The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1898-06-16

ed in filing a bill against the officers Of
the government for the purpose Of an.
nulling a patent. This Is what MIR.
Paine has done in his suit against
townsite board No. G, and that, too,
while the title TO the land was held in
trust by the government. Hitherto IL
has been the universal practice, where
a patent was obtained by fraud, mis-
take, etc, for the attorney general Of
the United States to file bill for the
purpose OF canceling q patent thus ob
tanned
In the Chicago case ci ed above, a
proceeding by the United States
against the commissioner OF the gen
eral land office, IL was he'd that occu-
pants Of lots living on the land were
necessary parties, and should have
been given a chance TO defend their
title.
The statute which in the case Of
Kendall VS. the United States, i2 Pet.
524, in subsequent cases was construed
as in the circuit court or supreme court
of the District (Columbia). with such
! jurisdiction has been repealed
In McGarrahan against Mining Co.,
SO u. S, 3!6, II is said: "The patent
executed In the prescribed form which
issued from the general land Office Is
made the instrument of passing title
out OF the United States" Washburn
OF Real Property, vol. 3, page $50, says
chat the patent when regularly and
properly issued, becomes com
plete evidence OF title" The moment
therefore that the patent was issued
in the name OF townsite board No. /,
as trustee of the owner and occupants
of lots in East Guthrie, the title passed
from the government TO them, the
/ townsite board being trustees author
| lied to execute to the respective lot
owners their deeds.
Hence the only way for Payne TO get
this title from the lot owners is to law
il out with them in the courts in di-
rect proceeding or buy them out for a
valuable consideration,
After the title has passed from the
government TO individuals and the
question has become one OF private
right, the jurisdiction OF a court OF
equity may be invoked TO ascertain II
the patentee does not hold 10 trust for
other parties. l3 Wal. 73.
That the action OF the land officers
in issuing patent for any of the pub.
lie land subject to preemPtion or other
wise, is conclusive OF the legal title
under the principle above stated and
in all courts, and in all forms OF judici.
al proceedings where this title must
control either by reason Of the limited
power Of the court or the essential
character Of the proceeding, no In
quiry can be permitted into the cir
cumstances under which 1t was OBJ.
tanned.
IL is elementary law that mandamus
will only lie to enforce a ministerial
duty as contra ra-distinguished from a
duty which Is merely discretionary
1855 M. s., 30s.
Justice Miller, In the case OF Gaines
against Thompson says: "rhe extent
of the jurisdiction which may be law
fully asserted by the federal courts
over the officers OF the executive de-
partffient shows that the question is
not generally understood
Chief Justice Marshall held in the
case OF Marbury VS.. Madison /. Crach
that the President was invested with
certain political powers and that he
has officers TO aid him in the exercise
of these powers who are directly act
countable to him, and further that
the acts OF such officers can never, as
such officer, be examinable in cour
of justice.
Courts will nouinterfere by mandam-
us or otherwise with the executive Of
tcers OF the government in the exer.
else OF their ordinary official duties
even when those duties require an in
depreciation Of law; no appellate power
being given them for that purpose
l2s IT, s., 40.
In the case OF the Uni ed States VS..
lioke Smith, secretary, l65 u. s., page
ss, II was decided that the resignation
OF Secretary Smith abated the suit.
Manifestly the same rule applies II an
officer OF the government Is removed
A n. j. CRoJE
Guthrie, June lG.