In re Emblen,
161 U.S. 52 (1896)

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U.S. Supreme Court

In re Emblen, 161 U.S. 52 (1896)

In re Emblen

No. 9, Original

Argued December 16, 1895

Decided March 2, 1896

161 U.S. 52


If, after the Secretary of the Interior has decided a contest as to the right of preemption to public land in favor of one contestant, and has granted a rehearing, but before the rehearing is had, Congress passes an act confirming the entry of that contestant and directing that a patent issue to him, and a patent is issued accordingly, a writ of mandamus will not lie to compel the Secretary to proceed to adjudication of the contest.

In February, 1885, and long before, the land in question, situated in the Denver Land District, Colorado, was a part of the unappropriated public domain, suitable for agricultural purposes and subject to entry and purchase under the preemption and homestead laws. On February 26, 1885, Weed filed in the land office of that district a declaratory statement upon the oath, as required by the preemption laws, alleging his settlement upon the land and his purpose to occupy and cultivate it and to acquire title to it under those laws. On September 19, 1885, the register and receiver of the district received from Weed final proofs of settlement, improvement, and other essential facts, and the government price, and issued to him a cash entry certificate of purchase, entitling him in due course to a patent for the land.

On October 4, 1888, before any patent had been issued, Emblen filed a protest in that office against the issue of a patent to Weed for the land in question, alleging fraud, misrepresentation, and perjury on Weed's part touching his settlement, occupation, and purpose and demanding a hearing thereon, and asking to be allowed all the rights of a contestant under the Act of May 14, 1880, c. 89, 21 Stat. 140. On May 21, 1889, the register and receiver, after hearing evidence and

Page 161 U. S. 53

arguments, dismissed the protest and contest. Emblen appealed to the Commissioner of the General Land Office, who, on February 20, 1890, reversed the decision and held Weed's entry for cancellation. Meanwhile the Town of Yuma had been built upon the land, and Weed and the board of trustees of Yuma petitioned for a rehearing, which was granted by the commissioner.

Shortly afterwards, a new land district was created, with offices at Akron, Colorado. The land being in this district, the rehearing was transferred to the register and receiver thereof. Emblen protested on the ground that the receiver was interested personally in the result of the contest because he claimed ownership of a portion of the land by a conveyance from Weed. The protest was overruled, and, Emblen refusing to appear before the register or to submit to his jurisdiction, an ex parte hearing was had and a decision was rendered on November 4, 1890, in favor of Weed dismissing the contest, and was affirmed on successive appeals to the Commissioner of the General Land Office and to the Secretary of the Interior. On August 25, 1893, the Secretary of the Interior granted a petition of Emblen for a rehearing upon newly discovered evidence and expressed the opinion that the proceedings before the register and receiver at Akron were invalid.

Before such rehearing was had, Congress passed the Act of December 29, 1894, c. 15, confirming Weed's entry and directing that a patent issue to him for the land. 28 Stat. 599. In February, 1895, a patent was accordingly issued to Weed, and the Secretary of the Interior, solely by reason of the passage of this act, suspended all proceedings in the contest and declined to authorize or direct any further hearing, trial, or consideration thereof.

The petitioner further alleged that in good faith and in reliance upon the acts of Congress and the regulations of the Land Department, he had spent in this contest years of labor and large sums of money, that he desired that the contest proceed to final adjudication and disposition, and that, should he succeed therein, it was his purpose to claim and to exercise his preference right of entry and purchase of the land as by law authorized and provided.

The prayer of the petition was that the act of Congress be declared unconstitutional and void, that the patent to Weed be likewise declared void because issued without warrant or authority in law, and

"that a writ of mandamus issue, directed to the Secretary of the Interior, requiring him to proceed to the final adjudication and disposition of said contest in accordance with the general acts of Congress and the rules and regulations of the Land Department in that behalf made and provided. "

Page 161 U. S. 55

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