Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1894-08-13
LAND COURT APPEALS.
A Representative of the Law Firm OF
Jeffries q Earle Makes An
swer to L. s. Attorney
Reynolds.
Complicated Features of the Act Es-
tablishing the U. s.. Court of Land
Claims-Further Action by
Congress Necessary.
To the Editor of the New Mexican.

'"'hihE ooit ~ -, 4h't5 'St 49,
in your Issue of the End instant commu-
nication from the United States attorney
in charge of the cases before the court of
private land claims, in which is discussed
the question whether or not the supreme
court of the United States will entertain
appeals from the decisions of that court
under its organic act. This subject OF
course is of vital importance to the grant
claimants in your territory.
There Is no question that the supreme
court will not entertain the original jUris
diction sought to be conferred upon it by
section of the land court act. Some
time ago motion to take additional
testimony under this section WAS made il
one of the cases now pending on appeal
ana it was summarily overruled.
About the same time the solicitor gen.
eral asked the court to postpone the two
cases set for the October term, in order
that he might make a motion to dismiss
the appeals on the ground that the LAND
court was not tribunal upon which the
judicial power of the government coulC
be conferred. This motion was to be
based on the fact that the judges of the
land court were not appointed "durine
good behavior" as required by the con
stitution. One of the strongest arguments
that can be made against this contention
is that the term "during good behavior
is equivalent to "for life,' or at least tt
the period to which the existance of The
court is limited; otherwise, in order tt
create constitutional court, congress
must endow it with perpetual existence
whether it requires that time to accom-
pish the oh ject for which the court wa
created or not. The decisions in Ameri
can Insurance Co. VS.. Canter Il Pet, 81 }
Benner VS.. Porter % How, 235), and othe
cases, seem to snstnin the contention o
the solicitor general.
THE SAME QUESTION WAS RAISED
in the first case that came to the suprem
court under the act creating the Calfor
mia commission; but in that instance
was held that the proceedings would b
treated as having been initiated befor
the district court, and not before tn
come up through the ordinary channels
the court could take jurisdiction. Th
syllabus of the decision is as follows Il
How, 525):
"Though the act of 1851 terms the pro
ceeding in the district court an appeal
and inasmuch as the commissioners ca
not exercise any part of the judiciu
power under the constitution there ca
be no appeal strictly speaking from thei
decision, yet the proceeding in the dis
trict court may be and is considered b.
this court to be an original proceeding
there, with the right of appeal to thi
court"
From the trend of this decision ther
can be little doubt that if the act ha
provided that the appeal should be direct
ly taken from the board of commission
ers to the supreme court it would no
have been entertained. Under the act O
1851 the commissioners were appointe
for definite period by the president
with the advice and consent of the senate
they were given full power to administe
oaths, examine witnesses and issue SUI
pnnas process was served by the deput
marshall; they were to render decision
on the petitions and evidence, in accord
ance with the terms of the treaty, the la
of nations, the laws, usages and custom
of the country from which the claim
were derived, the principles of equit.
etc. In short, if the California tribune
had been called court instead of boart
and its members judges instead of con
missioners, there would be no essenti;
difference between that act and the act {
1891 so far as this feature of the matte
is concerned.
But there are other reasons why the 81
preme court will not entertain these az
peals, and it will take notice of thes
matters of its own motion. Among the1
may be mentioned the following:
/. It has been decided in Hunt VS.. Pa
las a How, 5s9), McNulty vs.. Batty Il
i'd, 72), and other cases, that the supren
court will not take jurisdiction of a cas-
when there is not in existence
COURT OF THE UNITED STATES,
in possession of the original record,
which it is authorized by law to send
mandate to carry into effect It's deere
, The land court act provides merely tn
the clerk of the court in which final dec
, sion is made shall certify that fact to Il
commissioner of the general land otiic
and after the land court ceases to exi
December, 1880, "all papers, files AT
records" shall be stored in the interl,
department or returned to the particul
office to which they belong. The "cor
missioner of the general land Office
! not "court of the United States;" nor
J the department of the interior or 9th
office to which the records shall be r