# New Orleans v. Paine/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
147 U.S. 261
New Orleans v. Paine
This case turns upon the power of the court to enjoin the action of an officer of the land department in felocating the boundaries of a land grant; and an injunction is demanded upon the theory that a former survey of the same line had been examined, approved, and paid for, and that the rights of the plaintiff to the lands included in such survey had thereby become vested.
In Noble v. Railroad Co., 13 Sup. Ct. Rep. 271, (decided at the present term,) we had occasion to examine the question as to when a court was authorized to interfere by injunction with the action of the head of a department, and came to the conclusion that it was only where, in any view of the facts that could be taken, such action was beyond the scope of his authority. If he were engaged in the performance of a duty which involved the exercise of discretion or judgment, he was entitled to protection from any interference by the judicial power. In that case it appeared that the only remedy of the plaintiff was to enjoin the secretary of the interior from revoking his approval of a certain map, which operated as a grant of land. His contemplated action amounted, in effect, to the cancellation of a land patent.
So, in this case, if it were made to appear that the former survey had been completed and approved in such manner that all the lands included within the lines of the former survey had become vested in the plaintiff, it is possible that it might be entitled to an injunction against any act which would have the effect of disturbing or unsetting a title thereby acquired. But the difficulty here is that the facts do not exhibit such a case. It appears that the first survey was made under the direction of the surveyor general, who was himself acting under instructions from Mr. Lamar, then secretary of the interior, whihc instructions, in his opinion, authorized him to direct the defendant, Paine, to ascertain the shore line of Lake Maurepas as it existed in 1769, the date of the grant; and his instructions to defendant, which were most careful and explicit as to the method of locating this line, were found to be satisfactory by the commissioner of the general land office, who also approved his contract with the defendant for the survey upon the basis of these instructions. Defendant proceeded to act upon these instructions, and to locate the line as near as he could ascertain the southern shore of the lake to have been in 1769. His report of this survey seems to have been forwarded to the commissioner of the general land office, but never to have been formally approved.
The only record evidence upon this subject consists of three letters: One from the commissioner of the land office to the surveyor general, of January 23, 1891, in which he acknowledges the receipt of the duplicate plat and transcript of field notes of defendant's survey, and also of certain protests, affidavits, and letters, and in closing his correspondence says: 'In view of the foregoing, and of the condition expressed in the contract, allowing partial payments as the survey progresses, I hereby accept the survey, as far as herein considered; and as the several points of objection to the acceptance of some of the lines established in this survey, as set forth in the protests above mentioned, will necessarily demand a further consideration by this office, you are directed to withhold the filing of the triplicate plats in the local land office until you are further advised in regard thereto.' The second letter is from the acting secretary of the interior to the commissioner of the general land office, under date of May 14, 1891, in which, speaking of the decision of Mr. Lamar, the former secretary of the interior, he says: 'I find nothing in this decision to indicate that it was the intention of the secretary to authorize an investigation as to whether the shore of the lake had been changed since 1769, but, on the contrary, it seems to be clearly indicated that the southern shore of the lake, as it now exists, should be fixed absolutely as the starting point to determine the back line of said grant. You will instruct the surveyor general accordingly.' This letter does not indicate, as contended, a reversal of the action of Mr. Lamar, his predecessor in office, but merely that he put a different interpretation upon his decision from that of the surveyor general, under whose instructions the defendant had acted. The last letter was written by the acting commissioner of the land office to the surveyor general, May 21, 1891, and states that 'this line was run by Deputy Surveyor Ruffin B. Paine, under his contract No. 1, dated November 11, 1889, under instructions of your predecessor, and was accepted by this office to the extent of payment for the work, it having been done in accordance with his instructions; but the plats were withheld from filing, awaiting the decision of the department as to the correctness of the instructions, in view of the original decision of the department in this case, dated January 6, 1888. It is unnecessary to enter into the details of the instructions issued by your predecessor, or of the work performed by his deputy in pursuance thereof, as they form a part of the files of your office, and you are no doubt familiar with them. It is sufficient to state that the inclosed decision directs that the southern shore of the lake, as it now exists, shall be fixed absolutedly as the starting point to determine the back line of the aforesaid claims. This necessitates the rejection of the survey executed by Paine as to the establishing of this line, and you will enter into a new contract with some competent deputy for its establishment as now directed by the department.'
It is quite evident from this correspondence that the first survey was never formally approved by the secretary of the interior or the commissioner of the land office, and that no title ever vested in the plaintiff to the lands included in this survey, though defendant, having obeyed his instructions, was, of course, entitled to his pay. If the department was not satisfied with this survey, there was no rule of law standing in the way of its ordering another. Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal by himself or his successor as are the interlocutory decrees of a court open to review upon the final hearing. Fourinquet v. Perkins, 16 How. 82. Thus, in Gaines v. Thompson, 7 Wall. 347, 352, it was held that the action of the secretary of the interior directing the commissioner of the land office to cancel an entry of land was within the exclusive control of the department, and that the court had no jurisdiction or authority to interfere with the exercise of this power by injunction. In delivering the opinion of the court, Mr. Justice Miller stated the general doctrine to be 'that an officer to whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions. Certain powers and duties are confided to those officers, and to them alone; and however the courts may, in ascertaining the rights of parties in suits properly before them, pass upon the legality of their acts after the mattr has once passed beyond their control, there exists no power in the courts, by any of its processes, to act upon the officer, so as to interfere with the exercise of that judgment, while the matter is properly before him for action.'
The case under consideration is not unlike that of Stotesbury v. U.S., 146 U.S. 196, 13 Sup. Ct. Rep. 1, (decided at the present term,) in which a decision by the commissioner of internal revenue, authorizing the refunding of certain taxes, which was reported to the secretary of the treasury for his consideration and advisement, was held by the court not to have been a final decision, but to have been subject to a revision by the secretary. Obviously, the decision of the surveyor general, approving the act of his deputy, was not a finality, since the papers were forwarded by him to the commissioner of the land office, and by him to the secretary of the interior for final approval. So long as there was a superior officer, whose approval was contemplated by law or the regulations of the department, no approval by a subordinate officer would operate as a finality. In this particular the case is readily distinguishable from that of U.S. v. Stone, 2 Wall 525, in which the secretary of the interior attempted to annul the action of his predecessor in issuing certain land patents, by revoking them. It is not at all improbable that the proper location of the back line of this grant may hereafter become the subject of judicial inquiry; but at present, while the matter is still pending before the land department, and the officers are bringing to bear upon it their own judgment and discretion, we have no right to interfere with their action by injunction. This case is within that large number cited in Noble v. Railroad Co., in which it was held that the judicial power will not interpose by mandamus or injunction to limit or direct the action of departmental officers in respect to pending matters within their jurisdiction and control.
The decree of the court of appeals, affirming the decree of the circuit court, dismissing the plaintiff's bill, is therefore affirmed.

## Notes

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