McDaid v. Oklahoma Territory ex Rel. Smith,
150 U.S. 209 (1893)

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U.S. Supreme Court

McDaid v. Oklahoma Territory ex Rel. Smith, 150 U.S. 209 (1894)

McDaid v. Oklahoma Territory ex Rel. Smith

No. 785

Submitted October 20, 1893

Decided November 20, 1893

150 U.S. 209


Under the authority conferred upon the Secretary of the Treasury by the Act of May 14, 1890, 26 Stat. 109, c. 207, entitled "an act to provide for town site entries of lands in what is known as "Oklahoma," and for other purposes," it was entirely competent for the Secretary to provide for an appeal to the Commissioner of the General Land Office in case of contest.

When an appeal from a decision of the trustees appointed by the Secretary under the provisions of that act was duly taken, it became the duty of the trustees to decline to issue a deed to the appellee until the appeal was disposed of.

This was a proceeding in mandamus brought in the District Court of the first Judicial District of Logan County in the Territory of Oklahoma, April 27, 1891, to compel Daniel J.

Page 150 U. S. 210

McDaid, William H. Merriweather, and John H. Shanklin, as trustees of the town site of Guthrie, Oklahoma Territory, appointed by the Secretary of the Interior under the Act of May 14, 1890, 26 Stat. 109, c. 207, entitled "An act to provide for town site entries of lands in what is known as Oklahoma,' and for other purposes," to execute deeds for certain lots in said town site. The relators, Smith and Bradley, claimed to have entered two lots on the site, and one John Galloway claimed a prior right thereto.

On September 23, 1890, the relators applied to the town site trustees for a deed to the lots, and on the same day Galloway also made his application therefor. The trustees heard the controversy of the two claimants, and on April 6, 1891, rendered their decision in favor of the relators, finding that they were entitled to the lots in dispute, and to a conveyance from the trustees, and they ordered that a deed be executed accordingly. Galloway having died, his heirs were substituted for him, and they filed their appeal from the decision of the Commissioner of the General Land Office. In consequence of the appeal, the trustees refused to issue the deed, and thereupon the relators instituted this suit.

The complaint alleged that the sole ground of refusal was the appeal; that there was no authority for such appeal, and that it furnished no excuse to the trustees for their refusal. The defendant's answered, setting up that Galloway's heirs

"duly filed their appeal from the decision of this board to the Commissioner of the General Land Office, pursuant to the instructions under act of Congress under which this board was appointed, such instructions having been made by the Secretary of the Interior authorizing appeals by claimants to lots in cases where such claimants feel themselves aggrieved by the decisions of this board."

"And these defendants, further answering, say that there is a right of appeal given by the instructions of the Secretary of the Interior and recognized by this board, and that appeals in similar cases have been taken by other persons from other decisions of this board both before and after the appeal taken in this case. "

Page 150 U. S. 211

"And these defendants say that they were appointed by the Secretary of the Interior, and that at the time of their appointment, they were directed to allow appeals from their decisions where such appeals were properly prayed, and that the appeal in this case was properly prayed, and under such instructions was granted."

"And these defendants further say that the question of legal ownership as to said lot has not been definitely settled by the higher tribunals of the Interior Department, and that no deeds have passed for such lots, and should not pass until such appeal is disposed of, and that under such circumstances, it is not for this court, by mandate or otherwise, to direct in what manner or to whom conveyances of lands or lots the title to which is in the United States should be made to individuals."

Relators demurred to the answer, and their demurrer was sustained. Defendants then moved to dismiss the cause upon the ground that the territorial court had no jurisdiction over the subject matter. This motion was overruled, and thereupon judgment was entered ordering the trustees to execute and deliver a deed to the relators of the lots in question. An appeal was thereupon prosecuted to the supreme court of the territory, by which the judgment was affirmed, July 6, 1892. The opinion of the court and of Clark, J., dissenting, will be found in 1 Okl. 92. The cause was then brought to this Court by writ of error.

The Act of Congress of May 14, 1890, omitting the eighth section, is as follows:

"Be it enacted," etc.,

"that so much of the public lands situate in the Territory of Oklahoma, now open to settlement, as may be necessary to embrace all the legal subdivisions covered by actual occupancy for purposes of trade and business, not exceeding twelve hundred and eighty acres in each case, may be entered as town sites, for the several use and benefit of the occupants thereof, by three trustees to be appointed by the Secretary of the Interior for that purpose, such entry to be made under the provisions of section twenty-three hundred and eighty-seven of the Revised Statutes as near as may be,

Page 150 U. S. 212

and when such entry shall have been made, the Secretary of the Interior shall provide regulations for the proper execution of the trust by such trustees, including the survey of the land into streets, alleys, squares, blocks, and lots when necessary, or the approval of such survey as may already have been made by the inhabitants thereof, the assessment upon the lots of such sum as may be necessary to pay for the lands embraced in such town site, costs of survey, conveyance of lots, and other necessary expenses, including compensation of trustees: provided that the Secretary of the Interior may when practicable cause more than one town site to be entered and the trust thereby created executed in the manner herein provided by a single board of trustees, but not more than seven boards of trustees in all shall be appointed for said territory, and no more than two members of any of said boards shall be appointed from one political party."

"SEC. 2. That in the execution of such trust, and for the purpose of the conveyance of title by said trustees, any certificate or other paper evidence of claim duly issued by the authority recognized for such purpose by the people residing upon any town site the subject of entry hereunder shall be taken as evidence of the occupancy by the holder thereof of the lot or lots therein described, except that where there is an adverse claim to said property such certificate shall only be prima facie evidence of the claim of occupancy of the holder, provided that nothing in this act contained shall be so construed as to make valid any claim now invalid of those who entered upon and occupied said lands in violation of the laws of the United States or the proclamation of the President thereunder; provided further, that the certificates hereinbefore mentioned shall not be taken as evidence in favor of any person claiming lots who entered upon said lots in violation of law or the proclamation of the President thereunder."

"SEC. 3. That lots of land occupied by any religious organization, incorporated or otherwise, conforming to the approved survey within the limits of such town site, shall be conveyed to or in trust for the same."

"SEC. 4. That all lots not disposed of as hereinbefore provided

Page 150 U. S. 213

for shall be sold, under the direction of the Secretary of the Interior, for the benefit of the municipal government of any such town, or the same or any part thereof may be reserved for public use as sites for public buildings, or for the purpose of parks, if in the judgment of the Secretary such reservation would be for the public interest, and the Secretary shall execute proper conveyances to carry out the provisions of this section."

"SEC. 5. That the provisions of sections four, five, six and seven, of an act of the Legislature of the State of Kansas entitled 'An act relating to town sites,' approved March second, eighteen hundred and sixty-eight, shall, so far as applicable, govern the trustees in the performance of their duties hereunder."

"SEC. 6. That all entries of town sites now pending on application hereafter made under this act, shall have preference at the local land office of the ordinary business of the office and shall be determined as speedily as possible, and if an appeal shall be taken from the decision of the local office in any such case to the Commissioner of the General Land Office, the same shall be made special, and disposed of by him as expeditiously as the duties of his office will permit, and so if an appeal should be taken to the Secretary of the Interior. And all applications heretofore filed in the proper land office shall have the same force and effect as if made under the provisions of this act, and upon the application of the trustees herein provided for, such entries shall be prosecuted to final issue in the names of such trustees, without other formality and when final entry is made the title of the United States to the land covered by such entry shall be conveyed to said trustees for the uses and purposes herein provided."

"SEC. 7. That the trustees appointed under this act shall have the power to administer oaths, to hear and determine all controversies arising in the execution of this act, shall keep a record of their proceedings, which shall, with all papers filed with them and all evidence of their official acts, except conveyances, be filed in the General Land Office and become part of the records of the same, and all conveyances executed by

Page 150 U. S. 214

them shall be acknowledged before an officer duly authorized for that purpose. They shall be allowed such compensation as the Secretary of the Interior may prescribe, not exceeding ten dollars per day while actually employed, and such traveling and other necessary expenses as the Secretary may authorize, and the Secretary of the Interior shall also provide them with necessary clerical force by detail or otherwise."

Section 2387 of the Revised Statutes reads thus:

"Whenever any portion of the public lands have been or may be settled upon and occupied as a town site, not subject to entry under the agricultural preemption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated."

Sections 4, 5, 6, and 7 of the act of the Legislature of the State of Kansas entitled "An act relating to town sites," approved March 2, 1868, are as follows:

"SEC. 4. At any time after the entry of any such town site, the probate judge of the county in which such town may be situated may appoint three Commissioners, who shall not be residents of such town, or the owners of any interest therein, and it shall be the duty of such Commissioners to cause an actual survey of such site to be made, conforming as near as may be to the original survey of such town, designating on such plat the lost or squares on which improvements are standing, with the name of the owner or owners thereof, together with the value of the same."

"SEC. 5. Said Commissioners shall, as soon as the survey and plat shall be completed, cause to be published, in some newspaper published in the county in which such town is situated,

Page 150 U. S. 215

a notice that such survey has been completed, and giving notice to all persons concerned or interested in such town site that, on a designated day, the said Commissioners will proceed to set off to the persons entitled to the same according to their respective interests, the lots, squares, or grounds to which each of the occupants thereof shall be entitled. Such publication shall be made at least thirty days prior to the day set apart by such Commissioners to make such division."

"SEC. 6. After such publication shall have been duly made, the Commissioners shall proceed, on the day designated in such publication, to set apart to the persons entitled to receive the same the lots, squares, or grounds to which each shall be entitled according to their respective interests, including, in the portion or portions set apart to each person or company of persons, the improvements belonging to such persons or company."

"SEC. 7. After the setting apart of such lots or grounds and the valuation of the same as hereinbefore provided for, the said Commissioners shall proceed to levy a tax on the lots and improvements thereon, according to their value, sufficient to raise a fund to reimburse to the parties who may have entered such site, the sum or sums paid by them in securing the title to such site, together with all the expenses accruing in perfecting the same, the fees due the Commissioners and the surveyor for their respective services, and other necessary expenses connected with the proceedings."

Kansas Gen.Stats. 1868, pp. 1074, 1075.

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