The Commissioner of the General Land Office may direct the
proper local land officer to hear and pass upon charges of fraud in
the final proof of a preemption claim upon which the requisite cash
entry has been paid, and has jurisdiction to review the judgment of
the local land officer in respect thereof, and the Secretary of the
Interior has jurisdiction to review such judgment of the
Commissioner, and to order such an entry, shown to be fraudulent,
to be cancelled.
While these two cases differ in their particular facts, they
agree in the questions involved, and for convenience may be
considered together. As the opinion of the Supreme Court of the
State of Washington was filed in the second case, the special facts
of that will be stated. The action was commenced in the District
Court of the Territory of Washington, sitting in and for the County
of Pierce.
The complaint alleged that the plaintiff was the owner and
entitled to the possession of a certain described tract or parcel
of real estate situate in the County of Pierce, and prayed judgment
for the recovery of possession, together with rents, issues, and
profits.
The answer, beyond a general denial, set up by way of equitable
defense that on December 20, 1880, the land described in
plaintiff's complaint was unoccupied, unappropriated public land of
the United States, and that on that day, the plaintiff filed his
declaratory statement therefor under the preemption laws of the
United States; that on February 13, 1883, he made his final proof,
and on March 12, 1883, his cash entry was allowed by the register
and receiver of the local land office; that on August 7, 1883, the
defendant filed in the office of the Commissioner of the General
Land Office, and afterwards with the local land officers, his
corroborated affidavit, in which he alleged that plaintiff had at
no time established
Page 157 U. S. 373
his residence on the land; that he had failed to improve and
cultivate the same as required by law, and that the cash entry had
been procured by fraud; that on May 16, 1885, the Commissioner of
the General Land Office ordered a hearing on those charges before
the local land officers, and that in pursuance of such order, the
plaintiff and defendant appeared before those officers on July 13,
1885, for a trial of the questions raised and presented by the
defendant's affidavits; that a trial was had, evidence was
submitted, and the case argued by counsel, and thereupon the local
land officers found as facts that the plaintiff had at no time
established his residence on the land embraced in his entry, and
that he had failed to improve and cultivate the land as required by
law, and, as a conclusion of law therefrom, that the plaintiff's
entry should be cancelled; that the plaintiff appealed to the
Commissioner of the General Land Office, who, on June 3, 1886,
affirmed the decision of the local land officer; that he took a
further appeal to the Secretary of the Interior, who, on March 31,
1888, sustained the Commissioner of the General Land Office and
cancelled plaintiff's entry; that, after, this defendant filed upon
the land under the homestead laws of the United States, made final
proofs thereon, paid to the government of the United States the
required price, and on July 26, 1889, received from the receiver of
the land office a patent certificate for the land, by virtue
whereof he claimed to be the owner and entitled to the
possession.
To this answer an amended reply was filed in which the plaintiff
alleged that the proceedings initiated by the defendant were wholly
void, on the ground that the officers referred to had no
jurisdiction over the lands or of the plaintiff for the reason that
the United States had theretofore sold and disposed of the land to
plaintiff, and received from him the sum of $400, in consideration
of which sum the United States had undertaken and agreed to execute
and deliver to him a patent. He set forth in detail that he had, in
accordance with the preemption laws of the United States and the
requirements of the General Land Office, published notice of his
intention to make final proof; that on the date named in
Page 157 U. S. 374
such publication, he had appeared with his witnesses before the
local land officers, and made such final proof, and paid to them
the land office fees and the sum of $400, the legal price of the
land; that they had accepted such final proof as sufficient, and
received such sum of money, and executed and delivered to him a
duplicate receiver's receipt therefor, and that thereupon he became
entitled to have and receive from the United States, in the due
course of the administration of the General Land Office, a patent
for the land; that no lawful proceedings had ever been taken by the
United States to rescind the contract so entered into between the
government and himself, nor had the sum of $400, or any part
thereof, ever been repaid or tendered to him by the government. He
denied that the defendant had, in his affidavits, alleged that the
plaintiff failed to improve and cultivate the land as required by
law, or that his entry had been procured by fraud. He also denied
that the decision of the Commissioner of the General Land Office
was affirmed by the Secretary of the Interior, except as to finding
that plaintiff had not made his residence upon the land.
To this amended reply the defendant demurred on the ground that
it did not contain facts sufficient to constitute a defense to the
affirmative matter set up in the answer. The demurrer was
sustained, the case at the time of the hearing being in the
Superior Court of the State of Washington in and for the County of
Pierce, Washington having been admitted as a state since the
commencement of the action. No further amendment being desired,
judgment was entered on the pleadings, in favor of the defendant.
This judgment was affirmed by the supreme court of the state, 2
Wash. 81, whereupon plaintiff brought this writ of error.
Page 157 U. S. 375
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Section 2259, Rev.Stat., authorizes one possessed of certain
personal qualifications,
"who has made, or hereafter makes, a settlement in person on the
public lands subject to preemption, and who inhabits and improves
the same, and who has erected or shall erect a dwelling
thereon,"
to enter not exceeding 160 acres. Section 2262 provides that
before any person shall be allowed to enter lands, he shall make
oath before the register or receiver that he has never had the
benefit of any right of preemption; that he is not the owner of 320
acres of land; that he has not settled upon and improved the land
for speculation, but in good faith to appropriate it to his own
exclusive use, and that he has not directly or indirectly made any
agreement or contract by which the title which he is to acquire is
to inure in whole or in part to any person except himself, and
further, that a false oath in these respects shall forfeit the
money which he has paid and all right and title to the land. This
oath is to be filed in the local land office, and a duplicate
thereof transmitted to the General Land Office. Section 2263
reads:
"Prior to any entries being made under and by virtue of the
provisions of section twenty-two hundred and fifty-nine, proof of
the settlement and improvement thereby required shall be made to
the satisfaction of the register and receiver of the land district
in which such lands lie, agreeably to such rules as may be
prescribed by the Secretary of the Interior."
The contention of the plaintiff is that this last section
authorizes a
quasi-judicial hearing before the local land
officers, whose decision is tantamount to a judgment binding both
the government and the applicant in respect to the matter of
settlement and improvement, and one which, inasmuch as no special
right of appeal or review is given, is not subject to reexamination
by the Commissioner of the General Land Office or the Secretary of
the Interior, but is a final adjudication as to those matters. As a
necessary result therefrom, he contends that the order of the
commissioner directing a hearing on the
Page 157 U. S. 376
charges made by the defendant, as well as the hearing before the
local land officers in pursuance thereof, were all without
authority and unavailing to disturb the conclusive force of the
adjudication theretofore made. Upon the question which this
contention presents, the case depends, and to it therefore we
direct our attention.
If there were no other provision in the statutes than that found
in section 2263, the contention of the plaintiff would find support
in the decisions of this Court. By the Act of May 29, 1830, 4 Stat.
420, c. 208, the right of preemption was given to certain settlers
on the public lands. Section 3 was similar to section 2263 in that
it required that prior to any entry "proof of settlement or
improvement shall be made to the satisfaction of the register and
receiver." In
Lytle v.
Arkansas, 9 How. 314, it was held that their
decision was conclusive upon the questions of settlement and
improvement, the Court saying:
"The register and receiver were constituted, by the act, a
tribunal to determine the rights of those who claimed preemptions
under it. From their decision no appeal was given. If, therefore,
they acted within their powers, as sanctioned by the commissioner,
and within the law, and the decision cannot be impeached on the
ground of fraud or unfairness, it must be considered final."
Subsequently, and on July 4, 1836, 5 Stat. 107, c. 352,
Congress, without any repeal of the act of 1830, passed an act to
reorganize the General Land Office, the first section of which is
as follows:
"That from and after the passage of this act, the executive
duties now prescribed, or which may hereafter be prescribed by law,
appertaining to the surveying and sale of the public lands of the
United States, or in anywise respecting such public lands, and also
such as relate to private claims of land and the issuing of patents
for all grants of land under the authority of the government of the
United States, shall be subject to the supervision and control of
the Commissioner of the General Land Office, under the direction of
the President of the United States."
This section, so far as any question here is concerned, was
Page 157 U. S. 377
substantially carried forward into the Revised Statutes as
section 453, and is still in force. Under this law, the case of
Barnard's Heirs v. Ashley's
Heirs, 18 How. 43, arose. It was there contended,
in accordance with the prior cases, that the decision of the
register and receiver was final and conclusive, but, the entries
having been made on
ex parte affidavits, the right of
review by the Commissioner of the General Land Office was
sustained, the Court saying:
"The necessity of 'supervision and control,' vested in the
commissioner, acting under the direction of the President, is too
manifest to require comment further than to say that the facts
found in this record show that nothing is more easily done than
apparently to establish, by
ex parte affidavits,
cultivation and possession of particular quarter sections of land,
when the fact is untrue. That the act of 1836 modifies the powers
of registers and receivers to the extent of the commissioner's
action in the instances before us we hold to be true. But if the
construction of the act of 1836 to this effect, were doubtful, the
practice under it for nearly twenty years could not be disturbed
without manifest impropriety."
"The case relied on, of
Wilcox v. Jackson, 13
Pet. 511, was an ejectment suit commenced in February, 1836, and,
as to the acts of the register and receiver in allowing the entry
in that case, the commissioner had to power of supervision, such as
was given to him by the Act of July 4, 1836, after the cause was in
court."
"In the next case,
50 U. S. 9 How. 333, all the
controverted facts on which both sides relied had transpired and
were concluded before the Act of July 4, 1836, was passed, and
therefore its construction, as regards the commissioner's powers
under the act of 1836 was not involved, whereas in the case under
consideration, the additional proceedings were had before the
register and receiver in 1837, and were subject to the new powers
conferred on the commissioner."
It will be noticed that the right of review on the part of the
Commissioner of the General Land Office, sustained by this
decision, was one existing under the act of 1836, and before the
act of 1841, c. 16, 5 Stat. 453, section
Page 157 U. S. 378
11 of which provided that
"all questions as to the right of preemption arising between
different settlers shall be settled by the register and receiver of
the district within which the land is situated, subject to an
appeal to and a revision by the Secretary of the Treasury of the
United States."
This section is substantially reenacted in the Revised Statutes,
section 2273. The case therefore is a direct decision that the
power of supervision and control granted by the act of 1836,
although in terms extending to only executive duties, included the
right to review a decision of the local land officers as to the
matter of settlement and improvement at least in cases in which the
proof before those officers was by
ex parte affidavits.
And if the right of supervision and control over their decision
exists under those circumstances, it is difficult to perceive any
reason why it does not exist under all. There is certainly nothing
in the statute which in terms creates any distinction, and indeed,
in the nature of things, there is no foundation for any. If a
provision that proof of settlement and improvement shall be made to
the satisfaction of the local land officers does not exclude a
review, when such officers are satisfied by evidence in writing,
there is no legal principle on which it can be held that there is
no review when they are not satisfied by written evidence, but
require in addition oral testimony. Indeed, could not the Secretary
of the Interior, by virtue of the power given him in said section
2263, prescribe as a rule of procedure that only affidavits should
be receivable, and so bring every case within the letter of this
decision? But the grant of power to the local officers is not
limited by the manner in which they exercise that power, and does
not rest at all upon the kind of evidence on which they act. Their
adjudication must be final in all cases or it is final in none. It
was final when no supervising power was by statute vested in the
Commissioner of the General Land Office. It ceased to be final when
the general power of review and supervision of all "executive
duties" concerning the survey and sales of lands was vested in the
higher officials of the Land Department at Washington.
Stress is laid upon the words "executive duties," as though
Page 157 U. S. 379
the approval of the evidence of settlement and improvement was
not an executive duty, but a purely judicial act. This is a
mistake. True, it involves the weighing of testimony and the
exercise of judgment, but equally so do many administrative acts.
The approval of a bond, for instance, involves an inquiry as to the
sufficiency of the sureties, which is to be determined by the
testimony in support thereof, as well as a consideration of the
question whether its terms satisfy all the demands of the law. But
who would think of calling it a purely judicial act? Any
determination of a ministerial officer may by statute be declared
final and conclusive, but such finality does not change its
character and transform it from an executive to a judicial act.
The approval of the evidence offered in respect to settlement
and improvement is only
quasi-judicial. It is as much an
administrative as a judicial act. There is no contest before the
register and receiver. No one represents the government. The action
taken is purely
ex parte. It is only one step in the
procedure by which through an executive department the title to
public land is obtained by an individual.
In this connection, it may be remarked that the plaintiff, in
his amended reply, does not allege that the local land officers
demanded from him oral testimony, or that they did not act alone
upon written evidence filed with them. There is therefore nothing
in the record which excludes the case from the very terms of the
decision from which we have just quoted.
Since that decision, the question of the supervising power of
the general officers of the Land Department has been more than once
presented to this Court. In
Harkness v.
Underhill, 1 Black 316, the first proposition in
the syllabus is thus stated:
"A fraudulent entry of public land allowed by a register and
receiver, upon false proofs of settlement, occupancy, and
housekeeping may be set aside and vacated by the Commissioner of
the General Land Office."
And in the opinion pronounced by Mr. Justice Catron, it is
said:
"The question is again raised whether this entry, having been
allowed by the register and receiver, could be set aside by the
commissioner. All the officers administering the public lands were
bound by
Page 157 U. S. 380
the regulations published May 6, 1836. 2 L.L. & O. 92. These
regulations prescribed the mode of proceeding to vacate a
fraudulent occupant entry, and were pursued in the case before the
court. This question has several times been raised and decided in
this Court, upholding the commissioner's powers.
Garland v.
Wynn, 20 How. 8;
Lytle v.
Arkansas, 22 How. 193."
Hosmer v. Wallace, 97 U. S. 575,
97 U. S. 578,
was a case coming from the Supreme Court of California (47 Cal.
461). In the opinion filed in the state court, there is quite an
extended discussion of the question, and the conclusion reached is
in favor of the reviewing power of the Commissioner of the General
Land Office.
In this Court, the opinion was announced by MR. JUSTICE FIELD,
who thus stated the facts and the decision:
"In July, 1866, the plaintiff filed a declaratory statement in
the proper land office, claiming to preempt the premises together
with other land, alleging his settlement thereon in October, 1856,
and in September following made proof of his claim before the
register and receiver, and was allowed to enter the land. He then
paid the purchase money, and obtained a certificate of payment. In
the meantime, the Act of July 23, 1866, was passed, and under it
the defendant claimed the right to purchase the premises. The
Commissioner of the General Land Office thereupon directed the
register and receiver at San Francisco to investigate the entry of
the plaintiff and to take such testimony as might be offered by him
and the defendant concerning their respective claims, and to report
the same to him, together with their decision. Both parties
appeared before these officers, and supported their respective
claims. The decision of the officers was in favor of the plaintiff.
The defendant appealed to the commissioner, by whom the decision
was reversed, and the land awarded to him. On further appeal to the
Secretary of the Interior, the decision of the commissioner was
affirmed, and, upon payment of the purchase money, a patent was
issued to the defendant. The decision of the commissioner and of
the secretary was clearly correct. "
Page 157 U. S. 381
It is true that the case in this Court did not turn on the
matter of settlement or improvement, and so the decision does not
reach to the precise question here presented, but it is pertinent
as an affirmation of the commissioner's right of review of
preemption entries.
Cornelius v. Kessel, 128 U. S. 456,
holds directly that the commissioner may, at least in some cases,
review the action of the local land officers in respect to such
entries, though declaring that his power is not arbitrary and
unlimited. In the recent case of
Knight v. Land
Association, 142 U. S. 161,
142 U. S. 177,
the power of the Secretary was considered at length by Mr. Justice
Lamar, who, speaking for the Court, said, after referring to
sections 441, 453, and 2478 of the Revised Statutes:
"The phrase 'under the direction of the Secretary of the
Interior,' as used in these sections of the statute, is not
meaningless, but was intended as an expression in general terms of
the power of the Secretary to supervise and control the extensive
operations of the Land Department of which he is the head. It means
that, in the important matters relating to the sale and disposition
of the public domain -- the surveying of private land claims, and
the issuing of the trusts thereon, and the administration of the
trusts devolving upon the government, by reason of the laws of
Congress or under treaty stipulations, respecting the public domain
-- the Secretary of the Interior is the supervising agent of the
government to do justice to all claimants, and preserve the rights
of the people of the United States. As was said by the Secretary of
the Interior on the application for the recall and cancellation of
the patent in this pueblo case, 5 L.D. 494:"
"The statutes, in placing the whole business of the department
under the supervision of the Secretary, invest him with authority
to review, reverse, amend, annul, or affirm all proceedings in the
department having for their ultimate object to secure the
alienation of any portion of the public lands, or the adjustment of
private claims to lands, with a just regard to the rights of the
public and of private parties. Such supervision may be exercised by
direct orders or by review on appeals.
Page 157 U. S. 382
The mode in which the supervision shall be exercised in the
absence of statutory direction may be prescribed by such rules and
regulations as the Secretary may adopt. When proceedings affecting
titles to lands are before the department, the power of supervision
may be exercised by the Secretary, whether these proceedings are
called to his attention by formal notice or by appeal. It is
sufficient that they are brought to his notice. The rules
prescribed are designed to facilitate the department in the
dispatch of business, not to defeat the supervision of the
Secretary. For example, if, when a patent is about to issue, the
Secretary should discover a fatal defect in the proceedings, or
that, by reason of some newly ascertained fact, the patent, if
issued, would have to be annulled, and that it would be his duty to
ask the Attorney General to institute proceedings for its
annulment, it would hardly be seriously contended that the
Secretary might not interfere and prevent the execution of the
patent. He could not be obliged to sit quietly and allow a
proceeding to be consummated which it would be immediately his duty
to ask the Attorney General to take measures to annul. It would not
be a sufficient answer against the exercise of his power that no
appeal had been taken to him, and therefore he was without
authority in the matter."
We have made these somewhat extensive quotations from prior
decisions in order to show the rulings of this Court since the act
of 1836 in favor of the power of the general officers of the Land
Department to review and correct the action of the subordinate
officials in all matters relating to the sale and disposal of
public lands. These cases might be supplemented by others in which,
with more or less fullness of statement, the same affirmations have
been made.
Similar decisions, some upon the precise question here involved,
have been made in several state courts.
See, among others,
the following cases:
Bellows v. Todd, 34 Ia. 18;
Morton v. Green, 2 Neb. 441;
Hestres v. Brennan,
50 Cal. 211;
Figg v. Hensley, 52 Cal. 299;
Randall v.
Edert, 7 Minn. 450;
Gray v. Stockton, 8 Minn. 529;
Judd v. Randall, 36 Minn. 12;
Darcy
Page 157 U. S. 383
v. McCarthy, 35 Kan. 722;
Gray v. McCance, 14
Ill. 343;
Aldrich v. Aldrich, 37 Ill. 32;
McLane v.
Bovee, 35 Wis. 27;
Vantongeren v. Hefferman, 5
Dak.Ter. 180.
Again, one of the instructions issued by the Land Department to
the registers and receivers, and which has been in force for half a
century, is this:
"Final proof in preemption cases must be made to the
satisfaction of the register and receiver, whose decision, as in
other cases, is subject to examination and review by this
office."
And all these years, the practice has been to exercise the power
of review thus claimed. 1 Copp's Landowner 123-124; 11 Copp's
Landowner 181; 13 Copp's Landowner 13. While, of course, no
practice of a department can nullify an act of Congress, yet such
practice, if uniform and long continued, is a matter worthy of
consideration in determining its construction.
Heath v.
Wallace, 138 U. S. 573,
138 U. S. 582.
So many rights, it may be presumed, have been created in reliance
upon it that the courts will hesitate to decide that the
construction thus practically asserted is erroneous, and so
overthrow all the titles depending thereon.
Of course this power of reviewing and setting aside the action
of the local land officers is, as was decided in
Cornelius v.
Kessel, 128 U. S. 456, not
arbitrary and unlimited. It does not prevent judicial inquiry.
Johnson v.
Towsley, 13 Wall. 72. The party who makes proofs,
which are accepted by the local land officers, and pays his money
for the land, has acquired an interest of which he cannot be
arbitrarily dispossessed. His interest is subject to state
taxation.
Carroll v.
Sofford, 3 How. 441;
Witherspoon v.
Duncan, 4 Wall. 210. The government holds the legal
title in trust for him, and he may not be dispossessed of his
equitable rights without due process of law. Due process in such
case implies notice and a hearing. But this does not require that
the hearing must be in the courts, or forbid an inquiry and
determination in the Land Department.
While the departmental practice and judicial decisions unite to
compel the construction thus placed upon the statutory provisions,
we may add that if the question were entirely
Page 157 U. S. 384
new, we should be led to the same conclusion. If the section
declaring that proof in respect to settlement and improvement
should be made to the satisfaction of the local land officers stood
alone, as it formerly did, it might well be contended that as the
local land officers were the ones to whose determination the
question of settlement and improvement was confided, and, as there
was no statute granting any review of their determinations, they
must by taken as final. It was, of course, competent for Congress
to give finality to their determinations, and having given them the
power to determine, and made no provision for any mischiefs liable
to flow from such a provision attracted the attention of Congress.
Great inequalities in the administration of the Land Department of
the United States would inevitably ensue if the final determination
nation of matters connected with the sale and disposal of the
public lands was left to a multitude of local land officers. The
character and amount of testimony which would be held sufficient in
one state and by one set of officers would be held insufficient in
another state and by another set. Local influences might help or
hinder individuals in acquiring titles to the public lands.
Obviously, in order that equal justice might be administered, it
was necessary that there should be a superintendence of all the
actions of the local land officers and all the proceedings in the
local land offices. And so it was that Congress made the several
provisions which we have noticed for control by the general
officers of the Land Department of proceedings for the survey,
sale, and disposal of the public lands. Indeed, the language of
section 2263, upon which alone rests the contention of the
plaintiff, is itself suggestive of some control. While it says that
"proof of the settlement and improvement thereby required shall be
made to the satisfaction of the register and receiver of the land
district," it also provides that such proof shall be made
"agreeably to such rules as may be prescribed by the Secretary of
the Interior." It may be argued that this only contemplates that
the Secretary shall prescribe the mode of procedure, the rules
Page 157 U. S. 385
by which testimony shall be received, and does not necessarily
interfere with the provision that the proof shall be satisfactory
to the register and receiver, or grant to the superior officer a
right to revise their determination, and such was the construction
placed on the similar section prior to the legislation of 1836.
Nevertheless, the section contemplates that the proceedings shall
not be wholly withdrawn from the control of the Secretary, and
implies that they are but part and parcel of the general
administrative system for the disposal of the public lands. While
it is within the discretion of Congress to segregate any particular
step in the proceedings for the disposal of the public lands from
the scope of the general system, and place it outside of and beyond
any supervising control of the higher officers, yet the courts
should be satisfied that the language indicates an intention on the
part of Congress so to do before any such break in the harmony of
the system is adjudged. In this connection, reference may be made
to section 2273, which provides for a contest between two parties
claiming the right of preemption. Such a contest is to be heard in
the first instance by the local land officers, subject by express
declaration to the right of appeal to the Commissioner, and
subsequently to the Secretary of the Interior. In other words, when
any individual contests the validity of the action of the local
land officers, there is confessedly the right of appeal. Can it be
that, if the government is the only party wronged by their action,
there is no review except by the slow and expensive process of a
suit in the courts?
Some reliance is placed on the case of
Butterworth v.
Hoe, 112 U. S. 50, in
which it was held that the Secretary of the Interior has no power
to revise the action of the Commissioner of Patents in awarding to
an applicant priority of invention and adjudging him entitled to a
patent. But an examination of the opinion shows that it throws very
little light upon this question. Indeed, it is said therein that
"each case must be governed by its own text, upon a full view of
all the statutory provisions intended to express the meaning of the
legislature," and the lack of power in the Secretary to revise
Page 157 U. S. 386
the action of the Commissioner of Patents in the particular
matter was denied by reason of the various provisions of the
statute applicable thereto, among others one providing for an
appeal from the decision of the commissioner to the Supreme Court
of the District of Columbia, whose decision, as expressly declared
(sec. 4914, Rev.Stat.), "shall govern the further proceedings in
the case." This special provision for an appeal to a judicial
tribunal, with a declaration as to the effect of the decision of
such tribunal, was held to be conclusive so far as respects
proceedings in the two cases is obvious. There is no special
provision for an appeal from the decision of the local land
officers as to the matter of settlement and improvement -- nothing
therefore to take the case out of the general grant of power to the
Commissioner of the General Land Office and the Secretary of the
Interior to control all matters in respect to the sale and disposal
of the public lands.
It is unnecessary to pursue this discussion further. The
conclusions of the Supreme Court of the State of Washington were
correct, and the judgments are
Affirmed.