Simpson v. Morris

3 Yeates 104

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1800
• Status: Published

Opinion

Shippen, C. J.

This case comes before the court, upon a question of construction of the act of assembly of the 8th April .1785-

The facts are shortly these: Both plaintiff’s and defendants’ warrants were issued after the lottery warrants; the state has been paid for both. The plaintiff’s warrants are earliest in date and number; the defendants’ were first received by the deputy surveyor. The lessors of the plaintiff have however proved, that theirs were first tendered to him ; but, on pretence of their being re-directed by the assistant of the deputy surveyor of another district, and not by the deputy surveyor himself, they were refused to be received. It appears, they were afterwards re-directed by the surveyor himself, but still refused by him, on account of a temporary suspension from his office, but being afterward restored to his office, he received the defendants’ warrants. On this case two questions are made : 1st, Whether the 8th section of the act, which gives a preference, from the earliest delivery to the deputy surveyor, respects warrants of this de scription, namely, warrants issued after the lottery warrants f And 2dly, If it does respect such warrants, whether the earliest tender of the re-directed warrants did not bind the deputy surveyor to receive them, although re-directed by the assistant of the first deputy surveyor, and not by himself, [*115 he having previously given such assistant an authority in writ-ing to do it ? A third question has been made, whether, as the defendants’ warrants were not registered in the books of the surveyor general, before the delivery of their warrants to the district surveyor, the defendants can claim title under these warrants, to the exclusion of the plaintiff ?

The act is obscurely and incorrectly worded; but we must endeavour, as well as we can, to discover the plan and real intention of the legislature, taking the several parts of it together. The general meaning of the act is, that the first appliers for lands within ten days after opening the land office, should have their priority determined by lottery, their warrants to be numbered as they come out of the wheel, and all dated on the last day of drawing the lottery. These warrants were to be directed by the surveyor general, to the deputy surveyor of some district, to be executed according to their number. The deputy surveyor was not to execute any of the lottery warrants, till after thirty days from their date; the last twenty of the thirty days he was to keep his office open for the purpose of receiving these warrants, and make entries of them in a book to be kept for this purpose. After the expiration of the thirty days, the deputy surveyor was to proceed to execute the warrants according to their numbers, giving preference to the lowest number. All warrants not lodged with the deputy surveyor before the expiration of the thirty days, whatever might be their numbers, were to be considered as posterior to the others; and the act says, shall be surveyed or located accordingly. By which words I understand, that though they lose their priority as to the other lottery warrants, yet they retain priority according to their numbers, as to all warrants issued subsequently to the day of finishing the drawing of the lottery. A provision is made in the 7th section, that a warrant lodged with a deputy surveyor, where the person lodging it fixes upon a particular spot, shall be executed on that spot, unless a person with a prior number shall, before survey, insist on having his warrant laid on the same spot, in which case, such earlier number shall be preferred. Then comes the 8th section, which enacts, that “ all warrants “that shall be issued by the land office of this state after (and the priority of which shall depend on) the drawing the said lot- “ tery, for lands within the said late purchase, shall be exequted “in the order and have preference of survey, as they shall sev- “ erally be earliest delivered to the deputy surveyor of the district, to whom they shall be directed, who shall make survey “thereupon; and for that purpose, the said surveyor *116]“general shall register the same warrants in the order “they shall come to his office, in the manner directed in respect “to the warrant first aforesaid.”

The first question then is, to what species of warrants does this section relate ? It is contended on one side, that it is meant for the warrants issued after all the lottery warrants are completed ; and on the other, it is supposed, that it was intended only for the warrants whose priority was lost, by not being entered with the deputy surveyor within the thirty days ; there being, it is said, no other provision made for their execution but by the 8th section. I own, I cannot discover any thing wanting to complete the provisions as to all the lottery warrants. Their priority is early provided for by the numbers drawn in the lottery, and the 7th section completely provides for their execution, by enabling even those who have neglected to lodge their warrants within the thirty days, to lodge them afterwards, and t'o require the deputy surveyor to survey them according to their numbers, unless prior numbers shall come to his hands before actual surveys made. Those not entered with the deputy surveyor within the thirty days, are indeed postponed to the entered warrants, yet they are directed by the act to be located and surveyed posterior to the others ; by which I understand, next after them, according to their numbers, and before the subsequently issued warrants can be located and surveyed. The 8th section is introduced as a general enacting clause, and not by way of proviso, as the two preceding sections are, which respect the execution of the lottery warrants. It expressly contemplates warrants issued after drawing the lottery; and although all the warrants are literally to be issued after drawing the lottery, yet the lottery warrants are to be dated on the last day of drawing it, and unless this expression meant the warrants issued after that day, there was no use or meaning in the expression. For the purpose of having the warrants surveyed according to the time of earliest delivery to the deputy surveyor, it is directed, that the surveyor general shall register the warrants in the order they shall come to his hands, in the manner directed in respect to the warrant first aforesaid. This is a glaring instance of the inaccuracy of the clause; as, instead of the surveyor general’s registering the warrants for the purpose of their being surveyed according to their earliest delivery, it must evidently be meant that the deputy surveyor must register them, in the manner directed in the former provision for surveying the lottery warrants.

The priority or preference, as it respects both lottery warrants and others, can only take place, where two or more warrantees fix upon the same spot of land to be surveyed. [*117 The subsequent warrantees seem to stand in need of some provision for their execution, to avoid much confusion and interference by delay. This is done by the 8th section, giving them a preference from an early delivery of their warrants to the deputy surveyor; which provision don’t appear to me at all inconsistent with the priority established for them in the 2d section of the act, if by an equitable construction of the act the 7th section should be extended to them, as well as to the lottery warrants, which in all reason it. ought to be ; because an earlier number would have the preference to a later one, in every case where they do not apply for the same land; and in that case, though the later number should come to the surveyor’s hands before an earlier one, yet if the earlier number be lodged before an actual survey be made for the later, the earlier would have the preference. I say, before air actual survey be made, for this obvious reason; that if the preference arising from the prior number should take place after a survey made for another, and at any indefinite time, not only the labour and expence of making an useless survey would be incurred, but it would be an encouragement to men, having earlier unlocating warrants to lie by, and when they found some valuable lands discovered and surveyed by later numbers, to take advantage of their discoveries, and then come forward with their earlier numbers, and call for a survey upon lands they never before thought of. And this • was probably one reason with the legislature, for giving a preference of survey from the earliest delivery of the warrant. Another reason doubtless was, to expedite the sale of the lands, and to prefer the watchful to the dormant applicants. If this be the meaning of the legislature as I have understood it, how are we to satisfy or construe the words contained in the parenthesis in the 8th section, consisting of the words (“ and the priority of which shall depend on” ?) I acknowledge, the judiciary should not substitute or omit any words in a statute, without evident necessity, and that is only where the words plainly oppose the general sense and meaning of the legislature. In such a case,' the judges have construed “or” “and,” and “and” “or,” as well in acts of parliament, as in wills, in order to effectuate the intention of the legislature. It is proposed at the bar that we should add the word not in the parenthesis. This would certainly be using great freedom'with the expressions of the law; yet, if absolutely necessary to the true construction, it might perhaps be justified. It has however occurred to me, that as other mistakes appear in the law, perhaps the legislature have *hastily put the parenthesis in the wrong place. If the *118] parenthesis had been placed after the words “ drawing the lottery,” instead of before them, the sense would be more complete, and with a small change in the expression, entirely conformable to the construction I have given to the law. The words would then stand thus : “ All warrants that shall be issued “by the land office of this state after the drawing the said lot“tery (and the priority which shall depend thereon”) that is, after such priority, “shall be executed,” &c. The reading of the clause in this way would, it is true, be attended with the omission of the word “of" before “which,” and the insertion of the word “ thereon,” instead of the word “ on; ” which however, would be a less violent departure, than substituting a direct negative for an affirmative proposition ; and some construction must be made to reconcile the apparent contradiction in the clause. I have suggested, that the parenthesis might have been hastily inserted in the wrong place. This is the more probable, not only from the awkward way in which it stands in the act, but from a circumstance appearing on the Journals of the house. It there appears -in the discussion of the act, that the whole 8th section was agreed to by a majority of the house, without any parenthesis, or any word tantamount to it; and no amendment of the section appears to have been made afterwards. It is probable therefore, that it arose from some sudden motion made, when the bill was about to pass, and without due consideration inserted where it stands ; and this mistake might the more easily pass unnoticed, as the legislature then consisted only of a single branch, and no senate existed to correct the mistake.

If my construction of the act be well founded, it will be unnecessary to enter into the second or third points, made by the counsel on both sides. For whether the certificate and re-direction of the assistant to the deputy surveyor under a power from him be good or not; or whether the registry of the defendants’ warrants by the surveyor general was made in time or not, will be immaterial, if we call in aid of our construction on the first point, the 7th section of the act. It appears clearly in the case, that before any survey was made on the defendants’ warrants, the plaintiff’s warrants were actually re-directed with the proper certificate of the deputy surveyor himself, and were earliest in number, and that the surveys were made with the joint assistance of the-plaintiff’s and defendants’ hands and provisions, and declared by the deputy surveyor to be made for such of the parties, in whose favour the Board of Property should determine; and it will follow from my own principles on the first point, that the determination of that Board ought to have been in favour of *the claim of the Holland land company, and not of the* defendants. [*119

I am therefore of opinion, that a new trial should be awarded.

Yeates, J.

The 2d section of the act of 8th April 1785, expressly declares, that all applications to the land office made after the 10th May following, shall have priority according to the order, in which they shall severally come to the hands of the secretary, and shall be numbered accordingly and not otherwise. And the 3d section directs, that the deputy surveyor of the district, on the direction of the surveyor general, shall duly execute the warrants, according to the tenor of such warrants. These clauses are free from all doubt and ambiguity; and strong expressions must necessarily be produced to shew, that the will of the legislature in these particulars, has been changed. I have not for my part, been able to discover such intention.

I fully agree with the plaintiffs’ counsel, that the priority of right of the three different descriptions of warrants, as they have classed them, is ascertained by the law. The preference of the first class rests by the 5th section, on their number; of the second by the 8th section, on their delivery to the deputy surveyor-; of the third, by the 2d and 3d sections, on their date and number. The 7th section in my idea, relates to any species of warrants of higher numbers, the locations whereof have been desired at particular places which are afterwards superseded by lottery warrants (and no others,) of a lower number. Such are the words of the law, independent however, of the positive provisions of any law on the subject, it seems unquestionable, that the not pursuing an early indescriptive warrant with due diligence, by a delivery of such warrant to the deputy surveyor, and application for a survey, will postpone such early warrant to a latter one, followed up by a survey. On any other principles, the appropriation of lands and settlement of the country, would wholly depend on the will or caprice of individuals, possessing early warrants, as to the times when they thought proper to reduce the same to a certainty, by surveys.

But unless the 8th section is referred to lottery warrants, not lodged or left with one of the deputy surveyors, within the thirty days after drawing of the lottery, the priority of such lottery warrants, considered in relation to other warrants of the same class, or to those not dependent on the lottery, remains in my apprehension, unfixed and unsettled. The words descriptive of lottery warrants, in the 2d and 5th sections, are again repeated in the 8th section ; and I do not feel myself at liberty to convert the affirmative words of the legislature, into negative terms. I *see no necessity for so doing. The construction under *120] the intestate act, is the strong case relied on by the defendants’ counsel; “where the intestate dies, leaving widow, nor lawful issue,” does not appear to me to be a parallel case; because there, the insertion of the word “no,” is absolutely necessary to give a meaning to the clause, and the sense of the passage evidently requires it. By the construction I have adopted, all the words of the act, so far as they respect priority of rights under warrants, are carried into full operation, and every string of the instrument renders its full sound. At the same time, I freely admit, that the words “surveyor general,” in the beginning of the 8th section, are wholly unintelligible to me, as they are used; and I find myself compelled to read in their room, “deputy surveyor of the district.” For I cannot conceive, how the registry of warrants by the surveyor general, in the order they shall come to his office, can subserve the purpose of showing the order and preference of survey of warrants, expressly made to depend on the earliest delivery thereof to the deputy surveyor of the district. But by substituting “deputy surveyor of the district,” for “surveyor general,” the object of the legislature is fully attained. When such lottery warrants of the second class, are registered in proper books, in due succession, by the deputy surveyor, in the order they shall come to his office, all mistakes are prevented, and frauds guarded against.

Thinking as I do, I deem it superfluous, to decide on the other points, made by the counsel in their argument. But I cannot avoid saying, that the certificate and re-direction by Hanna, was equally as proper and correct, as the direction by Barron, under all the circumstances of the present case. The conduct of the latter, was not sanctified by usage, nor the usual forms of the office of the surveyor general; and therefore could not be considered as the constructive act of the principal. It did not quadrate with the spirit of the words, in the close of the 2d section of the act, that “ all warrants should be made out in their “ proper order, as soon as conveniently might be, without any “neeHess delay, and without partiality.”

The want of registry of the defendants’ warrants, by the surveyor general, cannot affect their claim. I have no hesitation in saying, that the words “ surveyor general,” have been inserted through mistake.

On the whole, I am of opinion, that a new trial should be granted.

Smith, J.

I am of opinion with the plaintiff on the two first *points and adverse to him, as to the legality of Barron’s [*121 direction.

I regard the words of the second section of the law, applicable to warrants taken out after the 10th May 1795, as perspicuous, clear and explicit. Their priority of right depends on their date, as the applications come to the hands of the secretary of the land office. Therefore the most unambiguous expressions are necessary to deprive such warrants of the priority arising from their date. The words of the 8th section are not equally clear and plain; and though the parenthesis may have been put in the wrong place, yet I do not take it to be the office of judges, to declare, that an express provision is repealed and annulled by subsequent ambiguous expressions in the act.

Supposing however the case to be otherwise, I strongly incline to be of opinion, that the re-direction of the warrants of the Holland land company, by John Hanna, the assistant of John Canan, was good in law. Canan did not exceed his powers, when he deputed Hanna to sign certificates, and give re-directions. These were acts not judicial in themselves, but merely ministerial.

I also think, that the direction of the defendants’ warrants, to the deputy district surveyor, was good in law, and sanctified by the usage of the surveyor general’s office. The defendants had paid their money to the state. The land office was shut, and the public business was impeded by the violent fever which prevailed in the city.

On the first point, I have no difficulty whatever, resting on my mind. On the two others, I have stated the strong inclination of my mind, but give no explicit opinion thereupon.

I think, a new trial should be awarded.

Brackenkjdge, J.

I agree with the chief justice in his general construction of the law of 8th April 1785. But I think, that either the words of the 2d section, as far as they respect the warrants in dispute, or those of the 8th section must fall, being contradictory to each other. The lottery warrants are done with, when we come to the 8th section. Nothing more was to be done with them. Nothing more was needed. I am of opinion, that we must either insert the word “not,” in the parenthesis of that section, or must transpose the parenthesis, in the manner already stated. At the same time, I see no reason for altering the words “surveyor general,” into “deputy surveyor.” The view of the legislature was, that the surveyor general should register the warrants, for the purpose of directing them. Their great object *of the 8th section, was to prefer the diligent warrantees, *122] who first delivered their warrants to the district deputy surveyor.

Referred to in 8 Watts n8.

On the second point, I was induced to think at the trial, that the certificate and re-direction by Hanna, were valid acts, and differed therein from the chief justice. I now think differently, and view it as a special authority given to the district surveyors personally, by the law. It operates as notice, and the deputy surveyors are not to be supposed to know the hand writing of their different deputies, nor bound to act in pursuance of their several re-directions. Yet I conceive, if Brady had made surveys under that authority, they would have been valid. Quod fieri 11011 debet, factum valet.

But on the point of Barron’s direction, I have no doubts of its illegality. His acts were inofficial, and went beyond the usual forms. The warrants of the defendants were neither in the hands of the surveyor general, nor in his own, but remained in the city.

On this last ground alone, I concur in awarding a new trial.

New trial granted, per tot cur.