tivated his homestead for a period of at least one year after he shall have commenced his improvements: Provided, That in every case in which a settler on the public land of the United States under the homestead laws died while actually engaged in the Army, Navy, or Marine Corps of the United States as private soldier, officer, seaman, or marine, during the war with Spain or the Philippine insurrection, his widow, if unmarried, or in case of her death or marriage, then his minor orphan children or his or their legal representatives, may proceed forthwith to make final proof upon the land so held by the deceased soldier and settler, and that the death of such soldier while so engaged in the service of the United States shall, in the administration of the homestead laws, be construed to be equivalent to a performance of all requirements as to residence and cultivation for the full period of five years, and shall entitle his widow, if unmarried, or in case of her death or marriage, then his minor orphan children or his or their legal representatives, to make final proof upon and receive Government patent for said land; and that upon proof produced to the officers of the proper local land office by the widow, if unmarried, or in case of her death or marriage, then his minor orphan children or his or their legal representatives, that the applicant for patent is the widow, if unmarried, or in case of her death or marriage, his orphan children or his or their legal representatives, and that such soldier, sailor, or marine died while in the service of the United States as hereinbefore described, the patent for such land shall issue. Ibid. 1588. Every person entitled, under the provisions of than 160 acres, section twenty-three hundred and four, to enter a homeJune 8, 1872, c. stead who may have heretofore entered, under the home339, s. 2, v. 17, P. stead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres. Persons who have entered less rights of. 333. Sec. 2806, R.S. Widow and mi nor children of to homestead, etc. 1589. In case of the death of any person who would be persons entitled entitled to a homestead under the provisions of section twenty-three hundred and four, his widow, if unmarried, 338, s. 3, v. 17, p. or in case of her death or marriage, then his minor orphan Sec. 2807, B.S. children, by a guardian duly appointed and officially accredited at the Department of the Interior, shall be entitled to June 8, 1872, c. 333. 1Section 6 of the act of March 2, 1889 (25 Stat. L., 855), provides that the requirements of that section shall not be construed as affecting any rights to location of soldiers' certificates heretofore issued under section 2306 of the Revised Statutes." all the benefits enumerated in this chapter, subject to all the provisions as to settlement and improvements therein contained; but if such person died during his term of enlistment, the whole term of his enlistment shall be deducted from the time heretofore required to perfect the title. Actual service in the Army or to residence, etc. 338, s. 4, v. 17, p. Sec. 2308, R.S. 1590. Where a party at the date of his entry of a tract of land under the homestead laws, or subsequently thereto, Navy equivalent was actually enlisted and employed in the Army or Navy June 8, 1872, c. of the United States, his services therein shall, in the ad- 833. ministration of such homestead laws, be construed to be equivalent, to all intents and purposes, to a residence for the same length of time upon the tract so entered. And if his entry has been canceled by reason of his absence from such tract while in the military or naval service of the United States, and such tract has not been disposed of, his entry shall be restored; but if such tract has been disposed of, the party may enter another tract subject to entry under the homestead laws, and his right to a patent therefor may be determined by the proofs touching his residence and cultivation of the first tract and his absence therefrom in such service. by agent. 338, s. 5, v. 17, p. 334 Sec. 2309, R.S. 1591. Every soldier, sailor, marine, officer, or other, Who may enter person coming within the provisions of section twenty- June 8, 1872, c. three hundred and four, may, as well by an agent as in person, enter upon such homestead by filing a declaratory statement, as in preemption cases; but such claimant in person shall within the time prescribed make his actual entry, commence settlements and improvements on the same, and thereafter fulfill all the requirements of law. tler enlisted as June 16, 1898, v. Sec. 2304, R.S. 1592. In every case in which a settler on the public land Absence of setof the United States under the homestead laws enlists or soldier, etc., to be equivalent to is actually engaged in the Army, Navy, or Marine Corps residence, etc. of the United States as private soldier, officer, seaman, or 30, p. 473. marine, during the existing war with Spain, or during any other war in which the United States may be engaged, his services therein shall, in the administration of the homestead laws, be construed to be equivalent to all intents and purposes to residence and cultivation for the same length of time upon the tract entered or settled upon; and hereafter no contest shall be initiated on the ground of abandonment, nor allegation of abandonment sustained against any such settler, unless it shall be alleged in the preliminary affidavit or affidavits of contest, and proved at the hearing in cases hereafter initiated, that the settler's alleged absence from the land was not due to his employ Provisos. Discharge for disability. ment in such service: Provided, That if such settler shall be discharged on account of wounds received or disability incurred in the line of duty, then the term of his enlistment shall be deducted from the required length of residence without reference to the time of actual service: One year's resi- Provided further, That no patent shall issue to any homestead settler who has not resided upon, improved, and cultivated his homestead for a period of at least one year after he shall have commenced his improvements. of June 16, 1898 (30 Stat. L., 473). dence necessary. Par. ACQUISITION OF LANDS BY THE UNITED STATES. 1593. Examination of titles. 1594. Purchases to be authorized by law. 1595. Assent of States. 1596. Releases. Title to land to be purchased by the States. Res. No. 6, v. 5, p. 468. Par. 1597. Acquisition by condemnation. Act 1599. The same; sites for fortifications. 1593. No public money shall be expended upon any site United or land purchased by the United States for the purpose of Sept. 11, 1841, erecting thereon any armory, arsenal, fort, fortification, Sec. 355, R. S. navy-yard, custom-house, light-house, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United States, upon the application of the Attorney-General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. And the Secretaries of the Departments, upon the application of the AttorneyGeneral, shall procure any additional evidence of title · which he may deem necessary, and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments respectively.1 1See chapters entitled THE DEPARTMENT OF JUSTICE, CONTRACTS AND PURCHASES, THE ENGINEER CORPS, NATIONAL PARKS, and NATIONAL CEMETERIES for additional provisions respecting the acquisition of lands. “When, in an act appropriating for the purchase of additional land for a public building, the piece of ground to be purchased is particularly described, the appropriation can not be used for the purchase of another tract equally suitable for the purpose, and at a price within the sum provided, although the piece named can not be secured within the amount appropriated." 2 Compt. Dec., 77. See also section 1136, Revised Statutes (par. 1216, post), for provision requiring all officers of the United States having title papers of prop 1594. No land shall be purchased on account of the United States, except under a law authorizing such pur chase.1 Restrictions on May 1, 1820, c. and "ases of 52, s. 7, v. 3, p. 568. Sec.3736, R.S. erty, purchased or about to be purchased, in their possession to furnish the same forthwith to the Attorney-General. Joint resolution No. 21, of April 11, 1898 (30 Stat. L., 737), contains the requirement that "in case of emergency, when, in the opinion of the President, the immediate erection of any temporary fort or fortification is deemed important and urgent, such temporary fort or fortification may be constructed upon the written consent of the owner of the land upon which such work is to be placed; and the requirements of section three hundred and fifty-five of the Revised Statutes shall not be applicable in such cases." The expense of procuring an abstract of title to land to be used as a site for a fortification is a proper charge against the appropriation made for the purchase of the site, if the abstract is needed by the United States attorney to assist him in examining the title, provided the land is to be purchased and not condemned. 111 Compt. Dig., 216. The title to lands purchased on account of the United States is not properly assured by a certificate of “no liens,” signed by the attorney who made the abstract of title. The proper person to make such a certificate is the custodian of the records of judgments and other record liens in the county in which the land is located. (a) Dig. Opin. J. A. Gen., par. 2114. * * consent of "Section 355 of the Revised Statutes prescribes that no public money shall be expended upon any site or land purchased by the United States for the purpose of erecting thereon any armory, arsenal, fort, fortification, navy-yard, custom-house, light-house, or other building, of any kind whatever, until the * the legislature of the State in which the land or site may be, to such purchase, has been given. This section is part based on the clause of the Constitution referred to, and in part not. The consent of the State to a purchase, given in order to satisfy the requirement of this section, would invest the United States with exclusive jurisdiction, if the purchase be for one of the constitutional purposes; but the section provides for other purposes also, and as to these it would seem that a simple consent to the purchase (assuming that such consent, being for a purpose not falling under the clause of the Constitution, amounts to a cession of jurisdiction) would only carry with it so much jurisdiction as would be necessary for the purpose of the purchase. Probably this would be held to be concurrent jurisdiction. Taking into consideration the fact that States can not, under any circumstances, interfere with the instrumentalities of the Government of the United States, it may, indeed, be questioned whether, even under this view, unnecessary precautions have not been taken in regard to the acquisition of jurisdiction; and certainly it can not be presumed that a State intends to part with more of its sovereignty than is necessary. A consent to the purchase, under section 355, Revised Statutes, if the purchase be for other than one of the purposes described in the clause of the Constitution, may, therefore, be accompanied with any limitations not interfering with an instrumentality of the Government of the United States. "The most common way of acquiring jurisdiction, however, is by the State's expressly ceding it to the United States. In such case the State may make similar limitations, and this even if the place be used by the United States for one of the purposes mentioned in the clause of the Constitution. To bring the case under the clause there must be a purchase with consent. Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 539; Chicago and Pacific Ry. Co. r. McGlinn, 114 U. S., 549; Benson v. U. S., 146 U.S., 331; in re Kelly, 71 Fed. Rep., 545; in re Ladd, 74 Fed. Rep., 399.)" Gen. G. N. Lieber, Sept. 28, 1897 (see Military Res., etc., Title and Jurisdiction, p. 288). In the absence of statutory authority, land can not be purchased for the United States with any more legality than land of the United States can be sold or disposed of. By a provision of an act of May 1, 1820, now contained in section 2736, Revised Statutes, it is declared that "No land shall be purchased on account of the United States except under a law authorizing such purchase." Held that the term “purchase" was to be understood in its legal sense, as embracing any mode of acquiring property other than by descent; (b) and that therefrom the Secretary of War would ete. a See G. O. 47 of 1881 for Attorney-General's regulations as to making deeds, proving title to lands, b See VII Opin. Att. Gen., 114, 121; Ex parte Hebard, 4 Dillon, 384. Assent of States to pur Apr. 28, 1828, 1595. The President of the United States is authorized chases of lands, to procure the assent of the legislature of any State within 9.41, s. 2, v. 4, p. which any purchase of land has been made for the erection Sec. 1838, R.S. of forts, magazines, arsenals, dockyards, and other needful buildings without such consent having been obtained.' 264. not be empowered to accept a gift of land or interest in land for any use or purpose independently of statutory authority. (a) And similarly held as to the construction of the same word ("purchase") as employed in section 355, Revised Statutes, and advised that an appropriation of public money could not legally be expended for the erection of a public building upon land donated to the United States until the Attorney-General had passed the title and the legislature of the State in which the land was situated had given its consent to the grant. (b) Dig. Opin. J. A. Gen., 627, par. 5. The statutory authority relied upon for the purchase of land by a head of a Department should be clear and indisputable. Thus, held that authority to purchase additional land for the interment of soldiers could not be derived from the general provision of the annual appropriation act, appropriating a certain sum for maintaining the existing national cemeteries. Dig. Opin. J. A. Gen., par. 2105. A statute conferring a specific authority to purchase certain land should, in the exercise of the authority, be strictly construed. Thus, where a statute authorized the Secretary of War to purchase, for a certain stated sum, a certain described tract containing a specified number of acres, held that the act did not invest him with discretion to purchase a portion only of such tract. Ibid., par. 2108. Authority to acquire land in a State, by the exercise of the right of eminent domain, whether by proceedings for condemnation in the United States circuit court or in the courts of the State, (c) can be vested in an executive official of the United States only by express legislation of Congress. Ibid., 2109. The Constitution vests in Congress the exclusive power to dispose of the property of the United States, real or personal. (d) The Secretary of War, in the absence of authority from Congress, can not alienate land of the United States. Thus, where a company proposed to cut out and remove a part of a dam (some 140 feet) on Fox River, Wisconsin, belonging to the United States, and to substitute another, as a private improvement, below, held that this was a proposition for the alienation by an executive official of public property, and could not legally be entertained. Ibid., par. 2113. In view of the prohibition of section 3736, Revised Statutes, that "no land shall be purchased on account of the United States, except under a law authorizing the same," the Secretary of War can not accept a grant by gift of land or of an easement in land without authority of special statute. [By act of April 24, 1888, he is expressly empowered to purchase, or accept donations of, land for river and harbor improvements.] And held that, in the absence of authority from Congress, a purchase of lots in a city cemetery, for the burial purposes of a neighboring military post, would not be legal or operative. Ibid., par. 2106. 'The State of North Carolina ceded to the United States, by an act of its legislature of 1794, the land of the present military reservation at Southport, N. C., the site of old Fort Johnson. A condition of the deed of cession was to the effect that a fortification should be erected on the land within three years and be maintained forever thereafter for the public service, or the land should revert to the State. The time allowed was repeatedly extended, the last extension expiring in 1818, when a fortification had been constructed if not fully completed. The fort has long since ceased to be garrisoned. In 1889 an individual citizen "entered" the site as State a See this opinion concurred in by an opinion of the Attorney-General, in XVI Opins, 414. As statutes specially authorizing the acceptance of donations of land, note the early acts of March 20 and May 9, 1794, and, later, the acts of February 18, 1867; March 3, 1875; June 23, 1879. That authority, however, to purchase, and, a fortiori perhaps, to accept a gift of, the necessary land, may be implied from an appropriation act granting a sum of money for a public work requiring for its construction the occupation and use of certain land of an individual or corporation. See opinions of the AttorneyGeneral in XV Opins., 212; XVI ibid., 119, 387. In the opinion in XVI Opins., 119, it was held that where no statutory authority whatever existed for accepting a gift of land a head of a Department would not be justified in accepting the same on the condition that Congress ratify the acceptance and in anticipation of such ratification. b But under the implied authority contained in section 1838, Revised Statutes, lands required as sites for forts, arsenals, etc., or needful public buildings, may be purchased (or acquired by gift) without the consent of the State, though in the absence of such consent public money can not, in view of the provisions of section 355, legally be expended upon the building. X Opin. Att. Gen., 35; XV ibid., 212. c See Kohl v. U. S., 1 Otto, 367. d XVI Opin. Att. Gen., 477. |