Daily national Republican. (Washington City [D.C.]) 1870-1872, 1870-01-20

command tho performance OF any partieu-
lar act, an express and distinct dtnand ORC
quest TO perform Il must have been made by
the prosecutor to the dgsnddaf, who must have
refused % comply with such demand, either
In direct terms or by conduct from which
refusal can be eoucluslvely implied. (Tapp.
Ing on Mandamus, 2S3.)
A demand on Mr.. Browning was not, In
fact or In law, q demand upon his successor,
who must, equally with his predecessor,
have the option OF doing or refusing TO
do that which IL required Of him, before any
application 10 compel him shall be made.
The second IL, the doctrine Of this court
which has limited the power Of the courts
| to issue this writ, TO cases Of acts required
by law Of the indivldudl rather than Of the
tiHetioadrs--a doctrine explained by the
court In United States vs.. Guthrie, IL How,
2s2, and In KsndaPs case, 10 Pet, p. GlI.
| In the latter case, the court say OF the act
there required, "thls was not an Official act
In any other Rense than being q transaction
10 the department where the books are kept"
Il might we'll DO In any case, that while
particular Incumbent had refused to perform
| an act required by law, his successor would
not refuse, upon proper demand being made.
| The law, therefore, entities the successor to
the same opportunity TO comply or refuse,
as was given TO the incumbent against
whom the suit "a brought. The Judgment
rendered, therefore, against the present Sec
rotary Of the Interior Is anulllty.
FIFTH.
We understand this court to have, In effect,
| determined that the duty aud power oil
| Issuing patents does not devolVe upon the
Land Department, or upon tho Secretary Of
the Interior, who Is vested with supervisory
and appellate authority over that depart
ment, In such a sense as TO render the Com
missioner OF the Land ONCE or the secre-
tary Of the Interior, liable In any case TO DO
proceeded against In this form OF action.
| This view we suppose to DO expressed by the
decision in tho case Of United States vs..
| Commissioner ofLaud Once, Is WALL, 56J,)
where Mr.. Justice Nelson, In delivering the
| opinion Of the court, took occasion TO say,
thAt'iPatents are to be signed BY the Prssiit7a
In person, or In his name By a secretary I'M
/ der his direction, aud counterslgned by the
/ Recorder Of the General Land Onice." (Act
March 9, 1888, Stats, 06s. Act March
8, 1871, 8 Stats, 417.)
No patent for lands can DO Issued and de-
llvered to any party without the signature
| Of the President OF the United statosi and q
proceeding that 6eoks to compel tho Issuing
Of such a patent must DO brought against
the President, and can be maintained
against no other officer under the existing
system.
But, independently Of this fact, pro-
ceedlng against the Secretary Of the Into
rior to enforce supposed right under the
7th section OF the act Of July 30, 1860, 10
palpa5ly a mistaken one, as that statute In
express terms vests the Commissioner OF
the Land Once with the responsible power
and duty OF administering that law, and
over his acts tho Secretary Of the Interior
exercises only an appellate aud supervisory
authority.
And q petition against him which fails 10
Rllege such compliance with the regulations
Of the Land Once as the statute requires,
and does not show any primary and prelim-
mary consideration aud action by the Land
Once, In conformity with Its regulations
S1S O'' tSa pa SShs or ne pt S%y
averment, which could give color OF iuris-
dict!on as against the Secretary Of the In
terror.
McGarrahan's petition, on which this
maudRmus is Issued, Is barren OF every and
all such necessary aVorment, II shows
merely an application to the Secretary OF
the Interior, and dlscloses no proceeding
before, or action or decision by, the Land
| O1ice; aud then Il proceeds TO assert that
the facts stated in the application TO the
| Secretary "p6rc prorsH to said Secretary,
and tho said Secretary found, from the
proofs, tho facts TO be-" SC. Not a word
| Of this was shown 10 be true, In any manner,
to the court below and yet the court, hnd-
| ing as facts what the Secretary himself
probably never knew or believed to be true,
Issued Its prerogatiye writ to compel, not
merely him, but his successor as vol, TO
summarily convey this land Of tho United
States to the relator.
SIXTH.
Before closing this brief, II Is proper to
observe that the Judgment pursuant to
which this writ Of mRndamus Issued was
entered without even color OF authority OF
law, and, upon the face Of the record, Is an
absolute nulllty.
/. 1t was flied In the clerks Office on the
Sh Of July, 1860. Cree, p. o. This was
In pdedtion, as the record shows.
Th's court, taking judicial notice Of the
bst Senc 1s t tHfm cQ ~ th SSs
Court had occurred on the fret Monday Of
Judgment was filed during a 5Sco5aia ta, i tas
after the date OF the submission OF the cause,
on February Q, 1909. Cree, p. l0.)
0. The agreement Of counsel In the records
Cree, p. 49, In fact and In law, only ex-
tended to the vacation merit succeeding the
term in which the case was submitted. Il
did not authorize the entry Of Judgment In
vacation, after the April term OF the Su-
preme Court. II extended to tho vacation
bStts6en the January and April sessions.
cation after II was signed.
4. The agreement was necessarily limited
to the term Of oflice Of the defendant, Mr..
Browning
(a.) Because a Judgment aftcr that would
be nugatory as against him.
(b.) Because the counsel acting and stlpu-
latlng for him had no Authority except from
| Mr.. Browning, and could convey no power
by agreement to the court beyond him aud
his term of Office.
5, Lastly, II will BIO seen that the judg-
menL ls signed and filed In the clerks office
by only too Of the judges, who were not, Of
course, q majority of the members OF the
COURT and 1t does not appear that these
judges had authority to act, or purported Ia
act, for the court. Cree, p. 20.)
II Is submitted that the judgment In this
case is clearly null and void, and should be
reversed. Z. Il. HoAR,
Attorney General.
Amer reading this brief, we think thai
every Intelligent and unpreju JUDGED man In
the country must conclude that the hst
judges who ordered the mAndamus TO issut
made very drdes mIItdEe, and we venture
the assertion that McGarrahan can ind nj
authority, either at law or In equity, TO sus
tain such preposterous claim as ho makes
for a tract ofland called s'Panoche GTande.'