Whether a homestead right can be initiated by filing an
application while the land is reserved to give opportunity for lieu
selections by a state, under the Act of 1894, 28 Stat. 394, is a
question involving a
Page 254 U. S. 344
construction of that statute which the Secretary of the Interior
must decide in determining between such applicant and one who was
in possession and made application when the period for state
selection expired, and mandamus will not lie to control the
Secretary's decision. P. 254 U. S.
48 App.D.C. 279 affirmed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This case involves the consideration of a mandamus brought by
plaintiff in error, hereinafter called relator, against the
Secretary of the Interior.
The proceedings were instituted in the Supreme Court of the
District of Columbia by petition, and its essential allegations
states narratively are as follows:
The lands in question are within a township which was reserved
under an act passed August 18, 1894, c. 302, 28 Stat. 394, from
adverse appropriation by settlement or otherwise except under
rights found to exist of prior inception, for a period to extend
from the application for survey until the the expiration of sixty
days from the date of the filing of the township plat of the survey
in the proper district land office.
The plat of the survey was filed in the proper district land
office May 17, 1915. During the sixty-day period, nor since, the
described land has not been selected by the state. On June 15,
1915, the relator settled on the land, and on July 17, 1915, was
still actually residing thereon
Page 254 U. S. 345
with the bona fide
intention and purpose of
appropriating and entering it under the homestead laws of the
United States in the event that the State of Montana did not select
the same in accordance with the statute.
On the latter date, relator filed in the land office perfect
application for the land as a homestead, which the register and
receiver rejected for the stated reason that, on July 16, 1915,
they had permitted one George E. Kennedy to make a homestead entry
of the lands.
The permission for the entry of Kennedy rested wholly upon an
application made May 25, 1915 at a time when the lands were
reserved as before stated.
On May 25, 1915, the register and receiver rejected Kennedy's
application in the following terms: "Rejected May 25, 1915, because
land not open to entry until July 17, 1915, except to State of
Montana and settlers prior to March 10, 1910."
On June 4, 1915, the register and receiver made the following
notation upon Kennedy's application: "Suspended June 4, 1915,
pending preference right of State of Montana. Rejection of May 25,
1915, hereby revoked."
Theretofore it had been the consistent and uniform practice of
the General Land office to reject any and all filings such as
Relator appealed from the rejection of his application to the
General Land Office, and that office affirmed the decision of the
register and receiver, and relator appealed to the Secretary of the
Interior, who, on July 28, 1916, affirmed the decision of the
General Land Office and held that "Kennedy's application, being
prior in time, is also prior in right."
The Secretary in his decision did not refer to any of the
asserted prior decisions or practice, but arbitrarily disregarded
the mandate and will of Congress expressed in the Act of August 18,
Relator, at the moment of the expiration of the sixty-day
Page 254 U. S. 346
limit, was actually residing on the land with the intention of
making entry thereof under the homestead laws, and the right to
make such entry after the sixty-day period was secured to him by
such residence by the provisions of the third section of the Act of
May 14, 1880, c. 89, 21 Stat. 140, and the uniform decisions of the
Department of the Interior under said act, and the Secretary of the
Interior has arbitrarily denied to him the exercise and enjoyment
of that right, and in ruling that Kennedy had acquired a right
under the homestead laws relator is deprived of the benefit to him
of performance by the Secretary of the Interior of a purely
ministerial duty, and he prays that a writ of mandamus be issued
directed to the Secretary to approve his, the relator's,
application, and deliver to him the proper evidence thereof.
General relief is also prayed.
An order to show cause against the petition was issued and
served on the Secretary, to which he made reply affirming the
legality of the action of the local land office, and the decision
of the General Land Office affirming it, and his decision of
He denies that there had been any ruling by the Secretary of the
Interior that, during the sixty-day period, applications for
homestead entry must be rejected. Such, however, he admits, may
have been the ruling by the local land office, and even by the
Commissioner of the General Land Office, but he stated that, from
August 31, 1910, the construction of the act was pending before the
Secretary upon an appeal from a decision of the Commissioner, that
a decision upon said appeal is reported in 45 L.D. 37, under the
title of Northern Pacific Railway Co. v. Idaho, dated April 12,
1916, and that he decided that selections during such period should
not be rejected, but held suspended until final adjudication of the
rights of the state.
He avers that such is the proper construction of the act, and
that, the act being one of the land laws of the United States, its
construction as well as the determination of all
Page 254 U. S. 347
equitable rights of parties under it, is within the jurisdiction
of the Secretary of the Interior so long as the legal title of the
land yet remains in the United States (and that it appears on the
face of relator's petition that the legal title of the land in
controversy is still in the United States), and involves the
exercise of judgment and discretion, not reviewable by any court on
direct proceeding either by mandamus or in equity.
He prays that the rule to show cause be discharged.
Relator demurred to the return, and, in passing upon it, the
court observed that there were two questions in the case -- one,
whether the facts exhibited a case for mandamus of the Secretary --
that is, "in apparent defiance of the law, acting capriciously or
arbitrarily or beyond the scope of the administrative authority
confided to him;" the other, the construction of the Act of
To the first question the court answered negatively, and to the
second question replied, that,
"independently of the question of the propriety of reviewing the
action of the Secretary of the Interior in the pending case, it
would seem that the decision rendered by him was one entirely
permissible under the law."
The demurrer to the return was therefore overruled. Relator
electing to stand upon it, the rule was discharged, and the
This action was affirmed by the court of appeals.
It is manifest from this statement that the petition presents a
controversy over the true construction of the Act of 1894. From the
act and the Secretary's decision, it is apparent that the latter
was not arbitrary or capricious, but rested on a possible
construction of the act, and one that the reported decisions of the
Land Department show is being applied in other cases. The direction
of the act that the lands be reserved "from any adverse
appropriation" means necessarily an appropriation adverse to the
state, and this gives color to the Secretary's view. He could not
administer or apply the act without construing
Page 254 U. S. 348
it, and its construction involved the exercise of judgment and
discretion. The view for which the relator contends was not so
obviously and certainly right as to make it plainly the duty of the
Secretary to give effect to it. The relator therefore is not
entitled to a writ of mandamus. Riverside Oil Co. v.
Hitchcock, 190 U. S. 316
Ness v. Fisher, 223 U. S. 683
We need not consider the fact that Kennedy, whose application
was sustained, is not a party to the petition (See Litchfield
v. Register and Receiver,
9 Wall. 575, 76 U. S. 578
nor need we consider whether a more appropriate remedy will be open
to the relator. See Brown v. Hitchcock, 173
U. S. 475
; Minnesota v. Lane, 247 U.
, 247 U. S.