1 Denio 617 | Court for the Trial of Impeachments and Correction of Errors | 1845
The Tonewanda reservation in the county of Genesee is a well known tract of land, and should have been mentioned in the writ as that from which the intruders were to be removed. The writ is bad in that respect.
The statute under which the proceeding was instituted before the defendant, (Laws of 1821, p. 183,) renders it unlawful for persons other than Indians to settle on indian lands, and requires any judge of the court of common pleas, on complaint made to him and on “ due proof of the fact of such settlement,” to issue his warrant to the sheriff requiring him to remove the intruders. ■ (§ 1.) The sixth section requires the district attorneys of those counties where the indian lands are situated to make complaint against intruders, and to cause them to be removed in the manner before prescribed in the act. By a proper construction of this statute, the district attorney is the only person authorized to institute the proceeding before the judge, and he alone can be the relator in a mandamus to compel the officer to proceed under the act. In a matter of public right, any citizen may prosecute a mandamus; but here the proceeding is for the
Besides, the decision of the judge upon the complaint cannot be reversed upon this proceeding. He has exercised the jurisdiction with which the law entrusted him; and in doing so, has held the proof insufficient. This is final and conclusive so far as the remedy now sought is concerned. (The People v. The Judges of the Dutchess C. P., 20 Wend. 658, and cases cited.)
It is proper to add, that upon looking into the prooís submitted to the defendant when the warrant was applied for, I am of opinion that they were not sufficient to authorize the granting of the warrant, and that the complaint was properly disposed of by him. The rule allowing the mandamus must be set aside, and the writ quashed.
Motion granted.
