#### FISHER *v.*UNITED STATES EX REL. GRAND RAPIDS TIMBER COMPANY.

Public Lands; Mandamus.

T.- In the absence of a specific act of Congress to the contrary, the entire administration of the disposition of the public lands of the United *437States is within the jurisdiction of the Commissioner of the General Land Office, under the direction and supervision of the Secretary of the Interior.

2. Whether a letter and telegram from a special agent of the General Land Office to the Commissioner, asking that patents be withheld for lands embraced in certain entries pending a further investigation and report, on the ground of suspected fraud, followed by an order suspending action on all such entries until further order,—constitute a “pending contest or protest” against the validity of the entries, within the meaning of the act of Congress of March 3, 1891 (26 Stat. at L. 1099, chap. 561, U. S. Comp. Stat. 1901, p. 1521), providing that after the lapse of two years from the issuance of a receiver’s receipt upon a final entry, “when there shall be no pending contest or protest against the validity of such entry,” the entryman shall be entitled to a patent,—-is a question within the jurisdiction of the Secretary of the Interior to determine, on applications by such entrymen for patents after the expiration of the period of two years; and on the Secretary’s refusal to issue a paterit to one of such entrymen, mandamus will not lie to compel its issuance.

No. 2289.

Submitted October 4, 1911.

Decided November 6, 1911.

Hearing on an appeal by the respondent, the Secretary of the Interior, in a mandamus proceeding, from a judgment of the Supreme Court of the District of Columbia directing the issuance of a peremptory writ of mandamus commanding the respondent to issue a patent to the relator for certain public land.

*Reversed.*

the Court in the opinion stated the facts as follows:

Tbis case is here on appeal from a judgment of the supreme court of the District of Columbia directing that a peremptory writ of mandamus issue commanding the Secretary of the Interior of the United States to issue a patent to the appellee company for certain lands claimed to have been acquired from tbeUnited States under the homestead law.

It appears that on November 10, 1902, a receiver’s receipt,. No. 7754, was issued by the receiver of the Oregon city land office, Oregon, to one Stump, upon the final commuted borne-*438stead entry for a certain tract of land within what was formerly known as the Siletz Indian reservation. On February 12, 1903, Stump conveyed the land by warranty deed to one Morley, who conveyed it to the appellee company.

On November 4, 1903, special agent Hobbs ,of the Land Department of the United States sent a telegram to the Commissioner of the General Land Office as follows: “Please cause the further issuance of patents on lands in the original Siletz Indian reservation stopped. These proofs of cash entries are practically all fraudulent.” This was followed by a letter on November 11, 1903, in which Hobbs called attention to a large number of entries made in the Oregon city office, with the following statement and recommendation: “It will he seen that seventeen of the foregoing entries were made on the same date, *viz.,*July 21, 1902, in the same township and range and in the same locality. That the remaining four entries of the list herein were made for lands in the near locality of these other entries, and that the entire twenty-one entries were sold at or near the date of the cash entry certificates. In view of this fact, it is reasonable to believe that these entries were not made in good faith by the entryman for the purpose of making homes thereon; and as these lands are all in a district that is heavily timbered, it seems evident that the purpose is to acquire these timber lands in the interest of the transferee, Mr. Morley, under cover of the homestead law. I suggest that no patents be issued for any of the lands embraced in the foregoing entries, pending a further examination and report relative to the same.” On the strength of this information, the Secretary of the Interior, on November 14, 1903, issued an order directing the Commissioner of the General Land Office to suspend action on all commuted homestead entries in five townships designated therein in the former Siletz Indian reservation, until further order. The lands here in controversy were included in the order.

It appears that the communications from Hobbs were in response to an investigation instituted by the Secretary of the Interior in March, 1903, based upon a letter from one Brown, agency clerk at the Yakima Indian Agency, Fort Simcoe, Wash*439ington, to the effect that it was the practice on the Siletz Indian reservation for the entryman to visit the land before filing, and once every six months thereafter, remaining on the land overnight during each visit, and spending the balance of his time at his home and about his usual occupation; that it was rarely the case that any member of the family, except the father, came upon the land; that no home was established upon the land, or improvements made, or household effects brought thereon, and that, upon acquiring title, the entryman seldom ever visited the land again.

*Mr. G. W. Gobi, Mr. F. W.*Clements, *Mr. G. E.*Wright, and *Mr. Oscar Lawler*for the appellant.

*Mr. Duane E. Fox*and *Mr. Frank R. Fox*for the appellee.

Mr. Justice Van Oesdel

delivered the opinion of the Court:

The case, as presented, turns upon the interpretation to be placed upon the proviso to sec. 7 of the act of Congress of March 3, 1891, 26 Stat. at L. 1099, chap. 561, U. S. Comp. Stat. 1901, p. 1521, as follows: “Provided, That after the lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be •construed to require the delay of two years from the date of said entry before the issuance of a patent therefor.”

The court below sustained the contention of counsel for appellee, and entered an order peremptorily commanding the Secretary of the Interior to deliver to the relator a patent for the lands in controversy, and to recall, vacate, revoke, and erase “any and all orders, marks, notations canceling, or holding for cancelation, or purporting to cancel, or hold for can*440celation, said receiver’s receipt numbered 7754, and the entry evidenced thereby.” the writ was issued upon the ground tbat tbis is a statute of repose, a limitation alike upon the government and all private protestants or contestants, and tbat the letter and telegram of Hobbs and the order of the Secretary were not sufficient to constitute a pending protest at the expiration of two years from the issuance of the final receipt, and tbat nothing therefore remained for the Secretary to do but to perform the mere ministerial duty imposed by the statute of issuing the patent

the order of the court is assailed by counsel for the government on the ground tbat the statute does not operate as a limitation upon the government, and that the letter and telegram of Hobbs and the order of the Secretary constituted a valid pending protest at the expiration of two years from the issuance of the final receipt. In our view, it is unnecessary to consider either of these assignments, as the appeal can be disposed of on appellant’s fifth assignment of error, to wit: “We think the court erred because it failed to recognize and to hold (and hence to refuse the writ) tbat the matters sought to be controlled by tbis writ are within the exclusive jurisdiction of the *Secretary*of the Interior; tbat they involve the exercise of judicial discretion; and tbat the ruling of the Secretary, tbat there was a protest or contest, filed within the statutory period, is conclusive upon the courts, and not subject to direct review in judicial proceedings of tbis character.”

In the absence of any specific act of Congress to the contrary, the entire administration of the disposition of the public lands of the Hnited States is within the jurisdiction of the Commissioner of the General Land Office, under the direction and supervision of the Secretary of the Interior. *Catholic Bishop*v. *Gibbon,*158 U. S. 155, 39 L. ed. 931, 15 Sup. Ct. Rep. 779. It will be conceded tbat well within the two years proceedings bad been instituted in the Interior Department looking to an investigation of the alleged fraud in the procuring of the final receipt. These proceedings formed the basis of a justiciable action, with the government on the one side and the bolder *441of the receipt on the other. Whether or not the letter and telegram constituted a protest within the terms of the statute was a matter calling for a decision on the part of the Secretary of the Interior, the same as is required in passing upon the sufficiency of the pleadings in any controversy arising before him. In the determination of this question, the Secretary may have been mistaken in holding it sufficient to constitute a technical protest within the rules and precedents of the Land Department, but any attempt on our part to review his action in this proceeding would be to convert a writ of mandamus into a writ of error. It was within his jurisdiction to determine the sufficiency of the protest, or whether it, in fact, constituted a protest at all; and having decided that it did, it is beyond our' power to review his decision.

It is well settled that when the performance of a plain official duty, not requiring the exercise of discretion, is enjoined by law upon an executive officer of the government, and performance is refused, a writ of mandamus will issue to compel its performance at the instance of any person who can show that he has been injured by such refusal. If, in the present case, nothing had been pending at the expiration of the two years from the issuance of the final receipt, and the Secretary had arbitrarily refused to issue a patent, we would have a very different case. But here, at the expiration of the limitation fixed by law, a case was pending challenging the right, of the grantee of the entryman to a patent. It will not do in this proceeding to say that it did not amount to a protest under the law. That was for the Secretary to decide. There is no way open for us to determine this question without exceeding our jurisdiction and reviewing the lawful acts of the Secretary of the Interior in the due exercise of his authority to administer the laws relative to the disposition of the public lands of the United States.

While it is true that arbitrary power resides nowhere in our system of government, and while the supervisory authority vested in the Secretary of the Interior and the Commissioner of the General Land Office over the disposition of the public *442lands is neither unlimited nor arbitrary, yet the question here presented as to whether or not the communications and order amounted to a protest, which we regard as exceedingly close, was one clearly within the power of the Commissioner to decide. To say that he was mistaken would require us to review a matter exclusively confided by law to his discretion and judgment. This proceeding will not admit of such a review.

The judgment is reversed with costs, and the cause is remanded with directions to vacate the order and dismiss the case. *Reversed.*

A writ of error to the Supreme Court of the United States was allowed.