100 Ala. 291 | Ala. | 1893
Upon the filing of the bill by the State an injunction issued, to restrain Mack Holmes, et al. from mining and selling coal from certain lands which are described in the bill, and which are claimed as school lands, certified to the State in lieu of other school lands which had been lost. The bill was answered, and the answer prayed to be taken as a cross bill, and relief prayed against the State. The cause was submitted on the pleadings and evidence, and by final decree the injunction perpetuated. Many questions have been argued by appellant which require no more' than a passing notice. By the express provision of the Constitution the State can not be made' a defendant in any court of law or equity. Code, p. 22, § 15. This rule is as applicable to cross bills seeking affirmative relief against the State, as to original bills. The State is not required to give bond or security, or cause affidavit to be made, though the same might be required, if the suit was between individuals ; and the written direction of the Governor of the State to the attorney of record is a sufficient authority for bringing the suit. Code of 1886, § 2573.
The legality or policy of the statute, under which John H. Caldwell, was employed by the State to secure lands in lieu of lost school lands, can not be questioned by respondents in this proceeding ; nor are mere irregularities, if any exist, in the proceedings with the general government by which the land in controversy was certified to the State of Alabama available, to respondents. The bill avers and the proof shows, that the tract of land in controversy was selected and the selection approved, and the list duly certified. Under the law until cancelled or annulled this was sufficient to vest in the State, whatever of right and title the general government held and owned. U. S. Rev. Stat, 2449; McCreery v. Haskell, 119 U. S. 327; Wis. R. R. Co. v. Price County, 133 U. S. 496.
The vital question is, whether the State by virtue of the selection and approval and certified list, acquired a title superior to that of respondents. To determine this question it becomes necessary to enquire into the right and title of the respondent, acquired by an alleged homestead entry, and whether the same if any were acquired, were subsequently cancelled, by the general government, prior to the
We are of opinion that the conclusions of the Land Department upon a question before it apparently within the scope of its authority are prima facie correct, and the party who assails their correctness, must show affirmatively that they are illegal and unauthorized. United States v. Steenerson, U. S. Cir. Ct. of Appeals, Vol. 1, p. 557; Aldrich v. Aldrich, 37 Ill. 32; Lee v. Johnson, 116 U. S. 48; Quinlan v. Conlan, 104 U. S. 420; Steel v. Smelting Co., 106 U. S. 447.
Without determining whether the facts averred in the answer of Holmes, if sustained by the proof, present a case in which the Land Department had. no authority to cancel his certificate, it is very clear, the proof adduced falls far short of sustaining the averments of the answer.
It is not averred in the answer that respondent was not duly notified to appear and show cause why his entry should not be cancelled, nor that he did not have full opportunity to appear and contest the motion to annul and cancel it, nor is any reason given, if he did not, why he failed to do so. Although it is averred in the answer that respondent made the necessary permanent improvements and continuously resided upon the land from the date of his entry (to-wit: 1881,) to April, 1884, when the same was commuted from a homestead entry to a cash entry, and the payment of the cash entry, there is no proof in the record of the truth of these averments, other than such as may be inferred from the register’s and receiver’s certificate and receipt. The government had not issued to him a patent to the land, and while the certificate and receipt may have entitled him prima facie to the patent, they did not conclude the Land Department from investigating and determining the truth of the facts upon which the certificate and receipt were issued, and the tona fides of his homestead claim, and if found fraudulent or untrue and insufficient to cancel the same. The burden resting upon the respondent in these respects has not been met or overcome. It is contended in argument that there is no sufficient proof of the judgment
The bill charges directly that his pre-emption claim was cancelled by the proper department, and contains what purports to be a copy of a letter from the assistant secretary to Holmes informing him of the order of cancellation. The answer no where denies, that the order of cancellation as averred in the bill was made. Its response to this averment is, “that if any such cancellation was made, it was not only without authority, but upon insufficient proof,” that “his claim was never legally cancelled.” The answer does not call for proof on this point. By the terms of the answer the averment is admitted and under the law, as we have declared it, the respondent assumed the burden of showing that the order of cancellation was unauthorized and illegal. In this he has wholly failed.
We find no error and the decree is affirmed.
