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

I
a i9S 5'n'' Of Subdivisions" "a stat at Large
The petition Of McGarrahau, not averring
that proof of the facts, as required by this
law, had been made under the regulations
Of the Commissioner Of the General Land
Office, and without avorrlng that the lands
In question were not mineral lands, contain
Ing mllcs Of gold, silver, copper, or CHINA.
bar, and thus not excluded by the proylso
from the operation Of the statue, alleged
| simply that the facts stated In his nppllca-
ton were proved, hy the relator, to Mr..
Browning, the Secretary Of the Interior, aud
that he had found, from the proofs, that the
relator, In good faith and for valuable
confederation, purchased the lands from
/ Gomez.
Upol the showing made In this petition,
the Supreme Court OF this District, without
notice to Mr.. Browning, the Secretary
Of tho Interior, ordered, on tho 9Th Of
December, a rule TO issue, commanding him
to show cause, on the third Monday Of Jan.
uary, 1859, before the court sitting in gem
oral term, why the writ OF mandamus
prayed for should not Issue. Cree, p. ~
And, on the Goth Of January, Mr.. Brown
| log filed q return, In the nature Of plea TO
the Jurisdiction OF the court, submitting
simply the suggestion that the court had not
Jurisdiction Of tina subject-matter Of the
case, and could not grant the writ prayed
| for
LIST. Because the subIect-matter Of tho DC.
ttlon was purely Of executive cognizance,
resting In tho judgment and discretion OF
executive officers, in the ordinary discharge
Of their official duties,
Cd. Because the subject-matter IL ono 10
which Judgment and discretion were 10 be
exercised and
81. Because the issuance Of patents for
lands is, by statute, the duty Of the PrcSi.
] 49, ,.TN ka 81
This question Of jurisdiction appears to
have been argued and submitted on the ca
Of February, 1860. Cree, p. 49,
And, on the Bh Of July, In vacation, an
order or judgment was fled In the clerks
Office, nuHc pro tune, as Of 9Th Of February,
directing that peremptory mandamus Issue,
directed to 0rvllle II. Browning, Secretary
Of tho Interior, or 10 his successor IN Office,
commanding him, the eald Secretary, TO
issue, or cause to be Issued, to McGarrahnn,
tho relator, patent for the tract Of land,
containing l7,70s.87 acres, described in the
petition, upon his paying TO the United
States the sum Of sse, $1,000.
This Judgment appears to have been
signed by two only Of the honorable justices
Of the court below. Cree, p. 20.)
On the same day writ Of mandamus was
issued, directed to Mr.. Browning, or his sue
cessor In Office, commanding him to convey
| to McGaTrshan these four leagues OF land In
Monterey and Fresno counties, California.
Four months before, rs this court judi.
clally know, Mr.. Browning had retired from
the office Of Secretary Of the Interior, and
had been succeeded by the present incum-
bsnt, Hon. Jacob d. Cox.
And accordingly, on the same day, tho
sth OF July, this writ was served upon Mr..
Cox, as ono of tho parties named in the
alternative judgment. Gree, p. Az
The record shows that no proceedings Of
any kind were taken, upon the retirement
Of Mr.. Browning, 70 revive the suit against
his successor, Mr.. Cox, or 10 make him a
party, and that no notice Of the tendency OF
the case was ever given to him by the re-
lator or by the court, or any requirement
| made Of him to answer or reply to the ap.
plcation on its merits. He Is introduced
into the Judgment by hs court as an alterna.
tive defendant, and percmptorily required
by the writ to Issue patent TO the relatOr.
Aud this peremptory writ Is issued upon a
return, made four months before, by Mr..
Browning, intended to raise, and In fact
raising, only the question Of Jurisdiction,
without any opportunity being afforded him
, or his successor to set forth the actual facts
4 in regard to the land claimed by the relator.
, A more remarkable fact, perhaps, than
: either, lie that the Secretary Of the Interior
Is required to Issue patent under the au.
4 thority OF statute which expressly eX-
}. cludes aud excerpts mineral lands from Its
p, operation, without even an allegation, In the
, "a pdris statement of the claimant, that the
> lands for which he seeks q patent are moi
within the exception Of the law under which
I" For anything that appeared to tue ,vun
s. haInu, II might be that their mandamus, as
u II embraces all land within the survey, would
3 require the Secretary 20. give ibis ,telalor q
II clnnabar, which Congress had expressly pro.
hibited from being conveyed TO any claim.
ant under the act Of July 20, 1866, and fol
y which Congress had expressly provided a
It different disposition, in another statute OF
d July 20, 1865, IA Stat. at Large, 25l.)
The case thus presented by tho record
g.
s LIST. A peremptory madamus issued against
N the head OF a department, In a suit instl.
IF tutod against his predecessor, to which the
! Incumbent had never been made, or become
:, 4 party.
u I'd. A peremptory mandamus awarded
S against the head Of a department, In a case
4 arising under laws which Il is Ais duty to
A administer and execute, upon an a. parts
statement Of claimant before his depart
: ment, without any exhibition, on the part
c Of the government he represents, Of the
D trdth OF the matter In controversy, and with.
| out any opportunity being afforded by the
court for such exhibition OF the matter thus
sought 70 be subjected to Judicial determine
4th. A judicial order to the head OF dc,
| partment to issue patent for lands, which
the facts officially known to him NIGH
show to be lands that Congress had eX
= pressly excepted from the grant made In thu
@ fourth section OF tho act Of July 23, 1866
n under which the relator claimed.
We think that no instance Of Judicial
usurpatlon OF authority, quite so palpabl'
}, and bold, has ever been brought to the at
i tGntlOn Of this court.
"a Il appears by tho record that Mr.. Coz
brought the subject Of this case seasonably
to tho notice Of the court, by proper motion
d IN the interest Of the Government, and 70
p quested reconsideration ofits action, Cree.
,. p. 22.) But the court falling to determine
the motion In tlme for the present term o
" this court, the motion was withdrawn, ant
ID this writ Of error was thercupOn issued Il
T. reverse the Judgment.
10 ARGUMENT.
~ First. This court has so repeatedly and 81
: recently defined, In such clear and emphatic
W terms, the limits Of the Jurisdiction which
1t may lawfully DO asserted by the fedora
} courts over the officers Of the executive do
!. partments Of the Government, that II Is sur
- prlslng that any court Of the United State
- should, in It's judicial action, transcend thos
, limits.
Or II was only a short time before the cour
below awarded this maudamus against tn
IA Secretary Of the Interior, that this court dc
= cided the case Of Gaines VS.. Thompson, II
D. which Justice Miller, in delivering the opln
I'd ion Of the court, took occasion to review tn
i'd previous adjudlcatlons upon this subject
A. aud TO expound, In terms even clearer thai
~ had been before employed, the doctrine the
all enunclate, that can officer TO whom
- public duties are conlded by law Is not sub
a lect 10 the control OF the courts In tn
exercise Of tho Judgment and discretion
s. which the law reposes 10 him as part Of hIi
= Official functions"
Il "CeTtain powers and duties" continues
that learned Justice, care counded to thost
officers, and to them alone, and however tn
courts may, In aseertaining the rights o
parties In suits properly before them, pas
81 upon the legality Of their acts, after the mat
!, ter has once passed beyond their control
d there exists no power In the courts, by any o
Do LIZ nrnnnaana IN net mnnn LLn nLLlnnr al ~ d