Right of preemption

“ Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring.
I agree with and join in Part I of the Court's opinion relating to pendent jurisdiction. As to Part II, I refrain from joining the Court's speculations about the uses to which it may put the preemption doctrine in similar future cases. ”

“ If it only confers a preemption right then some money must be expended. If we are authorized by the late act of Congress it ourselves with improvements then it is already ours and we will use it as seemith good in our sight. It is not desireable at present to raise the question of ownership publickly at all if it is ours silence will not invalidate our claim If it be not silence will not subject us to the weakness of claiming what does not belong to us. ”

“ The hindrance to the complete performance of everything required of the claimant could not impair his rights. And it was immediately after affirming the validity of his claim, notwithstanding this hindrance, that the court used the language upon which so much stress is placed by the defendant's counsel, to the effect that a claim of pre-emption is not a 'shadowy right,' but when covered by the law is a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. ”

“ The Commissioner held, that, upon a true construction of the third section of the act of 1832, no claimant was entitled to the right of pre-emption unless he was an actual settler, being also a housekeeper, on the land at the date of the act, and that the condition applied as well to the party relinquishing his claim to the Government as to him whose claim had been rejected. ”

“ Answer.—Under the pre-emption laws, which restrict the pre-emption privilege to heads of families, widows, or single persons over the age of 21, who are citizens of the United States or who have declared their intention to become such, it has been judicially decided: 1. That if a single woman marry after filing her declaratory statement, she thereby abandons her right as a pre-emptor, although it is not so in the case of timber-culture claim or homestead entry ”

“ It is contrary to the letter and spirit of the Constitution to divest one citizen of his right, and vest it in another, without full compensation; and if the legislature may do so, upon full indemnification, it cannot of itself constitutionally determine upon the amount of the compensation. ”

“ The actual repeal of such a statute cannot correctly be regarded as the violation of any vested right, or the impairing of the obligation of a contract, for no one can claim to have a perfect and vested right, through all future time, in the mere capacity to do an act, from the absence of a law forbidding that act. ”

“ As the majority notes, however, Garmon “goes beyond the usual preemption rule.” Ante, at 3. In Garmon, the Court determined that, “ [w] hen an activity is arguably subject to §7 or §8 of the Act” (which, respectively, concern employees’ right to engage in concerted activity and unfair labor practices) , “the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board [ (NLRB or Board) ] .” ”

“ The right to the exemption was a federal right, and was specially set up and claimed as such in the petition. Whether the right was denied, or not given due recognition, by the Supreme Court is a question as to which the claimants were entitled to invoke our judgment, and this they have done in the appropriate way. ”

“ This claim for pre-emption stands before us in a light not less favorable than it would if Cloyes or his representatives had been premitted by the land officers to do what in this respect was offered to be done.'
There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure. ”

“ Afterward, when the act of September 4th, 1841, was passed, which so enlarged the right of pre-emption as to have been ever since considered the main source of pre-emption rights, the 11th section provided that all questions as to the right of pre-emption arising between different settlers should be settled by the register and receiver of the district within which the land is situated, subject to an appeal to and revision by the Secretary of the Treasury of the United States. ”

“ When it has no jurisdiction to confirm or reject, it has no authority to inquire into or pass upon the case, beyond the decision of the question of jurisdiction. The peremptory declaration of Congress, that 'no claim shall be allowed for any land, the right to which has hitherto been lawfully acted upon and decided by Congress,' necessarily prohibits the court from passing upon the merits of any such claim. ”

“ We cannot suppose that the legislature meant either to practise a cunning deception or to make a futile grant. Therefore, we are unable to read the charter as making the exemption vain by reserving to the state an unlimited right to impose upon the lessee all that it had renounced as against the lessor. For that was to give notice to the parties, if they were supposed to know the law, that the exemption would be lost if the income was earned in one of the contemplated ways ”

“ The record shows that petitioners did not deliberately attempt to circumvent the permit requirement. Rather they diligently attempted to obtain a permit and were rudely rebuffed and then reasonably concluded that any further attempts would be fruitless.
The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it is invalid on its face. ”

“ The claimants were then in the condition of those who had no claim on the bounty of the Government, except as actual settlers on the land, which furnished a meritorious ground of right to a pre-emption. ”

“ Such a claim, originating in trespass, cannot be recognized; for 'to create a right of pre-emption there must be settlement, inhabitation, and improvement by the preemptor,-conditions which cannot be met when land is in the possession of another.' Hosmer v. ”

“ Where a Federal statute does not preempt State law (as addressed in subsection (a) of this section) , agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law. ”

“ If the privilege or exemption was merely personal, it can hardly be supposed, that it would have been thought a matter sufficiently important to require a special provision in the constitution and laws of the United States. ”

“ If the changing or repealing statute leaves the parties a substantial remedy, the legislation does not exceed its authority. Rights and remedies shade one into the other so that it is sometimes difficult to say that a particular act creates a right or merely gives a remedy. So, also, a statute, under the form of taking away or changing a particular remedy, may take away an existing property right, or impair the obligation of a contract. ”

“ The right to ignore a permit requirement should, in my view, be made to turn on something more substantial than a minor official's view of his authority under the governing statute.
Simply because an inferior state official indicates his view as to a statute's scope, it does not follow that the State's judiciary will come to the same conclusion. Situations do exist, however, in which there can be no effective review of the decision of an inferior state official. ”

“ It would be, at least, useless, to grant an express power to the holder of a common treasury warrant, to locate the land after the forfeiture of the pre-emption right, if that power had been previously granted by the general clause, which enables him to locate waste and unappropriated land; and the limitation on the right of location, which makes it to commence after the forfeiture of the pre-emptive right, is opposed to the idea of its pre-existence. ”

“ The complainants insist that the assessments set forth in their bill are prohibited by that clause of the Fourteenth Amendment of the Federal Constitution which provides that 'no State shall deprive any person on life, liberty, or property, without due process of law.'State laws and constitutions are construed by the Federal courts according to their own judgment in all cases where it is necessary to determine whether a right secured by the Federal Constitution has been violated. ”

“ When the legislature has established rights, so long as there is no dispute about those rights, and so long as there is no complaint of any violation of them, so long there is no occasion for any agency to give to the enactments of the legislature their effect. The moment, however, one person says, the right to that object is mine, and another person says no, but the right to that object is mine; or the moment any man complains that such or such a right belonging to him another man has violated, that moment occasion for the agency in question begins. ”

“ The provision requiring it to be asserted in a particular mode and within a fixed time, are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the permitted period, it ceases to exist, and cannot be claimed or enforced in any form. ”

“ The object of the Legislature was, to protect the public from the mischief of payments to the deputy after his powers are revoked. It requires public notice, to be given of the revocation, so that no future imposition shall be practised; and if the Collector should make a private revocation, without any public notice, the legal conclusion would be, that all payments made to his deputy, in ignorance of the revocation, ought to be held valid; for no man is entitled to make his own wrongful omission of duty a foundation of right. ”

“ It is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified the right. ”

“ That where a state law, statutory or customary, gives to the citizens of the state, in an action or suit inter partes, the right to question at law the probate of a will or to assail probate in a suit in equity, the courts of the United States, in administering the rights of citizens of other states or aliens, will enforce such remedies. ”

“ Neither in the District Court nor in this court would it be lawful for persons, who failed to avail themselves of the benefit of that act during its operation, to intervene for the purpose of establishing a right under grants like these, after its expiration, in a suit commenced by other persons. ”

“ We cannot sanction taking a man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to withhold. That would be making an act criminal without fair and effective notice. ”

“ Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that congress, by a system of laws called the 'Pre-emption Laws,' recognized this right so far as to confer a priority of the right of purchase on the persons who settled upon and cultivated any part of this public domain. ”

“ The authority of the legislature to frame rules by which the right of redemption may be rendered effectual cannot be questioned, and among the most appropriate and least burdensome of these is the notice required by statute. ”

“ If one fact about the Court's taking jurisprudence can be stated without contradiction, it is that "the particular circumstances of each case" determine whether a specific restriction will be rendered invalid by the government's failure to pay compensation. ”

“ To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute. See FMC Corp. v. Holliday, 498 U.S. 52, 56, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990) , (citing Shaw, supra, 463 U.S., at 95, 103 S.Ct., at 2898-99) . Regardless of the avenue we follow-whether explicit or implied pre-emption-this state law cause of action cannot be sustained.
Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. ”

“ By these statutory provisions the rules prescribed under the common law with respect to suits upon joint and several promises have been essentially changed, and the same license which concedes to a party the power of instituting his suit against one or more, or all the parties to an undertaking, carries with it by necessary implication the right to prosecute or discontinue it in the same sense and to the same extent and degree. ”

“ A consequence of this position is that the prerogative may be confined or extended by the supreme legislative authority, and that the courts have jurisdiction to decide whether or not any alleged right falls within the prerogative. The prerogative of the Crown, still of great extent, has been gradually limited by a long series of enactments, the most worthy of notice being Magna carta, Confirmatio cartarum, Prerogativa regis, the Petition of Right, the Habeas Corpus Act, the Bill of Rights and the Act of Settlement. ”