*1 States United v. Schurz. This leaves of the substance of the nothing testimony plain tiffs’ No one, invention. we alleged would apprehend, seriously contend a moment that what' left is is to sufficient consti the basis tute of a valid Brown v. patent. U. S. Piper, 91 But, and the authorities there cited. this tes irrespective"of and of timony, reissue any. testimony, upon looking face, and its "several claims own their examining light, find we them of within the nothing brings any sphere of what is is patentable. There no properly novelty It does not use the utility. appear (to language appellants’ ” there was a flash of which such a brief) thought result as to either was reached, or that exercise jfchere any inventive more or less faculty, thoughtful, whereby any entitled to thing protection a produced. strikes us that the all of the sum entirety particulars and the frivolous, claims aré mary more. nothing Patents issued are and- are surrounded rightfully property, the same and sanctions which attend all rights other prop- Patentees as a’ class are benefactors, and their erty. public should be But the rights also. protected. public rights both should be an rights enforced upheld equally firnrhand, wherever consideration. under come they judicial
Decree affirmed. United States v. Supreme the District of
1. The Court .of is to authorized issue the .Columbia original procеss where, by writ mandamus an in cases principles law, petitioner it. common entitled to' public part regularly signed, sealed; for a has been 2. lands When recorded, countersigned, duly patentee right perfect has a possession thereof. progress proceedings acquire, 8. In laws.of States, land, public power Department thepi a title to Land over the. necessary when official act the last transfer the title to the ceases success- performed. claimant ful has been by patent by record, from the United á. Title is title and the States not, patentee conveyance by private the instrument per- as in a son, pass essential 'the title. Oct. 1880.] v. Schurz. Therefore, laws when the officers whose action is rendered favor, the title in the claimant have decided in his to vest sealed, countersigned, recorded, signed,' him has been the. title duly him, duty passes delivering the land and the ministerial instru- by mandamus. can be enforced . ment *2 will, grant presumed acceptance An such his efforts to department, especially of the favorable action the from his secure patent. of demand for the the to the of the District of Court Columbia.
Error Supreme mandamus,, for a filed in is a the petition Supreme This 11, Columbia, the District of Oct. of 1879 Court alleges McBride, was, in relator, 1862, of Thomas that the possessed entitle him to one all the to. pre-empt qualifications States; acres of the lands the of United hundred public sixty of land he, in that settled tract known public upon that year, 6, 3, 2 E. and lots 1 and of section T. of N. S. as the S. the \ ^ W., of Tooele and situate county Territory of R. Utah, acres, hundred and a-little than one sixty less containing States, the laws of the it under intent to with appropriate it; inhabited, occupied, and cultivated that and has continuously time, made, at the 31, in- form and land he, due 1869, May it; e. that a homestead he occu- try Lake City, in-Balt office cultivated, it for more than resided five years pied, thereof, and, 15,1874, made due the thereafter, proof paid June certificate therefor that his-said a final proofs received fees, and forwarded Commissioner were duly and papers ' them to be in all Land-Office, who found respects General entitle, law, tp the relator to a' such as with compliance with that that, accordance finding, patent; sealed, and; 26, 1877, Re- was, signed, duly Sept. tract Land-Office, and recorded countersigned General corder States; was, of -the that it land records proper commissioner to the .local 3, 1877, transmitted Oct. instructions to deliver it Lake at City, land-officers xSalt them; that he at received relator, appеared and was to deliver the of them land-office, demanded said so, because had in- to do refused they him; that they commissioner, 14, 1877, to return itthat Oct. structed 1878, 22, and was then in the Depart- Oct. returned so it was to the control Interior, subject Secretary ment v¡ ; the Interior ; that Carl Schurz is such and that the Secretary relator, 6, 1879, him, Oct. demanded of at his office in the Interior, Department of said but the tenth month, on of that re- Secretary, day absolutely fused to deliver it. The that the writ of man- petition prays issue, damus to deliver the directing Secretary .patent the relator.
The relator, court, filed, to leave of- 21, pursuant Oct. 1879, a supplemental petition. filed his answer- on the twenty-fourth day - month, the lands claimed setting up relator
were, at the time of his within the limits of entry, incorporated Grantsville; that, without city knowledge by register of the local land-office that the tract was within limits, those admitted; that in 1874 the entry made relator final thereof; 1877, that in proof February, mayor corporate authorities of Grantsville to make register applied entry of its town site 1867; under the act of March their *3 included the in land that application question; upon re- fusal to the the' land was while included in permit entry that McBride, made, 24, 1877, of was Feb. to have1the application cancelled, allowed, as which entry imрrovidently illegally was the forwarded to the Commis- application register duly by Land-Office; sioner of the General action prior regular a, thereon 1877,» was patent prepared, September, signed sealed, and transmitted third of on the the month to following the to McBride the upon surrender register, of delivery the. afterward, the receipt; upon record of duplicate taking up commissioner, examination, contest for that the discovering been transmitted, had prepared or- patent improvidently recall; that it dered its was returned thereupon by register, its nó demand made for at the date of having instructions; that, of the commissioner’s upon exam- receipt contest, of the record of the claim of ination McBride commissioner, which was, was by on rejected rejection land relator, affirmed of acting by by appeal Secretary Interior, and afterward on review. The un- respondent cancelled, was then delivered with regularly together it was based. entry v. Schurz. Oct. 1880.] certain was accompanied of the Secretary The answer thereto. filed exhibits. The relator replication coun- of facts was statement signed The following agreed — sel for the respective parties: Counsel. Statement
'(cid:127)'(cid:127)Agreed of “ Columbia, this fourteenth the District Court thе Supreme In November, 1879.
day “ States; relatione' ex The United McBride,
Thomas No. 21,200.
vs. At law. Schurz, of the De-
Carl Secretary of the Interior.
partment “ that on cause before the Be it remembered of this hearing Columbia, general Court of ^District sitting Supreme 1879, it was term, conceded October, on the twenty-eighth day were that all the petition both allegations original parties were true, that the named petition the one except premises entry. or homestead in 1862 subject pre-emption filing set to said also conceded the case relating premises, It was the de- had been in the answer respondent, appealed out Commissioner of the General Land-Office Secre- cision Interior, and the said at secretary before pending tary him, demand for on as set forth was made said the.time thereafter, relator, some petition in the said original days thereafter, time demand, at the and that said and for some days was, case, said an exhibit in said papers Interior, said in the office of the office of the Commissioner of Land-Office. the General the. also conceded that Grantsville, “It was incorporated town-of in the answer of respondent, forth was in fact incorpo- set Grantsville, and that it was the terri- city rated incorporated *4 1876, on and Utah twelfth legislature day January, torial should be treated as referred to and made a act part said this case. mattеrs in said case
“AH'other stood upon original sup- the answer of and the respondent, replication plemental petition, no other or further thereto. There was offered proof evidence either party. “ — One of the rules of this court is as follows: United States v. “ — 33. The in issue joinder bemay “ ‘The issue joins plaintiff upon defendant’s first plea. “ ‘The defendant issue joins upon plaintiff’s replication to the first plea.’
“And this form of shall be deemed be a joinder denial of the relates, substance an it pleading which issue thereon. “ court, And said November, thereupon tenth upon day aforesaid, evidence upon pleading gave judgment the said respondent. “ The are foregoing facts stipulated be a full true state- case, ment of this and made of-the part record therein. “ “ 14,1879. Nov. H.W. Smith, “ Atáy for Riff. “ J.U. Baxter, “ Respondent.' Counsel Of said the court orders the be made of Whereupon stipulation record in the case.” n mandamus,
Instead an writ of alternative rule upon to, show court. cause The case granted statement, was heard and the above agreed pleadings and the rule discharged. on the relation of McBride
Thereupon writ, sued out this the court for error that below assigns to,issue erred in mandamus refusing conformity of the petition. prayer,
Mr. H. Walter Smith Mr. James S. Mandeville for the relator. The court below had' Kendall v. United jurisdiction.
States,
2.
carry
We admit that
Secretary
over the
into
his
effect
appellate power
ing
supervisory
his
service Committed to
department
branches of
public
the ex
control
is not
in matters involving
judicial
subject
the demand in
and discretion. When
ercise of-
judgment
the exer
was
there
ho
scope
question
longer any
made
either. He had but1a
ministerial
plain
duty
perform
cise
been transferred to
the due exe
after the title had
McBride by
record,'
title
cution and
a
recоrding
patent. Being
the land
to vest
Irwin, 1
Lessee v.
Tenn.
individual proprietorship. Phillip’s
247;
235;
Liter, Cranch,
v. Browning,
v.
8
Cunningham
Green
;
Pennit,
Bland,
;
Ohio,
4
v.
1
304 Steele
72
Lowry,
v.
Enfield
191;
;
States,
v. United
17 Wall.
8 N. H. 515
LeRoy
Lapeyre
391;
496;
Jamison,
id.3
2
v.
Mar
v.
LeRoy
Clayton, Sawyer,
137;
Elkin,
Madison, Cranch,
s’ Heirs v.
1
Laver gne
v.
bury
387;
227;
3 Ohio St.
Donner v.
La.
Mitchell v.
17
Ryan,
id. 539;
;
v.
Palmer,
Farris,
v.
45
any
a
for parcel
have tried an action
ground
well
ejectment
the title thereto.
or
decree to quiet
this city,
passed
that a
sometimes
3. It
improvidently
has
urged
fact, from error
recorded under mistake
executed
will
law, mischief
individual
that public
hardship
tp
its
recall it before
if -the
fensue-
authority
and the record of it to
and causé
cancelled
delivery,
be.
expunged.
Ct,
Schuez.
answer, First,
To this we
deed,
destruction
aof
title,
it has worked a .transfer of
after
does not reinvest the
estate
Secondly,
grantor.
of a
assumption
in.
*6
not conferred
law finds no
in
justification
power
fact
a mischief
be
or a
may
thereby supрressed,
private right
maintained, even
that the
conceding
power
some hands
exercised
secure what is believed to be a lawful
wisely
end.
If. in the administration of the land
further
system
pow
ers should be vested in the
Interior,
Con
Secretary
alone can confer them.
that it is
gress
the exclusive
Thirdly,
avoid,'
province
courts
in a direct
proceeding,
on a false
or
granted
-suggestion,
Manlove,
161;
mistake. Bruner v.
1 Scam.
v.
Mowry Whitney,
295; Leese
434;
Meader,
14 Wall.
Doll v.
Clark,
16 Cal.
v.
18
572;
Stratton,
242;
id.
v.
id.
25
v.
26
People
Begum,
Brady
529;
Bachelder,
;
Barb.
v.
State
(N.
4. In this case the Secretary, by withholding -it, exemplification the relator of the wrongfully deprives title, evidence of latter, and.the indispensable having other is entitled adequate to a remedy, mandamus. Marbury Madison, Cranch, 137.
5. The is the Stat., defendant. Rev. proper party 441, sects. 453.
The contra. Attorney-Ceneral, 1. The court below has no issue a jurisdiction to mandamus to an executive officer of the United States. statute which (12 in Kendall v. The United States Pet. and in subse 524), cases, was construed as quent the.Circuit or the vesting Court Court of the District with such Supreme has been jurisdiction repealed.
theBy Revised Statutes to the District of Colum relating bia certain sections are substituted for that statute. They, if differing it, or effect language all prevаil must States, cases arising. thereafter v. 100 U. S. Bowen Sect. 61 power gave -to legislative assembly modify' practice enlarge jurisdiction courts Oct. United States v. 1880.] enforce- District whenever to the due execution necessary ment of the laws of the District. of the judicial
Sect.-89 continued in force organization courts. laws. municipal
Sect. 91 continued force the local connection, con- 92, in this Sect. which is first in importance not inconsis- tinued in force laws of State Maryland title, as on the 27th February, tent the same existed or as since modified by Congress repealed except thereof, or until so modified or repealed. authority n laws and all Sect. 93 declares the Constitution same have the- force shall inapplicable locally within and effect as within' District elsewhere States. ’ in- These are the undoubtedly provisions. They existing law, which, are local clude former laws of Maryland District. administration justice proper *7 matters, individual The laws local rights, Maryland governing the ends are for'all transactions personal preserved and local Whatever this municipal government. goes beyond such, as whose duties and relates to officersof District, in or to be same’whether out of the are supposed law, be the domain of Federal and must con- trenches uрon sidered not local in its character. Such laws must as general n be with the force and effect in the District of same applied as local reason exists for Columbia Sect. If no elsewhere. jio their have exclusive enlarging scope, they application the District. of the District with the Revised Statutes vest courts as exercised
same Cir- by jurisdiction possessed 763, cuit and the District of the Sect. Courts United States. 27, as-amended the act of Feb. Stat. 253), grants 1877 (19 by laws the local the enforcement jurisdiction in that was not Such included cited'. jurisdiction previously conferred, , and dis- the courts of the District as circuit 767-769, sect. trict courts. This is limited jurisdiction by causes subordinate and inferior respect original pleas; 31 confided to justices peace, chapter being Columbia, Revised Statutes District relating xii. vuf» Ot. v. SchuRz. United ,[Sup.
Now, common it is true that statutes and the law while were, in 1801 act Congress, prevailed Maryland by District, v. United States continued Kendall force yet Court to exer declares that the of the Circuit (supra) power from the cise the resulted an now in question jurisdiction court, within which that as the tribunal alogy highest judicial court, District, bore to that its the highest Maryland issue, a mandamus an executive officer con power 27, 1801, ferred the third the act of section of Feb. by giving it the same the circuit as courts оf jurisdiction 13, States then under the act of Feb. 1801. The possessed held,-did act, the latter subsequent repeal change within the District the As vested. jurisdiction previously third section same “the repealed, grant jurisdiction courts circuit is made to United States” which revision, 22, Court of the District Supreme June act 1874, must be measured and determined the law as it stood at the latter date. v. Silliman Wheat. McClung (6 598) Cranch, McIntire Wood decide since (7 504) éxpressly 13, of the act of Stat. that of repeal 1801-(2 89), Feb. 29, 1802 such Stat. as that April 156), now jurisdiction (2 claimed is vested in courts of States. circuit cannot, therefore, be exercised the court below.
2. It is 'conceded the counsel the relator that such exists, if it not extend to does the acts Secre- jurisdiction, which involve of his the exercise tary discretion. judgment The issue of a lands of the United States is public act, such an to render the instrument effectual delivery is essential.
This conclusion drawn law. language Stat., Rev. Sect. Commissioner of requires General *8 to Land-Office the direction perform, of ” “ “ Interior, the all duties executive to the relate issu- of for all of land ing patents under the grants the authority Sect.’ government.” 458 the as to prescribes their requisites form, and record. Sect. for signature, provides special officer issue, “in complete pursuance instructiоns-from commissioner,” seal, by certifying, affixing engrossing, such recording, These are transmitting patents. pre- Oct. 1880.] «. Schurz. ” duties which relate issuing executive
scribed is Each statutory as proceeding previously assigned. patent' of the whole. operation essential it is said S. 316), U. Mining In McGarrahan Company (96 which issues form executed that' “the.patent prescribed made the instrument is pass the General Land-Office from States.”, is obvious the, Here it- of the United title out ing is as being form quite execution prescribed referred of, the- from General from, and issue distinct independent issue, issue is not nor does the Execution Land-Office. “ the record; it said the court for immediately is made the act of record called Congress by copying- book for that to be issued into the purpose. kept record, therefore, an is to ‘show that instru effect of the is there ment such as copied actually prepared Land-Office.” The issue from office from the General issue doctrine, must, of this mean something pursuance beyond and the next and subsequent recording, statutory duty 459 is‘the “transmission” such named sect. patent. executive with the instrument Here is final connected duty itself, must be intended. patentee this do to does mean without will not say delivery, other definition. The established regu any possible suggesting General lations Land^Office requirе duty recorder, and rules are the transmission of published governing the intervention of the District patents-to patentees through the- land-officers or agents government, directly Land-Office, the of the instrument General never surrender of the up except upon duplicate being given receipt, affidavit, its loss. For establish proof, by authority-to Sickles, 203; see 98 U. such S. Rev. Snyder regulations, Stat. 2478.
Here, then, is ah executive act com official issue to its and essential plete operation the title of the States. The pass personally, delivery, recorder, ,of its said-to a better valid recognition than the itself. ahan v. Mining record McGarr Company, ity' - effect of an And imperfect again, speaking supra.- recorded, instrument or a instrument imper- perfectly perfect *9 388 v. Schurz. recoi'ded, to
fectly prove court “If grant, says, a-perfect issued, has in fact it must be patent in some other proved way than the record.” 323. p. issue, which, shown,
The has is subsequent (cid:127)record, and can mean is treated only delivery, thing all the matters record are but instruments proved; evidence to establish And so the : says court fact of-issue. “ to a is When and right the last patent complete, formalities the law in to its execution and issue have been com- respect with officers plied government that charged will be treated as duty, evidence its presumptive record ' and, And in delivery grantee.” the final acceptance by it is clause the record will be treated as. a perfect said “ instrument, record of an until overcome imperfect by proof the instrument as executed and was valid.” delivered The inference from reasonable allusions these only repeated the patent is that is possession.of delivery deemed this court to be essential to the issue of the complete and the title. legal conveyance Robbins, And the same effect is Moore S.U. 530. “ there said : is When the has been awarded to one contestants, issued, delivered, has been and accepted, title, all to control the or to decide on the right right title, has from the land-office.” passed p.532. “If Again: . . . the ... to and delivered accepted by the party, the title with this government passes With the delivery. title all control of -the passes away executive authority depart land, over over the the title which it ment has conveyed.” This moment of 533. delivery.and the instant p. acceptance cease, and control over the title when the issue is authority in law. that moment Up executive complete authority continue, functions, and the discretion official with which the interfere, cannot remain cоurts unimpaired officer having in the matter. The court power original functions says: cease when the department necessarily title has passed n And the title does where, so government. pass - of the officers the decisions having matter, authority á called a has been generally conveyance, signed by President, sealed delivered to and accepted grantee.” p.
Oct. 1880.] acts, to be been declared the effect executive This Attention was spe- done within legal authority. scope cases. directed the action land department cially *10 “ court, was, 534, If such on a The p. power inquiry answer, asserted, exists, does The three when it cease?” times the of time' the fixes as and precise delivery period acceptance matter of The record the taking patentee, by the patent. record, such on after government, rely grant issue that it and his delivery proof' complete and record is was so delivered The accepted. undoubtedly pre- evidence of the as it is also of the delivery, validity sumptive but it does not to title without operate complete grant; In, 348, Com. is said that such Bl. it delivery. king’s law, he estate or if if to his own title grants/an grant, contrary different be from wliat he ab- thing granted supposes, void; Washburn on Real iii. Property (vol. p. 520) sоlutely issued, when and that paifent, regularly says properly evidence of a title.” becomes complete thus, that to essential the issue of a appears delivery, time, its can determined Up patent. regularity only The courts have not the Interior Department. yet acquired In v. Hearne How. Bell (19 252) Maguire jurisdiction. Black, and 8 Wall. had .been 664), patents v. Tyler (1 n that, and delivered. The court held as there nowas prepared was and ean good, recall delivery acceptance, of them were the status of the land proper, cellation leaving it before as had been the instruments were recorded. precisely had first reached true patent In grantee, Bell, but, in the been error certificate it. had entry, John Bell, favor the land assignment James executed to other But court sus had parties property. passed recall of surrendered the claim of against patent tained- record, Bell, who that he grantee James alleged reason, that had never delivered as a been it gave to him. cannot be cases explained except upon
These theory essential; that a refusal accept return such its to the Commis- delivery, prevented of the General Land-Office he had sioner cancel it power thereof,
the reсord
and deal with the lands'
to their
according
For,
title,
before
status
its execution.
if the record
proved
latter had
without
and to
recon
passed
restore
delivery,
n
would have- been
But the court
veyance
required.
says
the status of
was the
same after
recall as before
the-^land
the-
Never
preparation
patent.
having
effectually
delivered, its
him
commissioner
gave
juris
diction for
Lanza,
cause to cancel it.
v. De la
Doswell
good
29;
Shaw,
20 How.
3. Constructive and -does exist where the delivery may in the exercise of his grantor, proper authority, places deed in the hands of a use of the stranger grantee, or even some cases where he retains at the possession, same time his intention to treat it sufficiently as hav- manifesting the title to the This ing doctrine cannot. how- passed grantee. ever, in this The admits and prevail proceeding. petition record shows that instrument has never from the passed and sues to. government, McBride its custody compel He cannot now assert that there has delivery.. .original already been a constructive delivery. reason,
The latter cannot be for the further presumed, the date of the demand the had at fact become known to he had’ officer that mistaken true condition proper title, law and was forbidden to issue the as the by act patent deed the government. Oct. 1880.] v. Schurz. it was to official to deliver to a subordinate
Tbe direction McBride, ac- tbe take effect acceptance express only or duplicate, his surrender of companied outstanding by dis- of its This be revoked upon loss. direction might proof sufficient to defeat patent, efficacy covery reasons the commis- been refused as final' have might just delivery its had remained in his Before prep- sioner it personal custody. aration, claimed afterwards, the authorities Grantsville There the land under the town-site law 1867. 14 Stat. land-office, was a contest and undetermined before pending McBride, their rights. between them involving respective therefore, mis- or The some accident was prepared, take, of law the rules of violation the department. that the' follows whether ought necessarily power adjudge issue had not been exercised Commissioner instance, in the first General Land-Office therefore, were, on precluded further appeal. They the rules the case examining deciding according Nor could either department. deprive, regulations they contestant of an to a full right hearing to the other. improvidently prepared limits’are excluded Lands within town-site from operation Hence, of the homestead lawi McBride’s entry land, if to him thereon for the issued would illegal, “No title can be held so. valid which been equally . . law. . defendant acquired against having for lands reserved such void.” Stod appropriation Chambers, 284; Barland, 2 How. v. dard Ross Doe ex dem. . ; 655; Lessee, id. 1 Pet Miller’s 666 Brown v. Lindsey Clements, 650; 5 9. Newhall v. 3 How. Op. Sanger Att.-Gen. *12 holds in effect that the the railroad S. com patents U. 761) (93 not been issued in with the require having compliance pany, Pacific, the ments of acts known as Congress, the commonly Acts,” So, invalid no were and title. in Railroad Leaven passed Lawrence, Railroad Co. worth, Galveston v. United States (id. & lands, lists of selected furnished Com 733), certified Kansas, missioner of the Land-Office to the General Governor which, have the statute Stat. force and of a (10 346), effect void, the^nds not were as were subject patent, pronounced Ct.. v. selection for railroad State grant purposes. 160; the same effect To are Reichart v. 6 Wall. Felps, Shepley Branson, al., 330; et al. v. Cowan et 91 U. S. Wirth id. inadvertence, The case is this: some which if By title, sealed, delivered would was and pass signed, prepared, recorded. The fact was'discovered before the instrument had from the Interior passed Department, before a decision as to McBride’s was made. It was right withheld final of the contest pending disposition involving decision,has land, title and the been rendered against its him. As would be it is sub- illegal, respectfully mitted cannot be to do an act compelled which either unlawful or jurisdiction beyond rightful and authority. after Miller,
Mr. delivered the Justice stating of the court. opinion made, court,
Some on the in this question argument evidence, effect of the answer as practice Bench, Court -of has been referred to as King’s England, conclusive, evidence, return 'to -the writ or at least making states. of all it We are'relieved of on this any point difficulty stipulation parties. mandamus, otherwise, or No writ alternative was issued. was, therefore, return, There no technical and in strictness the If, however, rule tc such writ does applicable apply. held could be that the rule to answer to the cause stands show mandamus, of a return to a writ of have parties the place issues, made their Own as to voluntarily stipulated evidence shall considered the court. stipulation By allegations petition, original one which are to be taken as true. Certain except specified, are other facts then set out. It is then all other added stand matters original supplemental petitions, that there was no other further answer, replication, offered either As the proof party. replication distinctly put answer, in issue as no evidence every paragraph the. answer, as the offered rule of court is support *13 Oct. 393 1880.] makes the recited which in this case' a denial of the replication relates, substance of the to which it we must exclude pleading the and the answer of the petition supplemental respondent evidence, and decide the on case the allegations original and the facts in the petition case. stipulated agreed are met at the threshold We of this a denial inquiry by Court of District of Columbia' Supreme authority tо issue a of mandamus, writ as an original process. is, that that court over argument this jurisdiction sect.
class Revised Stat subjects governed by utes to the District of section Columbia. That enacts relating that Court shall same ex Supreme possess power ercise same as the circuit courts of the jurisdiction States.” As this court Cranch, decided McIntire v. Wood(7 Silliman that 504) McClung Wheat. the cir 598) (6 cuit courts of the United States no such possessed power, would be if no other on that argument perfect powers subject existed Court than District what is con Supreme ferred the .above section. court,
This in Kendall v. United States Pet. had 524), (12 27,1801, under consideration the act of Feb. organizing origin- of this courts District. It was held that the clause of ally the act the laws of declaring to be force at that Maryland date in the of the District ceded her invested part the Cir- Court, called, it cuit as was then because very power, awas common-law jurisdiction, and the common law on then force .subject This Maryland. proposition has been time, court since upheld by repeatedly date it. nowas an up longer open revision ques- in' tion that case court had to issue proper authority writ. said,
. however, is now that this section enacted as of being the,first December, 1873, defines the day jurisdiction "Court District as Supremе governed by powers the circuit courts of United States over the same subject date, at which time it is clear these latter .at courts had that, no such as the revision all power; repealed other laws act on the same subject, law concerning Mary- land the case. applied longer v. Schurz. out of
This leaves the process reasoning ninety-second *14 revision, declares laws which “the section.of again that title, this of not inconsistent with as Maryland, State 1801, the same on the of ex- existed twenty-seventh day July, as or or since modified cept repealed by Congress by authority (cid:127) thereof, until continue in or so modified or force repealed, is within the Thus the argument precisely District.” States, it,was same 'as it was in Kendall v. United urged there, here, measured its as that as the act' court creating States, that of the circuit the United jurisdiction by counts the for- which had no such there could be none in jurisdiction, ; mer court which continued to replied, provision in force laws Maryland. The revision different sections merely separated - 27, 1801, of it in sect-. act Feb. placed part of it in sect. 92. and we provision Repealed, Neither
part retained, think that of them are with the construction both in on them this court Kendall v. United States and placed cases. But this would seem to question subsequent the. “to the revision of -set at rest perfect by'the.'act States, and of the statutes relating Statutes act sect. amends 763 of to the District Columbia.” .The Columbia, to the District of the Revised Statutes relating (cid:127)“ all crimes said courts shall have cognizance enacting District, within said and of all cases committed and offences which' between both or either of in law and parties, equity said-District, and found within also of be resident bé shall or suits of a civil nature at common law or in all actions shall be or com- in which United States plaintiffs equity, 19 Stat. 258. plainants.” that the issue-writs of to man- are opinion authority
We .of in which'the are "the common law cases parties damus Court of the Dis’-- them is vested Supreme entitled of Columbia. trict whether the relator has made such to inquire
We proceed acase. th,e entitled to the relator was
If and it was the duty plain "property, . -demanded,"then, all the author- him when it to deliver' Oct. v. 1880.]
ities,
court,
the decisions of this
he is entitled
especially
he asks. From the ease
v. Madison
remedy
Marbury
Cranch,
time,
down
such has been the
(1
137),
present
settled doctrine of this cc irt. And
be said that
though may
of Mr. Chief
Justice Marshall'in that case was
opinion
made,
court had
decision
which was
original jurisdiction
principles
opin
ion
have since
and acted
repeatedly recognized
cite;,
court, and the ease
in its definition'
approval
.this
of the circumstances under which
offices
persons
public
holding
will be
certain duties which are
compelled
perform
merely
524;
States,
ministerial.
Kendall
12 Pet.
Decatur
497;
al.,
87;
14 id.
et
3 How.
Kendall v. Stokes
Paulding,
Patents
Commissioner
The Constitution United declares that Con- of and have to make all needful power dispose rules gress shall and other respecting territory and'regulations property to the United States. Under this the sale belonging provision lands statute-under the control of publib placed by Interior, aid him To in- the perform- created, bureau was at the head of ance of which duty; Ct., 39G States . United Land-Office, is the Commissioner of General many tribunal, them, To con- subordinates. aas Congress spécial fided which execution of the laws surveying, regulate - these lands. care of selling,' general of-laws which enacted a Congress rights also . system these lands to be title govern- acquired-, ment has with a to This court the citizen. conveyed strong title to so as the hand doctrine that upheld long legal States, these'lands and the remained in the United proceedings^ for not inter- it the courts would were as acquiring yet fieri, fere to control . thus vested the exercise of power tribunal. To that still we adhere. doctrine ' when, offi But we action of these also held h^ve States, cers and of the' issuing President -of to the lands has title to passed apitizen, them is to the real government, question ownership.of in the to all the considerations appropriate courts open proper case., so, tb the is whether suit And this back title so to and recover set aside the" patent as in Stone Wall. 525), United States v. (2 conveyed, an the title conveyed by cause individual- on account held in trust' him the equitable patentee such relief. which circumstances entitle ,the complainant . id. other Towsley, cases. Johnson .called a casé us it is said that the instrument In the before- name of the United States purports the lands not effectual McBride controversy, convey That' delivery. want though signed, purpose.-for recorded, and sealed, then sent tb the countersigned, regis- him,, at Salt Lake CityAor ter land-office' *16 delivered, remained under the and has always so never'was the- the Land and officers of Department, control of de- is a deed of for want invalid as conveyance instrument of the' it were conceded that If delivery grantee.' livery and the transfer of title to the is to- grantee, essential- as is is a'conveyance delivery required necessary that-such man, of some(cid:127) man to it would be fropi difficulty'to question, took in' this- case. such -place whether delivery, decide The.. of. the which intention grantor’ well-known .by principle Oct. 1880.] v.^Schurz.
a deed to make an act which falls far short of manual delivery, to stand when so well delivery, designed, might applied to'the act of the commissioner in transmitting patent by ; n while, mail to the local office for the on purpose delivery hand, the other it is. with much force that the instru- argued, never ment frоm the land-office or the control actually passed its officers. We.do not think decision of this point to the case before us. necessary n when, are of We opinion upon proper decision office that the citizen has become entitled to a for a por- lands, tion such a made out in public that office President, sealed seal of by the General signed Land-Office, land-office, the recorder of the countersigned by recorded in and the record-book for that duly kept purpose, a solemn act becomes of the United public government States, and no' needs further or other authentication delivery make it In valid'. such case the title to the perfect land matter of passes by conveyed grantee, record which when a deed delivery is made required pri- by individual is not vate effect to the necessary give granting clause the instrument. on this are authorities numerous uniform. subject have'their in the decisions of the
(cid:127)They .origin English courts of the crown grants evidenced instruments called by there, here, as patents. Blackstone four modes of- alienation or describes transfer estate,
title to real which he calls common assurance: the first deed; of which is matter in or second by matter of pais record, or an assurance transacted only king’s public . record; custom; courts the third the fourth special in a last or devise will testament.
In devoted to alienation chapter he -.enumerates dee$ to its among requisites act Book validity delivery. 21, But in c. 20. devoted to alienation matter chapter record, is said about nothing pass title, head he' includes'the king’s grants. These, he are all made record, matter says, are public contained charters He then recites the letters-patent. are processes by patents prepared perfected, *17 398 v. Schurz. and the manner whose hands officers they- pass,
various through them, their final enrolment. th of seal They affixing and no mention is made are then delivery perfect grants, After this can a their they validity. only prerequisite. or other or annulled scire judicial be revoked pro facias - to of the attached delivery ceeding. importance’ arises fact that in modern deed conveyancing largely n of-seisin ancient has taken the-place livery deed when, enfeoff times, in order to effect give feudal tenant, the act of the new delivering ment evidence manner essential was a and notorious public became the title. to land. This of' gradu the investiture .the until the manual diminished importance delivery ally acts, became turf, of the symbolical many piece other and the creation and all passed sufficient. When away, instrument, in’ land a written called transfer of estates mode, usual became the the instru of' the act or deed party, n land in lieu of on the at first delivered livery ment was 54; b; Litt. 266 Co. Wash Touchstone, seisin. Shepherd’s Real, 8, 308. burn, book .Finally, any Property, intended to deed, which the for or act stand party any the -title. v. effectual' Church pass became such delivery, Baker, ; b; Butler 3 25 Gilman, 656 Co. Y.) 15 Wend. (N. v. 332; Hatch, v. Swelt, H. Hatch Mass. 31 N. 307. v. Warren record, of title matter the transfer But regard decree in or a court this record were judgment whether recoveries, record as fines and made of justice, of. in the. Court the Lord office Chancery by (generally proper enrolment, called no grant, the king’s Chancellor) livery nor document sealed any delivery seisin necessary, seal; when this seal affixed to the' king’s with the. made, and- the enrolment of it was evi- instrument higher had, other nor- was evidence could dence any Hence, Cruise, Mr. in his or deed of this act kihg. Law of “The' Real English Property, says: Digest need no nor delivery; patents letters-patent king’s Lancaster; are suffi- seal of the Duchy they great of. completed authenticated annexing ciently seals them.” Title xxxiv. sect. par. .to respective Oct.'1880.] Madison,
In referred, to which we have Marbury already *18 court, the the commission of the of the likening justice peace, which was the President and left in signed sealed by State, lands, the hands of uses of to a Secretary patent “ 1796, (cid:127)this the act in authorizing language.: By passed iii. sale of lands above the mouth of the River (vol. Kentucky his becomes on 229), p. purchaser, paying purchase-money, on entitled to purchased, produc- completely property Treasurer, of the of State receipt ing Secretary law; the President of the United a certificate required by . him It is further is authorized to a patent. grant States that all shall be the Secre- enacted patents .countersigned by in his office. If the and recorded State tary to withhold this or the should choose being State 'patent it, it be should refuse a can lost imagined copy It is not be- law furnishes injured party remedy? 'to whatever would maintain such attempt lieved any person a proposition.” n said: of the it is all cases of
In another'part opinion “In. law, solemnities certain are which required letters-patent, by' are the evidences of the solemnities instrument. validity is not them. formal In cases A person among commissions, and the seal sign-manual President are those solemnities.” the United States court, is found in the same de The principle opinion v Liter, 8 Cranch, Mr. in v. livered Justice Green 229. by Story, decisions of courts of the State character to highest Many in the brief of same effect are cited counsel for the relator this be mentioned Ex Kuht among may parte 257; Palmer, man, 3 Ch. Donner v. 31 Rich. Cal. 500. (S. C.) discussed Mr. Justice subject very ably fully Jamison, in the case of Field Leroy Sawyer, there is also said that was no of this acceptance patent by for that it is reason ineffectual to title. grantee, convey to enter into much It is on this discussion sub- necessary of deed because acceptance presumed ject, short, far what was circumstances admitted to exist in this ease. is well
The doctrine on stated point Attorney-General. . Crittenden, Mutelle, as found in the cake Pierre like in 8 a cáse Att.-Gen. which was Op, present, 65^, then to deliver regard the'paten,t .Secretary duty in the office. lying “ . lip, title to said that the the land did My'opinion,” pass him, to Pierre date .the though Mutelle at the without actual tradi- still remains any land-office tion issued one. The authority any law, where direction of and upon general principles, dissent, assent and acceptance does not patentee expressly are to be beneficial nature grant. presumed ' such' But it is resort presumptions, hardly (this cases, acts to be because, in all such required .claimant, done him in prepa- actually'done hip *19 ration of are to a claim patenting^ equivalent positive (cid:127)demand to an of it. The and amount acceptance patent to, of the act referred to is granted patent,- the^meaning date, he see never though may actually -its patentee from it, to title to the or receive -is and effectual valid pass land. to owns the of him who All title belong legal muniments title, land,' of . . . a recorded evidence but as is patent .the accessible, can result to true no always material prejudice from,a it.” of owner stranger possession getting de- McBride, his The1 claim by repeated long pursuit-of it mand for the after per- perfected,, had it, his. of obtain are ample sistent effort to' proof the evidence. which.it-is acceptance the'grant not that the relator was is It with much'plausibility argued States, because thefUnited laws of entitled to land by is, that not to it entry, homestead subject ,nd therefore, not void, the law require will Secretary the. it, at the same itime do a vain thing c.y delivering to the same land. of others in embarrass regard rights (cid:127) nqt if the absolutely are patenfis We prepared say;that void, so accrue plaintiff right possibly .could would, -it, be a sound one. the suggestion instrument, a and Voidable
But distinction between a void dis- one, still a is well-recоgnized nice (cid:127)though'sometimes very n Schurz; Oct. .1880.] on which' often the case tinction valuable And rights depend. before us is we think it To one which is clearly applicable. .to inc: ude officers of Land whom we Department, among Interior, is confided, as we have already said, the the sale of the administration of the laws concerning domain. The in the case had1been .sur- land public present and, control, under their the land in that District veyed, gen- had been homestead erally opened pre-emption, entry, tract, sale. whether question any particular belonging sale, or homestead government, open pre-emption, is in instance of law as right, question every app'ied facts for the determination of those officers. Their decision. such and. the sane question land conflicting claims -by different is in its character.' parties judicial is clear that and the. all such right duty deciding officers, to those questions the statutes belong have pro- vided for original appellate hearings department before the successive officers to the Secre- higher grade up have, therefore, cases, of such tary. They jurisdiction and' is made the-correction of errors in the exercise provision When their decision of such a jurisdiction. question made and recorded' in the finally shape how it can be said that instrument void for such absolutely ? If a errors as these should issue for land Massachusetts, State where never government had ariy, be it would void.' If it should issue for land absolutely once owned but before sold government, long conveyed, to another who held by patent possession, held might' *20 in a court of on void law the of the. production senior patent.. n But such not the ease before us. Here the question whether this land had been withdrawn from the control of the Land certain acts of Department other by persons, in- clude it within the limits of an incorporated town. The whole is one of- and question disputed law facts.' disputed was a for the to question and decide land-officers before consider' determined to issue McBride’s- they It patent. within to their do jurisdiction so. If decided they erroneously, voidable, but not may void. absolutely it, mode of .Voidable, if avoiding is not by arbitrarily . vol. xii. n States .United aside, or to set it if, but judicial proeéedings
withholding It was within province it ii correct wrong. only partly to land, to whom sell the decide of those to officers sold; when, in accordance it should be for what price. it, and for decision, .sold, with their it was paid money executed effect carried into duly grant the. to of the United States instrument carried with it title land. these functions performed by
From the vеry-nature from the officers, of the title from the fact that a transfer action, favorable to follows their another owner or other proceedings it must result that at some stage in their ceases. matter authority latest, at the precisely It is clear that this-period.is, equally series, transfer title when the act in essential last has the'land this has been Whenever takes performed. place, or, tech- ceased the land speak government; to.be title has government, nical legal passed language, it also passed these officers deal with and the' po'wer re- transfer of title The fact that the evidence this away. restore land-officers cannot mains or defeat that of any title to the United Státes grantee, of a man’s title-deeds destroys more than burning up title. ?
isWhat final act which closes the transaction this court was of In v. Madison opinion Marbury (supra), j of an officer was' signed that when the . remission it, President and the seal of affixed to' its the officer entitled commission was pos complete, its the writ mandamus. session could enforce different, land, be somewhat In regard patents may n so far. it is in this case go-quite n nations, we as far as all But we well consider or of the know, where government property grants instruments, is made made crown are written provision offiсe. some record of these instruments in public government French Mexican, Our Spanish, experience regard us from domain purchased by grants parts' public uniform law such is' the those' us that teaches governments *21 n Oct. 1880.] Schurz. have that under the- those countries. already- We shown enrolled, that this is- are law áll
English lehters-patent is act in-the essential last issuing patent process its validity. are State the Union has
We safe in that every saying land, and it. has similar to its reference provisions grants record of all been effort of- of them compel public most of land individuals -or conveyances corporations. by The acts for record of all patents provide Congress land that office, in an in books for An purpose. kept officer, Recorder, called make and to is keep appointed before it these records. He is to record patent required every issued, and to to be delivered to countersign instrument This, then, transaction, is the final record grantee. — the act which what Blackstone legally prescribed completes ” record; done, title calls and when this is by grantee with invested that title. We do not there rare» not be cases where all say - done, has been the ófficer in yet possession If, not deliver it. to the compellable grantee.
instance, whоm the is authorized secretary President law to his name to the should do appoint so' sign he President, when has been forbidden if, some mistake, mere clerical the intention of the officer performing essential an the execution of has part been frus- the-patént It is trated. to decide on all. the hypothetical cases could be imagined.
But we are of that when all we opinion have mentioned done each officer consciously purposely engaged it, and where these officers have in a matter been-acting duties, within of their title to scope the land egal to the grantee, passes right the patent.
No further to consider the case authority remains patentee's in the land-office. No right consider whether-he ought information, or on new to-have the title or equity, receive There patent. ministerial, to deliver duty, simply remains — owner, which, within all the defini- duty tions, can be enforced the writ of mandamus.
It is not that the ill of a should always consequences principle control a court in what the established law on a deciding par- is, ticular in the matter of subject delicate controlling action of a 'officer of the executive branch of high the govern- ment, it would not alone be sufficient to certainly judi- justify n cial But it tend to interposition. reconcilе us to such may action take, as feel forced to settled under doctrines of we courts, to see that other would lead to course any irremediable injustice.
If the relator
this
in
case
obtain
he is
cannot
his patent,
States,
without
He cannot sue the
in
wholly
United
remedy.
whom is the title in'the absence of
patent;-
United
States
Claims,
be sued
court than the
.can.
Court.of
no^other
and we have
decided
that court has no
jurisdiction
States,
such’ a ease. Bonner v. United
On. the when this other he obtains if there possession, reason he as any equitable government, why, against — if it of it, should not have has been issued without authority, n law, - — facts, or of or of the mistake fraud grantee, can, States bill in have decree annul- by. chancery, n another, a writ If or of 'scire ling patent, possibly facias: is, reasons Grantsville) any party (as city entitled, relator, as a court cognizable equity, against him, which a court title to have patent conveys as as the can similar soon city chаncery give relief that it or before. So comes into possession, perhaps non-action Department legal plain Band. undecided!, remain rights indefinitely parties relator, defeated, those of the émbarrassed’ seriously totally mandamus, the’writ while the courts where their to all the portals opens parties can be determined. rights judicially - n Oct. 1880.]' v. Schurz.
' We- are-of' that the relator in the opinion presented us, is entitled to he de- which the,patent the. manded, and that the writ mandamus Court Supreme the District of Columbia is the enforce appropriate remedy reversed,-and will be of that court right. judgment writ; the case remanded with instructions to issue the is'
So ordered. with!, Mr. concurred Chief- Justice whom Mr. Waiter Swathe, Justice dissenting. few,' I am unable to -There are agree judgment. very if of law so well stated any, general- principles court, I do not assent. opinion give' my- My *23 is to the which is- made of them to objection tile- application fact's this case. of In the it is that stipulation the parties, “conceded ease set out in the answer the re- relating premises, ^aid had been from the decision of spondent, appealed Com- missioner of the Land-Office to the of the Secretary .General Interior, and before the said at the time- pending was. Secretary him, demand for thе was made on as.set forth in patent relator, thereafter, and for some -original petition days demand, and that at the time of such and for some there- days after, was, the said with the in said patent an- papers as. case; exhibit in said office of the the Inte- Secretary rior, and was not in the is, General Land-Office.” This as I think, an admission that the case set out in the answer was us to look into the answer and permits ascertain pending, that what case was. The- facts on which the case rests may - admitted, be but the existence of the case-as-set out is. .then, answer, to the we that find case Looking, to have been 1877, as followsOn the 24th au- February, corporate of the thorities Grantsville made an city application of the on the cancellation McBride lands entry contro- in. This application Commissioner versy. forwarded .was of the General Land-Office for final ad and decision judication, under the law and the established rules and of the practice and it came to a final department; decision the Commis- sioner of the General 7, Feb. 1879. On the Land-Office 8th v. ©f the Inte- McBride appealed April, claimed, 1st, of the
rior. In his he that the decision appeal was the evi- commissioner preponderance contrary case, and,- 2d, dence as shown in the record of the to the law of the case. decision contrary for this it is stated that In the mandamus original petition 26,1877. was dated It thus Sept. appears distinctly patent sealed, recorded that when was there patent signed, was law in the a contest authorized department pending - between and the of Grantsville McBride corporate authorities who had the better under the laws as to Congress,, right, decision land. It is not formal pretended that.any officers with that made of the department charged duty any should issue. Under these patent circumstances inferred, averments of the' irrespective positive may fairly answer, to that that the effect patent improvidently issued of some of the clerks through having charge neglect business of the office. In it was the of the details opinion, my. Land-Office, when Commissioner imperative duty attention, facts to his to direct these were brought be withheld. delivery patent that, to a has become com- I when right patent agree the execution and itself are the delivery plete, mere ministerial acts of the officers Vith that charged duty; further that when the tó a has and I been agree right determined, sealed, and the actually signed, recorded, no actual countersigned, *24 title. the last formalities of the law When prescribed pass with, execution of a have 'been the due complied patent that time been if it has before determined complete, grant that the exists. in some appropriate right patent way the due execution of the will be evidence patent Ordinarily, But a determination. between certainly, such be and the such evidence will not conclusive. patentee, States arise if the of third person's, Different questions may rights intervene; but, as-between the until the original parties, patent issue, be at- to it time my opinion, any recalled ought may, actual it out of the United States. before gets what the officers of the it In can convey only reality, Oct. Schur'z. 1880.] United.States and, if it can lawful have the right grant; convey of the Interior not ought required Secretary nothing, to do vain mandamus thing. a here as to of McBride The contest was right' the land is within the incor- homestead Confessedly, entry. G-rantsville, and his was not made at the entry city porated after the was until town incorporated, although land-office he therefore, It a land before. was settled on the question, long circumstances, had to' his whether, he right was before department That question pending entry. when the was exe- course the ordinary proceedings of facts. involved the 'This appar- cuted. investigation forth in ent, from the as set and the both petition, McBride himself filed. That the facts papers appeal too; is from the statement in the. were disputed, apparent ap- the decision of the commissioner was contrary peal not evidence. The to have patent ought preponderance it if the was unlawful. Whether was executed entry was, time, the at issue between lawful or not at the question then, and the authorities of Grantsville in contest McBride law makes department. provision' pending that, contests; have and over held such and we over again ’ fraud, on the decision of the -officers facts absence As the is final. Johnson Wall. 72. Towsley, right contest, on result of that McBride patent depended th& effect of the execution have will judgfnent on the facts before the is concluded? hearing
I further. will the subject Enough pursue already been said show dissent. In my opinion, grounds my to direct the to deliver is to McBride give Secretary rendered, iii his suit before execution pending judgment to inextricable confusion. lead — subsequently modify A motion was made to the order each Note. costs,, pay judgment against party his own and to render defendant should for costs. opinion Me. Justice Miiaek delivered of the court. impression regard that as the defendant first was sued Our discharged had in which he official duties as manner certain wrong Interior, charged proven against him, in which no intentional *25 Manufacturing Cfc. v. Co. Ladd. proceeding pay be to make him out would the costs of his own unjust pocket. option aBut careful leaves but follow examination of authorities us no prevailing party legal rule thé that shall the unsuccessful recover of. one expended rights. obtaining which costs he in his (12 establishing 524), In Kendall United leading Pet. the' case right compel public a the writ a citizen use of of mandamus officer ministerial, perform merely duty, duty a recovered his costs. in tire-relator that, officer, present case, upon enjoin.ed as in the he was one a cabinet which perform. thought right refusing refused to It is in obvious he he was him, yet ccurt, report do the act demanded of as shown judgment against rendered for costs him. (17 In States Boutwell Wall. which was 604), the case of writ of against Treasury, mandamus the defendant as 'of the and which the office, court held to abated is the be it was said: “It retirement writ, personal iinpetration default of the that warrants the defendant awarded, a. upon if 6f mandamus must peremptory-writ be the costs fall is.argued be.unjust defendant.” And it as it would to make the successor delinquent secretary pay defending post in officeof the the action of his predecessor, -necessity the writ must of abate. cannot, cases, costs, We in the face of these for refuse order however might contingent much w.e wish it were otherwise. be a There or other none, department they paid. fund of the which out of can be If there is Con- gress may provide generally govern- for it or enact that-when the officersof the they performed ment are sued reference manner have duties, perform they, failed to their as in official revenue seizures similar eases, expense good they shall be relieved if from the of the suit have acted with grounds. motives and reasonable judgment The relator must have for his costs. Manufacturing Company v. Ladd. Where, charging infringement was filed an
1. a bill letters-patent of reissued 1872, 19, ourt, answer, No. dated Nov. which was denied the- state art at in view of the date of the invention for whiou the Swain, origina,! granted May-11,1860, were to Asa improve- etters M. n water-wheels, construed the ments claims of the reissued letters ac- original cordance with the distinct limitation of that invention letters specific apparatus, to wheel of construction form with its' associated infringement finding that no there was of the claims thus construed Held, gave such complainant the'bill. a construction dismissed rjust grounu.of exception. examined, comparison and the result The evidence of a reissued letters letters, including original drawings with the and'model submitted with stated., application vhem, only granted originally reissue can for the same 8. A invention which was patented.