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
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
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
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,
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
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
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Land grants purchased of Mexican grantees or their assigns in
good faith and for a valuable consideration, where such grants have
subsequently been rejected or where the lands so purchased have
been excluded from the final survey of the grant, may be purchased
of the United States by such prior purchasers, after the same are
surveyed under existing laws, at the minimum price established by
law, in cases where there is no valid adverse private right or
title, and where such prior purchasers have used, improved, and
continued in the actual possession of the premises according to the
tenor of their original purchase, they first making proof of those
facts as required in the seventh section of the act to quiet the
title to such grants, under regulations to be prescribed by the
Commissioner of the General Land Office, as provided in the same
section of that act. [Footnote
Annexed to that right, however, are three other conditions, one
of which it becomes important to notice. They are in the form of
provisos, and the one to be noticed is that the right to purchase,
as given in the body of the section,
Page 76 U. S. 306
"shall not extend to lands containing mines of gold, silver,
copper, or cinnabar."
By the record, it appears that the relator, on the fifth of
October, 1858, addressed a communication to O. H. Browning,
Secretary of the Interior, in which he represented that he, the
relator, on the twenty-second of December, 1857, purchased of
Vincente P. Gomez the rancho situated in California and known as
Panoche Grande, and that the claim to the same had since been
rejected by the decree of the supreme court reversing the decree of
the district court confirming the claim, and prayed that he, by
virtue of the provision contained in the seventh section of that
act, might be allowed to purchase the same of the United States,
supporting his alleged right to do so by the following
The land embraced in the claim was a Mexican grant; that he
purchased it of the original donee in good faith and for a valuable
consideration; that the land, since the claim was rejected, has
been regularly surveyed under existing laws; that there is no valid
adverse private right or title to the same, and that he has
continued in the actual possession of the tract since the claim was
rejected, as required by law; but he did not allege that the land
did not contain mines of gold, silver, copper, or cinnabar, nor did
he offer any other proof of the facts set forth than what is
contained in the exhibits annexed to the communication.
Prior to the date of that paper, to-wit, on the fourteenth of
August preceding, the Secretary of the Interior addressed an
official letter upon the subject to the Commissioner of the General
Land Office in which he adverted to the fact that a bill was
pending in the Senate relating to the claim and stated that in his
judgment it would be highly improper for the department to do
anything to affect the title to the land until Congress should
dispose of the claim. Pursuant to that view, he at the same time
directed the commissioner to instruct the local officers to suspend
action in all such cases until they should receive further orders.
Correspondence ensued between the Secretary and the counsel of the
Page 76 U. S. 307
but the Secretary, on the twenty-eighth of November following,
informed the counsel that he adhered to the views expressed in the
directions which he gave to the Commissioner of the General Land
Dissatisfied with the decision of the Secretary, the relator, on
the third of December of the same year, presented a petition to the
Supreme Court of this District in which he prayed that a mandamus
might issue directing "O. H. Browning, Secretary of the Interior,"
to issue or cause to be issued a patent for the land described in
the petition and for such other or further relief as may seem meet
and proper. Service was duly made, and on the eighth of the same
month, a rule was issued commanding the Secretary to show cause, on
the third Monday of January following, why the writ of mandamus
should not be issued as prayed in the petition. He appeared as
commanded and pleaded that the court had no jurisdiction to grant
the writ for the following reasons: (1) Because the subject matter
of the petition is purely of executive cognizance, resting in the
judgment and discretion of executive officers in the ordinary
discharge of their official duties. (2) Because the subject matter
is one in which judgment and discretion are to be exercised. (3)
Because the issuing of patents for lands is, by the act of
Congress, the duty of the President.
On the fifth of February following, the parties filed a
stipulation in the case agreeing that the cause
"be submitted to the court upon briefs and arguments, and that
the said court may render its judgment in vacation as of the
present term and of the day of such submission."
Submitted as aforesaid, the case was held under advisement until
the eighth of July following, when the court, two justices signing
the decree, determined that the prayer of the petition be granted
and that a writ of mandamus issue, directed to the said O. H.
Browning, Secretary of the Interior or to his successor in office,
commanding him, upon payment of the sum therein specified, to issue
or cause to be issued to the relator a patent from the United
States of the tract of land described in his petition.
Page 76 U. S. 308
Four months before that judgment was rendered, the Secretary of
the Interior, who was the party respondent in the litigation,
resigned his office, and J. D. Cox, the present Secretary of the
Interior, had not only been appointed his successor but was in the
regular discharge of all its duties.
Although none of these facts is disputed, still the record shows
that the writ of mandamus was addressed to the predecessor of the
present incumbent or his successor in office, and that the writ, on
the eighth of July in the same year, was served on the present
Secretary, who was not named in the writ, was never a party to the
suit, and never had any notice of the proceedings. Judgment having
been rendered without notice to the present Secretary and without a
hearing on his part or any opportunity to be heard, he sued out a
writ of error and removed the cause into this Court.
Founded as the proceeding in this case is upon a claim to land
which has been three times under examination in this Court before
the present writ of error was sued out, it is deemed necessary and
proper to advert to the views expressed by the Court on those
occasions in respect to the validity of the claim and the means
adopted to procure its confirmation. Reference to the docket
entries will show that the case was first presented here at the
December Term 1858, by the claimant as an appeal not prosecuted,
and it also appears that a copy of the record having been produced
by him, and the certificate of the clerk that the appeal had been
duly prayed and allowed, the case on his motion was docketed and
dismissed, in conformity to the ninth rule of the court, for want
of prosecution. Such a proceeding, when bona fide,
effect to vacate the appeal and leave the decree of the subordinate
court in full force, and the docket entries also show that the
mandate was issued in pursuance of that order and that it was
subsequently delivered to the assignee of the claimant.
Nothing further was done in the cause during that term, but at
the succeeding term the Attorney General filed a motion to rescind
the decree of the preceding term dismissing the case and to revoke
the mandate, alleging for cause that
Page 76 U. S. 309
the decree and mandate had both been procured by
misrepresentations and fraud. Affidavits were filed by the Attorney
General showing that the cause was still pending in the district
court, that no appeal had been granted, that the cause, when the
claimant made his motion to docket and dismiss it, was not legally
before this Court. Pending that motion, three motions for mandamus
were filed by the claimant: first, to compel the district court to
file the mandate and to execute their decree; second, to compel the
district court to dismiss the application of the United States to
open the decree and grant a new trial; third, to compel the
Surveyor General to survey the land confirmed to the claimant by
the decree of the district court.
Both parties were heard, and the court overruled the several
motions filed by the claimant, but granted the motion of the
Attorney General upon the ground that the allegations of the motion
were fully proved. [Footnote
Attempts were subsequently made by the claimant to enjoin the
clerk and district attorney from furnishing a certified copy of the
record to enable the United States to appeal, but the injunction
was refused and the appeal was perfected and duly entered here, and
the next step of the claimant was to file a motion to dismiss the
appeal, alleging that the Court had no jurisdiction of the case,
but the Court unanimously overruled the motion for the reasons
expressed in the opinion. [Footnote
Subsequently the cause was heard upon the merits, and the Court
held that the claim was invalid and fraudulent, and reversed the
decree of the district court and remanded the cause with directions
to dismiss the petition. [Footnote
Unless, therefore, the claim of the petitioner is brought within
the terms of the act of Congress referred to in his petition, he
has no right whatever to a patent for the land in controversy.
Suppose everything which he alleges in his petition is
Page 76 U. S. 310
true, still it does not bring his case within the act of
Congress, as the petition does not allege that the land does not
contain mines of gold, silver, copper, or cinnabar, and the record
furnishes evidence tending strongly to the conclusion that such an
averment, if made, could not be supported, as the statement of the
land commissioner is that the land embraced in the claim does
contain "valuable quicksilver mines."
Mere allegation, however, is not sufficient, but the condition
is that the claimant shall make proof of the facts required under
regulations to be provided by the Commissioner of the General Land
Office. His application to be allowed to purchase the land was made
to the Secretary of the Interior, and he was as much bound to prove
that the land did not contain mines of the description mentioned as
he was to show that his purchase of the donee of the tract was made
in good faith and for a valuable consideration, as he was not
entitled to a patent if the lands contained mines of gold, silver,
copper, or cinnabar, any more than if he had made the purchase in
bad faith and without consideration.
Argument to show that he did not bring his case within that
condition is unnecessary, as the point is clear to a demonstration.
He did allege that he purchased the lands in question of the donee
in good faith and for a valuable consideration, but he offered no
proof of the alleged fact except what may be inferred from the deed
annexed to the petition, bearing date December 22, 1857, and which
purports to have been executed by the original claimant.
Special reference is made in the petition to the deed of release
given by the occupants of the land to the relator as supporting the
allegation of good faith, but it is entitled to very little weight,
if any, as it bears date six years subsequent to the alleged
purchase of the grant.
Evidence was exhibited in the case tending to show that the
lands were surveyed subsequent to the decree of the court rejecting
the claim, but it is not proved that the present claimant
thereafter continued in the actual possession of the land, nor that
it was free from any adverse private right or title.
Page 76 U. S. 311
Such allegations are set forth in the petition, but the record
contains no proof to support the first allegation, and nothing to
support the second except what is derived from the statement of the
Commissioner of the General Land Office that no report of any
individual adverse interests was found on the files of his office.
Tested solely by the merits, therefore, it is quite clear that the
application of the relator could not have been properly granted, as
the proofs before the department were not sufficient to warrant a
decision in his favor.
Adjudged invalid and fraudulent as the claim had been by the
unanimous decision of this Court, it was quite proper that the
Secretary should require satisfactory proof that the case as
presented came within the terms of the act of Congress relied on
before consenting to give the claimant the benefit of its
provision, and when it appeared that he petition addressed to him
was deficient in allegation and that the proofs were insufficient
in all particulars except perhaps one, he was entirely justified in
rejecting the application.
Evidently the case, if examined upon the merits, was not made
out by the claimant, but the more decisive objection to the
judgment of the court below is that the case, from its very nature,
is one which was exclusively within the jurisdiction of the
executive officers of the government, because it was one requiring
proofs, hearing, and decision, and involved the exercise of
judicial judgment and discretion, and consequently was not one
where the action of the Department of the Interior is subject to
reexamination by the Supreme Court of this district.
Since the decision of this Court in the case of McIntire v.
] it has
been regarded as the settled law of the court that the circuit
courts of the United States in the several states do not possess
the power to issue writs of mandamus except in cases in which it
may be necessary to the exercise of their jurisdiction. [Footnote 8
Authority to that effect might doubtless be given to those
courts by an act of Congress, but the insuperable difficulty
Page 76 U. S. 312
at present is that neither the Judiciary Act nor any other act
of Congress has conferred upon them any such power. Antecedent to
the decision of this Court in the case of Kendall v. United
doubts were entertained whether any court established by an act of
Congress possessed any such jurisdiction; but the majority of this
Court came to the conclusion in that case that the circuit court of
this District might issue the writ of mandamus to an executive
officer residing here commanding him to perform a ministerial act
required of him by law, and it is not denied that the court below
possesses all the power in that behalf which the circuit court of
the District possessed at that time. Subsequent decisions of this
Court have affirmed the same principle, but in all of the
subsequent cases the principle is strictly limited to the
enforcement of mere ministerial acts not involving the necessity of
taking proofs, and it has never been extended to cases where
controverted matters were to be judicially heard and decided by the
officer to whom the writ is required to be addressed. [Footnote 10
Though mandamus may sometimes lie against an executive officer
to compel him to perform a mere ministerial act required of him by
law, yet such an officer, to whom public duties are confided by
law, is not subject to the control of the courts in the exercise of
the judgment and discretion which the law reposes in him as part of
his official functions. [Footnote 11
Discussion of the principle, however, seems to be unnecessary,
as all of the cases appear to affirm the same rule, that the writ
cannot issue where discretion and judgment are to be exercised by
the officer, and only in cases where the act required to be done is
merely ministerial, and where the relator is without any other
adequate remedy. [Footnote
Even if it could be shown that the court below possessed
Page 76 U. S. 313
the power to issue the writ in such a case, still it is clear
that the judgment in this case would be erroneous, as the case upon
the merits was not submitted to the court under the stipulation.
Undoubtedly the appearance of the respondent was general, but he
pleaded only to the jurisdiction of the court, and it appears that
the question of jurisdiction was the only point argued and
submitted for decision. But the court decided the whole case
without proofs and without any further hearing. Taking the record
as it is exhibited, such certainly is the clear inference from it,
and it is not suggested that it does not correctly represent what
occurred. Assuming the record to be correct, comment upon the
proceeding is unnecessary, as in the view of this Court it is
Several other objections are also taken to the proceedings by
the Attorney General, which are equally decisive that the judgment
of the court below must be reversed, one or two of which will be
Service was made upon O. H. Browning, Secretary of the Interior,
but the fact is conceded, or not denied, that he had resigned and
gone out of office four months before the decision of the court was
announced. When he resigned, of course the suit abated, but the
court gave judgment against him as if he were still in office, and
decreed that the writ of mandamus should be directed to him and to
his successor in the office. Complaint may well be made by that
party that he no longer possesses the power to execute the commands
of the writ, and the present Secretary may well complain that he is
adjudged to be in default though he never refused to allow the
relator to purchase the land, and that the judgment was rendered
against him without notice and without any opportunity to be
Notice to the defendant, actual or constructive, is essential to
the jurisdiction of all courts, and the better opinion is that a
judgment rendered without notice may be shown to be void when
brought collaterally before the court as evidence. [Footnote 13
Page 76 U. S. 314
Patents for land are required to be signed by the President in
person or in his name by a Secretary under his direction, and they
are to be countersigned by the Recorder of the General Land Office.
Such patents cannot be issued and delivered to any party without
the signature of the President, and no proceeding to compel either
the Commissioner of the General Land Office or the Secretary of the
Interior to issue such a patent can be sustained while that
provision of law remains unrepealed. [Footnote 15
Congress may so provide, and in that event it would be the duty
of the Secretary to carry the provision into effect; but the act of
Congress referred to in the petition as the source of power in this
case gives the Secretary of the Interior no authority upon the
subject. On the contrary, the express provision is that the
regulations for executing the law shall be provided by the
Commissioner of the General Land Office, and the better opinion is
that the application to be allowed to purchase the land embraced in
such rejected claim should be made to the Commissioner, and not to
the Secretary of the Interior, as the right to purchase of the
United States will never vest until the land is surveyed under
It appears by the record in this case that a survey of some kind
was presented to the Secretary, but whether it was one made under
existing laws or not is not sufficiently shown.
Viewed in any light, the Secretary of the Interior has no
original cognizance of applications of this description. He may
perhaps, as the head of the department, exercise an appellate and
supervisory power over the doings of the Commissioner, but the
original application should have been made to the Commissioner of
the General Land Office. [Footnote 16
Judgment reversed and the cause remanded with directions to
dismiss the petition.
64 U. S. 23
326; 1 Wall. 698 [argument of counsel -- omitted]; 70 U. S. 3
14 Stat. at Large 220.
14 Stat. at Large 220.
United States v.
23 How. 330.
Same v. Same,
1 Wall. 690.
11 U. S. 7
Riggs v. Johnson
6 Wall. 198.
37 U. S. 12
14 Pet. 497; Brashear
6 How. 99.
7 Wall. 353; Reeside v.
11 How. 289.
United States v.
17 How. 230; United
States v. Guthrie,
17 How. 304; Commissioner of Patents v.
4 Wall. 522; United
States v. Commissioner,
5 Wall. 563.
24 How. 203.
4 Stat. at Large 663; 5 id.
United States v. Land
5 Wall. 563.
9 Stat. at Large 395.
MR. JUSTICE MILLER:
I agree to the judgment of the Court on the ground set forth by
this Court in the case of
Page 76 U. S. 315
Gaines v. Thompson, *
that the courts
have no jurisdiction to control the actions of the departments in
I do not think that the merits of the present claim were before
the court, and I decline to express any opinion upon it.
* 74 U. S. 7