5 F.2d 116 | S.D. Fla. | 1925
This cause comes on for a hearing upon the motion of the defendant Willis M. Wilson to dismiss the bill of complaint as to him, upon the ground, among others, that it appears from the bill that the. matter sought to be. adjudicated as to,this defendant is before the Land Office and not yet decided by that department of the government.-
The allegations of the bill as to this defendant show that he is an applicant before the Land Office for a patent to a portion of the lands involved in the suit, under certain land scrip held by him, and the question of whether the land can be taken for said scrip and whether a patent will issue is as yet undecided by that office.
Under this showing it seems to me that the decisions in the Supreme Court, wherein this question is involved, clearly sustain the contention of the defendant. The principle, as I understand the decisions, is that courts may not take cognizance of and decide the questions committed to the Land Department by Congress prior to a decision of the question submitted'to it by the acts, except in exceptional cases, of which the present ease is not one. Among the cases deciding this principle are Ehrhardt v. Hogaboom, 115 U. S. 67, 5 S. Ct. 1157, 29 L. Ed. 346; Humbird v. Avery, 195 U. S. 480, the opinion by Mr. Justice Harlan at page 498 et seq., 25 S. Ct. 123, 124 (49 L. Ed. 286); Oregon v. Hitchcock, 202 U. S. 60, the opinion by Mr. Justice Brewer, page 68, 26 S. Ct. 568, 569 (50 L. Ed. 935).
The language of Mr. Justice Harlan in Humbird v. Avery, supra, is peculiarly applicable to this case.
It does not seem to me that the Florida statute eited in complainants’ brief is applicable to the question here to be decided on this motion.
The motion will be granted.