The national Republican., 1867-05-09
Al THE COURTS.

ooPkksN OouRro OF IHk UNITED oTAIks.-
On motion Of Hon. Reyerdy johnson, Daniel
Clarke, esq, Of Maryland, was admitted an at.
torney and counsellor Of this court.
On motion Of Mr.. d. Stanton, Henry II. Black
burn and Joseph 7. Hoke, esquirss, Of West Vir.
ginia, we're admitted attorneys and oounssllors Of
this court. -
/ ORDER or COURT. v
ordsred---That no copies Of tho orders, rules,
and forms In bankruptcy, or OF any OF them, 10
DO established by this court, shall be published
until the order Of this court.
No. IL Original. The Commonwealth Of Vir.
ginia, complainant, vs.. The State OF West Vlr.
ginia. The argument Of the demurrer hled In
this cause was continued by Mr.. D. R. Curtis In
opposition TO the same, and concluded by Mr..
Rsverdy johnson In support Of the demurrer.
No. 17o. John W. and VIM. Thompson, plain
tifs In error, vs. George W. Riggs OF al. The
argument Of this cause was commenced by Mr.
Nathaniel Wilson, Of counsel for the plaintiffs In
error.
Adjourned until tomorrow at IL o'clock.
The Ptblic Land,-Mandarnn 10 Compel
TIE Comnlissioner Of the General Land OGee to
I,,He a Patsnt.--Mnrray MeConnsH appellant,
%; The Cosfs.,''iOnsr Of ihs General Land
OHos-This suit was brought In the Supreme
Court for the District Of Columbis, praying q
writ Of mandamus to compel tho Commissioner
Of the General Land Once TO cause patent TO
be issued TO the relstor for tract Of land In the
State Of Illinois, which the relator claimed TO
have. purchased at private sale on the 1st Of
June, 1885, under the acts Of Congress then gov
eruing such purchases.
The petition shows that before the day Of pur.
chase the land had been surveyed under
the authority Of the United States, tho plots
made and fled In the proper land district, and
the land pot In market for public sale BY proc
lamation from the Presidents. The land not being
IL - L. IL T. -
sale by the land officers at one dollar and twenty
hve cents per acre and was purchased by the re-
lator and entered In the legal and ordinary man
ner, the money being fully paid at the time Of
the purchase. The usual certificate Of purchase
was issued to the relator by the receiver Of the
land oiice, and was subsequently, fled In the
General Office, at Warrington, In conformity
with law and usage Here the matter rested, no
Commissioner notified the relator Of tho refusal
action being taken on II until August, 1857, whom
the Of the patent on the ground that the land had
been entered before the date Of the rslRtor's en-
try BY one KenEie, under the act Of May, 1881;
and that II was therefore not offered at public
sale, and was not subject to private entry. Il
was then claimed that this became the judgment
Of the General ONCE in 1885, although the rela-
tor alleges In his petition that he was constantly
pressing the Office for patent from the time Of
filing his certificate until the date Of this formal
otifcation-tweuty.one years after the alleged
date Of the decision Of the Office adversely to the
entry. Tho then Commissioner, now Senator
Hendricks, wrote that he was mot authorised to
review and reverse the opinions Of his Predeees-
sors." .
The return to tho alternative raafaamus ,st
forth as follows the commissioners objection to
the writ "It is q we'll settled principle that
mandamRS can only bo issued TO an executive
officer where the act to be done Is purely minis
terial. This case Is ono where the commissioner
must exercise his best judgment under the law
governing the matter" This view was sus-
tained by tho court below, and the matter was
brought here on appeal from the judgment deny
ing the pre.omptory writ.
It Is oontended by appellant that at the date
Of his purchase the commissioner had no eIecu-
tive authority to investigate or in any way deter
mine as to the validity or regularity Of the en-
tries or purchases made at tho local land Offices
Those questions were at that date to be decided
by the Register Of the Land Office, when the
written application wss made 10 him by the pur-
chaser and, the sale being made by tho Regis
ter was complete as between the purchaser and
the Government, and the Commissioner had no
power to set aside the sale or cancel the certih-
cate OF purchase, or do any other act but cause
the patent to be issued. Whatever might be
the effect Of the act Of July, 1885, following the
purpose, It certainly could have no retrospectivs
effect, and cannot be made to apply In this case,
or TO any rights that accrued before the passage
Of the act As matter Of fact, II Is urged the
reasons alleged for the refusal Of the patent did
not exist.
Al 10 the Issuing Of the writ Il IL insisted that
the law Is as laid down In MArbury vs.. Madison,
"a Cranoh., 1857 where II Is said that at 10
not by the office Of the person TO whom the writ
Is directed, but the nature Of the thing 10 be
done, that the propriety or improprsty OF issu-
ing RandamHS Is to be determined" It Is
also said In the same case, citing an instance Of
the Withholding Of patent, or the loss Of pat
emit, q copy being refused: "Can II be imagined
that the law furnishes 10 the injured person no
remedy2 II Is not believed that any person
whatever would attempt to maintain such prop
osition." A great many other authorities were
cited in support Of the theory Of the rslator and
appellant.
Hon. J. A. McDougall for appellant, Mr.. Hen
drick's brief for respondent.