2 Wash. 81 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— -Plaintiff in error filed his complaint in eject
On December 20, 1880, the plaintiff in error filed his declaratory statement for the premises in controversy under the pre-emption laws of the United States. On February 13, 1883, lie made final proof to the satisfaction of the register and receiver of the United States land office at Olympia, and on March 12, 1883, his cash entry was allowed by the register and receiver and a final receipt issued to him; that on August 7, 1883, and while the final proof of plaintiff in error was in the hands of the commissioner of the general land office, defendant in error filed with said commissioner his corroborated affidavit in which he alleged that plaintiff in error “had at no time established his residence on said land, and that he had failed to improve and cultivate the same as required by law, and that the said cash entry had been procured by fraud.” The commissioner, on the 16th day of May, 1885, suspended the entry and ordered a hearing to be had before the register and receiver, touching the charges made by defendant in error in said affidavits. On July 13, 1885, said hearing was had, at which plaintiff in error appeared with his witnesses, as did also the defendant in error. The evidence was taken, and after argument the register and receiver found that plaintiff in error “at no time established his residence on the land embraced in his said cash entry; that he failed to cultivate and improve said land as required by law;” and they, therefore, advised that said cash entry be canceled. Plaintiff in error thereupon took an appeal from the decision of the register and receiver to the commissioner of the general land office, and on June 3, 1886, the commissioner affirmed said decision and ordered plaintiff in error’s cash entry to be canceled. Again plaintiff in error took an appeal, this time to the secretary of the interior, and on March 31, 1888, the secretary affirmed the decision of the commissioner of the general land office, and thereafter canceled said plaintiff’s cash entry. Subsequently the defendant in error filed upon said premises embraced in said cash entry under the homestead laws of
To this answer plaintiff in error filed a reply, in which he asserted that the proceedings of the land office after the 12th day of March, 1883, the date on which his certificate was issued, “ were wholly void, for the reason that said officers had no jurisdiction whatever over the said land or the plaintiff’ in error,” and denied that the defendant in error, in the affidavit filed by him with the commissioner of the general land office, alleged that the plaintiff in error failed to improve and cultivate said land as required by law, or that said entry of plaintiff in error had been procured by fraud. He further denied that the decision of the commissioner of the general land office was affirmed by the secretary of the interior, except as to the findings of the register and receiver and commissioner that plaintiff in error had not made his residence upon said land. Defendant in error demurred to this reply, and the ruling of the court sustaining said demurrer is relied upon as cause for the reversal of the judgment rendered thereon.
Upon this record two questions have been argued — (1) Had the court jurisdiction of the subject-matter of the action? (2) Had the officers of the land department jurisdiction to cancel the entry of plaintiff in error?
The first proposition is so largely dependent on the latter that it is necessary only to say that, if the final receipt was in force and uncanceled, it would under the laws of this state authorize the holder to maintain an action for the protection of his possession thereunder. The authorities cited are to the effect that the courts will not take jurisdiction to determine the title of adverse claimants to land until the land department is through with it and the legal title has passed from the government, and are not applicable to a case like the one at bar, where the right of pos
This language, however, must be interpreted in the light of all the provisions of law relating to the disposition of public lands. Upon an investigation of these provisions, we find that the entire duty of supervising the disposal of such lands is vested in the secretary of the interior and the commissioner of the general land office; that such commissioner is the head of a bureau having in charge all matters relating to such lands; that the register and receiver are inferior officers in such bureau, who must make full report of all their proceedings to such commissioner, who is charged with the duty of seeing that a patent issues to persons entitled thereto. These provisions were in existence at the time of the enactment of the pre-emption law of 1841, in which was found the section above quoted from the Revised Statutes. Under such provisions it had been the constant practice of registers and receivers, not only to send up to the commissioner their finding of facts, but to send therewith all the proofs taken by and before them upon which such findings were based. This practice could only be justified upon the theory that such register and receiver were inferior officers to the commissioner, and their findings were subject to review by him. Viewing the language of the section in question in the light of the law and the practice thereunder existing at the time such section was enacted, we think it is not sufficient to show the intention of congress to overturn such law and practice, and by indirection take from the commissioner his powers of supervision, and transform the theretofore inferior officers of register and receiver into courts of final determination, by whose decisions, however erroneous, the government would be absolutely concluded. The responsibility of finally determining as to the conditions precedent to the issuing of
It is true that to hold that these findings of the register and receiver may be reviewed by the commissioner, and a rehearing ordered, may work great hardship to individuals who may thus be called upon to prove facts that they had long supposed settled by the finding of such register and receiver; but these considerations can have but little weight in construing the statutes, as courts are bound to assume that the higher officers of the land department will not act arbitrarily, and causelessly put the burden of a second hearing upon an applicant. On the other hand, to hold otherwise would place the entire interests of the government, as to these important questions, in the hands of these inferior and remote officers, who, by their careless or corrupt administration of the trust reposed in them, might to a great extent nullify the policy of the government as to the disposal of its lands to actual settlers and improvers only. That a policy that congress had, and since has, taken such pains to establish and carry out, should be left at the mercy of such inferior and remote officers, does not seem reasonable. The opportunities for evasions of such policy are very great, even under the most careful supervision of the highest officers of the government; and without such supervision there would • be little practical utility in all the laws enacted by congress upon that subject. The language of the section in question is susceptible of the interpretation claimed for it by plaintiff in error, but when viewed in the light of other statute law and public policy, we cannot believe that such was the intention of congress.
The adjudicated cases upon this subject are quite numer
We shall not attempt a review of the cases cited from the state reports, as their number is too great to make a careful review of them all practicable. Besides, this is a
We shall now briefly examine a few of the cases decided by the supreme court of the United States bearing upon
In deciding the case of Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, Mr. Justice Catron uses the following language: “In cases arising under the pre-emption laws of the 29th of May, 1830, aud of the 19th of June, 1834, the power of ascertaining and deciding on the facts which entitled a party to the right of pre-emption was vested in the register and receiver of the land district in which the land was situated, from whose decision there was no direct appeal to higher authority. But, even under these laws, the proof on which the claim was to rest was to be made, c agreeably to the rules to be prescribed by the commissioner of the general land office/ and, if not so made, the entry would be suspended, when the proceeding was brought before the commissioner by an opposing claimant. In cases, however, like the one before us, where an entry had been allowed on ex parte affidavits, which were impeached, and the land claimed by another, founded upon an opposing entry, the course pursued at the general laud office was to return the proofs and allegations in opposition to the entry to the district office, with instructions to call all the parties before the register and receiver, with a view of instituting an inquiry into the matters charged; allowing each party, on due notice, an opportunity of cross-examining the witnesses of the other, each being allowed
Had the court said only as above quoted, it would be reasonably clear that the cases of Wilcox v. Jackson, and Lytle v. State of Arkansas, supra, were not applicable after the passage of the act of 1836; but we are not left in doubt upon this question as the court in the case under review proceeded further to say: “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 no power or supervision, such as was given to him by the act of July 4, 1836, after the cause was in court. In the next case (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.” The case of Harkness v. Underhill, 1 Black, 316, fully sustains the right of the commissioner to review the action of the register and receiver, and makes use of language which would seem to indicate that the question was fully settled. The court say: “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 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. The question has several times been raised and decided in this court, upholding the commissioner’s powers.” The above citations
Dissenting Opinion
(dissenting). — As I indicated at the time of the filing of the majority opinion, I will now give some of my reasons for dissenting thereto. It is a common remark by practitioners before the land department that the land laws “do not amount to anything, but that everything depends upon the instructions.” But, in the investigation of rights under the land laws, I prefer to look first at the law and see if any provisions are made by the law, or direct authority given by the law, for the action of the commissioner; or whether the authority is conferred upon the commissioner, under his supervising powers, to set aside the findings of the register and receiver on the questions of residence and cultivation in case of á pre-emption proof; which is the point involved in this case. An examination of the pre-emption law shows that preceding sections state what lands shall be subject to pre-emption entry, who are qualified pre-emptors, etc.; while section 12 of the act of 1841, corresponding with section 2263 of the Devised Statutes, provides that, “prior to any entries being made under and by virtue of the provisions of this act, 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 treasury,” now by subsequent enactment changed to secretary of the interior. It seems to me that there is no room for a construction of this section. Here is a judicial authority conferred upon a tribunal in language plain and unmistakable. The power is conferred as plainly as words can state a proposition. It is the judgment of the register and receiver that is to be satisfied; not the judgment of the commissioner or the secretary of the interior. This is a judicial investigation on their part; not merely a clerical or administrative duty to be performed; a fact is to be judicially determined from evidence adduced under certain
“ Failure to inhabit and improve the land in good faith, as required by law, renders the claim subject to contest, and the entry to investigation.
“Final proof in pre-emption cases must be made to the satisfaction of the register and receiver, whose decision, as in any other case, is subject to examination and review by this office.”
I answer that, if he had no authority before the publication or issuance of these instructions, he manifestly had none afterwards. Courts must confine the enactment of laws to law-making powers. The congress of the United States is the only body that can make laws regulating the sale or disposition of the public lands. The secretary of the interior is authorized to prescribe rules and regulations to make the laws effective, and to exercise supervisory powers in certain instances j but he is not authorized to make new laws, to increase his own powers, or to take away any judicial authority that has been especially, or even generally, conferred upon another tribunal. If the secretary or commissioner are allowed arbitrarily, without any appeal, to substitute their discretion for that of the register and receiver on subjects especially submitted to them, they might logically go further, and dispense with their judgment altogether. If fraud is alleged in obtaining the final receipt, says Judge Beady in Smith v. Ewing, 11 Sawy. 56 (23 Fed. Pep. 741), “the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals under like circumstances. The right of a party holding a certificate of purchase of public land and that of his grantee, is a right in and to property of which neither of them can or ought to be deprived without due process of law.” I think the case of
But it is contended that the earlier cases are not in point, because they were decided on controversies which arose prior to the passage of the act of 1836, which enlarged the supervisory powers of the commissioner, the first section of which act 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 any wise 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
However, conceding that the law of 1836 is still in full force, I cannot conceive how it can in any manner conflict with § 12 of the law of 1841; for it will be observed that the law of 1836 refers exclusively to the executive duties appertaining to the survey and sale of the public lands. Certainly an executive act spoken of in general terms in the act of 1836 has no reference to a judicial duty especially imposed upon a certain tribunal. But, if there could possibly be any doubt on this question, it has been squarely met and settled in the case of Butterworth v. Hoe, 112 U. S. 50. There it was announced that the executive supervision and direction which the head of a department may exercise over his subordinates in matters administrative and executive, do not extend to matters in which the subordinate is directed by statute to act judicially. This was a case growing out of the patent office
I do not think that it is the province of the court to nullify a plain provision of the law by an argument based upon the bad policy of the law; that is purely a legislative prerogative; though, in my judgment, the view of the law, as contended for by the appellant, can be maintained upon the highest grounds of public policy, and in strict accordance with a just and equitable administration of the laws.
“ The rank is but the guinea-stamp ¡
The man’s the gowd for a’ that.”
But, that all possible safeguards might be thrown around this investigation, the act of 1879 provides that notice of
In the case at bar, Pierce made his final proof to the satisfaction of the register and receiver on the 13th day of February, 1883, paid to those officers the sum of $400, and