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THE SECRETARY v. McGARRAHAN.

December 1, 1869

THE SECRETARY
v.
MCGARRAHAN.



ERROR to the Supreme Court of the District of Columbia. On the 3d of December, 1868, one McGarrahan, the alleged purchaser of the claim of a certain Gomez, to a tract of land in California, known as the Panoche Grande, filed a petition in the Supreme Court of the District of Columbia praying that a writ of mandamus might be issued, commanding the Hon. O. H. Browning, Secretary of the Interior, to issue, or cause to be issued, to him, McGarrahan, a patent for the land alleged to be embraced by that claim. The claim of Gomez to this land had been decided in this court to be signally fraudulent and void.*fn1 The right of McGarrahan to demand and receive such a patent as he asked the Supreme Court of the District to order, was placed in his petition upon the provisions of the act of July 23d, 1866, entitled 'An act to quiet land titles in California.'*fn2 'Section 7. That where persons, in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same, according to the lines of their original purchase, and where no adverse right or title (except of the United States) exists, such purchaser may purchase the same, after having such land surveyed under existing laws, at the minimum price established by law, upon first making proof of the facts required in this section, under regulations to be provided by the Commissioner of the General Land Office, &c.: Provided, that the right to purchase herein given shall not extend to lands containing mines of gold, silver, copper, or cinnabar.' A subsequent act disposes, in a different way, of lands containing mines of gold, silver, copper, or cinnabar. The petition of McGarrahan, not averring that proof of the facts had been made under the regulations of the Commissioner of the General Land Office, and without averring that the lands in question were not mineral lands, containing mines, &c., alleged simply that the facts stated in his application were proved, by the relator, to Mr. Browning, the Secretary of the Interior, and that he had found, from the proofs, that the relator, in good faith and for a valuable consideration, purchased the lands from Gomez. Upon the showing made in this petition, the Supreme Court of this District, without notice to Mr. Browning, the Secretary of the Interior, ordered, on the 7th of December, a rule to issue, commanding him to show cause, on the 3d Monday of January, 1869, before the court sitting in general term, why the writ of mandamus prayed for should not issue. On the 26th of January, Mr. Browning filed a return, in the nature of a plea to the jurisdiction of the court, submitting that the court had not jurisdiction of the subject-matter of the case, and could not grant the writ prayed for: 1st. Because the subject-matter was of purely executive cognizance, resting in the judgment and discretion of executive officers, in the ordinary discharge of their official duties. 2d. Because the subject-matter was one in which judgment and discretion were to be exercised; and 3d. Because the issuing of patents for lands was, by statute, the duty of the President of the United States. On the 8th of July a writ of mandamus was issued, directed to Mr. Browning, or to his successor in office, commanding him to convey to McGarrahan the land in question. Four months before, Mr. Browning had retired from the office of Secretary of the Interior, and had been succeeded by the now present incumbent, the Hon. J. D. Cox. And on the same day, the 8th of July, this writ was served upon Mr. Cox, as one of the parties named in the alternative judgment. No proceedings of any kind were taken upon the retirement of Mr. Browning, to revive the suit against his successor, Mr. Cox, or to make him a party, and no notice of the pendency of the case was given to him by the relator or by the court, or any requirement made of him to answer the application on its merits.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Mr. Hoar, Attorney-General, and Mr. Ashton, special counsel, for the Secretary:

The case presented by the record, is:

1st. A peremptory mandamus issued against the head of a department, in a suit instituted against his predecessor, to which the incumbent had never been made, or become, a party.

2d. A peremptory mandamus awarded against the head of a department, in a case arising under laws which it is his duty to administer and execute, upon an ex parte statement of a claimant before his department, without any exhibition, on the part of the government he represents, of the truth of the matter in controversy, and without any opportunity being afforded by the court for such exhibition of the matter thus sought to be subjected to judicial determination; and

3d. A judicial order to the head of a department to issue a patent for lands, which the facts officially known to him might show to be lands that Congress had expressly excepted from the grant made in the 4th section of the act of July 23d, 1866, under which the relator claimed.

No instance of judicial usurpation of authority, so palpable, has been brought to the attention of this court.

In Gaines v. Thompson,*fn3 Miller, J., in delivering the opinion of the court, took occasion to review the previous adjudications upon this subject, and to expound, in terms even clearer than had been before employed, the doctrine they all enunciate, that 'an officer to whom public duties are confided by law is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions.'
The reports of the decisions of this court contain eight cases in all, in which heads of departments and other executive officers were sought to be controlled by this prerogative writ of mandamus; but in only one*fn4 was the attempted control sanctioned by this court. These cases came up from the district.*fn5 In two of them only, the court below issued writs of mandamus. In the first, this court affirmed the judgment; and in the others it reversed the decision of the court below. Of these eight cases, one was against the Postmaster-General;*fn6 two were against the Secretary of the Treasury;*fn7 two against the Secretary of the Navy;*fn8 one against the Public Printer;*fn9 one against the Commissioner of Patents;*fn10 and one against the Commissioner of the Land Office.*fn11
In all of these cases the doctrine is enforced, as a fundamental principle of our political system, that the Judiciary is forbidden to interfere with the exercise of executive discretion; or, as the court express it,*fn12 the writ of mandamus lies only where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion.

2. It is indisputable that the duty imposed upon the executive officers who may be charged with the execution of the statute, under which the relator claims, is not ministerial in its character, within the meaning of these authorities, but is in the highest degree executive, as that term is defined in Mississippi v. Johnson.*fn13

In the case of United States v. The Commissioner of the Land Office,*fn14 where the application was for a mandamus to compel the issuing of a patent, Nelson, J., said, the case 'calls for the exercise of the judicial functions of the officer, and these of no ordinary character. The duty is not merely ministerial, but involves judgment and discretion, which cannot be controlled by this court.'

The right of pre-emption given to the assignees of rejected Mexican grants plainly depends upon a variety of facts and conditions, which must be established to the satisfaction of and according to the rules provided by the Commissioner of the Land Office; whether they purchased in good faith, and for valuable consideration; whether they have used, improved, and continued in the possession of the land in the manner prescribed by the statute; whether any valid adverse title or right exists; whether the land has been properly surveyed; whether the facts have been proved 'under the regulations of the Commissioner of the General Land Office;' whether the lands are within the excepted locality; and, finally, whether the lands contain mines of gold, silver, copper, or cinnabar.

3. Mr. Browning's return was intended to raise a simple question of jurisdiction upon the face of the act of July 23d, 1866. The facts of the case of the relator were not disclosed. Upon that return the court awarded a peremptory mandamus–a final judgment upon a plea in abatement. The court, without being informed, or requiring or desiring information, as to the actual situation of the land, assumed not only that the facts were as the statute required, in order to give a right under it, but that upon those facts nothing was left to the judgment of the Land Department, and a mere ministerial duty devolved upon it to issue a patent to the relator. It is plain that such a judgment is without warrant of law, and void.

4. Great as was the error of the court below in rendering a final judgment in this proceeding as against the defendant, Mr. Browning, its error in rendering such a judgment against his successor, Mr. Cox, was still more flagrant.

The imperative rule of the law of mandamus is that, previously to the making of the application to the court for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the prosecutor to the defendant, who must have refused to comply with such demand, either in direct terms or by conduct from which a refusal can be conclusively implied.*fn15

In addition, the doctrine of this court has limited the power of the courts to issue this writ, to cases of acts required by law of the individual rather than of the officer–a doctrine explained by the court in United States v. Guthrie, and in Kendall's Case.

It might well be in any case, that while a particular incumbent had refused to perform an act required by law, his successor would not refuse, upon proper demand being made. The law, therefore, entitles the successor to the same opportunity to comply or refuse, as was given to the incumbent against whom the suit is brought.

5. This court has, in effect, determined that the duty and power of issuing patents does not devolve upon the Land Department, or upon the Secretary of the Interior, who is vested with supervisory and appellate authority over that department, in such a sense as to render the Commissioner of the Land Office, or the Secretary of the Interior, liable in any case to be proceeded against in this form of action. In United States v. Commissioner of Land Office,*fn16 Nelson, J., in delivering the opinion of the court, took occasion to say, that 'patents are to be signed ...

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