Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1870-01-29
UNIFIED STATES SUPREME coURT.
Tho nIcGnrrnhan Claim.

Tho NIcGnrrnhan Claim.
WAsmNGToN, January 19.-No. 337.
Jacob d. Cox, Secretary of the Int.
rior, plaintiff in error, VS.. the United
States, er reidtiOne William McGarra-
han. In error to the Supreme Court
of the District of Columbia. The
Court overruled the motion made on
Monday in this case by the counsel Of
McGarrahan to rescind the order as
signing it for immediate argument,
and the case was taken up on its merits
aud argued by the Attorney General
and Mi. Ashton, special counsel for
the Secretary of the Interior, the coun-
sci for McGarrahan obtaining leave to
file n brief within a week.
The Attorney General commenced
his argument with the following
declaration:
This record presents, we suppose,
the most extraordinary exhibition of
the unwarrantable exercise Of judicial
power on the part Of the court that has
ever been brought to the notice of this
appellate tribunal. The facts Of the
case are familiar. In December, 1868,
McGarrahan, the alleged purchaser of
the Gomez claim to q tract OF land Ill
California, known Is the Pacoche
Grande Rancho, filed n petition In the
Supreme Court Of the District OF
Columbia praying for a writ Of man
damus commanding Secretary Brown
ing to issue a patent for the land
alleged to be embraced by the claim.
His right to demand and receive such
a patent was placed in the petition
upon the provisions of the seventh
section of the Act of July %, 1850,
entitled "An Act to grant land titles
In California for the benefit Of bona Jide
purchasers complying with all the pro-
visions of the law"
1t is contended that the petition of
McGarrahan not averring that proof of
the facts, as required by the law, had
been made under the regulations of
the Commissioner Of the General Land
Office, and without averring that the
lands in question were not mineral
lands containing mines of gold, silver,
copper or cinnabar, and thus not ex-
cluded from the operation Of the
statute, alleged simply that the facts
stated in the application for the writ
were proved by the relator to NJ.
Browning, the Secretary, and that he
had found from the proofs that the
relator in good faith and for a valuable
consideration purchased the land from
Gomez.
Upon such a showing the Supreme
Court of the District, without notice to
Mr.. Browning, ordered Oh the an Of
December a rule to issue, commanding
him to show cause on the third Moil-
day in January, 1869, before the Court
at general term, why the writ Of man.
damus should not Issue. On January
&c Secretary Browning filed q return
in the nature of u plea to the jurisdic-
ton of the Court, submitting simply
the suggestion that the Court was with
out jurisdiction of the subject matter
of the case and could not grant the
writ, because, first, the matter Of the
petition was purely Of executive cog
nizance, resting in the judgment and
dircretion of executive officers In the
ordinary discharge of their official du-
ties.
Sccond-Because the issuance Of
patents for lands is by statute the duty
of the President Of the United States.
This question Of jurisdiction was ar
gued In the early part Of February and
on the Sth of July last, and In vacation
an order or judgment was filed in the
Clerks office, nan pro tHRc, rs of the
9th of February, directing that a per-
emptory mandamus issue, directed to
Secretary Browning, or to his successor
in office, to issue a patent to McGarra-
han for the tract Of land described In
the petition, containing l7,7GS and 60
l0Oths acres, upon his paying to the
United States $22, 2l0 0G lO0ths.
On the same day the writ was issued,
Mr.. Browning having retired from
office four months before, and had been
succeeded by Mr.. Cox, upon whom it
was served. The points as to jurisdic-
ton raised by Secretary Browning are
insisted OH In the argument, and 1t Is
contended further that, great Is was
the error of the Court below in render
ing final Judgment against Secretary
Browning without a hearing OH the
merits Of the case, its error in render
ing Judgment against his successor,
Mr.. Cox, was still more fragrant.
Mr.. Cox was not in any way q party
to the proceeding, and his full knowl-
edge Of it, as shown by the record, was
obtained from the writ commanding
him to Issue the patent. The proceed
lngs had evidently abated OH the re-
tirement of Mr.. Browning. 1t is also
insisted that the judgment, pursuant to
which the writ was issued, under the
circumstances above set forth, was en-
tered without even the color Of author
ity of law, and upon the face Of the
record Is an absolute nullity. Also,
that the lands being mineral, are ex-
pressly excepted from the grant made
by the Act under which McGarrahan
claims.