Arizona weekly citizen., 1894-08-25
Appeals A Representative of the Law Firm of Jeffries & Earle Makes Answer to U. s. Attorney
 Reynolds.
COMPLICATED FEATURES
Of the Act Establishing the U. s. Court of Land Claims Further Action by Con-
 gress Necessary.
To the Editor of the New Mexican:

To the Editor of the New Mexican:
 WASHINGTON, Aug. S.-I notice in youl issue of the 2nd instant comm unica' ton from the United States attorney ir charge of the cases before the court ci private land claims, in which is discuss ed the question whether or not the su- preme court of the United States will entertain appeals from the decisions oi that court under its organic act. This subject of course is of vital impor- tance to the grant claimants in your territory.
 There IS DO question that the supreme court will not entertain the original jurisdiction sought to be conferred upon it by Section g of the land court act. Some time ago a motion to take addi- tional testimony under this section was made in one of the cases now pending on appeal, and it was summarily over ruled.
 About the same time the solicitor general asked the court to postpone the two cases set for the October term, in order that he might make motion to dismiss the appeals on the ground that the land court was not tribunal upon which the judicial power of the govern ment could be conferred. This motion was to be based on the fact that the judges of the land court were rot ap- pointed "during good behavior" as re- quired by the constitution. One of the strongest arguments that can be made against this contention is that the term "durlDg good behavior" is equivalent to 'for life," or at least to the period to which the existence of the court is linn ited; otherwise, in order to create C con- stitutional court, congress must endow it perpetual existence; whether it re- quires that time to accomplish the object for which the court was created or not. The decisions In the American Insur- auce Company vs. Canter q Pet, 51I, Benner vs. Porter @ How, 235), and other cases, seem to sustain the conten- tion of the solicitor general.
 THE SAME QUESTION WAS RAISED in the first case that came to the su- preme court under the act creating the California commission; but ID that in stance it was held that the proceedings would be treated as having been initiated before the district court, and not before the commission, and that, the case hay ing come up. through the ordinary chan nels, the court could take jurisdiction The sy yllabus of the decision is as follows Q7 How, 525).
 Though the act of 1851 terms the proceeding in the district court an appeal and iuasmuch as tae commis- sioners cannot exercise any part of the judicial power under the constitution there can be no appeal strictly speaking g from their decision, yet the proceeding in the district court may be and is con- sidered by this court to be an original proceeding there, with the right of ap- peal to this court"
 From the trend of this decision there can be little doubt that if the act had provided that the appeal should be directly taken from the board of com missioners to the supreme court it would not have been entertained. Under the act of 1851 the commissioners were sp- pointed for definite period by the pres ident, with the advice and consent of the senate; they were given full power to administer oaths, examine witnesses and zrliAr,nnrnn. v1l l1r, deputy marshals; they were to render decisions on the petitions and evidence, in accordance with the terms of the treaty, the law of nations, the laws, the usages and customs of the country from which the claims were derived, the principles of equity, etc. In short, if the California tribunal had been called court instead of board, and its mem- bers judges instead of commissioners, there would be no essential difference between that act and the act of 1891 so far as this feature of the matter is con- cerned.
 But there are others reasons why the supreme court will not entertain these appeals. and it will take notice of these matters of its own motion. Among them may be mentioned the following:
 1. It has been decided in Hunt vs. Palas A How, 5S9), McNulty vs. Batty Q0i5., 72). and others cases, that the supreme court will not take juridiction of case when there Is not in existence
 COURT OF THE UNITED STATES, in posses sion of the original record, 10 which 1t is authorized by law to send a mandate to carry into effect it's decree. The land court act provides merely that the clerk of the court in which final decision js made shall certify that fact to the commissioner of the general land office. and after the land court ceases to exist (Decen Der, lS95), "all papers, files and reccrds'' shall be stored in the interior department or returned to the particular office to which they belong. The commissioner of the general land office" is not 'court of the United States" nor is the department of the interior or other office to which the records shall be returned after the life of the land court has expired.
 The supreme court is about two years behind it's docket, and in the ordinary course the cases appealed within the last six months will not be reached prior to December 3l, 1896.
 2. The supreme court strenuously up-holds its own dignity. Its deerees must be final. The Gordon case may be cited on this point. Section If of the act expressly provides that its decrees shall not be final.
 This is the way in which the question may arise, and it may arise in every case: