil lands in California be suspended in order that the government might continue the ownership of the valuable supplies of liquid fuel. On the 17th of September, 1909, the Director sent another letter to the Secretary of the Interior, inclosing a copy of his earlier letter, and saying, in substance, that the arguments contained in that letter had been reinforced by the Survey's Conservation Report on the petroleum resources of the United States, which showed that at that time the production exceeded the demand of the trade, and inasmuch as the disposal of the public petroleum lands at nominal prices encouraged overproduction, legislation providing for the sane development of such resources should be enacted. He also stated that the conservation of the petroleum supply demanded a law providing for the disposal of the oil remaining in the public lands in terms of barrels of oil rather than in acres of land; and further that, considering the use of lubricating oil and of fuel oil for the Navy, there was an immediate necessity for conserving a proper supply of petroleum for the government's use, and he recommended the suspension of the filing of claims to oil lands in California pending legislation on the subject. He also called attention to the fact that the Commissioner of the General Land Office, acting upon his report classifying certain oil lands in California, had issued instructions withholding such oil lands from agricultural entry pending consideration of legislation. And on the same day the Secretary of the Interior addressed a letter to the President, calling his attention to the subject of conservation of the petroleum resources of the public domain, especially with reference to the requirements of the Navy, repeating the substance of the Director's letter, and stating that other lands than those mentioned in the Director's letter had also been withdrawn from entry in California, and concluding that legislation was needed which would assure conservation of an adequate supply of petroleum for the government's needs, but which, he believed, would not interfere with the private development of the California oil pools, and therefore the necessity for temporary withdrawals of the land from entry. Shortly thereafter, on September 26, 1909, the Secretary of the Interior telegraphed to the Acting Secretary from Salt Lake City, where he had seen the President, as follows:

'Have conferred with President respecting temporary withdrawals covering oil lands. If present withdrawals permit mining entries being made of such lands wish the withdrawals modified at once to prohibit such disposition pending legislation.'

The following day the Acting Secretary telegraphed to the Secretary at Helena, Montana:

'Telegram 26th received. California and Wyoming petroleum withdrawals heretofore made permit mining locations. Following your direction I have temporarily withdrawn from all forms of location and entry 2,871,000 acres in California and 170,000 acres in Wyoming, all heretofore withdrawn for classification. My withdrawal prevents all forms of acquisition in future and holds the land in statu quo pending legislation.'

And thereupon the withdrawal order of September 27, 1909, above set forth, was promulgated.

It is to be observed that the lands here in controversy are situated in the state of Wyoming. There was no suggestion that such lands would ever be needed as a basis of oil supply for the Navy. They were withdrawn solely upon the suggestion that a better disposition of them could be made than was found in the existing acts of Congress controlling the subject.

From this statement it is evident that the first question to be decided concerns the validity of the President's withdrawal order of September 27, 1909, and it is necessary to determine whether that order was within the authority of the President, and had the effect to withdraw the land in controversy from location under the mineral land law, or whether, as held in the court below, that order had no force and effect to prevent persons from acquiring rights under the then-existing statutes of the United States concerning the subject.

The Constitution of the United States in article 4, § 3, provides: 'The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' In this section the power to dispose of lands belonging to the United States is broadly conferred upon Congress, and it is under the power therein given that the system of land laws for the disposition of the public domain has been enacted. United States v. Gratiot, 14 Pet. 526, 536, 537, 10 L. ed. 573, 578; United States v. Fitzgerald, 15 Pet. 407, 421, 10 L. ed. 785, 790; Van Brocklin v. Tennessee, (Van Brocklin v. Anderson) 117 U.S. 151, 168, 29 L. ed. 845, 851, 6 Sup. Ct. Rep. 670; Wisconsin C. R. Co. v. Price County, 133 U.S. 496, 504, 33 L. ed. 687, 690, 10 Sup. Ct. Rep. 341. In the last case this court said:

'The Constitution vests in Congress the power to 'dispose of the make all needful rules and regulations respecting the territory or other property belonging to the United States.' And this implies an exclusion of all other authority over the property which could interfere with this right or obstruct its exercise.'

It is contended on behalf of the government that the power of the President to make such orders as are here in question has grown up from the authorization of Congress in its legislation and because of its long sanction by acquiescence in the exercise of such Executive authority, so that, if it be admitted that the authority of the President to deal with the public lands must come from Congress, the sanction which such action of the Executive has received in the course of many years of legislation and congressional acquiescence is as effective as though the express authority had been conferred by law. In aid of this argument the general course of legislation is pointed to, and the decisions of this court and opinions of Attorneys General in connection with certain acts are cited. Upon the other hand, it is contended that if these acts are to be taken as the general declaration of congressional intent upon the subject, they contain express authorization of the President to make withdrawals when Congress wishes to confer such power. Some of the instances referred to are set out in the margin. 

It is thus explicitly recognized, as was already apparent from the terms of the Constitution itself, that the sole authority to dispose of the public lands was vested in the Congress, and in no other branch of the Federal government. The right of the Executive to withdraw lands which Congress has declared shall be open and free to settlement upon terms which Congress has itself prescribed is said to arise from the tacit consent of Congress in long acquiescence in such Executive action, resulting in an implied authority from Congress to make such withdrawals in the public interest as the Executive deems proper and necessary. There is nothing in the Constitution suggesting or authorizing such augmentation of Executive authority, or justifying him in thus acting in aid of a power which the framers of the Constitution saw fit to vest exclusively in the legislative branch of the government.

It is true that many withdrawals have been made by the President and some of them have been sustained by this court, so that it may be fairly said that, within limitations to be hereinafter stated, Executive withdrawals have the sanction of judicial approval; but, as we read the cases, in no instance has this court sustained a withdrawal of public lands for which Congress has provided a system of disposition, except such withdrawal was-(a) in pursuance of a policy already declared by Congress as one for which the public lands might be used, as military and Indian reservations, for which purposes Congress has authorized the use of the public lands from an early day, or (b) in cases where grants of Congress are in such conflict that the purpose of Congress cannot be known, and therefore the Secretary of the Interior has been sustained in withdrawing the lands from entry until Congress had opportunity to relieve the ambiguity of its laws by specifically declaring its policy.

It is undoubtedly true that withdrawals have been made without specific authority of an act of Congress, but those which have been sustained by this court, it is believed, will be found to be in one or the other of the categories above stated. On the other hand, when the Executive authority has been exceeded, this court has not hesitated to so declare, and to sustain the superior and exclusive authority of Congress to deal with the public lands.

The first decision of this court which has come to our attention in which this matter was dealt with is Wilcox v. Jackson, 13 Pet. 498, 10 L. ed. 264, decided in 1839. That case involved a controversy concerning the lands occupied by the military post called Fort Dearborn, in Cook county, Illinois. The lands had been used for many years as a military post and an Indian agency, and in 1824 were reserved by the Commissioner of the General Land Office at the request of the Secretary of War for military purposes. It also appears that prior to May 1, 1834, the government built a lighthouse on part of the land. When the suit was brought by Jackson to recover them they were in the possession of Wilcox, commander of the post, who claimed the right to hold them as an officer of the United States under the orders of the Secretary of War. The claim asserted by Jackson arose from the preemption allowed to his lessor's predecessor in title under the act of June 19, 1834 (4 Stat. at L. 678, chap. 54), which revived the act of May 29, 1830 (4 Stat. at L. 420, chap. 208), which provided that 'no entry or sale of any land shall be made, under the provisions of this 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.' The court, after stating that lands which had been appropriated for any purpose whatsoever were exempt from pre-emption and that the lands in question had been in fact appropriated, reviewed lagislation authorizing the President to erect fortifications and to establish trading houses, and, in concluding that the appropriation had been made by authority of law, said (p. 512):

'We thus see that the establishing [of] trading houses with the Indian tribes, and the 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 anyone, 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 authority of law. But instead of designating* the place themselves, they left it to the discretion of the President, which is precisely the same thing in effect. Here, then, is an appropriation, not 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 $5,000 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.'

The court, after remarking that Congress must have known of the authority which had been given to the President by former laws to establish trading houses and military posts, and that a military post had long been established at Fort Dearborn, said (p. 514): '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.'

With reference to the reservation of 1824, the court merely said: 'We consider this, too, as having been done by authority of law; for amongst other provisions in the act of 1830, all lands are exempted from pre-emption which are reserved from sale by order of the President.' (And the court held that the act of the Secretary of War was that of the Executive.) But the court later laid down the rule that when lands have been legally appropriated, they immediately become severed from the mass of public lands, and that no subsequent law or proclamation would embrace them, although no reservation had been made of them. From that case, therefore, the following propositions are deduced: That where there is a legal appropriation, reservation is unnecessary, but that the reservation in that case had been ratified by a subsequent act of Congress. And that the appropriation of the land in controversy in that case had been by authority of law, i. e., power placed in the President by Congress by acts passed before and after the exertion of such power by the President.

Grisar v. McDowell, 6 Wall. 363, 18 L. ed. 863, is another case relied upon. There had been a controversy between the city of San Francisco and the United States with reference to the extent of the pueblo lands belonging to the former, which had been determined by an order of court confirming the title of the city subject to the exception of lands 'reserved or dedicated to public uses by the United States' and by the act of Congress of March 8, 1866 (14 Stat. at L. 4, chap. 13), relinquishing the claim of the United States subject to the reservation in the decree. Grisar, claiming title from the city, sought to recover possession of land which had been reserved by order of the President for public purposes, and which was held by the defendant, an officer in the Army of the United States, commanding the military department of California, who had entered upon the premises and held them under the order of the Secretary of War as part of the public property of the United States reserved for military purposes. In dealing with the right of the President to make the reservation the court first held that it made no difference whether or not the President possessed sufficient authority to make the reservation, because, being a part of the public domain, they were excluded from lands affirmed to the state under which the plaintiff claimed. In dealing with the power of the President the court said:

'But, further than this: from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.'

In this connection the court cited acts of Congress recognizing the authority of the President, among others, the pre-emption act of May 29, 1830, supra, in which it was provided that the right of pre-emption should not extend to lands reserved from sale by act of Congress or by order of the President, and the act of September 4, 1841 (5 Stat. at L. 456, chap. 16), exempting lands reserved by any treaty, law, or proclamation of the President, and of March 3, 1853 (10 Stat. at L. 246, chap. 145), excepting lands appropriated under authority of the act, or reserved by competent authority, and held that this reservation by competent authority meant the authority of the President, and those acting under his direction. Furthermore, the court held that the action of the President in making the reservations had been indirectly approved by Congress by appropriating moneys for the construction of fortifications and other public works upon them, and that the reservations embraced lands upon which public buildings had been erected. The language of Mr. Justice Field, above quoted, as to the authority of the President, has been frequently quoted in subsequent opinions of Attorneys General, and has been made the basis of opinions for broad authority in the President. It is to be observed, however, that in that case the law, recited in the opinion as giving the power of reservation, contained congressional authority directly to the President or competent authority, which it was held meant the President, and the statement was added that the action of the President had been approved by Congress appropriating money for fortifications and other public works.

The government also relied upon a series of cases in this court which may be called the Des Moines River Cases, beginning with Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689, and followed by Riley v. Welles, 154 U.S. 578, and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166; Williams v. Baker (Cedar Rapids & M. R. Co. v. Martindale) 17 Wall. 144, 21 L. ed. 561; Iowa Homestead Co. v. Valley R. Co. 17 Wall. 153, 21 L. ed. 622; Wolsey v. Chapman, 101 U.S. 755, 25 L. ed. 915; Litchfield v. Webster County, 101 U.S. 773, 25 L. ed. 925; Dubuque & S.C.. R. Co. v. Des Moines Valley R. Co. 109 U.S. 329, 27 L. ed. 952, 3 Sup. Ct. Rep. 188; Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 167, 30 L. ed. 1123, 7 Sup. Ct. Rep. 1149; United States v. Des Moines Nav. & R. Co. 142 U.S. 510, 35 L. ed. 1099, 12 Sup. Ct. Rep. 308. In the original case, 5 Wall. 681, it is shown that the cases grew out of an act of Congress of August 8, 1846 (9 Stat. at L. 77, chap. 103), granting to the then territory of Iowa for the purpose of aiding it in improving the navigation of the Des Moines river from its mouth to the Raccoon Fork, 'one equal moiety, in alternate sections, of the public lands in a strip five miles in width on each side of said river.' This ambiguous description gave rise to the controversy which appeared from time to time in the cases mentioned, and arose from the doubt whether the grant to Iowa included lands above the Raccoon Fork. Early in the year 1848 the Commissioner of the General Land Office decided that the grant extended beyond Raccoon Fork, but later in that year the President by proclamation ordered the sale of some of this land above the Fork in the following October. On June 16, 1849, however, the Secretary of the Treasury, having construed the grant to include the lands above the Fork, directed that they should be reserved from the sale. The control of the General Land Office having passed to the Secretary of the Interior, on April 6, 1850, he reversed the decision of the Secretary of the Treasury, but directed that the lands embraced within the state's selections should be reserved from sale. The matter was before two Presidents and their cabinets, with different results, and finally, on Octor 29, 1851, the Secretary of the Interior held that, in view of the great conflict among executive officers of the government, and in view of the opinion of eminent jurists which had been presented to him in favor of the construction contended for by the state, he was willing to recognize the claim of the state and approve the selections, without prejudice to the rights, if any there be, of other parties. The history of subsequent legislation, not necessary to now recite, is given in the opinion, and then the act of May 15, 1856 (11 Stat. at L. 9, chap. 28), upon which the plaintiff relied, was considered, in which was found the provision that 'any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever,' were reserved from the operation of the act. This was a grant made to the railroads which it was admitted covered the tract in controversy, unless excluded by the proviso. It was held that the lands had been reserved by competent authority, the court saying (p. 688):

'It has been argued that these lands had not been reserved by competent authority, and hence that the reservation was nugatory. As we have seen, they were reserved from sale for the special purpose of aiding in the improvement of the Des Moines river first, by the Secretary of the Treasury, when the Land Department was under his supervision and control, and again by the Secretary of the Interior after the establishment of this Department, to which the duties were assigned, and afterwards continued by this Department under the instructions from the President and Cabinet. Besides, if this power was not competent, which we think it was ever since the establishment of the Land Department, and which has been exercised down to the present time, the grant of 8th August, 1846, carried along with it, by necessary implication, not only the power, but the duty, of the Land Office to reserve from sale the lands embraced in the grant. Otherwise its object might be utterly defeated. Hence, immediately upon a grant being made by Congress for any of these public purposes to a state, notice is given by the Commissioner of the Land Office to the registers and receivers to stop all sales, either public or by private entry. Such notice was given the same day the grant was made, in 1856, for the benefit of these railroads. That there was a dispute existing as to the extent of the grant of 1846 in no way affects the question. The serious conflict of opinion among the public authorities on the subject made it the duty of the land officers to withhold the sales and reserve them to the United States till it was ultimately disposed of.'

It is therefore apparent that this reservation was sanctioned, because it had become the duty of the officers, who were by law charged with the administration of the grants and required to give effect to them, to withhold the lands from sale and reserve them because of the doubt of the extent of the grant of 1846. In other words, if the lands had been granted to the state of Iowa, it could not possibly have been the intention of Congress to subject them to selection or grant under other laws, and this court said that the power to reserve them arose by necessary implication from the grant of 1846.

In Riley v. Welles, 154 U.S. 578, and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166, involving a claim of title under the pre-emption section of the act of September 4, 1841, to land covered by the withdrawal under the act of 1846, this court followed Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689, and repeated its decision as to the effect of the reservation.

In Williams v. Baker (Cedar Rapids & M. R. Co. v. Martindale) 17 Wall. 144, 21 L. ed. 561, and Iowa Homestead Co. v. Valley R. Co. 17 Wall. 153, 21 L. ed. 622, both involving title to lands claimed under the grant of 1856, as against titles founded on the 1846 act, as did the Wolcott Case, the court affirmed the validity of the reservation under the act of 1846, for the reason that the proviso in the act of 1856 prevented the railroad from acquiring the land.

In Wolsey v. Chapman, 101 U.S. 755, 25 L. ed. 915, where the controversy was whether the grant to the territory of Iowa, by the act of September 4, 1841, supra, of the right to select a quantity of lands for internal improvement purposes, excepting such as were or might be 'reserved from sale by any law of Congress or proclamation of the President,' permitted the selection of certain lands covered by the reservation in these cases, it was held (pp. 768, 769):

'They were reserved also in consequence of the act of 1846. The proper executive department of the government had determined that, because of doubts about the extent and operation of that act, nothing should be done to impair the rights of the state above the Raccoon Fork until the differences were settled, either by Congress or judicial decision. For that purpose an authoritative order was issued, directing the local land officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in Riley v. Welles, was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, notwithstanding it was afterwards found that the law, by reason of which this action was taken, did not contemplate such a withdrawal.

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'The truth is, there can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the Executive Department of the government.'

Litchfield v. Webster County, 101 U.S. 773, 25 L. ed. 925, involved the question as to whether the title to the lands above the Fork vested in the state by the act of 1846, for purpose of taxation, and, affirming the previous cases, the court held that the action of the Executive Department of the general government reserved the land above the Fork so that it 'did not pass to the state when selected as school lands under the act of 1841, or as railroad lands by the grant of 1856, and were not open to pre-emption entry,' and the Executive order 'simply retained the ownership in the United States.'

The case of Dubuque & S.C.. R. Co. v. Des Moines Valley R. Co. 109 U.S. 329, 27 L. ed. 952, 3 Sup. Ct. Rep. 188, also involved a controversy as to whether title vested under the river or railroad grant, and the court held that the validity of the reservation was no longer an open question.

The history of the matter was restated in Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 167, 30 L. ed. 1123, 7 Sup. Ct. Rep. 1149, it being made to appear especially that the order withdrawing the land was in effect during all the time up to the passage of the act of July 12, 1862 (12 Stat. at L. 543, chap. 161), and that after the decision in the case of Dubuque & P. R. Co. v. Litchfield, 23 How. 66, 16 L. ed. 500, had determined that Congress had not, by the act of 1846, granted the land above the Fork to Iowa, the Commissioner of the General Land Office, by notice of May 18, 1860, continued the reservation, notwithstanding the decision just referred to. And it was held that the resolution of Congress of March 2, 1861 (12 Stat. at L. 251), did not end the reservation, and that claims inaugurated after that resolution and before the passage of the act of July 12, 1862, were subject to the reservation. The court said (p. 170):

'This court has decided in a number of cases, in regard to these lands, that this withdrawal operated to exclude from sale, purchase, or pre-emption all the lands in controversy, and unless the case we are about to consider constitutes an exception, it has never been revoked.

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'During all this controversy there remained the order of the Department having control of the matter, withdrawing all the lands in dispute from public sale, settlement, or pre-emption. This withdrawal was held to be effectual against the grant made by Congress to the railroad companies in 1856, because that act contained the following proviso:

"That any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States."

The court quoted the notice of the Commissioner of the General Land Office of May 18, 1860, that the land above the Fork 'which has been reserved from sale heretofore on account of the claim of the state thereto will continue reserved, for the time being, from sale or from location, by any species of script or warrants, notwithstanding the recent decision of the Supreme Court against the claim. This action is deemed necessary to afford time for Congress to consider upon memorial or otherwise, the case of actual bona fide settlers holding under titles from the state, and to make such provision, by confirmation or adjustment of the claims of such settlers, as may appear to be right and proper.' And the court said (p. 173):

'It will thus be seen that, notwithstanding the decision of the Supreme Court of the United States in the winter of 1860, the Land Office determined that the reservation of these lands should continue for the purpose of securing the very action by Congress which the state of Iowa was soliciting, and it is not disputed by counsel for the appellant in this case that this was a valid continuation of such reservation, and that during its continuance the pre-emptions under which the plaintiff claims could not have been made. . . .

'We do not think the joint resolution had the effect to end the reservation of these lands from public entry. . . .

'This is not the way in which a reservation from sale or pre-emption of public lands is removed. In almost every instance in which such a reservation is terminated, there has been a proclamation by the President that the lands are open for entry or sale, and in most instances they have first been offered for sale at public auction. It cannot be seen, from anything in the joint resolution, that Congress either considered the controversy ended, or intended to remove the reservation instituted by the Department. Its immediate procedure at the next session to the full consideration of the whole subject shows that it had not ceased to deal with it; that the reason for this withdrawal or reservation continued as strongly as before, and it cannot be doubted that the subject was before Congress, as well as before its committees, and that the act of July 12, 1862, was, for the first time, a conclusion and end of the matter so far as Congress was concerned.'

The last of the Des Moines River Cases, United States v. Des Moines Nav. & R. Co. 142 U.S. 510, 35 L. ed. 1099, 12 Sup. Ct. Rep. 308, was a suit instituted by the United States to quiet its title to certain of the lands conveyed by the state of Iowa to the Navigation Company and others, claiming that the trust had not been performed, and, after reviewing the history of the matter and the previous cases at considerable length, the court again stated the effect of the reservation (p. 528):

'The validity of this reservation was sustained in the case of Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689, decided at December term, 1866. In that case it was held that, even in the absence of a command to that effect in the statute, it was the duty of the officers of the Land Department, immediately upon a grant being made by Congress, to reserve from settlement and sale the lands within the grant; and that, if there was a dispute as to its extent, it was the duty to reserve all lands which, upon either construction, might become necessary to make good the purposes of the grant. This ruling as to the power and duty of the officers of the Land Department has since been followed in many cases. Bullard v. Des Moines & Ft. D. R. Co. supra, and cases cited in the opinion.'

In the case now before us Congress in the statutes referred to had expressly subjected these lands to the operation of the placer mining law, and had authorized their exploration for oil, and their location, entry, and purchase as mineral lands. Congress had in this way exercised its power and manifested its will, and such was the situation when the withdrawal in question was made. Deriving the aim of the Executive from the various documents to which we have referred, it may be fairly deduced that the prevailing purpose (and that was the sole purpose so far as the lands here involved were concerned) in making the withdrawal was to anticipate that Congress, having the subject-matter brought to its attention, might and would provide a better and more economical system for the disposition of such public lands, and, secondarily, to preserve some of the oil lands in California as a basis of naval supply in the future, the latter purpose not at that time declared or recognized by Congress. For these purposes the President had no express authority from Congress; in fact, such is not claimed. The authority which may arise by implication, we think, must be limited to those purposes which Congress has itself recognized by either direct legislation or long-continued acquiescence as public purposes for which such withdrawals could be made by the Executive. That the President might, by virtue of his executive authority, take action to preserve public property, or, in aid of the execution of the laws, reserve tracts of land for definitely fixed public purposes, declared by Congress, such as military or Indian reservations, may be conceded; but we are unable to find sanction for the action here taken in withdrawing a large part of the public domain from the operation of the public land laws in the power inherent in this office, as created and defined by the Constitution, or in any way conferred upon him by the legislation of Congress, or in that long acquiescence in the exercise of authority sanctioned by Congress in such manner as to be the equivalent of a grant to the President.

The constitutional authority of the President of the United States (art. 2, §§ 1, 3) includes the executive power of the nation and the duty to see that the laws are faithfully executed. 'The President 'shall take care that the laws be faithfully executed.' Under this clause his duty is not limited to the enforcement of acts of Congress according to their express terms. It includes 'the rights and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution." Cooley, Const. Law, p. 121; Re Neagle, 135 U.S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658. The Constitution does not confer upon him any power to enact laws or to suspend or repeal such as the Congress enacts. Kendall v. United States, 12 Pet. 524, 613, 9 L. ed. 1181, 1216. The President's powers are defined by the Constitution of the United States, and the government does not contend that he has any general authority in the disposition of the public land which the Constitution has committed to Congress, and freely concedes the general proposition as to the lack of authority in the President to deal with the laws otherwise than to see that they are faithfully executed.

As we have said, while this court has sustained certain withdrawals made by the Executive, in carrying out a policy for which the use of the public lands had been indicated by congressional legislation, and has sustained the right of withdrawal where conflicting grants had been made by Congress, and additional legislation was needed to expressly declare the purpose of Congress, the court has refused to sustain withdrawals made by the Executive branch of the government when in contravention of the policy for the disposition of the lands declared in acts of Congress. In Southern P. R. Co. v. Bell, 183 U.S. 675, 46 L. ed. 383, 22 Sup. Ct. Rep. 232, it was held that the Secretary of the Interior had no authority to withdraw lands within the indemnity limits of a grant from sale or pre-emption, when Congress had indicated its purpose that such lands might be taken up by settlers before the road had exercised its right of selection. In Brandon v. Ard, 211 U.S. 11, 53 L. ed. 68, 29 Sup. Ct. Rep. 1, the conflict was between an attempted withdrawal in aid of a land grant and a homestead settlement three years later, and this court held that the withdrawal of the lands from sale or settlement prior to the definite location of the road, and before they were selected to supply deficiencies in place or granted limits, was without authority of law, and that the homestead settlement, under existing laws of Congress, must prevail over such attempted withdrawal. The same principle was declared and enforced in Osborn v. Froyseth, 216 U.S. 571, 54 L. ed. 619, 30 Sup. Ct. Rep. 420.

In Lockhart v. Johnson, 181 U.S. 516, 520, 45 L. ed. 979, 982, 21 Sup. Ct. Rep. 665, Mr. Justice Peckham, speaking for the court, tersely stated the rule:

'Public lands belonging to the United States, for whose sale or other disposition Congress has made provision by its general laws, are to be regarded as legally open for entry and sale under such laws unless some particular lands have been withdrawn from sale by congressional authority or by an Executive withdrawal under such authority, either expressed or implied.'

We think the rule thus stated is the result of the previous decisions of this court, when properly construed, and is consistent with the authority over the public lands given to Congress under the Constitution, and properly rests Executive power to deal with such lands by way of withdrawal upon the express or implied authority of the Congress. In other words, it may be fairly said that a given withdrawal must have been expressly authorized by Congress, or there must be that clear implication of congressional authority which is equivalent to express authority; and when such authority is wanting there can be no Executive withdrawal of lands from the operation of an act of Congress which would otherwise control.

The message of the President of January 14, 1910, indicates that he doubted his authority to make such withdrawals. In that message, after referring to the lax manner in which the government had been disposing of the public lands under the mining and other acts, and the need of properly classifying lands and revising the mode of disposing of the oil and other deposits in them with greater regard to the public interests, but without hindering development, he said:

The power of the Secretary of the Interior to withdraw from the operation of existing statutes tracts of land the disposition of which under such statutes would be detrimental to the public interest is not clear or satisfactory. This power has been exercised in the interest of the public with the hope that Congress might affirm the action of the Executive by laws adapted to the new conditions. Unfortunately, Congress has not thus far fully acted on the recommendations of the Executive, and the question as to what the Executive is to do is, under the circumstances, full of difficulty. It seems to me that it is the duty of Congress now by statute to validate the withdrawals that have been made by the Secretary of the Interior and the President, and to authorize the Secretary of the Interior temporarily to withdraw lands pending submission to Congress of recommendations as to legislation to meet conditions or emergencies as they arise. . . .

'I earnestly recommend that all the suggestions which he [the Secretary of the Interior] has made with respect to these lands shall be embodied in statutes, and, especially, that the withdrawals already made shall be validated so far as necessary, and that the authority of the Secretary of the Interior to withdraw lands for the purpose of submitting recommendations as to future dispositions of them where new legislation is needed shall be made complete and unquestioned.'

After the receipt of this message, a considerable number of bills being before the Senate and House of Representatives upon the subject, the matter was taken up and in the House of Representatives a bill was passed providing for withdrawals under certain conditions, and providing that 'all withdrawals heretofore made and now existing are hereby ratified and confirmed as if originally made under this act.' The bill in that form did not pass the Senate. It was, however, adopted in a materially modified form in the act of June 25, 1910 (36 Stat. at L. 847, chap. 421, Comp. Stat. 1913, § 4523), which reads:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President may, at any time, in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States, including the district of Alaska, and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an act of Congress.

'Sec. 2. That all lands withdrawn under the provisions of this act shall at all times be open to exploration, discovery, occupation, and purchase, under the mining laws of the United States, so far as the same apply to minerals other than coal, oil, gas, and phosphates: Provided, That the rights of any person who, at the date of any order of withdrawal heretofore or hereafter made, is a bona fide occupant or claimant of oil or gas bearing lands, and who, at such date, is in diligent prosecution of work leading to discovery of oil or gas, shall not be affected or impaired by such order, so long as such occupant or claimant shall continue in diligent prosecution of said work: And provided further, That this act shall not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to the passage of this act: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provisions of this act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entryman or settler shall continue to comply with the law under which the entry or settlement was made. And provided further, That hereafter no forest reserve shall be created, nor shall any additions be made to one heretofore created within the limits of the states of Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by act of Congress.

'Sec. 3. That the Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session after the date of the withdrawals.'

The reports of the Senate Committee show that its members were divided as to the authority of the President to make the withdrawal order in question. The majority report stated that, in any view, the President had the authority without additional legislation; the minority reached the opposite conclusion.

It is to be noted that the act of June 25, 1910, conferred specific authority for the future upon the President, but gave no approval to the withdrawal of September 27, 1909, containing instead an express provision that the act should not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after the withdrawal of such lands, made prior to the passage of the act. While the order of September 27, 1909, withdrew the lands from all form of settlement, location, sale, entry, or disposal under the mineral or nonmineral public land laws, the act of June 25, 1910, excepts from the power of withdrawal conferred upon the President lands embraced in any lawful homestead or desertland entry theretofore made or upon which any valid settlement had been made and was being maintained and perfected pursuant to law. Furthermore, the act provides that the rights of a bona fide occupant or claimant of oil or gas bearing lands, complying with the provisions of the statute relating thereto, shall not be affected or impaired by a subsequent order of withdrawal. In this statute there certainly is no congressional assent to the Executive withdrawal of September 27, 1909. The validation or ratification asked in the President's message was withheld, and only restricted authority for the future was granted in the act of June 25, 1910; not only so, but the rights of the locators involved in this case were preserved to whatever extent they existed in the absence of a ratification of the withdrawal. When express ratification is thus asked and refused, in our view no power by implication can be fairly inferred. Barden v. Northern P. R. Co. 154 U.S. 288, 317, 38 L. ed. 992, 998, 14 Sup. Ct. Rep. 1030; Durousseau v. United States, 6 Cranch, 307, 318, 3 L. ed. 232, 235; Eyster v. Centennial Bd. of Finance, 94 U.S. 500, 503, 24 L. ed. 188, 189. The act of June 25, 1910, neither ratified the withdrawal of September 27, 1909, nor empowered the President so to do by his order of July 2, 1910.

The government of the United States is one of limited powers. The three co-ordinate branches of the government are vested with certain authority, definite and limited, in the Constitution. This principle has often been enforced in decisions of this court, and the apt words of Mr. Justice Miller, speaking for the court in Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L. ed. 377, 386, have been more than once quoted with approval: 'It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether state or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department, and no other.'

These principles ought not to be departed from in the judicial determinations of this court, and their enforcement is essential to the administration of the government, as created and defined by the Constitution. The grant of authority to the Executive, as to other departments of the government, ought not to be amplified by judicial decisions. The Constitution is the legitimate source of authority of all who exercise power under its sanction, and its provisions are equally binding upon every officer of the government, from the highest to the lowest. It is one of the great functions of this court to keep, so far as judicial decisions can subserve that purpose, each branch of the government within the sphere of its legitimate action, and to prevent encroachments of one branch upon the authority of another.

In our opinion, the action of the Executive Department in this case, originating in the expressed view of a subordinate official of the Interior Department as to the desirability of a different system of public land disposal than that contained in the lawful enactments of Congress,* did not justify the President in withdrawing this large body of land from the operation of the law, and virtually suspending, as he necessarily did, the operation of that law, at least until a different view expressed by him could be considered by the Congress. This conclusion is reinforced in this particular instance by the refusal of Congress to ratify the action of the President, and the enactment of a new statute authorizing the disposition of the public lands by a method essentially different from that proposed by the Executive.

For the reasons expressed, we are constrained to dissent from the opinion and judgment in this case. 

Notes

Secretary of the Interior had directed that all applications to purchase certain isolated tracts should be suspended (34 Land Dec. 245), and subsequently an act providing for the desposition of disconnected tracts was approved by Congress (34 Stat. at L. 517, chap. 3554, Comp. Stat. 1913, § 5110). In aid of a bill to authorize Wisconsin to select certain lands, the President withdrew a large area in that state, and the bill was later passed (35 Land Dec. 11; 34 Stat. at L. 517, chap. 3555). Coal lands in Alaska were withdrawn from entry by direction of the President (35 Land Dec. 572), which had been thrown open to entry by Congress (33 Stat. at L. 525, chap. 1772, Comp. Stat. 1913, § 5071), and the propriety of this withdrawal was approved by Congress (35 Stat. at L. 424, chap. 211, Comp. Stat. 1913, § 5075). To support its statement that general recognition of the Executive authority is found in a number of statutes the government cited: The town-site law of March 2, 1867 (14 Stat. at L. 541, chap. 177, Comp. Stat. 1913, § 4791), which contained a proviso that 'the provisions of this act shall not apply to military or other reservations heretofore made by the United States, nor to reservations for lighthouses, customhouses, mints, or such other public purposes as the interests of the United States may require, whether held under reservations through the land office by title derived from the Crown of Spain, or otherwise;' and the act of February 8, 1887 (24 Stat. at L. 388, chap. 119, Comp. Stat. 1913, § 4195), providing for the allotment of lands in severalty to Indians on the various reservations and for other purposes, the opening paragraph of which read: 'That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or Executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized . . ..'

The government says, however, that 'there is no publication which can be relied on in determining whether a given Executive order was preceded by statutory authority,' and admits that it is possible that in some of the cases cited there was antecedent statutory authority.

The defendant appends to its brief a list of statutes giving discretionary power to the Executive to make withdrawals, those relating to military or analogous purposes being, 1 Stat. at L. 252, note; 1 Stat. at L. 352, chap. 14; 1 Stat. at L. 555, chap. 38; 2 Stat. at L. 453, chap. 7; 2 Stat. at L. 547, chap. 2; 2 Stat. at L. 750, chap. 99; 4 Stat. at L. 687, chap. 76; 9 Stat. at L. 500, chap. 76; 10 Stat. at L. 27, chap. 77; 10 Stat. at L. 608, chap. 106; those for Indian purposes being, 4 Stat. at L. 411, chap. 148; 10 Stat. at L. 238, chap. 104; 11 Stat. at L. 401, chap. 66; 12 Stat. at L. 819, chap. 119; 13 Stat. at L. 40, chap. 48; for a lighthouse, 1 Stat. at L. 54, chap. 9; with reference to salt springs, 2 Stat. at L. 235, chap. 28; 2 Stat. at L. 280, chap. 35; 2 Stat. at L. 394, chap. 39; and lead mines, 2 Stat. at L. 449, chap. 49; for town sites, 3 Stat. at L. 375, chap. 62; 12 Stat. at L. 754, chap. 80, Comp. Stat. 1913, § 4784; for reservoirs, 25 Stat. at L. 526, chap. 1069, Comp. Stat. 1913, § 4696; and irrigation work, 32 Stat. at L. 388, chap. 1093, Comp. Stat. 1913, § 4700; for lands containing timber for naval purposes, 3 Stat. at L. 347, chap. 22; and for forest reserves, 26 Stat. at L. 1103, chap. 561, Comp. Stat. 1913, § 5121, 30 Stat. at L. 36, chap. 2.