United States Ex Rel. Hall v. Payne, 254 U.S. 343 (1920)
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Scribd Government DocsUnited States Ex Rel. Hall v. Payne, 254 U.S. 343 (1920)
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Scribd Government Docs254 U.S.
343
41 S.Ct. 131
65 L.Ed. 295
UNITED STATES ex rel. HALL
v.
PAYNE, Secretary of the Interior.
No. 95.
Argued Nov. 17, 1920.
Decided Dec. 13, 1920.
Mr. Patrick H. Loughran, of Washington, D. C., for plaintiff in error.
The Attorney General and Assistant Attorney General Nebeker, for
defendant in error.
Mr. Justice McKENNA delivered the opinion of the Court.
This case involves the consideration of a mandamus brought by plaintiff in
error, hereinafter called relator, against the Secretary of the Interior.
The proceedings were instituted in the Supreme Court of the District of
Columbia by petition, and its essential allegations states narratively are as
follows:
The lands in question are within a township which was reserved under an act
passed August 18, 1894 (28 Stat. 394 [Comp. St. 4876]) from adverse
appropriation by settlement or otherwise except under rights found to exist of
prior inception, for a period to extend from the application for survey until the
the expiration of 60 days from the date of the filing of the township plat of the
survey in the proper district land office.
The plat of the survey was filed in the proper district land office May 17, 1915.
During the 60-day period, nor since, the described land has not been selected by
the state. On June 15, 1915, the relator settled on the land and on July 17, 1915,
was still actually residing thereon with the bona fide intention and purpose of
appropriating and entering it under the homestead laws of the United States, in
the event that the state of Montana did not select the same in accordance with
the statute.
5
On the latter date relator filed in the land office perfect application for the land
as a homestead, which the register and receiver rejected for the stated reason
that on July 16, 1915, they had permitted one George E. Kennedy to make a
homestead entry of the lands.
The permission for the entry of Kennedy rested wholly upon an application
made May 25, 1915, at a time when the lands were reserved as before stated.
On May 25, 1915, the register and receiver rejected Kennedy's application in
the following terms:
'Rejected May 25, 1915, because land not open to entry until July 17, 1915,
except to state of Montana and settlers prior to March 10, 1910.'
On June 4, 1915, the register and receiver made the following notation upon
Kennedy's application:
10
'Suspended June 4, 1915, pending preference right of state of Montana.
Rejection of May 25, 1915, hereby revoked.'
11
Theretofore it had been the consistent and uniform practice of the General Land
office to reject any and all filings such as Kennedy's.
12
Relator appealed from the rejection of his application to the General Land
Office and that office affirmed the decision of the register and receiver, and
relator appealed to the Secretary of the Interior, who on July 28, 1916, affirmed
the decision of the General Land Office and held that 'Kennedy's application,
being prior in time, is also prior in right.'
13
The Secretary in his decision did not refer to any of the asserted prior decisions
or practice, but arbitrarily disregarded the mandate and will of Congress
expressed in the Act of August 18, 1894.
14
Relator at the moment of the expiration of the 60-day limit was actually
residing on the land with the intention of making entry thereof under the
homestead laws, and the right to make such entry after the 60-day period was
secured to him by such residence by the provisions of the third section of the
Act of May 14, 1880 (21 Stat. 140 [Comp. St. 4538]), and the uniform
decisions of the Department of the Interior under said act, and the Secretary of
the Interior has arbitrarily denied to him the exercise and enjoyment of that
right; and in ruling that Kennedy had acquired a right under the homestead laws
relator is deprived of the benefit to him of performance by the Secretary of the
Interior of a purely ministerial duty, and he prays that a writ of mandamus be
issued, directed to the Secretary to approve his, the relator's application, and
deliver to him the proper evidence thereof. General relief is also prayed.
15
An order to show cause against the petition was issued and served on the
Secretary, to which he made reply affirming the legality of the action of the
local land office, and the decision of the General Land Office affirming it, and
his decision of concurrence.
16
He denies that there had been any ruling by the Secretary of the Interior that
during the 60-day period applications for homestead entry must be rejected.
Such, however, he admits, may have been the ruling by the local land office
and even by the Commissioner of the General Land Office, but he stated that
from August 31, 1910, the construction of the act was pending before the
Secretary upon an appeal from a decision of the Commissioner, that a decision
upon said appeal is reported in 45 Land Dec. 37, under the title of Northern
Pacific Railway Company v. State of Idaho, dated April 12, 1916, and that he
decided that selections during such period should not be rejected, but held
suspended until final adjudication of the rights of the state.
17
He avers that such is the proper construction of the act, and that the act being
one of the land laws of the United States, its construction as well as the
determination of all equitable rights of parties under it, is within the jurisdiction
of the Secretary of the Interior so long as the legal title of the land yet remains
in the United States (and that it appears on the face of relator's petition that the
legal title of the land in controversy is still in the United States) and involves
the exercise of judgment and discretion, not reviewable by any court on direct
proceeding either by mandamus or in equity.
18
He prays that the rule to show cause be discharged.
19
Relator demurred to the return and in passing upon it the court observed that
there were two questions in the caseone, whether the facts exhibited a case
for mandamus of the Secretary, that is, 'in apparent defiance of the law, acting
capriciously or arbitrarily or beyond the scope of the administrative authority
confided to him'; the other, the construction of the act of 1894.
20
To the first question the court answered negatively, and to the second question
replied, that 'independently of the question of the propriety of reviewing the
action of the Secretary of the Interior in the pending case, it would seem that
the decision rendered by him was one entirely permissible under the law.' The
demurrer to the return was therefore overruled. Relator electing to stand upon
it, the rule was discharged and the petition dismissed.
21
This action was affirmed by the Court of Appeals.
22
It is manifest from this statement that the petition presents a controversy over
the true construction of the act of 1894. From the act, and the Secretary's
decision, it is apparent that the latter was not arbitrary or capricious, but rested
on a possible construction of the act, and one that the reported decisions of the
Land Department show is being applied in other cases. The direction of the act
that the lands be reserved 'from any adverse appropriation' means necessarily
an appropriation adverse to the state, and this gives color to the Secretary's
view. He could not administer or apply the act without construing it, and its
construction involved the exercise of judgment and discretion. The view for
which the relator contends was not so obviously and certainly right as to make
it plainly the duty of the Secretary to give effect to it. The relator, therefore, is
not entitled to a writ of mandamus. Riverside Oil Co. v. Hitchcock, 190 U. S.
316, 23 Sup. Ct. 698, 47 L. Ed. 1074; Ness v. Fisher, 223 U. S. 683, 32 Sup. Ct.
356, 56 L. Ed. 610.
23
We need not consider the fact that Kennedy, whose application was sustained,
is not a party to the petition (see Litchfield v. Register and Receiver, 9 Wall.
575, 578, 19 L. Ed. 681); nor need we consider whether a more appropriate
remedy will be open to the relator. See Brown v. Hitchcock, 173 U. S. 475, 19
Sup. Ct. 485, 43 L. Ed. 772; Minnesota v. Lane, 247 U. S. 243, 249, 250, 38
Sup. Ct. 508, 62 L. Ed. 1098.
24
Judgment affirmed.
