34 Haw. 93 | Haw. | 1937
The instant controversy arose out of a land court application filed hy Lincoln L. McCandless on February -25, 1918, to register and confirm title in him to a certain parcel of land comprising 482 acres situate in the district of Waianae in the City and County of Honolulu, Territory of Hawaii, which is part of Avhat is commonly known as Schofield Barracks. The original source of the applicant’s title was Artemas Bishop to whom it was alleged was granted by the Kingdom of HaAvaii in 1851, Royal Patent No. 527. Citation was issued on April 3,1918, citing for appearance the following: “Territory of HaAvaii to United States Army, Territory of Hawaii by I. M. Stainback, Attorney General, and Bertram G. Rivenburgh, Commissioner of-Public Lands; City and County of Honolulu by Joseph J. Fern, Mayor, and President of the Board of Supervisors; and to all whom it may concern.” The Territory of Hawaii filed its ansAver claiming that 228 acres of the land sought tó be registered by the applicant belonged to the United States of America in fee simple to which the Territory of Hawaii was entitled to the use, control, management and the power of disposition in fee simple. No other appearance was made.
After a hearing on the application the land court awarded to the applicant only 254 acres of the land claimed by him and decreed that the remaining 228 acres Avere public lands, and therefore refused to register the same in the applicant.- From that decision the applicant appealed to the circuit court sitting with a jury as prescribed by statute. The appeal remained dormant for many years when it Avas finally set down for trial on December 3, 1934. Shortly before the date set for trial the United States of America, by its present United States District Attorney for the district of HaAvaii, I. M. Stainback, Esq., who was duly authorized by the Attorney General of the United States to appear specially, filed the following mo
Upon the hearing on the motion the Territory of Hawaii, appearing by George Kimball, Deputy Attorney General, disclaimed any interest in the lands for the reason that they had been set aside for military purposes by two presidential proclamations. These two executive orders were introduced and received as evidence and are a part of this record. The first executive order, No. 1242, was issued by President William H. Taft on August 23, 1910, and the second, executive order No. 2800, was issued by President Woodrow Wilson on February 4, 1918. The second executive order covered substantially the land described in the first but was more precise in its description. It appears from the evidence that these two orders included the lands claimed by the applicant and that the area in question was, at the time the application was filed, and is now claimed by the United States government and was and is now occupied by the United States military forces.
The authority of the Presidents of the United- States to
On July 7, 1898, the Congress of the United States passed a resolution annexing the Hawaiian Islands, which reads in part as follows: “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States- the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining; Therefore Resolved by the Senate and Mouse of Representatives of the United States of America in Congress Assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America. The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for
In 1900 when Congress passed the Organic Act it provided in section 91 in part as follows: “That, except as otherwise provided, the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh, eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of the government of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii.”
It is contended by the applicant that the proceedings which were commenced by him are not a suit to try title adverse to the United States government but merely a procedure to ascertain the boundaries of the lands covered by Royal Patent No. 527. We think that this' contention evades the real question involved for it is evident that if the boundaries to Royal Patent No. 527 are so set as to include the lands claimed, possessed and occupied by the United States government the title thereto is necessarily involved.
Furthermore the proceedings were instituted in the instant case under statutory provisions specifically designed to register, confirm and establish title to land. The first sentence of the application to the land court reads: “I, the undersigned, hereby apply to have the land hereinafter described brought under the operation and provisions of chapter 154 [178] of the Revised Laws of Hawaii [1915] as amended [now R. L. 1935, ch. 144], to have my title therein registered and confirmed.”
Section 3133, R. L. 1915 [R. L. 1935, § 5000], provided in part as follows: “A court is hereby established,
The citation which was issued in- the instant case followed word for word, except that in brackets, the citation in section 3162, R. L. 1915 [R. L. 1935, § 5024], which was as follows: “You are hereby cited to appear at the land court to be held at * * * in the Island of * * * on the * * * day of * * * A. D. * * * at * * * o’clock in the [forenoon], to show cause, if any you have, why the prayer of the said application should not be granted. And unless you appear at said court at the time and place aforesaid your default will be recorded, and the said application will be taken as confessed, and you will be forever barred from contesting said application or any decree entered thereon.”
Section 3170, R. L. 1915 [R. L. 1935, § 5037], provided in part as follows: “If the court after hearing finds that the applicant has title, as stated in his application, and proper for registration, a decree of confirmation and registration shall be entered. Every decree of registration of absolute title shall bind the land, and quiet the title thereto, subject only to the exceptions stated in the following section. It shall be conclusive upon and against all persons, including the Territory, whether mentioned by name in the application, notice or citation, or included in the general description To all whom it may concern.’ ” The same section provided for the registration of a possessory title. That portion read as follows: “When a possessory
Concerning the jurisdiction and power of the land court this court said in In Re Rosenbledt, 24 Haw. 298, 307: “Section 3133 R. L. [1915] as amended establishes a land court with exclusive jurisdiction of all applications to register title to land, makes the court a court of record with a seal and authorizes it to make and prescribe rules of practice and forms to be used in proceedings before it. Later sections authorize appeals to this court upon points of law and to the circuit courts sitting with a jury upon questions of fact. In case of appeal to the circuit court sitting with a jury the issues are to be framed in the land court within thirty days after the date of the judgment from which the appeal is taken. The owner of any estate or interest in land may apply to have his title registered. The matters which the petition shall contain, the contents of notices and the manner of giving them, as well as other matters of practice, are prescribed and the court given power to make other regulations. It is provided that any person claiming an interest, whether named in the notice or not, may appear, answer and state all objections to the application and set forth the interest of the answering party. The court is given power to make all orders and judgments, to issue writs of possession and other process and to take all other steps necessary for the promotion of justice in matters pending before it and to carry into full effect all powers which are given to it by the laws of the Territory. The court is authorized to dismiss the application of an applicant for registration of absolute title when
Our conclusion is therefore that the proceedings in the case at bar were instituted solely for the purpose of trying and establishing the title to the lands in question.
Although the United States is not a party of record it is, aside from the applicant, the only real party in interest. The names of record are not determinative of parties suing or sued but the operation and effect of the judgment or decree which can be entered determine the parties in interest. Such is the holding in Minnesota v. Hitchcock, 185 U. S. 373, where the court said (p. 387) : “The United States is, therefore, the real party affected by the judgment and against which in fact it will' operate, and the officers have no pecuniary interest in the matter. If whether a suit is one against a State is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered, the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record
If this court were to overrule the decision of the circuit court granting the motion to dismiss and reinstate the case below the suit would be one to settle the title to the lands not only against the world in general but primarily against the United States. We are not here intimating or deciding that a decree of the land court or of the circuit court sitting with a jury or of this court in affirming the action of either of the inferior tribunals would estop the United States in any future action. We merely decide that since the title of the United States to the lands must necessarily and directly be affected by such a decree the land court proceedings constitute in substance a suit against the United States and property claimed, occupied and possessed by it.
The sole question presented therefore is whether or not when an applicant by land court proceedings seeks to establish title to lands which the United States government possesses, occupies and claims, territorial courts have jurisdiction to try the title to such lands when the United States has not consented that a suit against it or its property may be brought.
The Supreme Court of the United States has answered this question in several cases. In Stanley v. Schwalby, 162 U. S. 255, an action of trespass to try the title to a parcel of land which was part of a military reservation in San Antonio, Texas, was brought by Mary A. Schwalby and her husband against General David S. Stanley and several other army officers. The plaintiffs claimed one-third of the land in fee simple and the right of possession to the whole. The United States District Attorney, acting under instructions from the United States Attorney General, in behalf of the United States, joined with the defendants in an answer setting up among other defenses that the title to the
At the second trial the United States District Attorney filed an amended answer which contained two pleas in bar (p. 264) : “1st, that this was an action, nominally against the individual defendants, ‘but in fact against the United States of America, a sovereign corporation not liable to suit in this court or any other, in the absence of an act of Congress2d, that the action was against the property of the United States.” The district court again entered judgment for the plaintiffs which was affirmed by the court of civil appeals. Application to the supreme court of Texas for a writ of error to the court of civil appeals having been denied, the defendants appealed to the Supreme Court of the United States. In affirming the judgment of the district court the court of civil appeals expressed the following-opinion (pp. 268, 269) : “‘The United States were not sued, and neither was it attempted to subject the property of the United States to suit; and neither of these propositions was advanced or held by the district court. Stanley and others were sued individually as trespassers, not as officers of the United States; and the United States voluntarily made themselves parties to the suit. That this suit was properly brought has been decided in a number of cases, and has been reaffirmed in this identical case by the Supreme Court of the United States. The jurisdiction of the court is not ousted because the individuals sued assert authority to hold possession of the property as officers of the United States government. They must show sufficient
When this case first went to the Supreme Court of the United States, which is reported under the same name in 147 U. S. 508, the court had occasion to express its views on this subject. It said (p. 512) : “In The Siren, 7 Wall. 152, 154, Mr. Justice Field, who spoke for the court, in adverting to the familiar rule of the common law that the sovereign cannot be sued in his own courts without his consent, and the ground upon which the rule rested, said: ‘This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 8 Pet. 436, 444. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is
Mr. Justice Field who alone dissented, but on other issues, concurred with the majority on the subject under consideration in the following language (p. 521) : “I fully agree with the court that, If this action had been brought directly against the United States, it could not be sustained, for it is among the axioms of the law that the government, State or national, is not amenable to civil process at the suit of a private citizen, except upon its consent to submit to such jurisdiction. Any judgment rendered in proceedings not voluntarily assented to would necessarily be void, whether the judgment be rendered for money or specific property.”
In Louisiana v. Garfield, 211 U. S. 70, a bill was brought in the United States Supreme Court to establish the title of the State of Louisiana to swamp lands and to enjoin the Secretary of the Interior and other officers from disposing of the lands. By an Act in 1849 Congress purported to grant all of the swamp lands in Louisiana to the State and provided that a list of such lands be submitted to the Secretary of the Treasury (the jurisdiction of these lands was afterwards placed in the Secretary of Interior) and upon his approval such lands would vest in the State. The lands in dispute were used as a military reservation and although they were included in the lands submitted to the Secretary of the Treasury, were not approved. In 1871 the military reservation was abandoned in pursuance to an
In New Mexico v. Lane, 243 U. S. 52, it appears that in 1898 Congress granted to the Territory of New Mexico certain lands for the support of common schools. It was also provided that if any of these lands should be mineral, other lands would be granted in lieu thereof. In 1911 coal was found in one of these parcels of land for which an application to purchase was made by an individual. Protests were filed against the application and the Territory of New Mexico intervened, claiming that the land was not known coal land at the time of the grant in 1898. The commissioner of the general land office had the authority to investigate that fact but he exceeded that authority by undertaking to determine the true character of the land as of the date of the hearing. The result of the hearing was in favor of the prospective purchaser and the local officers were directed to issue a final certificate to him. It was to avert this action that a bill was brought to enjoin the Secretary of the Interior and the commissioner of the general land office from issuing a certificate. Among other things the bill prayed for a decree vesting title in the Territory of New Mexico. A motion to dismiss the bill Avas filed setting up several grounds, the first of which was that the United States was a necessary party because it appeared that the title to the land was in the United States. In granting the motion the court said (p. 58) : “The motion should be granted on the ground that the suit is one against the United States, under the authority of Louisiana v. Garfield, 211 U. S. 70. In that case a bill was brought in this court to establish the title of the State of Louisiana to certain swamp lands which it claimed under the statutes of the United States and to enjoin the Secretary of the Interior and other officers of the Land Department
The ninth circuit court of appeals in Electric Steel Foundry v. Huntley, 32 F. (2d) 892, although not a case in which the title to land was tried, adhered to the principle so often repeated by the Supreme Court of the United States. In that case a suit to cancel and annul an income and profits tax waiver was brought by a taxpayer against the United States collector of internal revenue and his deputy. On motion the action was dismissed by the court below for the reason that the United States was a necessary party. The plaintiff appealed from the decree of dismissal and in affirming that decree the court said: “The purpose of the waiver was to extend the period of the statute of limitations for the collection of a tax by distraint or by suit, and, if the instrument has any virtue at all, it is as a contract between the taxpayer and the United
This court has also announced tbe same rule. In Bush v. Ter. of Hawaii, 13 Haw. 1, tbe Territory was directly sued in an action of ejectment to recover possession of land and tbe sole question Avas Avhether sucb a suit could be maintained against tbe government. Answering this question in tbe negative tbe court said: “It is conceded that tbe government may be sued only in so far as it consents, but
In Polyblank v. Kawananakoa, 17 Haw. 82, a bill to foreclose a mortgage was brought by the mortgagee against the mortgagors. At a time subsequent to the execution of the mortgage the mortgagors conveyed a part of the mortgaged premises to one Damon and Damon in turn conveyed it to the Territory. The bill originally made the Territory a party to the suit but upon demurrer by the Territory the plaintiffs dismissed their bill as to it. The decree in the court below provided for a deficiency judgment against the mortgagors if the sale of the' mortgaged premises should prove insufficient to pay the amount due. On appeal to this court the mortgagors contended that a deficiency judgment should not have been entered against them unless all of the mortgaged land was sold. In affirming the decree of the court below this court said (p. 83) : “All that the mortgagors can claim is that the mortgagee should foreclose on and have sold all of the mortgaged property that is possible, that is, that she should foreclose all that the law allows her to foreclose, before entering up a deficiency judgment. In this case all of the mortgaged property is to be sold except that part which is now held by the Territory. The interest of the Territory in that portion cannot be foreclosed and sold without joining the Territory as a party defendant, and that cannot be done.”
Being dissatisfied with, the view taken by this court the mortgagors appealed to the Supreme Court of the United States, Kawananakoa v. Polyblank, 205 U. S. 349. The same contention was made before that tribunal but without success. Speaking through Mr. Justice Holmes it said
United States v. Lee, 106 U. S. 196, is relied upon by the appellant as decisive of the instant case. The Lee case, however, is easily distinguishable from the cases above referred to and the one at bar. In that case one Lee brought an action of ejectment against Kaufman and Strong, United States army officers, to recover possession of the Arlington estate. The property was used by the United States as a national cemetery and a military station. The Attorney General of the United States appeared specially and suggested to the court that the property belonged to the United States and that the individual defendants held it merely as agents •without any personal interest therein and that their possession was held under the authority of the government. The action was originally commenced in a state court of Virginia and subsequently removed to the circuit court of the United States where judgment was entered for the plaintiff. That judgment was against the defendants individually, dispossessing them of the land. This was the judgment which was affirmed by the Supreme Court of the United States. That the action was essentially one of trespass against the military officers is indicated by the Supreme Court of the United States itself in the following language (pp. 210, 215, 216) : “The case before us is a suit against Strong and Kaufman as individuals, to recover possession of property. The suggestion was made that it was the property of the United States, and that the court, without inquiring into the truth of this suggestion, should proceed no further; and in this case, as in that, [United
A similar view of the Lee case was taken in In Re Ayers, 123 U. S. 443, and Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446. In the Ayers case the court said (pp. 501, 502) : “The legislation under which the defendant justified being declared to be null and void as contrary to the Constitution of the United States, therefore left him defenceless, subject to answer to the consequences of his personal act in the seizure and detention of the plaintiff’s property, and responsible for the damages occasioned
Mr. Justice Miller, the author of the majority opinion in the Lee case in considering the principle that the sovereign is exempt from suit, made a classification in the Cunningham, case of cases in which actions were maintainable and referred particularly to the Lee case. Speaking for the majority of the court in the Cunningham case he said (pp. 451-453) : “It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution. This principle is
It is evident to us therefore that the Lee case, being essentially a possessory action, has no application to the
For the foregoing reasons the decision of the trial court dismissing the cause is affirmed.