United States v. Midwest Oil Company/Opinion of the Court

All public lands containing petroleum or other mineral oils, and chiefly valuable therefor, have been declared by Congress to be 'free and open to occupation, exploration, and purchase by citizens of the United States. . . under regulations prescribed by law.' Act of February 11, 1897, 29 Stat. at L. 526, chap. 216, Comp. Stat. 1913, § 4635; Rev. Stat. §§ 2319, 2329, Comp. Stat. 1913, §§ 4614, 4628.

As these regulations permitted exploration and location without the payment of any sum, and as title could be obtained for a merely nominal amount, many persons availed themselves of the provisions of the statute. Large areas in California were explored; and petroleum having been found, locations were made, not only by the discoverer, but by others on adjoining land. And, as the flow through the well on one lot might exhaust the oil under the adjacent land, the interest of each operator was to extract the oil as soon as possible, so as to share what would otherwise be taken by the owners of nearby wells.

The result was that oil was so rapidly extracted that on September 17, 1909, the Director of the Geological Survey made a report to the Secretary of the Interior which, with inclosures, called attention to the fact that, while there was a limited supply of coal on the Pacific coast, and the value of oil as a fuel had been fully demonstrated, yet, at the rate at which oil lands in California were being patented by private parties, it would 'be impossible for the people of the United States to continue ownership of oil lands for more than a few months. After that the government will be obliged to repurchase the very oil that it has practically given away. . . .' 'In view of the increasing use of fuel by the American Navy there would appear to be an immediate necessity for assuring the conservation of a proper supply of petroleum for the government's own use. . . .' and 'pending the enactment of adequate legislation on this subject, the filing of claims to oil lands in the state of California should be suspended.'

This recommendation was approved by the Secretary of the Interior. Shortly afterwards he brought the matter to the attention of the President, who, on September 27, 1909, issued the following proclamation:

Temporary Petroleum Withdrawal No. 5.

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 filing, investigation, and examination.

The list attached described an area aggregating 3,041,000 acres in California and Wyoming-though, of course, the order only applied to the public lands therein, the acreage of which is not shown.

On March 27, 1910, six months after the publication of the proclamation, William T. Henshaw and others entered upon a quarter section of this public land in Wyoming, so withdrawn. They made explorations, bored a well, discovered oil, and thereafter assigned their interest to the appellees, who took possession and extracted large quantities of oil. On May 4, 1910, they filed a location certificate.

As the explorations by the original claimants, and the subsequent operation of the well, were both long after the date of the President's proclamation, the government filed, in the district court of the United States for the district of Wyoming, a bill in equity against the Midwest Oil Company and the other appellees, seeking to recover the land and to obtain an accounting for 50,000 barrels of oil alleged to have been illegally extracted. The court sustained the defendant's demurrer and dismissed the bill. Thereupon the government took the case to the circuit court of appeals of the eighth circuit, which rendered no decision, but certified certain questions to this court, where an order was subsequently passed, directing the entire record to be sent up for consideration.

The case has twice been fully argued. Both parties, as well as other persons interested in oil lands similarly affected, have submitted lengthy and elaborate briefs on the single and controlling question as to the validity of the withdrawal order. On the part of the government it is urged that the President, as Commander in Chief of the Army and Navy, had power to make the order for the purpose of retaining and preserving a source of supply of fuel for the Navy, instead of allowing the oil land to be taken up for a nominal sum, the government being then obliged to purchase at a great cost what it had previously owned. It is argued that the President, charged with the care of the public domain, could, by virtue of the executive power vested in him by the Constitution (art. 2, § 1), and also in conformity with the tacit consent of Congress, withdraw, in the public interest, any public land from entry or location by private parties.

The appellees, on the other hand, insist that there is no dispensing power in the Executive, and that he could not suspend a statute or withdraw from entry or location any land which Congress had affirmatively declared should be free and open to acquisition by citizens of the United States. They further insist that the withdrawal order is absolutely void, since it appears on its face to be a mere attempt to suspend a statute-supposed to be unwise-in order to allow Congress to pass another more in accordance with what the Executive thought to be in the public interest.

1. We need not consider whether, as an original question, the President could have withdrawn from private acquisition what Congress had made free and open to occupation and purchase. The case can be determined on other grounds and in the light of the legal consequences flowing from a long-continued practice to make orders like the one here involved. For the President's proclamation of September 27, 1909, is by no means the first instance in which the Executive, by a special order, has withdrawn lands which Congress, by general statute, had thrown open to acquisition by citizens. And while it is not known when the first of these orders was made, it is certain that 'the practice dates from an early period in the history of the government.' Grisar v. McDowell, 6 Wall. 381, 18 L. ed. 868. Scores and hundreds of these orders have been made; and treating them as they must be (Wolsey v. Chapman, 101 U.S. 769, 25 L. ed. 920), as the act of the President, an examination of official publications will show that (excluding those made by virtue of special congressional action, Donnelly v. United States, 228 U.S. 255, 57 L. ed. 825, 33 Sup. Ct. Rep. 449, Ann. Cas. 1913E, 710), he has, during the past eighty years, without express statutory,-but under the claim of power so to do,-made a multitude of Executive orders which operated to withdraw public land that would otherwise have been open to private acquisition. They affected every kind of land mineral and nonmineral. The size of the tracts varied from a few square rods to many square miles, and the amount withdrawn has aggregated millions of acres. The number of such instances cannot, of course, be accurately given, but the extent of the practice can best be appreciated by a consideration of what is believed to be a correct enumeration of such Executive orders mentioned in public documents.

They show that prior to the year 1910 there had been issued

99 Executive orders establishing or enlarging Indian reservations;

109 Executive orders establishing or enlarging military reservations and setting apart land for water, timber, fuel, hay, signal stations, target ranges, and rights of way for use in connection with military reservations;

44 Executive orders establishing bird reserves.

In the sense that these lands may have been intended for public use, they were reserved for a public purpose. But they were not reserved in pursuance of law, or by virtue of any general or special statutory authority. For it is to be specially noted that there was no act of Congress providing for bird reserves or for these Indian reservations. There was no law for the establishment of these military reservations or defining their size or location. There was no statute empowering the President to withdraw any of these lands from settlement, or to reserve them for any of the purposes indicated.

But when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain, nothing was more natural than to retain what the government already owned. And in making such orders, which were thus useful to the public, no private interest was injured. For, prior to the initiation of some right given by law, the citizen had no enforceable interest in the public statute, and no private right in land which was the property of the people. The President was in a position to know when the public interest required particular portions of the people's lands to be withdrawn from entry or location; his action inflicted no wrong upon any private citizen, and being subject to disaffirmance by Congress, could occasion no harm to the interest of the public at large. Congress did not repudiate the power claimed or the withdrawal orders made. On the contrary, it uniformly and repeatedly acquiesced in the practice, and, as shown by these records, there had been, prior to 1910, at least 252 Executive orders making reservations for useful, though nonstatutory, purposes.

This right of the President to make resercations-and thus withdraw land from private acquisition-was expressly recognized in Grisar v. McDowell, 6 Wall. 364 (9), 381, 18 L. ed. 863, 868, where (1867) it was said that '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.'

But, notwithstanding this decision and the continuity of this practice, the absence of express statutory authority was the occasion of doubt being expressed as to the power of the President to make these orders. The matter was therefore several times referred to the law officers of the government for an opinion on the subject. One of them stated (1889) (19 Ops. Atty. Gen. 370) that the validity of such orders rested on 'a long-established and long-recognized power in the President to withhold from sale or settlement at discretion, portions of the public domain.' Another reported that 'the power of the President was recognized by Congress, and that such recognition was equivalent to a grant' (17 Ops. Atty. Gen. 163) (1881). Again, when the claim was made that the power to withdraw did not extend to mineral land, the Attorney General gave the opinion that the power must be 'regarded as extending to any lands which belong to the public domain, and capable of being exercised with respect to such lands so long as they remain unappropriated.' (17 Ops. Atty. Gen. 232) (1881).

Similar views were expressed by officers in the Land Department. Indeed, one of the strongest assertions of the existence of the power is the frequently quoted statement of Secretary Teller, made in 1881:

'That the power resides in the Executive from an early period in the history of the country to make reservations has never been denied either legislatively or judicially, but, on the contrary, has been recognized. It constitutes in fact a part of the Land Office law, existe ex necessitate rei, as indispensable to the public weal, and in that light, by different laws enacted as herein indicated, has been referred to as an existing undisputed power too well settled ever to be disputed. 1 Land Dec. 702 (1881-3).'

2. It may be argued that while these facts and rulings prove a usage, they do not establish its validity. But government is a practical affair, intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the Executive Department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself,-even when the validity of the practice is the subject of investigation.

This principle, recognized in every jurisdiction, was first applied by this court in the often-cited case of Stuart v. Laird, 1 Cranch, 299, 309, 2 L. ed. 115, 118. There, answering the objection that the act of 1789 [1 Stat. at L. 73, chap. 20] was unconstitutional in so far as it gave circuit powers to judges of the Supreme Court, it was said (1803) that, 'practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has, indeed, fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled.'

Again, in McPherson v. Blacker, 146 U.S. 1(4), 36 L. ed. 869, 13 Sup. Ct. Rep. 3, where the question was as to the validity of a state law providing for the appointment of Presidential electors, it was held that, if the terms of the provision of the Constitution of the United States left the question of the power in doubt, the 'contemporaneous and continuous subsequent practical construction would be treated as decisive' (36). Fairbank v. United States, 181 U.S. 307, 45 L. ed. 872, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135; Cooley v. Port Wardens, 12 How. 315, 13 L. ed. 1003. See also Grisar v. McDowell, 6 Wall. 364, 381, 18 L. ed. 863, 868, where, in 1867, the practice of the Executive Department was referred to as evidence of the validity of these orders making reservations of public land, even when the practice was by no means so general and extensive as it has since become.

3. These decisions do not, of course, mean that private rights could be created by an officer withdrawing for a railroad more than had been authorized by Congress in the land grant act. Southern P. R. Co. v. Bell, 183 U.S. 685, 46 L. ed. 388, 22 Sup. Ct. Rep. 232; Brandon v. Ard, 211 U.S. 21, 53 L. ed. 72, 29 Sup. Ct. Rep. 1. Nor do these decisions mean that the Executive can, by his course of action, create a power. But they do clearly indicate that the long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of a recognized administrative power of the Executive in the management of the public lands. This is particularly true in view of the fact that the land is property of the United States, and that the land laws are not of a legislative character in the highest sense of the term (art. 4, § 3), 'but savor somewhat of mere rules prescribed by an owner of property for its disposal.' Butte City Water Co. v. Baker, 196 U.S. 126, 49 L. ed. 412, 25 Sup. Ct. Rep. 211.

These rules or laws for the disposal of public land are necessarily general in their nature. Emergencies may occur, or conditions may so change as to require that the agent in charge should, in the public interest, withhold the land from sale; and while no such express authority has been granted, there is nothing in the nature of the power exercised which prevents Congress from granting it by implication just as could be done by any other owner of property under similar conditions. The power of the Executive, as agent in charge, to retain that property from sale, need not necessarily be expressed in writing. Lockhart v. Johnson, 181 U.S. 520, 45 L. ed. 982, 21 Sup. Ct. Rep. 665; Bronson v. Chappell, 12 Wall. 686, 20 L. ed. 438; Campbell v. Kenosha, 5 Wall. 194(2), 18 L. ed. 610.

For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress 'may deal with such lands precisely as an ordinary individual may deal with farming property. It may sell or withhold them from sale.' Camfield v. United States, 167 U.S. 524, 42 L. ed. 262, 17 Sup. Ct. Rep. 864; Light v. United States, 220 U.S. 536, 55 L. ed. 574, 31 Sup. Ct. Rep. 485. Like any other owner it may provide when, how, and to whom its land can be sold. It can permit it to be withdrawn from sale. Like any other owner, it can waive its strict rights, as it did when the valuable privilege of grazing cattle on this public land was held to be based upon an 'implied license growing out of the custom of nearly a hundred years.' Buford v. Houtz, 133 U.S. 326, 33 L. ed. 620, 10 Sup. Ct. Rep. 305. So, too, in the early days, the 'government, by its silent acquiescence, assented to the general occupation of the public lands for mining.' Atchison v. Peterson, 20 Wall. 512, 22 L. ed. 416. If private persons could acquire a privilege in public land by virtue of an implied congressional consent, then, for a much stronger reason, an implied grant of power to preserve the public interest would arise out of like congressional acquiescence.

The Executive, as agent, was in charge of the public domain; by a multitude of orders extending over a long period of time, and affecting vast bodies of land, in many states and territories, he withdrew large areas in the public interest. These orders were known to Congress, as principal, and in not a single instance was the act of the agent disapproved. Its acquiescence all the more readily operated as an implied grant of power in view of the fact that its exercise was not only useful to the public, but did not interfere with any vested right of the citizen.

4. The appellees, however, argue that the practice thus approved related to reservations,-to cases where the land had been reserved for military or other special public purposes,-and they contend that even if the President could reserve land for a public purpose or naval uses, it does not follow that he can withdraw land in aid of legislation.

When analyzed, this proposition, in effect, seeks to make a distinction between a reservation and a withdrawal,-between a reservation for a purpose not provided for by existing legislation, and a withdrawal made in aid of future legislation. It would mean that a permanent reservation for a purpose designated by the President, but not provided for by a statute, would be valid, while a merely temporary withdrawal to enable Congress to legislate in the public interest would be invalid. It is only necessary to point out that, as the greater includes the less, the power to make permanent reservations includes power to make temporary withdrawals. For there is no distinction in principle between the two. The character of the power exerted is the same in both cases. In both, the order is made to serve the public interest, and in both the effect on the intending settler or miner is the same.

But the question need not be left solely to inference, since the validity of withdrawal orders, in aid of legislation, has been expressly recognized in a series of cases involving a number of such orders, made between 1850 and 1862. Dubuque & P. R. Co. v. Litchfield, 23 How. 66, 16 L. ed. 500; Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689; Wolsey v. Chapman, 101 U.S. 755, 25 L. ed. 915; Litchfield v. Webster County, 101 U.S. 773, 25 L. ed. 925; Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 167, 30 L. ed. 1123, 7 Sup. Ct. Rep. 1149.

It appears from these decisions, and others cited therein, that in 1846 Congress made to the territory of Iowa, a grant of land on both sides of the Des Moines, for the purpose of improving the navigation from the mouth of the river to Raccoon Fork (5 Wall. 681). There was from the outset a difference of opinion as to whether the grant extended throughout the entire course of the river, or was limited to the land opposite that portion of the stream which was to be improved. In Dubuque & P. R. Co. v. Litchfield, 23 How. 66, 16 L. ed. 500, decided in 1860, it was held that the grant only included the land between the mouth of the river and Raccoon Fork. But for eleven years prior to that decision there had been various and conflicting rulings by the Land Department. It was first held that the grant included land above the Fork, and certificates were issued to the territory as the work progressed. That ruling was shortly followed by another, that the grant extended only up to the Fork.

'On April 6, 1850, Secretary Ewing, while concurring with Attorney General Crittenden in his opinion that the grant of 1846 did not extend beyond the Raccoon Fork, issued an order withholding all the lands then in controversy from market 'until the close of the then session of Congress,' which order has been continued ever since' (we italicize) 'in order to give the state the opportunity of petitioning for an extension of the grant by Congress.' Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 170, 30 L. ed. 1124, 7 Sup. Ct. Rep. 1149.

The withdrawal was made in 1851. The hoped-for legislation was not passed until several years later. Between those dates various private citizens made settlements by which, under various statutes, they initiated rights and acquired an interest in the land-if the withdrawal order was void. But by such settlements they obtained no rights if the withdrawal order was valid. A subsequent ratification could have related back to 1851, but if the withdrawal was originally void, the ratification, of course, could not cut out intervening rights of settlers. Cook v. Tullis, 18 Wall. 338 21 L. ed. 936.

There was litigation between settlers claiming, as here, under existing land laws, and those whose title depended upon the original validity of the withdrawals made in aid of legislation. (Riley v. Welles, 154 U.S. 578, 19 L. ed. 648, 14 Sup. Ct. Rep. 1166; Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 173, 30 L. ed. 1125, 7 Sup. Ct. Rep. 1149; Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689.) In those suits, the withdrawal orders were not treated as having derived their validity from the legislation subsequently passed in aid of Iowa and its assignees, but they were treated as having been effective from their dates, regardless of the fact that the land included therein had not originally been granted to Iowa. In one of them it was said that:

'This court has decided in a number of cases, in regard to thses lands, that this withdrawal operated to exclude from sale, purchase, or pre-emption all the lands in controversy.' Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 170, 30 L. ed. 1124, 7 Sup. Ct. Rep. 1149.

5. Beginning in 1850 with this order of Secretary Ewing, in aid of legislation on behalf of Iowa, and its continuance even after this court had decided that no land above the Fork passed to the territory (23 How. 66), the practice of making withdrawals continued down to 1910. The reasons for making the withdrawal orders varied, but the power exerted was the same, and was supported by the same implied consent of Congress.

For, if any distinction can be drawn between the principle decided in the Iowa cases and this; or if the power involved in making a reservation could differ from that exercised in making a withdrawal,-then the Executive practice and congressional acquiescence, which operated as a grant of an implied power to make permanent reservations, are also present to operate as a grant of an implied power to make temporary withdrawals. It may be well to refer to some of the public records showing the existence and extent of the practice.

Withdrawals in aid of legislation were made in particular cases (26 Land Dec. 347; 28 Land Dec. 361; 35 Land Dec. 11), and many others more general in their nature and much more extensive in their operation.

For example: The Land Department passed an order suspending the location and settlement of certain islands and all isolated tracts containing less than 40 acres 'with a view to submitting to Congress' the question as to whether legislation on the subject was not needed. 34 Land Dec. 245.

Reports to the 56th and 57th Congresses (26 Sen. Doc. 87; 22 House Doc. 108, 445) contained a list of 'temporary withdrawals' made to prevent the disposal of land pending the consideration of the question of the advisability of setting the same apart as forest reservations.

Phosphate land was 'temporarily withdrawn, pending action by Congress.' House Doc. 43, 10, 61st Cong. 2d Sess.

There were also temporary withdrawals of oil land from agricultural entry, in aid of subsequent legislation. 26 Sen. Doc. 75; 43 House Doc. 8, 9, 10, 13 (61st Cong.).

In pursuance of a like practice and power, public land containing coal was withdrawn 'pending the enactment of new legislation.' 35 Land Dec. 395; 43 H. Doc. 8, 13. In the message of the President to the 2d session of the 59th Congress attention was called to the withdrawal of coal lands in aid of legislation. There was no repudiation of the order or of the practice either at that session, or at any succeeding session of Congress. It was claimed in the argument that the act of 1908 (35 Stat. at L. 424, chap. 211, Comp. Stat. 1913, § 5075) was the legislation contemplated by the Executive when coal lands were temporarily withdrawn by the order of 1906; and reference has already been made to the act of 1861 [12 Stat. at L. 251] concerning the Iowa lands withdrawn in 1849. There were other instances in which there was congressional action at a more or less remote period after the order of temporary withdrawal. The land for the Wind Cave Park was withdrawn in 1900 and the Park was established in 1903 (32 Stat. at L. 765, chap. 63, Comp. Stat. 1913, § 5231); bird reserves were established in 1903, and, in 1906 (34 Stat. at L. 536, chap. 3565, Comp. Stat. 1913, § 10,252), an act was passed making it an offense to interfere with birds on reserves established by law, proclamation, or Executive order. See also 35 Land Dec. 11; 34 Stat. at L. 517, chap. 3555. But in the majority of cases there was no subsequent legislation in reference to such lands, although the withdrawal orders prevented the acquisition of any private interest in such land until after the order was revoked.

Whether, in a particular case, Congress acted or not, nothing was done by it which could, in any way, be construed as a denial of the right of the Executive to make temporary withdrawals of public land in the public interest. Considering the size of the tracts affected and the length of time they remained in force, without objection, these orders by which islands, isolated tracts, coal, phosphate, and oil lands were withdrawn in aid of legislation, furnish, in and of themselves, ample proof of congressional recognition of the power to withdraw.

But that the existence of this power was recognized and its exercise by the Executive assented to by Congress is emphasized by the fact that the above-mentioned withdrawals were issued after the report which the Secretary of the Interior made in 1902, in response to a resolution of the Senate calling for information 'as to what, if any, of the public lands, have been withdrawn from disposition under the settlement or other laws by order the Commissioner of the General Land Office, and what, if any, authority of law exists for such order of withdrawal.'

The answer to this specific inquiry was returned March 3, 1902 (Senate Doc. 232, 57th Cong. 1st Sess. vol. 17). On that date the Secretary transmitted to the Senate the elaborate and detailed report of the Commissioner of the Land Office, who, in response to the inquiry as to the authority by which withdrawals had been made, answered that:

'The power of the Executive Department of the government to make reservations of land for public use, and to temporarily withdraw lands from appropriation by individuals as exigencies might demand, to prevent fraud, to aid in proper administration, and in aid of pending legislation, is one that has been long recognized both in the acts of Congress and the decisions of the court;. . . that this power has been long exercised by the Commissioner of the General Land Office is shown by reference to the date of some of the withdrawals enumerated. . . . The attached list embraces only such lands as were withdrawn by this office, acting on its own motion, in cases where the emergencies appeared to demand such action in furtherance of public interest, and does not include lands withdrawn under express statutes so directed.'

The list, which is attached, refers to withdrawal orders, about 100 in number, issued between 1870 and 1902. Many of them were in aid of the administration of the land laws: to correct boundaries; to prevent fraud; to make a classification of the land; and like good-but nonstatutory-reasons. Some were made to prevent settlements while the question was being considered as to whether the lands might not be included in a forest reservation to be thereafter established. One in 1889 (referred to also in 28 Land Dec. 358) was made in order to afford the state of Nebraska an opportunity to procure legislative relief, as in the Iowa cases above cited.

This report refers to withdrawals, and not to reservations. It is most important in connection with the present inquiry as to whether Congress knew of the practice to make temporary withdrawals and knowingly assented thereto. It will be noted that the resolution called on the Department to state the extent of such withdrawals and the authority by which they were made. The officer of the Land Department, in his answer, shows that there have been a large number of withdrawals made for good, but for nonstatutory, reasons. He shows that these 92 orders had been made by virtue of a long-continued practice and under claim of a right to take such action in the public interest 'as exigencies might demand. . .' Congress, with notice of this practice and of this claim of authority, received the report. Neither at that session nor afterwards did it ever repudiate the action taken or the power claimed. Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress.

6. Nor is the position of the appellees strengthened by the act of June 25, 1910, (36 Stat. at L. 847, chap. 421, Comp. Stat. 1913, § 4523), to authorize the President to make withdrawals of public lands, and requiring a list of the same to be filed with Congress.

It was passed after the President's Proclamation of September 27, 1909, and months after the occupation and attempted location by virtue of which the appellees claim to have acquired a right to the land. This statute expressly provided that it 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 any withdrawal of such lands, made prior to the passage of this act.'

True, as argued, the act provides that it shall not be construed as an 'abridgment of asserted rights initiated in oil lands after they had been withdrawn.' But it likewise provides that it shall not be considered as a 'recognition of such rights.' There is, however, nothing said indicating the slightest intent to repudiate the withdrawals already made.

The legislative history of the statute shows that there was no such intent and no purpose to make the act retroactive, or to disaffirm what the agent in charge had already done. The proclamation of September 27, 1909, withdrawing oil lands from private acquisition, was of far-reaching consequence both to individuals and to the public. It gave rise to much discussion, and the old question as to the authority of the President to make these orders was again raised. Various bills were introduced on the subject, and the President himself sent a message to Congress, calling attention to the existence of the doubt, and suggesting the desirability of legislation to expressly grant the power and ratify what had been done. A bill passed the House, containing such ratification and authorizing future withdrawals. When the bill came to the Senate it was referred to a committee, and, as its members did not agree in their view of the law, two reports were made. The majority, after a review of the practice of the Department, the acquiescence of Congress in the practice, and the decisions of the courts, reported that the President already had a general power of withdrawal, and recommended the passage of the pending bill, inasmuch as it operated to restrict the greater power already possessed. Sen. Rep. 171 (61st Cong. 2d Session). But having regard to the fact that private persons, on withdrawn land, had raised a question as to the validity of the order, and that such question presented a matter for judicial determination, Congress was studious to avoid doing anything which would affect either the public or private rights. It therefore used language which showed not only that the statute was not intended to be retrospective, but was not to be construed either as a recognition, enlargement, or repudiation of rights like those asserted by appellees.

In other words, if, notwithstanding the withdrawal, any locator had initiated a right which, however, had not been perfected, Congress did not undertake to take away his rights. On the other hand, if the withdrawal order had been legally made under the existing power, it needed no ratification, and if a location made after the withdrawal gave the appellees no right, Congress, by this statute, did not legislate against the public and validate what was then an invalid location. The act left the rights of parties in the position of these appellees, to be determined by the state of the law when the proclamation was issued. As heretofore pointed out, the lone-continued practice, the acquiescence of Congress, as well as the decisions of the courts, all show that the President had the power to make the order. And as was said in Wolsey v. Chapman, 101 U.S. 769, 25 L. ed. 920, the '''withdrawal would be sufficient to defeat a settlement. . . while the order was in force''.'

The case is therefore remanded to the District Court with directions that the decree dismissing the bill be reversed.

Mr. Justice McReynolds took no part in the decision of this case.

Mr. Justice Day, with whom concurred Mr. Justice McKenna and Mr. Justice Van Devanter, dissenting: