« 이전계속 »
1894, c. 138, 28 Stat. 109), enabling the territory of Utah to enter the Union as a state; and that the defendant has wrongfully entered upon these lands, and has threatened to and will, unless restrained, remove therefrom valuable deposits of salt, to the irreparable damage of plaintiff. Judgment was demanded that the plaintiff be decreed the owner of and entitled to the possession of the lands, and that the defendant be restrained from entering upon them or from removing salt or other deposits therefrom. The defendant answered admitting that the lands are valuable only for the saline deposits found upon them, and alleging that underneath the soil the lands are covered with a deposit of salt vary- . ing from four to eight feet in thickness; that at the time of the approval of the enabling act the lands were so covered with soil and other earthy substances as to conceal their true character, and their real character was not discovered until November, 1906; that the plaintiff had selected and located and received grants to the full amount of the 110,000 acres of lands granted it under section 8 of the enabling act for university purposes; that the lands in question were not included in the selection or location so made by the state of Utah; that the legal title of the lands in question was in the government of the United Sates; and that the defendant was the equitable owner and entitled to the possession thereof by virtue of locations made by its grantors as saline lands under the placer laws of the United States. The court sustained plaintiff's demurrer to the answer. The defendant declined to further answer or plead. Judgment was therefore entered in favor of the plaintiff as prayed for in the complaint, from which the defendant has prosecuted this appeal.
Counsel for both parties assert that the controversy arises over, and the determination of the question wholly depends upon, the construction to be given section 8 of the enabling act. The section is as follows:
"That lands to the extent of two townships in quantity, author. ized by the third section of the act of February twenty-one, eighteen hundred and fifty-five, to be reserved for the establishment of the University of Utah, are hereby granted to the state of Utah for university purposes, to be held and used in accordance with the provisions of this section; and any portion of said lands that may not have been selected by said territory may be selected by said state. That in addition to the above, one hundred and ten thousand acres of land, to be selected and located as provided in the foregoing section of this act, and including all the saline lands in said state, are hereby granted to said state, for the use of said university, and two hundred thousand acres for the use of an agricultural col. lege therein. That the proceeds of the sale of said lands, or any portion thereof, shall constitute permanent funds, to be safely invested and held by said state, and the income thereof to be used exclusively for the purposes of such university and agricultural col. lege, respectively.”
The essential difference between the parties as to the meaning to be given this section arises over the clause, “that in addition to the above, one hundred and ten thousand acres of land to be selected and located as provided in the foregoing section of this act, and including all saline lands in said state.” The appellant contends that the additional lands granted in that clause for the use of the university are only 110,000 acres of lands, and that whatever saline lands are claimed by the state must be selected and located by it and embraced within the 110,000 acres of lands, and that, inasmuch as the state had already selected and located 110,000 acres of lands for the use of the university, it is not entitled to the saline lands in question because they were not selected and not embraced within the 110,000 acres of lands which had been selected and located by the state for the use of the university. On the other hand, the state contends that the additional lands, granted in the clause for the use of the university are 110,000 acres to be selected and located by, it, and, in addition thereto, all the saline lands in the state, and, inasmuch as all the saline lands were granted to it, no selection or location of them was necessary.
It may be said at the outset that the grant
“Should be neither enlarged by ingenious meaning, nor diminished by strained construction. The interpretation must be reasonable, and such as will give effect to the intention of Congress. This is to be ascertained from the terms employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in enforcing them; but if they admit of different meanings-one of extension and the other of limitation—they must be accepted in a sense favorable to the grantor, and, if rights claimed under the government be set up against it, they must be so clearly defined that there can be no question of the purpose of Congress to confer them. In other words, what is not given expressly, or by necessary implication, is with. held." (Leavenworth, etc., R. R. v. U. 8., 92 U. S. 740, 23 L. Ed. 634.)
In section 12 of the enabling act, it is also provided that "the said state of Utah shall not be entitled to any further or other grants of land for any purpose than is expressly provided in this act,” etc. Conceding therefore that the state is entitled to only such lands as have been expressly granted to it, nevertheless the enabling act is "to be considered sensibly, and with a view to the object aimed at by the Legislature.” Gibson v. Jenney, 15 Mass. 205. In determining the question the chief purpose is to ascertain the intention of Congress. Its intention is found "in the language actually used, interpreted according to its fair and obvious meaning.” U.S. . Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780. If the language employed is ambiguous, and if from the situation of the parties and the nature of the grant it is uncertain whether saline lands were or were not included within the 110,000 acres of lands, “the special rule of construction applicable to statutes making such grants would compel a construction favorable to the grantor.” (Barden v. N. P. R. R., 154 U. S. 321, 14 Sup. Ct. 1030, 38 L. Ed. 992.) From a reading of the statute it appears that lands were granted to the 'extent of two townships, authorized by the act of 1855. In addition thereto, there were also granted "one hundred and ten thousand acres of lands to be selected and located as provided in the foregoing section of this act, and including all saline lands in said state.”
The question now is, and the thing which counsel assert divides them is: What meaning shall be given the words "and" and "including" found in that clause? The appellant contends that "the word 'and, just preceding the word 'including,' must, as we take it, be stricken out as meaningless and serving only to obscure the meaning.” It is then, in effect, urged that by disregarding the word "and,” and by treating the word “including” as a word of limitation, or regarding it as expressing the idea that the thing in question constitutes a part only of the contents of some other thing, the clause must be read to mean that the saline lands are embraced within the 110,000 acres. Were we at liberty to wholly disregard the word "and," and were we further at liberty to transpose the words in the clause as do counsel, so as to make the clause read that a further or additional grant of “one hundred and ten thousand acres of lands including all saline lands in said state, to be selected and located, etc., are hereby granted,” there would be some force to appellant's position; but we do not feel that we are at liberty to do either. It is an elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute. By giving effect to the word "and” does not render the clause in which it occurs unintelligible nor lead to an absurdity. We therefore are not at liberty to reject it. Nor is the word generally regarded of a flexible character, or of a dubious or varied meaning, permitting it to be enlarged or restricted, or to be greatly varied, in order to give effect to the fundamental purpose of a statute, and to carry out the intent of the lawmaking body. According to the common and approved usage of language, the word “and” expresses the relation of addition. We think it was used in such sense in the clause in question. The word “including" is susceptible of different hades of meaning.
Common usage has given it different meanings. It may be used in the sense to comprise or embrace, as this volume includes all his works (Standard Dictionary); to confine or to contain, as the shell of a nut includes the kernel (Webster's Dictionary); to express the idea that a thing in question constitutes a part only of the contents of some other thing (Dumas v. Boulin, McGloin [La.] 275); as a word of enlargement, and in ordinary signification implying that something else has been given beyond the general language which precedes it (In re Goetz, 71 App. Div. 272, 75 N. Y. Supp. 750); to add to the general clause a species which does not naturally belong to it (Hiller v. U. S., 106 Fed. 73, 45 C. C. A. 229); and as the equivalent of “also,” a sense in which it is frequently employed in tariff acts (U. S. v. Pierce, 147 Fed. 199, 77 C. C. A. 425). We think the word “including” was here used as a word of enlargement, to add to, or as the equivalent of "also," and, as so used, implies that something else has been given beyond the general language which precedes it. So regarding these words, in the clause in which they are found, is but giving them their ordinary and popular meaning, and is placing a construction upon them as construed and understood according to the common and approved usage of language. When so construed, and understood, it is very clear that by the clause in question Congress intended to grant something in addition to the 110,000 acres of lands for the use of the university, which is plainly expressed to be all the saline lands in the state.
Appellant has referred us to enabling acts of other states (Ohio, Missouri, Michigan, Illinois, Alabama, Mississippi, and Arkansas), wherein only a definite number of salt springs or a definite quantity of saline lands was granted to the state, as evidencing a policy not to grant all, but only a portion, of the salt springs or saline lands to the state. Respondent has referred us to the enabling acts of North and South Dakota, Montana, Oregon, and Wyoming, wherein it was expressly provided that the lands granted were "in lieu of any grant of saline lands granted to said state," and has especially referred us to land grants made to the territory of New Mexico, four years after the approval of the U'tah enabling act, wherein there was granted to the territory of New Mexico, for university purposes, in addition to lands to the extent of two townships in quantity,