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

The majority OF the court, however, be-
log OF different opinion, the question arose
as to the extent Of this Jurisdiction over the
acts and dolugs OF executive otiicersi and II
was held that, In the exercise Of the juris.
dlctlon, the court could command the per-
formance by such an o1lcor only Of Ga
precise, dStlRiie act, purely miRisisridl," and
about which he had no discretion ibhdtsvcr.
Speaking of the act which the Postmaster
General, under the statute then In question,
was required TO do, the court say, 'the
mandamus does not seek 10 direct or control
tho Postmaster General in the discharge Of
any official duty partaklng In any respect
OF an official character, but to enforce the
performance OF q mere ministerial act,
which neither he nor the President had
any authority to deny or control. (Tbid.,
p. O10.)
The reports Of the decisions Of this court
contain eight cases In ali, including Ken
dall's case, In which heads Of departments
and other executive officers were sought TO
be controlled by this provocative writ Of
mandamusi but In not one OF them, except
the case Of Kendall, was the attempted con-
troll sanctioned by this court.
These cases came MP from this District.
In two Of them only, Kendall vs.. TIE United
States and the Commissioner Of Patents Va.
Whitley, a WALL, b22, the court below IL.
sued wTits OF mnndamus.
In the first, this court affirmed the judy
mentj aud In tho others II reversed the deci-
sion Of the court below.
OF these eight cases, one was against the
Postnidstsr General, (kendalPs case, IL
Pet, 524) two were against tho Secretary Of
tho Treasury, (Reesido vs.. Walker, IL How,
272; United States We. Guthrie, IL How,
ESD tleo cases against the Secretary % the
Nary, Decatur vs.. Pauldlug, IL Pet, 407,
Brashear VS.. Mason, o How, o2;) ons case
against the public printer, Omitted States
vs.. Seaman, IL How, 230;) one against the
Commissioner Of Patents, (CommlssioneT vs..
Whitley, Wall, b2b;) and one against the
ComrisSioHcr u m Land 0Glee, Is WALL,
| 5G3)
In all Of these cases the doctrine Is en-
| forced, as q fundamental principle OF our
| political system, that tho Judiciary Is for
hidden to Interfere with the exercise Of exc
cutiye discretion, or, as Mr.. Justice Bwayne
expresses II, the writ OF mandamus lies only
where there is a refusal to perform a mlnls-
terlal act involving no exercise Of judgment
or discretion. Commissioner Of Patents,
vs.. Whitley, 4 Wall, $685.
| SECOND.
is indlsputable that tho duty imposed
upon the executive officers who may bs
charged with the execution Of the statute,
under which the relator claims, IL not min
lsterlal In Its character, within the meaning
Of these authorities, but Is 10 the highest
degree executive, as that term is defined by
the Chief Justice In the case Of Mississippi
ys. johnson, q Wall, 40S.)
/. In tho case OF the United States vs..
Seaman, az Howard, 23O,) Chief Justice
fancy shows that tho tost is whether the
officer Is obliged TO examine evidence and
form his judgment before acting; for where
ever that Is TO be done, he says, II IL not q
case for q mandamus.
In the case Of United States vs.. Guthrie,
(l7 How, 2s9, Mr.. Justice Daniel saysf
"Whcneyer the right Of Judgment or dis
erection exists In him, (the officer II Is he,
not the COURTS who g. regulate its oIer-
In Ga!rc, vs.. Thompson, q Wall, $685.
Mr.. Justice Miller said;
"The validity Of plaintiffs entry, which
is involved In their decision, Chat OF the
officers Of the Land DEPARTMENT. Is q ques.
tlOn which requires the edrtful confederation
and construction Of more hdH ono act Of Con-
grcS5. It is far from being ministerial act,
under any definition given by this court"
In tho case Of United States Va. the Com
missioner Of the Land ONCE, Is Wall, sos, }
whore the application was for mandamus
to compel the issuing Of a patent, Mr.. Jus.
tlco Nelson said, the case ''calls for the eEer-
else Of the judicial functions Of the officer,
and these Of no ordinary character. The
duty Is not merely ministerial, but involves
Judgment and discretion, which cannot be
controlled by this court"
.. It would not be dlilcult to show that
the authority and duty OF the officers OF the
Land Department, In regard 10 the issuing
Of patents for lands Of the United States,
arc not ever ministerial In character, but
always rest in executive Judgment and dis.
cretlon.
But as the present application was OK.
pressly based upon the provisions Of the act
Of July %, SSG6, cited at length above, II Is
sufficient to remark, that the slghtest In.
spccton OF the seventh section Of that act
will show that II deyolves upon the Land
Den, Irt,,,s.t executive duties and judicial
character, which must DO exclusively per,
formed by Its officers without interference
by any court. ----. ...,... -.-...--.
authority to determine every question Of
fact and law arising under that act, and |,
Is simple usurpatlon for any court TO nt.
tempt to control their Judgment and dis.
erection.
The right of pre- omption therein given Ia
the asslgnees Of rejected Mexican grants de.
Ponds upon q variety Of facts and conditions,
which must be established to the satlEfac.
tion Of and according to the rules provided
by the Commissioner OF the Land Once;
whether they purchased In good faith, and
for valuable consideration whether they
have used, improved, aud continued In tho
possession OF the LAID In the manner pre-
scrlbed by the 5Iatutej whether any valid
adVersa-il.sJ or right exists; whether the
! land has been properly surVeyedI whether
| the facts have been proved "under the regu-
lallons Of the Commissioner Of the General
| Land Ollce;" whether the lands are within
| the excepted locality and, finally, whether
the lands contain mines Of gold, silver, cop.
per, or oinnabnr.
such lands cannot be entered under the
statutei nor can any entry DO allowed until
the. proper officers are satisfied that the
conditions and requirements OF the statute
"calls for the exercise OF the judicial fuuc
lions Of the officers, and these Of no ordi
nary character"
THIRD.
1t would have been most extraordinary II
the court below had issued q mandamui
upon this application, Rfter an exhibition oil
the facts Of the case on the part Of the Sec.
rotary Of the INTERIOR but the judicial as,
Constituent must be Increased by the fact
disclosed by the record, that, without q
return, disclosing the facts In regard to this
land and this application for patent, tn,
court below yentured to command the issu
Ing OF a patent for the entire tract.
Mr.. BTownlng's return, as has been stated
, was intended TO raise q simple question O.
Jurisdiction upon the face OF the 7th sec
tlou Of the act Of 1865. The facts Of thl
, case Of this relator were not disclosed. Upor
that return the court awarded a peTemptory
mandamus--d final Judgment upon plea u
dbdtsmsHu The court, without being In
formed, or requiring or desiring lnforma
a. go he al - Al l.. A