The Secretary v. McGarrahan
76 U.S. 298

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U.S. Supreme Court

The Secretary v. McGarrahan, 76 U.S. 9 Wall. 298 298 (1869)

The Secretary v. McGarrahan

76 U.S. (9 Wall.) 298

Syllabus

1. The Commissioner of the Land Office cannot properly grant a patent under the 7th section of the Act of July, 1866, "to quiet land titles in California" unless the purchaser bring himself by affirmative proofs within the terms of the section.

2. The granting of a patent for lands in cases where proofs, hearing, and decision are required and where the exercise of judgment and discretion is thus necessary is not a matter wherein the action of the Department of the Interior is subject to reexamination by the Supreme Court of the District.

3. A judgment in mandamus ordering the performance of an official duty against an officer as if yet in office when in fact he had gone out after service of the writ and before the judgment is void. Such a judgment cannot be executed against his successor.

4. Mandamus to compel either the Commissioner of the General Land Office or the Secretary of the Interior to issue a patent cannot be sustained under statutes as now existing.

On the 3d of December, 1868, one McGarrahan, the alleged purchaser of the claim of a certain Gomez to a tract of land in California known as the Panoche Grande, filed a petition in the Supreme Court of the District of Columbia

Page 76 U. S. 299

praying that a writ of mandamus might be issued, commanding the Hon. O. H. Browning, Secretary of the Interior, to issue, or cause to be issued, to him, McGarrahan, a patent for the land alleged to be embraced by that claim.

The claim of Gomez to this land had been decided in this Court to be signally fraudulent and void. [Footnote 1] The right of McGarrahan to demand and receive such a patent as he asked the Supreme Court of the District to order was placed in his petition upon the provisions of the Act of July 23, 1866, entitled "An act to quiet land titles in California." [Footnote 2]

"Section 7. That where persons, in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant and have used, improved, and continued in the actual possession of the same according to the lines of their original purchase, and where no adverse right or title (except of the United States) exists, such purchaser may purchase the same, after having such land surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts required in this section, under regulations to be provided by the Commissioner of the General Land Office &c., provided that the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper, or cinnabar."

A subsequent act disposes in a different way of lands containing mines of gold, silver, copper, or cinnabar.

The petition of McGarrahan, not averring that proof of the facts 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 &c., alleged simply that the facts stated in his application were proved by the relator to Mr. Browning, the Secretary of the Interior, and that he had found from the proofs that the relator, in good faith and for a valuable consideration, purchased the lands from Gomez. Upon the

Page 76 U. S. 300

showing made in this petition, the Supreme Court of this District, without notice to Mr. Browning, the Secretary of the Interior, ordered, on the 7th of December, a rule to issue commanding him to show cause, on the 3d Monday of January, 1869, before the court sitting in general term, why the writ of mandamus prayed for should not issue. On the 26th of January, Mr. Browning filed a return in the nature of a plea to the jurisdiction of the court submitting that the court had not jurisdiction of the subject matter of the case and could not grant the writ prayed for:

1st. Because the subject matter was of purely executive cognizance, resting in the judgment and discretion of executive officers in the ordinary discharge of their official duties.

2d. Because the subject matter was one in which judgment and discretion were to be exercised, and

3d. Because the issuing of patents for lands was, by statute, the duty of the President of the United States.

On the 8th of July, a writ of mandamus was issued directed to Mr. Browning or to his successor in office commanding him to convey to McGarrahan the land in question. Four months before, Mr. Browning had retired from the office of Secretary of the Interior, and had been succeeded by the now present incumbent, the Hon. J. D. Cox. And on the same day, the 8th of July, this writ was served upon Mr. Cox as one of the parties named in the alternative judgment. No proceedings of any kind were taken upon the retirement of Mr. Browning to revive the suit against his successor, Mr. Cox, or to make him a party, and no notice of the pendency of the case was given to him by the relator or by the court, or any requirement made of him to answer the application on its merits.

Page 76 U. S. 305

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