266 F. 1005 | D.C. Cir. | 1919
tSections 2306 and 2307 (sections 4594, 4602) are as follows:
Sec. 2306. Every person entitled, under the provisions of section twenty-three hundred and four, to enter a homestead who may have heretofore entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.
Sec. 2307. In case of the death of any person who would be entitled to a homestead under the provisions of section twenty-three hundred and four, his widow, if unmarried, or in case of her death or marriage, then his minor orphan children, by a guardian duly appointed and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this chapter, subject to all the provisions as to settlement and improvements therein contained; but if such person died during his term of enlistment, the whole term of his enlistment shall be deducted from the time heretofore required to perfect the title.
Counsel for appellant cites Mullen v. Wine (C. C.) 26 Fed. 206, Barnes v. Poirier et al., 64 Fed. 14, 12 C. C. A. 9, and Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963, 41 L. Ed. 179, in support of his contention, but we do not think they help him. In the Mullen Case the fight was in the minor children of the soldier, and the question
In none of them, nor in any found by us, is there any warrant for the contention that the soldier may will the right, and thus defeat the interest of his widow or orphan children, given to them by section 2307. The expressions running through these opinions, that the statute places no restrictions on the holder of the right, must be read in the light of the question which the court was considering, and cannot be taken as a warrant for holding that the right might be willed. There is authority for the proposition that the right of the owner to sell his property rests on a different footing from the right to make testamentary disposition of it. Wright, Tenures, 173; In Re Fox, 52 N. Y. 530, 533, 11 Am. Rep. 751; In re Noyes’ Estate, 40 Mont. 178, 187, 105 Pac. 1013. If this be correct, and we think it is, there is a good reason for differentiating between the power to sell land and the power to dispose of it by will.
We have said this much, not for the purpose of deciding whether or not the right may be devised, for we are not required to do that, but to show that the Secretary of the Interior was acting within the scope of his discretionary power under the statute when he refused the patent. He may have erred, but with that we have nothing to do. All we hold is that his action was not arbitrary, but within the domain of his discretion, and therefore not subject to our review. The last expression of the Supreme Court of the United States upon this subject is found in Alaska Smokeless Coal Co. v. Lane, 250 U. S. 549, 40 Sup. Ct. 33, 63 L. Ed. 1135, decided November 10, 1919. It is there said, speaking of the Secretary’s power in a case of this character :
“But where there is discretion, as we think there is in this case, even though its conclusion be disputable, it is impregnable to mandamus” — citing United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 23 Sup. Ot. 698, 47 L. Ed. 1074. Ness v. Fisher, 223 U. S. 683, 32 Sup. Ct. 356, 56 L. Ed. 610.
The judgment is affirmed, with costs.
Affirmed.