39 App. D.C. 176 | D.C. Cir. | 1912
delivered the opinion of the Court:
The Secretary has answered that he was clothed with authority to determine the questions before him, relating to said Cox entry; that he did determine them, and, among other things, found that a contest was pending against said entry within said two-year period. This answer is sufficient (United States ex rel. West v. Hitchcock, 205 U. S. 80, 51 L. ed. 718, 27 Sup. Ct. Rep. 423), unless it appears that his decision was arbitrary or merely ministerial. Fisher v. United States, 37 App. D. C. 436; United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356; United States ex rel. McKenzie v. Fisher, ante, 7; United States ex rel. Champion Lumber Co. v. Fisher, ante, 158. The most that can be said against the Secretary’s decision is that according to the petition a predecessor, upon the filing of an affidavit of contest by an individual subsequently to the expiration of said two-year period, declined to allow said contest on the ground that the entry had been confirmed. No patent, however, was issued on the land, and the present Secretary, according to the petition, had before him two reports of special agents, one unfavorable and the other favorable, and each made within the two-year period. Upon consideration of these reports the Secretary ruled that a contest was pending within said two-year period, and declined to issue a patent. It was for the Secretary to decide the effect of these conflicting reports. The
Moreover, the judgment may be sustained upon another ground. In the answer it is averred that the entryman, Cox, has confessed that his entry was fraudulent, and that the entry was canceled upon the filing of his relinquishment. These facts are admitted, and not avoided by the demurrer. This court has recognized the rule that the writ of mandamus will not go to carry out a transaction tainted with fraud. United States ex rel. Laws v. Davenport, 34 App. D. C. 502.
Judgment affirmed, with costs. Affirmed.
On November 15, 1912, the appellant applied for the allowance of a writ of error from the Supreme Court of the United States.
The application was denied November 18, 1912, Mr. Chief Justice Shepard delivering the opinion of the Court:
On consideration of the motion for the allowance of a writ of error to remove the above-entitled cause to the Supreme Court of the United States, it is by the court this day ordered that said motion be, and the same is hereby, denied, on the authority of United States ex rel. Red River Lumber Co. v. Fisher, infra, 181.
