by this statement of facts and by the Acts of ing, to be selected by the Governor or some one The Act of March 3, 1853, 10 Stat. at L., 244, under which the right of the State of California to the school lands arises, has been the subject of construction in this court more than once heretofore, and the decision of the question before us requires a further critical examination of its provisions. The first five sections of it provide for the establishment of the offices of Surveyor-General, two land-offices, with registers and receivers, and for the organization of the general land system of the United States, including surveys; and it then proceeds to lay down the rules by which rights to the public lands may be acquired. The granting clause of the 16th and 36th sections of the public lands as thus surveyed, to the State of California, is as follows: "Section 6. And be it further enacted, That [170] all the public lands in the State of California, whether surveyed or unsurveyed, with the exceptions of sections sixteen and thirty-six, which shall be and hereby are granted to the State for the purposes of public schools in each township, and with the exception of lands appropriated under the authority of this Act or reserved by competent authority; and excepting, also, the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the Preemption Laws of 4th September, eighteen hundred and forty-one, with all the exceptions, conditions and limitations therein, except as is herein otherwise provided; and shall, after the plats thereof are returned to the office of the register, be offered for sale, after six months' public notice in the State, of the time and place of sale, under the laws, rules and regulations now governing such sales, or such as may be hereafter prescribed." Section 7 of the Act may as well be read here, as it is important to a true solution of the question under consideration. The 13th section also grants the State ten sections of land for the purpose of erecting the public buildings of the State, with the same proviso as the one to section 12. The proviso to the 3d section is also relied upon as indicative of the purpose of Congress in regard to the mineral lands of California. That section contains the authority under which the Surveyor-General is to act in surveying the public lands in that State, and, after investing him with the powers conferred on other Surveyors-General, and some specific directions for the survey of private land claims, it is "Provided, That none other than township lines shall be surveyed where the lands are mineral, or are deemed unfit for cultivation; and no allowance shall be made for such lines as are not actually run and marked on the field, and were actually necessary to be run.” It is strongly urged by plaintiff's counsel that the language of the granting clause imports a grant in præsenti, and that wherever by any survey of the government thereafter made the location of the 16th and 36th sections of a township was ascertained, it establishes the title in the State from the date of the statute, namely: March 3, 1853. It is quite unnecessary to enter upon this question, which has been before us in so many shapes; for, if it be conceded that such would be the effect of the statute if there were no words of exception in the grant, Congress has, in nearly every case where the question has arisen, made such specific exceptions to the operation of the grant as to decide the matter without resort to the rule of construction asserted by plaintiffs. Take, for instance, railroad grants. Besides the more general reservations from the grant, there is almost always found a provision that where, by the location of the road, the sections on each side of it, are ascertained, which would pass by the general terms of the grant, those which have been preempted, sold or otherwise disposed of shall not so pass, but the grantee may select other lands in lieu of those, which may be said in this manner to be excepted out of the grant. This is true of the statute under considera [171] "Section 7. And be it further enacted, That tion, and we may pass this branch of the argu- [172] Defendants allege that it was not so subject to the grant, for two reasons: 1. That it is mineral land, and that the grant of school lands to the State does not cover any mineral land. We will consider these in their order: Very soon after the conquest of California and its cession to the United States by Mexico, it was found to be rich in the precious metals, and such was the rapid influx of immigrants from the Eastern States that the California population at the time it was organized as a State, in 1850, was largely composed of mining camps and settlements engaged in mining these metals. As nearly all those mines were discovered on land the title of which was vested, by the Treaty, in the Government of the United States, it became important to determine what course the government would take with regard to this new source of untold wealth. The Spanish Government, to which this territory and much other, rich in precious metals, had once belonged, had instituted a system of laws concerning her mines by which private enterprise was invited to develop them, and a revenue secured at the same time to the Crown, which made Spain for a time the richest of the civilized governments of the world. This system Mexico had inherited and perpetuated, and there were many American statesmen who believed that, with the territory, we had acquired the laws which governed the production of gold from the earth. Others believed that, whether this were so or not, it would be a wise policy for the government to secure to itself a fair proportion of the metal produced from its own ground. But while Congress delayed and hesitated to act, the swarm of enterprising and industrious citizens filled the country, and, before a State could be organized, had become [173] its dominating element, with wealth and numbers and claims which demanded consideration, Matters remained in this condition, with slight exception, until the year 1866, when Congress passed a law by which title to mineral land might be acquired from the government at nominal prices, and by which the idea of a royalty on the product of the mines was forever relinquished. 14 Stat. at L., 251. preemptor could designate, by the description But this right of preemption on unsurveyed The effect of this was as Congress intended it should be, that, as no surveys could be made of mineral lands until further order of Congress, there could be no sale, preemption or other title acquired in mineral lands until Congress had provided by law for their disposition. The purpose of these provisions was, undoubtedly, to reserve these lands, so much more valuable than ordinary public lands, and the nature of which suggested a policy different from other lands in their disposal, for such measures in this respect as the more matured wisdom of that body, which by the Constitution is authorized to dispose of the territory or other property of the United States, should afterwards devise. It is a strong corroboration of this view that Congress, in the section (12) of this same statute giving the State seventy-two sections for a seminary of learning, declares that no mineral lands shall be taken under the grant, and makes the same reservation of its mineral lands in the grant for the erection of public buildings in the State. We find a similar provision in the grant to the Pacific Railroad Companies, whose road it was known would pass through some of these mineral regions. By the 4th section of the Act of.1864, 13 Stat. at L., 356, it is declared that neither that Act nor the Act of 1862, 12 Stat. at L., 489, shall be held to include in the grant "Any government reservation or mineral lands or the improvements of any bona fide settler on any lands returned or denominated mineral lands." the territory of the United States. During this period, however, from 1849 to As we have already said, Congress, after keep1866, the system of the disposition of the pub-ing this matter in abeyance about sixteen years, lic lands, in general, had to be introduced into enacted, in 1866, 14 Stat. at L., 251, a complete California, and grants of land were made to the system for the sale and other regulation of its State for various purposes, also to railroad com- mineral lands, so totally different from that panies; and in all this the attention of Congress which governs other public lands as to show was, necessarily, turned to the distinction be- that it could never have been intended to subtween mineral lands and the ordinary agricult-mit them to the ordinary laws for disposing of ural lands of the other Western States to which similar laws had applied. This distinction is nowhere more plainly manifested than in this Act of 1853. As we have said in Sherman v. Buick, 93 U. S., 209 [XXIII., 849], the main purpose of that Act was to provide for the survey and sale of the public lands and for the right of preemption to the settler on these lands; and there was embraced in this clause of preemption the grant of the 16th and 36th sections to the State for school purposes. In the very sentence which contains this grant in parenthesis, and while introducing the new principle, that the public lands should be subject to the right of preemption, whether surveyed or unsurveyed, the mineral lands are excepted, in ex-grant of those sections to the State. press terms, from this right and from public sale. We say that this introduced a new principle in preemption law; for, except in a very few cases, no right of preemption had before existed until the lands were surveyed, so that the [174] Taking into consideration what is well known to have been the hesitation and difficulty in the minds of Congressmen in dealing with these mineral lands, the manner in which the question was suddenly forced upon them, the uniform reservation of them from survey, from sale, from preemption and above all from grants, whether for railroads, public buildings or other purposes, and looking to the fact that from all the grants made in this Act they are reserved, one of which is for school purposes, besides the [175] 16th and 36th sections, we are forced to the conclusion that Congress did not intend to depart from its uniform policy in this respect in the It follows, from the finding of the court and the undisputed facts of the case, that the land in controversy, being mineral land and well known to be so when the surveys of it were made, did not pass to the State under the school section grant. It seems equally clear to us that the land is Mr. Justice Field did not sit in this case nor In the case of Sherman v. Buick, we have said, in reference to this section, that it was unnecessary to decide whether the improvements found on the land when the survey was made, and the character of the person owning them should be, in all respects, those which are prescribed by the general preemption law. We are now satisfied that this section prescribes its own rules on that subject, and that whenever, at the time these sections are ascertained by the government survey, there is either a dwellinghouse or the cultivation of any portion of the land, on which some one is residing and is asserting claim to it, the title of the State does not vest, but the alternative right to other land as indemnity does. It is only necessary to look to what we have said in Sherman v. Buick, of the fact that Congress had in view the rapid settlement of the country and the long time which might elapse before it could be known by actual survey where these school sections would be found, to see that a liberal construction must be given to the language by which Congress expresses its purpose to protect these settlements, buildings and cultivations, and that we have no True copy. Test: (See S. C., "Jifkins v. Sweetzer,” 12 Otto, 177-180.) Removal of causes-before trial. 1. The Acts for the removal of causes from £ Submitted Nov. 10, 1880. Decided Nov. 22, 1880. right to add other qualifying incidents to the APPEAL from the Circuit Court of the Unit ed States for the Western District of Penn sylvania. The case is fully stated by the court. Mr. Chief Justice Wait delivered the opin- exercise of this right than those found in the statute. These are not the same required under the general preemption law, and we have no authority to import the latter into the new statute. Some of the expressions found in Sherman v. Buick and in Water & M. Co. v. Bugbey, 96 U. S., 165 [XXIV., 621], are supposed by counsel to convey a different meaning; but in the use of the words "preemption" and "preemptor," in reference to this section of the statute, it was This was a suit in equity, begun in the Court not designed to imply all that was meant by of Common Pleas of Luzerne County, Pennsylthose terms in the Act of 1841 and its amenda- vania, June 20, 1868, by the appellee against [176] tory adjuncts, but to convey the idea of a set- the appellants and one James Jifkins, to obtain tlement and a settler according to the terms of an account of the rents and profits and a reconthe statute under consideration. Nor is there veyance of certain real estate, which, it was alanything in the principle announced in the lat-leged, had been transferred to the defendants ter case, that, where a settler abandons his claim and put into their possession as security for the to hold the land against the State by virtue of payment of money. The defendants answered, such settlement or improvement, and acknowl-denying that they held the property as securiedges the title of the State by purchase, his tv and claiming that their title was absolute. improvement or settlement cannot be set up by Upon this issue testimony was taken and, after a third person to defeat the title of the State hearing in the Common Pleas, on the 20th Febrecognized by the United States, which conflicts ruary, 1871, the prayer for relief was refused with what we have just said or with the defend- and the bill dismissed. From this decree an apants' rights in the present case. Here the set-peal was taken to the Supreme Court of the tlement, building and cultivation have been continuous for twenty years, with constant assertion of claim. The same parties or their privies are still claiming it. None of them have accepted title under the State or acknowledged its right to the land. The Government of the United States has given them a patent founded on this very possession, use and occupation. Nothing in that opinion justifies the construction placed upon it by counsel, and the case is clearly inapplicable to the one before us. State, where, on the 23d May, 1872 he decree [177] We are of opinion that the settlement, build- Pleas to make a final decree in the premises, ac- [178] ing and cultivation, found as facts by the Circuit cording to equity.' On the 24th of August the Court, bring the case within the provisions of case was referred, by the Common Pleas, in acthe 7th section of the Act of 1853 and, necessa-cordance with the mandate of the Supreme rily, render void the title asserted under the State by plaintiff. It follows that the judgment of the Circuit Court is right and it is, accordingly, affirmed. U. S., Book 26. See 12 OTTO. Court. On the 24th of August, 1874, two years [179] died, filed, in the Common Pleas, a petition for | moval could have been effected after that. The The single question to. which our attention was called on the argument was, whether the petitions for removal were presented to the State Court in time. In both the Acts of Congress invoked it is provided that the petition shall be filed" before the trial or final hearing of the suit." From the record, it appears that there was but a single issue between the parties, to wit: whether the appellants were the absolute owners of the property in dispute, or whether they held the title in trust for the appellee. This issue was heard and decided in favor of the appellants in the Common Pleas. The suit was then taken by appeal to the Supreme Court of the State, where it was again heard and a decision rendered in favor of the present appellee. This disposed of the case finally on its merits, and nothing remained to be done but to continue the hearing already begun until the necessary accounts could be taken and the details of a final decree settled. The Act of 1875 requires that the petition for removal shall be filed "before the trial." This, we held in the Removal Cases, 100 U. S., 457 [XXV., 593], meant "before the trial is in good faith entered upon.' If the "trial had actually begun and was in progress in the orderly course of proceeding," when the petition was presented, it would be The hearing of this case, originally begun in the Common Pleas, was transferred by the appeal to the Supreme Court. That court, on the appeal, had the right to re-examine what had been done in the Common Pleas. In effect, it took up the case on the hearing begun below. If, on the appeal, the decree below had been reversed and the cause sent back for a rehearing, then the final hearing, for the purposes of the statutes now under consideration, would not have begun until the court below had again entered upon the determination of the cause. Then the reversal would have perfected the right to a second hearing in the court of original jurisdiction, and, under the rule stated in Vannetar v. Bryant, 21 Wall., 41 [88 U. S., XXII., 476], a demand for the transfer might properly be made. Here, however, the Supreme Court granted no new hearing. It reversed what had been done below and then proceeded, under the original submission, to decree on the merits. It thus continued the hearing under the original submission, decided the controversy so far as the primary rights of the parties were concerned, and through the Common Pleas sent the case to a master to settle the details of the final decree. No power was given the court below to rehear the case, but only to proceed in due course with the hearing that had been begun until the inquiry as to the whole subject-matter was completed." Judgment affirmea. Mr. Justice Strong did not sit in this case, James H. McKenney, Clerk, Sup. Court, U. S. V. THOMAS MURPHY, LATE COLLECTOR OF too late. The same rule applies to the Acts now CARL L. RECKNAGEL ET AL., Piffs. in Err., It seems to us clear that if the Court of Common Pleas had, in the first instance, decided the issue raised by the pleadings in favor of the appellee, instead of the appellants, and sent the case to a master to state the accounts, no re (See S. C., 12 Otto, 197-200.) In an action to recover back duties, illegally ex- Argued Nov. 8, 1880. Decided Nov. 22, 1880. [180 [197] IN ERROR to the Circuit Court of the United Mr. Edwin B. Smith, Asst. Atty-Gen., for defendant in error. Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the Southern District of New York. The suit was brought to recover the am unt of duties claimed to have been illegally exacted from the plaintiffs by the defendant, and paid by the former under protest. The subject to which the controversy relates is an article known in commerce as argols. The Act of Congress of July 14, 1862, sec. 5, 12 Stat. at L., 547, imposed upon "argols or [198] crude tartar a duty of "six cents per pound." The Act of July 14, 1870, 16 Stat. at L., 266, exempted "argols crude" wholly from duty, by putting the article in the free list created by that Act. Both these Acts were in force when the importations in question were made. The controversy between the parties therefore narrows itself down to the question whether the argols of the plaintiffs in error, upon which the duties complained of were exacted and paid, were "argols crude" or not. If crude, they were not dutiable and the plaintiffs were entitled to recover; otherwise, the defendant was entitled to a verdict in his favor. The subject was a proper one to be enlightened by evidence and passed upon by the jury. Both were done, and a verdict and judgment for the defendant was the result. When wine ferments, certain deposits cling to the sides or fall to the bottom of the casks. These deposits are mingled with a variety of impurities, such as glucose, leaves, sticks and particles of dust, silicate and other like things. By washing in cold water, these impurities are removed and the crude tartar is left free from their presence. The effect of the cold water is mechanical. When boiling water is applied sufficiently, crystallization and recrystallization take place, and the product is the cream of tartar of medicine and commerce. There is refinement in the latter case, but no chemical change is wrought. Argols are used also for making tartaric acid, Rochelle salts, the preparation of tartrate of antimony and potash, called tartar emetic, as a mordant in dyeing, and for other purposes. Argols and crude tartar are synonyms. The phrases are used convertibly by those who deal in the article. The lexical definition of crude is: "In its natural state; not cooked or prepared by fire or heat; undressed; not altered, refined or prepared for use by any artificial process; raw." See Webster's Dic. Upon the trial the plaintiffs produced and [199] identified samples of argols of the several importations upon which the duties were paid, and gave proof tending to support their case. The defendant then gave proof tending to maintain the claim of the government. The testimony of the witnesses on both sides is set out at length in the bill of exceptions. That then proceeds: "A large number of witnesses were called by the defendant from the trade and from among the manufacturers of cream of tartar,and dealers and others, whose testimony tended to prove that there was an article of commerce and importation unlike the plaintiffs' samples which was, in fact, crude argols;' that the plaintiffs' samples exhibited at the trial were not crude argols;' that said samples differed from 'crude argols,' etc. * These witnesses な also testified uniformly that plaintiffs' samples were refined argols, and in that there was a difference between them and crude argols, etc. it * * Samples of crude argols' were exhibited which differed, as above stated, from those exhibited by the plaintiffs. Also, that there was a difference between crude argols and the lees of wine, and that all these differences were well understood by the trade and by manufacturers." The court, after recapitulating with entire fairness the substance of the testimony, said to the jury: "The only question for you to determine is, whether these argols were ‘argols crude,' those known to commerce as such, or those known to science as such, or whether they were argols that were more or less refined." This instruction was clear and accurate and it covered the entire ground of the controversy. Nothing more was necessary to be said. No amount of verbiage would have improved it. The jury could have no difficulty in applying it intelligently to the facts before them. They knew from the evidence that if there were no substantial change in the condition of the argols, as they were when they came from the wine cask, they were crude. On the other hand, if there were such change wrought by a process to which the argols were subjected, they lost their identity, and took their place in a new and different category. According to the nomenclature of commerce, they ceased to be crude, and became refined. They could not be both at the same time. The measure of refinement was of no consequence, provided it was sufficient to be material. The elaborate brief submitted for the Government shows that, in [200] the customs laws passed from time to time by Congress, exact analogies to the case in hand have constantly occurred and are numerous. It is unnecessary particularly to advert to them. In cases like this, the law recognizes the authority of those engaged in commerce, and adopts, necessarily and as conclusive, the meaning which they have given to words and phrases employed in their daily business. It is needless to notice specifically the several assignments of error. They relate to the instruction given, and to several asked by the counsel for the plaintiffs and refused by the court. As regards the former, we have expressed our approval. If the latter were in conflict with it, they were properly refused for that reason. Conceding that they were correct, the instruction given was sufficient for the case. Nothing more could, therefore, be required of the court. Bk. v. Burkhardt, 100 U. S., 686 [XXV., 766]. The judgment of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U.S. |