Opinion of the Court.

to expire with the foreign patent having the shortest term. This is the case as it appears from the standpoint of the patentee, without regard to the interests of the American public.

But it is to be remembered - at least it may be assumed that Congress was advised that action by the Patent Office upon applications for patents was often unduly and purposely delayed by applicants until they could reap the full benefit of the monopoly obtained by them in foreign countries before taking out an American patent. "In the meantime," the Commissioner of Patents, in his annual report as late as 1887, said, "they [applicants for American patents] are engaged in manufacturing and putting upon the market the article or improvement, but warning the public that the patent is applied for, the effect of which is to give them the absolute control and monopoly of the invention and to deter all other inventors from entering upon the same field of invention and from manufacturing the article."

We need not say whether these considerations were or were not sufficient to induce the change first made by the twentyfifth section of the act of 1870 and perpetuated in the existing statute. They are referred to only as showing what Congress may have had in view when it provided, as it did, that an invention covered by a foreign patent, obtained or caused to be obtained before an American patent is granted for the same invention, should be free to the American public as soon as it became by reason of the expiration of the foreign patent free to the people of other countries. If this principle operates harshly upon inventors in certain cases, it is for Congress, whose discretion is not subject to judicial control, to make provision for those cases, if it be possible to do so without such injury to the people of our country as ought not to be inflicted upon them.

And it may be stated, in this connection, that Congress allowed the twenty-fifth section of the act of 1870 to stand, although the Commissioner of Patents, immediately after the passage of that act, ruled that it had changed the prior law so as to limit an American patent to expire at the same time.

Opinion of the Court.

with the foreign patent of the shortest term covering the same invention and issued before the American patent, although after the application therefor was made. If, as is insisted, the change was not intended, and was effected only by words incautiously used, or not used with any purpose to introduce a new rule for the limitation of the term of an American patent, some action upon the subject, it may well be assumed, would have been taken by Congress after the passage of the act of 1870.

The Revised Statutes of 1874 were adopted, it must be presumed, with the knowledge on the part of Congress of the construction previously placed by the Patent Office upon the twenty-fifth section of the act of 1870. This presumption is strengthened by an examination of the act approved February 18, 1875, entitled "An act to correct errors and to supply omissions in the Revised Statutes of the United States." 18 Stat. 316, c. 80. That act, upon its face, shows that the entire revision of 1874, after it took effect, was carefully reexamined for the purpose of ascertaining whether there were errors or omissions in the work of revision. Now, it is inconceivable that the difference in the wording of the twentyfifth section of the act of 1870 or of section 4887 of the Revised Statutes, when compared with the act of 1839, could have escaped the attention of Congress, especially as the act of 1870 had been interpreted as introducing a new rule in respect of the term of an American patent, where the same invention was covered by a foreign patent previously issued. The act of 1875, for the purpose of correcting errors and omissions, amended or repealed nearly seventy sections of the Revised Statutes. Still further- as an examination, of the statutes will show since the Revised Statutes went into operation nearly eight hundred sections, other than those referred to in the act of 1875, have been amended or repealed. But no amendment has ever been made of section 4887.

The rule prescribed by the twenty-fifth section of the act of 1870 having been reproduced in section 4887 of the Revised Statutes, and the latter section never having been amended, we ought not, after the lapse of nearly twenty-five years from

Statement of the Case.

the passage of the act of 1870, place upon its twenty-fifth section, or upon section 4887 of the Revised Statutes which took its place, any interpretation other than that which the ordinary, natural meaning of their words import.

Our answers, therefore, to the questions certified are thatUnder the facts stated, the invention for which the United States patent to Bate was issued was "previously patented in a foreign country," within the meaning of those words in section 4887 of the Revised Statutes, and the United States patent expired, under the terms of that section, before the expiration of seventeen years from its date, and it is so certified to the Circuit Court of Appeals.

FROST v. WENIE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

No. 172. Argued January 24, 1895. — Decided March 4, 1895.

Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal the earlier act is expressed or clearly indicated, the court will, if possible, give effect to both.

In view of the treaties between the United States and the Osage Indians, and the laws affecting their lands enacted prior to December 15, 1880, it must be held that the lands which were, by the act of that date, 21 Stat. 311, directed to be opened for entry under the homestead laws, were lands within the abandoned Fort Dodge military reservation, subject to disposition under general laws relating to "other public lands," and not lands of an exceptional class, that were affected with a trust established for the benefit of Indians by treaty.

THE appellant, who was the plaintiff below, claimed to be possessed of the equitable title to certain lands, the legal title to which is in the appellee, Frederick T. M. Wenie, by virtue of a patent issued by the United States January 25, 1890.

Statement of the Case.

The relief sought by the bill is a decree declaring the legal title to be held in trust for the plaintiff, and requiring the defendant to convey such title to him.

The lands in dispute constitute a part of what are known as the Osage Indian trust and diminished reserve lands in Kansas, included within what was once the Fort Dodge military reservation, established June 22, 1868. They are lots 9, 10, 11, and 12 in section 25, township 26 south of range 25 west, and lots 14 and 15 of section 30, township 26 south, range 25 west, in Ford County, Kansas.

The appellant made a homestead entry of these lands on the 1st day of October, 1881, at the Larned, Kansas, land office. This entry was made under the assumption that the lands had been restored to the public domain by the act of Congress approved December 15, 1880, c. 1, which declared that the Fort Dodge military reservation was no longer needed for military purposes, and authorized the Secretary of the Interior to dispose of a part of the lands within that reservation to actual settlers under the provisions of the homestead law. 21 Stat. 311.

The case turns on the construction of that act -the controlling question being whether Congress intended to open to actual settlers under the homestead laws such of the lands, within the limits of the abandoned military reservation, lying north of the railroad track, as were part of the Osage trust lands. The court below held that it did not.

The principal ground of the decision was that a different interpretation is not required by the terms of the statute, and would be inconsistent with the treaties between the United States and the Osage Indians and with the previously declared purpose of Congress in reference to the Osage lands.

Before looking at the language of the act of December 15, 1880, it will be well to recall the history of these lands, as well as the relations between the United States and the Osage Indians, as shown by treaties and by legislative enactments.

One of the articles of the treaty of June 2, 1825, between the United States and the Great and Little Osage tribes of Indians, established a reservation in what is now the southern

Statement of the Case.

part of Kansas, which those Indians could occupy as long as they chose to do so. 7 Stat. 240.

By an act, approved January 9, 1837, c. 1, it was provided: "SEC. 1. All moneys received from the sales of lands, that have been, or may be hereafter, ceded to the United States by Indian tribes, by treaties providing for the investment or payment to the Indians, parties thereto, of the proceeds of the lands ceded by them, respectively, after deducting the expenses of survey and sale, any sums stipulated to be advanced, and the expenses of fulfilling any engagements contained therein, shall be paid into the Treasury of the United States in the same manner that moneys received from the sales of public lands are paid into the Treasury. SEc. 2. All sums that are or may be required to be paid, and all moneys that are or may be required to be invested by said treaties, are hereby appropriated in conformity to them, and shall be drawn from the Treasury as other public moneys are drawn therefrom, under such instructions as may from time to time be given by the President." 5 Stat. 135.

In the act of July 22, 1854, c. 103, establishing the offices of surveyor general of New Mexico, Kansas, and Nebraska, is a provision "that all the lands to which the Indian title has been or shall be extinguished within said Territories of Nebraska and Kansas shall be subject to the operations of the preemption act of fourth September, eighteen hundred and forty-one, and under the conditions, restrictions, and stipulations therein mentioned." 10 Stat. 308, 310.

By the act of May 20, 1862, c. 75, the object of which was to secure homesteads to actual settlers on the public domain, it was provided, among other things, that all lands subject to preëmption entry might be acquired by homesteaders without the payment of cash therefor. 12 Stat. 392.

And by the act of June 2, 1862, establishing a land office in the Territory of Colorado and for other purposes, it was declared "that all the lands belonging to the United States to which the Indian title has been or shall be extinguished shall be subject to the operation of the preëmption act of the fourth of September, eighteen hundred and forty-one, and