The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-05-05
THE COURTS.
UNITED STATES SUPREME COURT.

Public Land Patents-Mandamus 10 the Com.
missioner of the General Land Once "a
Compel the Issuing Of "a Pat~ut-The Quite,
Of the Onicer Prior TO the Act Of July, 1856
Executive Discretion.
Aunos AcCmncu appellant, u The Csommissionrr o
the General Land OGce-This suit was brought n
the supreme Court for the District Of Columbia
praying . writ Of mandamus TO compel the Com
missioner of the General Land ONCE 10 cause I
patent 70 be issued to the reator for tract OF land
the state OF Illinois which the reator claimed TO have
purchased at private sale the LIST Of june 1885, under
the acts Of Congress then governing such purchases
The petition shows that before the day OF purchase the
land had been surveyed under the authority of the
United States the plots and filed in the proper
land district and the land put market public sale
by proclamation from the Presidenl This land moi
beng sold ct the public sale becomes subject
70 private sale by tho land officers 81 rs per acre
and was purchased by the relator. entered in
At the time Of the purchase The certificate Of
purchase was issued to the by the Of
Office at Washington In conformity with law and usage
Here the matter rested action being taken until
August 1857, when the Commissioner notified tho re-
fator or the refusal Of the patent the ground that
the land had been entered before the or the
laiors entry BY Kenzie under the act Of May 1881
and that was therefore, offered public SALE and
was not subject private entry 1t was then claimed
that this became the judgment Of the General Once in
1885, although the rea.o alleges in his petition that he
was constantly pressing the office for patent from the
time Of fling his certificate unit the date Of this formal
notification, years after the alleged date Of
the decision OF the Office adverse to the entry The then
Commissioners, now Senator Hendricks, wrote
that he was s'not authorized to review and
reverse the opinions OF bis predecessors The
return to the alternative mandamus set forth as
follows, the Commissioners objection to the writ 81 1t
Is well settled principle that mandamus only bo
issued to an executive officer where the act to be done is
purely ministerial. This case is where the Commits
soner must his best Judgment under the law
governing the mater.n This view sustained by the
Court below and the matter brought here appeal
from the judgment denying the poremptory writ II Is
commended by appellant at the date Of his purchase
the Commissioner had executive authority 70 inves-
tgate or In any way determine as to the validity
guarty OF the entries purchases made at the local
land oceS Those questions were at that date to be
decided by the Register Of the Land Office, when the
and tho sale being made by the Register was complete
IS between the purchaser and the government and the
Commissioner had power TO set aside the sae or
cancel the certificate Of purchase or do any
Whatever might be the effect of the act Of
July, 1885, following the purchase IL certainly could
have retrospective effect aud cannot be made 10 ap.
ply in this case or 70 any rights that accrued before the
passage Of the act As matter OF fact 1t Is urged the
reasons alleged for the refusal Of the patent did not
exist Al TO the issuing OF the writ it Is insisted that
tho law ID IS laid down in Norbury VS. Madison list
Cranch 1885, where IL Is said that sit Is by the
oce OF the person to whom the writ is directed but
the nature Of the thing to DO DONE that the propriey
mined" It s also said in the case citing an in
stance Oh the Withholding Of patent or the loss or
patent, copy being refused, Can 1t DO imagined that
the law furnishes to the injured person remedy It
20 maintain such proposition" A great many other
authorities were cited in support Of the theory Of the
relAt0r and appellant. Hon. j. A. McDougall for an
pellant, Mr. Hendricks brief for respondent