Evening star. [volume] (Washington, D.C.) 1854-1972, 1902-06-25
DEMURRER OVERRULED
COURT REFUSES TO ISSUE WRIT
OF MANDAMUS.
Case of Riverside Oil Company and
Cosmos Exploration Company
Against Secretary Hitchcock.

Justice Ciabaugh of the Supreme Court
of the District of Columbia today ar
nounced his decision in the mandamus pro-
ceedings instituted by the Riverside Oil
Company and the Cosmos Exploration Com
pany against the Secretary of the Interior.
Justice Clabaugh oyerruled the demurrer
interposed by the petitioners to the answer
filed by Secretary Hitchcock. The effect of
the courts ruling is refusal to issue the
writ of mandamus requested by the petit
TONERS for the purpose of compelling the
Secretary of the Interior to issue to them
patents for certain valuable oil lands in
the mineral belt of Kern county, Cal.
In disposing of the matter Justice Cla
baugh stated that the only question at issue
was whether the decision of the Secretary
of the Interior was purely ministerial in
character or required the exercise of judi
cial discretion. According to the court, the
statute that governs the case was SuScepti-
BILE of at least two honest constructions
and a well-knOwn appellate court had di-
vided on the point. But, said Justice Cla-
baugh, the moment the Secretary was
called upon to decide whether not the
titles to the land We're good. his action
passed beyond the category of minist erial
acts. The demurrer to the answer must
therefore, be oyerruied. so the court held.
The cases involve the construction of the
lieu land act of June a. 1897. which permits
the owner of land in forest reserve to re-
lnguish such land and select any tract of
equal size, ''of public land which is vacant
and open to settlement.
The term vacant and open to settle
ment' has been construed by the Secretary
OF the Interior to include land occupied I'M
der any color of right. whether vacant of
record or not The Secretary requires by
regulation that applicants shall make aft
| davit that the land was non-mineral and
| unoccupied under the local customs or rules
! of miners These regulations, the petition
| ers alleged, were void.
1t was argued that vacant land open to
| settlement meant only lands vacant of rec
| ord: that when the petitioners relinquished
| their lands in the forest reserve, making
! conveyance thereof to the United States,
| these lands appeared to be vacant of record,
and therefore that the title of the United
| States passed to them at once.
1t was added that a transaction under
| the lieu land act was simply An exchange
! of lands between the United States and
| the applicant. and must be governed by the
! ordinary law in relation to such exchanges.
Secretary's Contention.
| In behalf Of the Secretary it was argued
| that the writ of mandamus can be used To
! control the action of an executive officer
! only in two classes of cases-when he re-
! fuses to act at all, or when his action is a
| simple direct ministerial duty involving nc
| exercise of judgment or discretion. In this
| case there was no contention that the Sec
4 rotary had not acted; it was explained ne
had acted. The question then was, was
/ the act discretionary?
I The land department, it was further de
ciared. is a special tribunal, having judicial
| functions and possessing jurisdiction over
: all proceedings for the acquisition of the
| public lands. So long as the legal title &c
| the lands had not by action of the depart
] ment passed out of the United States the
| Jurisdiction of the department remained
| free from control or review by interference
| by the court.
| Mr.. Ashley NJ. Gould, United States at
| t0rney for the District of Columbia; Assist
| ant United States Attorney Fl. II. Classic
| and MIR. John 8. Chapman. special assistant
I attorney. appeared for the Secretary OF
the Interior. the petitioners being represent
ed by Attorneys Jefferson Chandler. JOhr
! NJ. Thurston, Shirley Ward of Los Angeles
and Mr.. William C.. Prentiss.