Santa Fé Pacific Railroad v. Lane

43 App. D.C. 497 | D.C. Cir. | 1915

Lead Opinion

Mr. Justice Robb

delivered the opinion of the Court:

Tt is apparent from the foregoing that until the filing of this suit appellant conceded that under said acts of July 31, 1876, and of June 25, 1910, it was liable to pay at least one half the cost of the survey of the lands in question. It now contends, however, that these acts have no application to these grants. Its rights being no greater than would have been the rights of its predecessor, the Atlantic & Pacific Nail road Company, thq question is whether the provision of sec. G of the act of 1866, that the President should cause a survey to be made on each side of the line of said road, amounted to an exemption of the company from the payment of the costs of such survey within the meaning of said act of July 31, 1S7G (19 Stat. at L. 121, (‘hap. 246, Comp. Stat. 1913, sec. 4882). We think this question is determined by the decision of the Supreme Court In New Orleans P. R. Co. v. United States, 124 U. S. 125, 31 L. ed. 384, 8 Sup. Ct. Rep. 417. In that case the surveys had already been made and paid for by the United States prior to the passage of the granting act, which contained a provision that the Secretary of the Interior should cause patents to be issued to the land granted as fast as it should be earned. The court ruled that, there being no express statutory provision exempting the railroad from the payment of the cost of surveying the land, the granting act being merely silent on the subject, the grant fell within the provisions of said act of 1876, “because not within the exemptions contained in that provision.” So, here, there being no express statutory provision exempting áppellant’s predecessor from the payment of the costs of the survey, it fell within the provisions of the act of 1876. Of course, if the provisions of the act of 1876 are applicable to the appellant, so, also, are the provisions of said act of 1910.

A township, as is well known, is square in form, each outer line extending 6 miles, divided into thirty-six sections numbered from east to west in the upper tier, from west to east in the next lower tier, and so on, by which arrangement each alternate section has an odd number. In this case the odd-numbered sections belong to appellant, the even-numbered sections to the United States. Appellant does not contend that the cost of the survey and office work will be less than the amount demanded, but that, because the survey will necessarily fix the corners of the government’s sections, the Secretary has exceeded his authority. The Secretary does not deny that for several years the practice has been for the government to páy one half the cost of such a survey. He insists, however, that, inasmuch as. this land is all within a forest reserve, the public interests do not require a survey of the land remaining to the government.

Under said act of 1910 it is made the duty of the Secretary to determine the amount which, in his judgment, will be necessary to jpay the cost of surveying, selecting, and conveying railroad lands. The act not only clothes him with jurisdiction to determine this question, but it imposes upon him the positive duty of making demand upon the particular company affected. In fixing the amount which the appellant should deposit in the present case, the Secretary was acting within his jurisdiction, and, unless his decision was arbitrary or capricious, we have no jurisdiction to review it, for it is not a queston “whether the decision of the Secretary was right or wrong, but whether a decsion of that officer, made in the discharge of a duty imposed by law, and involving the exercise of judgment and discretion, may be reviewed by mandamus, and he be compelled to retract it, and to give effect to another not his own and not having his approval.” United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356. Or, as was said in United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. ed. 1074, 23 Sup. Ct. Rep. 698. “Whether he [the Secretary of the Interior] decided right or wrong is not the question. Having -jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty, to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determination by mandamus or injunction.”

Wre think the Secretary’s decision was based upon a possible construction of the act of 1910, and that therefore it was not arbitrary or capricious. United States ex rel. Ness v. Fisher, 223 U. S. 683, 691, 56 L. ed. 610, 612, 32 Sup. Ct. Rep. 356. The purpose and scope of his demand is to secure a deposit to defray the cost of surveying and segregating lands granted to appellant. In other words, for reasons which he deems sufficient, he has adopted a literal construction of the statute. Even if we were of the opinion that it would be more equitable for the government to contribute towards the cost of this survey, there would still be no sufficient foundation for a ruling that the Secretary’s decision was arbitrary or capricious, since the statute is susceptible of the construction placed upon it by him.

The decree is affirmed with costs. Affirmed.

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Dissenting Opinion

Mr. Justice Van Orsdel

dissenting:

I agree with my associates that the act of 1910 applies to defendant company, but I am unable to agree with the holding that the action of the Secretary in requiring the railroad company to pay the whole cost of the survey is not arbitrary and unwarranted under the law.

This is not an instance where the convenient and elastic rule of “possible construction” applies. A “'possible construction” can mean no more than a reasonable construction. It cannot be construed to cover any arbitrary interpretation an official may choose to place upon a statute. If the official’s construction is such as to confer arbitrary power in the face of the clear commands of the law, it cannot be .that courts are estopped from granting extraordinary relief. In other words, the expression “possible construction” is certainly not susceptible of an interpretation which will result in an investment of arbitrary power.

The Secretary makes no contention that he is following the law. He admits that he is ignoring the construction heretofore followed by the Department; admits that under the subterfuge adopted the railroad company will be compelled to.pay the cost of the entire survey; admits that he has no intention of returning any part of the deposit, except so much as is left after paying the entire cost of the survey; admits that the survey and platting of the railroad land ipso facto establishes the corners, and completely surveys and plats the intervening government sections, and admits that the proposed proceeding may be unauthorized; but attempts to justify his action on the excuse that he has decided that the government does not desire to survey its land at this time, but concedes in the same .breath that in carrying out the proposed scheme the government will get a complete survey of its lands free of charge. With the completed survey of the railroad lands, the survey of the intervening lands will be equally complete. Hence, .to assert in justification of the action here taken that the government does, not desire to survey its lands, when admittedly the subterfuge here adopted indirectly accomplishes that end, amounts to an evasion of the express commands of the law.

If the threatened acts are unauthorized by the act of Congress (which seems to be conceded on all sides), the proceeding, in so far as holding up the railroad company for the full cost of. the survey, is totally without legal authority, and as void as if no law existed on the subject. If a court of equity is powerless to stay the hands of an official of the government from perpetrating through the proposed scheme this threatened injury, the guaranty of justice through the agency of the courts becomes a farce, and the citizen is left without protection from the arbitrary and capricious exactions of executive power.

An appeal to the Supreme Court of the United States was allowed Hay I, 1915.