221 U.S.

Opinion of the Court.

that the following proposition is established: "Where an applicant for public lands of any sort has done all that the law requires to entitle him to a patent, he is justly regarded as its equitable owner and may, at any time thereafter, transfer his equitable estate, although the legal title be in the Government," citing, among other cases, Myers v. Croft, 13 Wall. 291; Deffeback v. Hawke, 115 U. S. 393; and this ownership and right of assignment the court concluded §§ 5 and 7 only recognized. In other words did not grant or create a new right, but referred to a right already existing, and that, therefore, the act of 1891 did not authorize an assignment of the land by an entryman until he had acquired such equitable title by the performance by him, and by him only, of the conditions prescribed.

It was conceded that the Interior Department had uniformly placed upon the act of 1891 a different construction in five decisions, the earliest of which was rendered on December 22, 1895, and the last in June, 1900, and it was also conceded that the rule often authoritatively announced is that "where a court is doubtful about the meaning of an act of Congress, the construction placed upon the act by the department charged with its enforcement is in the highest degree persuasive if not controlling." Such decision, however, it was said, only determined in cases of doubt, and, as the court found no ambiguity in the act, decided against the ruling of the Department and the contention of the Government. It recognized the force of such a uniform practice in the Land Office and of the fact which was urged upon its attention, that a large number of reclamations had been effected by assignees in the very valley where the entry in controversy had been made, and said that such fact and practice would resolve doubts in favor of the Government, if it, the court, had any.

We do not find the act of 1891 as clear as the learned District Court did, and must give to decisions of the Land /OL. CCXXI-15

Department the weight to which in such case, the court acknowledged, they are entitled.

The act of 1891, was an amendment of the act of 1877, and made a change in the latter act, and a change in the provisions of an act usually indicates, or is intended to indicate, a change of purpose, to enlarge or restrict the provisions of the prior law. This very natural presumption seems to be contested by defendant. We say "seems" because it may be that it is only its application in the present case which is questioned. Counsel say the "intent to amend, modify or repeal any provision of the act of 1877, must be made clearly to appear by the terms of the amendatory act." In support of this it is urged that the dominant purpose of the act of 1877, was that an entryman should personally reclaim the land in the manner prescribed by the act, and because of the purpose and to secure it, the courts and the Department had ruled that before reclamation the entryman had no rights which he could transfer. Counsel, therefore, deny that a change was made in the act of 1877 by the act of 1891, and urge that where a statute which had been construed by the courts has been reënacted in the same, or substantially the same, terms, the legislature is presumed to have adopted the construction as part of the law unless a different intention is expressly declared. But was there a substantial reenactment of the act of 1877 by the act of 1891? In the act of 1877, the word "assignors" did not appear at all, and the act required, it is contended, that reclamation should be personally made by the entryman. To this requirement the opening words of § 5 of the act of 1891 present a contrast. It reads: "That no land shall be patented to any person under this act unless he or his assignors (italics ours) shall have expended in the necessary irrigation, reclamation, and cultivation thereof three dollars per acre for the purpose aforesaid.

The meaning of these words con

sidered alone is clear. An entryman or his assignors may make reclamation. It is said, however, that the words which follow them explain them and take all ambiguity from them. It is provided that "within one year after making entry the party so entering shall expend not less than one dollar per acre" and that he (italics ours) "shall in like manner" expend the same sum during the second and third year. "Said party," it is further provided, "shall file the proofs of such expenditure" and at the expiration of the third year a map or plan showing the character and extent of such improvements." And again: "If any party fail to file the proofs the entry shall be canceled." It is finally provided that nothing in the section contained "shall prevent the claimant from making his final proof and receiving his patent at an earlier date than that prescribed for the performance of the conditions required. These provisions, it is insisted, designate the entry and entryman and only him. This is made indubitable, it is urged, by the use of the pronouns "he" and "his," excluding every other person, and requiring the expenditure and improvements to be made by him individually. But the opening sentences of the section are to be accounted for, and these are, to repeat, "That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and cultivation thereof . at least three dollars per acre. " and the word "assigns" is also used in § 7. Counsel feel the necessity of accounting for the provision and to give it a meaning that will neither contradict nor make doubtful that for which they contend. Their explanation is, "that Congress used the words 'or his assignors' in § 5 and 'or his assigns' in § 7 only in recognition of the right that every entryman has under any of the public land laws of the United States to make an assignment after he has acquired the equitable title to the land embraced within

his entry." In other words, as observed by the court below, a new right was not created, but a right already existing was incidentally referred to. In aid of this conclusion, and in opposition to the contention made by the Government that "assignors" designated persons who may legally do the things prescribed in § 5 before the equitable title vests, it is answered that an applicant can have more than one assignor but they must be assignors of perfected entries, perfected by the performance of the conditions by the respective entrymen. Examples are given under the practice which obtained in the Land Department prior to 1908 (an act of that year limits the assignment to one) of issuing patents to an applicant who had taken assignment of more than one entry if the aggregate area of the land embraced in the entries did not exceed 320 acres. But to support this view reliance is had upon decisions made after the act of 1891, and which, it is admitted, "apply to assignments made before the vesting of equitable title, as permitted by the Land Office since 1891." That, it is insisted, is not material so far as the point is concerned. But manifestly it is material. To support and give force to a practice of the Land Department under the act of 1891, to impugn its construction of the act, is certainly confusing. We cannot assume that the Land Department did not know what it was about and made its practice under the act oppose its construction of the act. But, it may be granted that there is strength in the argument, and in that based on the words of the statute. They are, however, opposed by arguments of equal, if not greater strength. Conceding then that the statute is ambiguous, we must turn as a help to its meaning, indeed in such case, as determining its meaning, to the practice of the officers whose duty it was to construe and administer it. They may have been consulted as to its provisions, may have suggested them, indeed have written them. At any rate their practice, almost coinci

dent with its enactment, and the rights which have been acquired under the practice, make it determinately persuasive.

We are constrained, therefore, to reverse the order of the District Court sustaining the demurrer and remand the case for further proceedings.

Reversed.

WEST, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, v. KANSAS NATURAL GAS COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

No. 916. Argued April 4, 5, 1911.-Decided May 15, 1911.

When a State recognizes an article to be a subject of interstate commerce it cannot prohibit that article from being the subject of interstate commerce; and so held that corporations engaged in interstate commerce cannot be excluded from transporting from a State oil and gas produced therein and actually reduced to possession.

In matters of foreign and interstate commerce there are no state lines; in such commerce instead of the States a new power and a new welfare appears that transcend the power and welfare of any State. The welfare of the United States is constituted of the welfare of all the States, and that of the States is made greater by mutual division of their resources; this is the purpose and result of the commerce clause of the Constitution.

Natural gas and oil when reduced to possession by the owner of the

land are commodities belonging to him subject to his right of sale thereof, and are subjects of both intrastate and interstate com

merce.