Page:Federal Reporter, 1st Series, Volume 10.djvu/800

 788 iFBDERAIi REPOETER. �tion ad of 184:1, ana which, under past legislation, are not liable to ordinary entry, it shall and may be lawful for the president to cause such tracts, iu suitable legal subdivisions, to be offered at public sale to the highest bidder," etc. 13 St. p. 343, § 1. The act of March 8, 1865, further provides that any citizen who "may be in the business bi bonajide actual coal mining on the public lands * * * shall have the right to enter, in legal subdivisions, a quantity of land 529, § 1. The act of July 26, 1866, confirms selections made by the state, under past legislation, of any lands granted to the state, "pro- vided that no selection made by the state amtrary to existing laws shall be confirmed by this act" as to a certain designated class, "or to any minerai lands." 14 St. p. 218, § 1. �Thus it will be seen, by a glanee at the several provisions of the statutes quoted, that the statute of 1841, in express terms, excludes from pre-emption or sale all lands containing "any known * * * mines;" and there is no jurisdiction or power in any officer of the gov- ernment to grant such lands. The act of 1853, extending the said pre-emption laws of 1841 over California, again expressly exempts "the minerai lands," and limits the act of 1841 in its operation by "all the exceptions, conditions, and limitations therein, except as herein otherwise provided." One of the exceptions therein, as we have seen, is "any known * » * mines," and this limitation is not other- wise extended in the act of 1853. Again, in section 7, authorizing, in certain cases, the selection of other lands in lieu of sections 16 and 36, it is again carefully provided that no person shall "obtain the benefits of this act by a settlement or location on minerai lands." Thus, if coal mines are "known mines" or "minerai lands," within the meaning of these acts, they were expressly excluded from pre- emption, sale, or selection under these acts, and there is no other act authorizing a selection. Are they "known mines" or "minerai land" within the provisions of the act of congress ? �It is coneeded that prier to the passage of the act of 1864, cited, the land department at Washington did not regard or treat coal lands, or coal mines, as minerai lands within the meaning of the prier acts of congress. It is so stated by Commissioner Drummond, In re Yoakum, Copp's Public Land Laws, 674. But I am not aware of any judicial construction of these words of the statute as relating to coal lands. Whatever the proper judicial construction may have been prior to the act of 1864, congress has itself, in that act, given a leg- islative construction to the provisions in question, which is conclu- ��� �
 * * * at the minimum priee of $20 per acre," etc. 13 St. p.