both, are to follow conviction on a criminal prosecution of the owner, importer, consignee, agent, or other person who does the act forbidden by the section, with the intent therein mentioned. The section then goes on to say that "in addition to such fine such merchandise shall be forfeited." The sole meaning of this is that the person owning the merchandise shall lose it by forfeiture, in addition to such possible loss as may come to him by the imposition, if he is the offender, of the pecuniary fine, on the criminal presecution against him. But the merchandise is to be forfeited irrespective of any crim. inal prosecution. The forfeiture accrues to the United States on the commission or omission of the acts specified. No condition is attached to the imposition of the forfeiture. The section does not say that the merchandise shall be forfeited only on the conviction of some offender, whether the owner of the merchandise or one of the other persons named in the section. The person punished for the offense may be an entirely different person from the owner of the merchandise, or any person interested in it. The forfeiture of the goods of the principal can form no part of the personal punishment of his agent. The construction contended for by the claimant would require the imposition of the forfeiture only when a fine was imposed; and not only could the forfeiture not be imposed where imprisonment was awarded, but the language would require that, on a criminal conviction of the agent, the merchandise of the principal should be forfeited, in order to allow of the imposition of any fine on the convicted agent. Again, two persons, a consignee and an agent, aside from the owner, might each of them be guilty, and each of them be separately prosecuted criminally, and, if the first one convicted were fined and the goods were forfeited, the second one tried could not, on conviction, be punished by a fine, because, the merchandise having been already forfeited, it could not be a second time forfeited, and so the requirement of the statute that the merchandise should be forfeited in addition to the imposition of the fine could not be carried out. We conclude, therefore, that the forfeiture imposed by the section is no part of the punishment for the offense. In the case of Coffey v. U.S., 116 U. S. 436, 443, 6 Sup. Ct. Rep. 437, where section 3257 of the Revised Statutes imposed on a distiller for forbidden acts the forfeiture of his distillery, and also a fine and imprisonment, this court held, on the authority of The Palmyra, 12 Wheat. 1, 14, 15, that the forfeituture was to be enforced by a civil suit in rem, and the fine and imprisonment in a criminal proceeding. The decree of the circuit court is affirmed.

(March 19, 1888.)


A suit may be brought by the United States, in any court of competent jurisdiction, to set aside, cancel, or annul a patent for land issued in its name, on the ground that it was obtained by fraud or mistake.


The initiation and control of such a suit lies with the attorney general, as the head of one of the executive departments. FIELD, J., dissenting.


But the right to bring such a suit exists only when the government has an interest in the remedy sought by reason of its interest in the land, or the fraud has been practiced on the government, and operates to its prejudice, or it is under obligation to some individual to make his title good by setting aside the fraudulent patent, or the duty of the government to the public requires such action.

4. SAME.

When it is apparent that the only purpose of bringing the suit is to benefit one of two claimants to the land, and the government has no interest in the matter, the suit must fail.

1Affirming 23 Fed. Rep. 279.


In the case before us the alleged fraud, for which it is sought to annul the patent, is in the survey of a confirmed Mexican grant, on which the patent was issued; and it is charged that, at the time the survey was made, the commissioner of the general land-office, the surveyor general for California, the chief clerk of the latter's office, and the deputy who made the survey were interested in the ownership of the grant, and by fraud made a false location of the land to make it contain valuable ores of tin not within its limits if fairly surveyed.

6. SAME.

Of all the officers here charged, only Conway, the chief clerk, had any real interest in the claim, and he notified the surveyor general of his interest, and refused to have anything to do with the survey. It is nowhere shown that he in any manner influenced the location of the survey, and it is denied under oath by all who took part in making it.

7. SAME.

The fact is much relied on that some of these officers, after the patent was issued, took shares in a joint-stock corporation organized to work the mine, but there is no proof that the shares were a voluntary gift, or were for services rendered in locating the survey; and the fairness of the purchase of these shares after the patent issued is sustained by affirmative testimony.


The fact that this survey was contested at every step by interested parties, and was returned to the surveyor's office for correction, was twice before that office, and twice before the commissioner in Washington, and finally decided after six months' consideration by the secretary of the interior, confirming the decision of the land-office, affords very strong evidence of the correctness and honesty of the survey.


In the Maxwell Land-Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015, we expressed ourselves fully in regard to the testimony necessary to enable a court of chancery to set aside such a solemn instrument as a patent of the United States. It was there said "that when, in a court of equity, it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt." There is no such convincing evidence of fraud in the present case.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District of California.

G. Wiley Wells and Sol. Gen. Jenks, for appellant. appellees.

Wm. M. Stewart, for

MILLER, J. The suit in this case, which was a bill in chancery filed April 10, 1883, in the circuit court for the district of California, purports to be brought by the attorney general on behalf of the United States against the San Jacinto Tin Company, the Riverside Canal Company, and the Riverside Land & Irrigating Company. These corporations are alleged to be in possession of a large body of land, nearly 11 square leagues in extent, for which a patent was issued by the United States on the 26th day of October, 1867, to Maria del Rosario Estudillo de Aguirre, and her heirs and assigns. The object of the bill is to set aside this patent, and have it declared void, upon the ground that the land described in the survey, which description is a part of the patent, is not the land granted by the Mexican government to said Maria, nor that which was confirmed to her under the proceedings before the land commission, and by the judgment of the district court of the United States, and by this court also on appeal. The essential feature of the grievance relied on by the complainant is that this survey was thus located by fraud to include different and more valuable land than that granted by Mexico, and confirmed by the courts, and on account of this fraud it is prayed that the survey and patent be set aside and annulled. Perhaps the nature of this proceeding cannot be better stated than in the language that heads the brief or printed argument of the appellant, who was plaintiff below. It is as follows: "This

brief is intended to establish the following general proposition, viz.: That the lands hereinafter described as patented to Maria del Rosario de Aguirre, and her heirs and assigns, on the 26th day of October, 1867, were obtained from the United States by a fraudulent survey of the lands described therein in violation of the decree of the court; and that the persons engaged in said fraudulent survey were the beneficiaries thereof; and that, by reason thereof, said patent to the same is void, and should be set aside, vacated, and annulled." The case was heard in the circuit court on the bill, answer, replication, and voluminous testimony, by the circuit and district judges sitting together, who concurred in the decree dismissing the bill. The bill sets out a grant to one Maria del Rosario Estudillo de Aguirre of the surplus or "sobrante" of the ranchos of San Jacinto Viejo y Nuevo, or the overplus which remains in the ranchos of Old and New San Jacinto; the survey thereof to commence from the boundaries of Don Jose Antonio Estudillo and Don Miguel Pedrorena. It alleges that this grant was afterwards confirmed by the district court of California on appeal from the land commission. Upon an appeal taken from that court to the supreme court of the United States, its judgment was affirmed. The decision of the land commission was to the effect that the claimant was entitled to five square leagues of land within this sobrante or surplus. The district court, however, held that the claimant was entitled to eleven square leagues, if so much should be found within the sobrante, and to all that was found therein if it were less than that amount. The language of this decree, as set forth in the body of the bill, and affirmed by the supreme court of the United States at its December term, 1863, (U. S. v. D'Aguirre, 1 Wall. 311,) describes the land confirmed as "the sobrante or surplus lands remaining within the boundaries of the tract of land called 'San Jacinto,' as the same are represented and described in the map of said tract contained in the expediente of Miguel Pedrorena filed in this case, and referred to in the grant, over and above certain lands granted to Jose Antonio Estudillo, and certain other lands granted to Miguel Pedrorena, within the aforesaid boundaries, to the extent of eleven square leagues of land; and, if said sobrante or surplus within said boundaries should be less than eleven square leagues, then such less quantity." The bill alleges that the location by survey of the lands confirmed by this decree was not at all within the sobrante of the San Jacinto grant, but that it was located upon other lands than those on which it should have been, because those which were embraced by the survey were valuable as containing ores of tin; and that nearly all the officers engaged in making or establishing it, from and including the commissioner of the general land-office down to the deputy-surveyors, were interested in the claim at the time.

It is alleged that throughout the whole transaction, from the beginning of the effort to have this survey made until its final completion and the issue of the patent, all the proceedings were dictated by fraud, and all the officers of the government below the secretary of the interior who had anything to do with it were parties to that fraud, and to be benefited by it. The principal points upon which this fraud is said to rest are that the land survey was not within the larger exterior boundaries out of which the sobrante of San Jacinto Viejo y Nuevo was to be taken, but that said survey described a tract of land of about the same extent, to-wit, of about eleven square leagues, situated more than six miles at the nearest point, and more than twenty miles at the furthest point, away from the land in fact granted and conceded by Pio Pico, governor, to the grantee; that the survey of said land was never made in the field, nor from any actual measurements of distances or observation or determination of courses in the field, as the law of the land department required, nor according to the directions of the decree confirming said grant; that the plat and survey were made arbitrarily, and without any actual data in the office of the surveyorgeneral of the United States for California, under the direction and dictation

of that officer and one Edward Conway, then chief clerk in charge of that office, and performing the duties of surveyor general, and by one George H. Thompson, a deputy-surveyor acting under the surveyor general and the chief clerk; that it was so made up without any reference to the expediente that accompanied the grant or juridical possession given at the time of the grant, or to the decree, but that it was made solely with reference to securing, surreptitiously and fraudulently, letters patent for the land included and described within the said survey and plat, although the same lies outside of the boundaries of the tract called "San Jacinto;" that the land so surveyed and platted was at that time supposed by said surveyor general and Edward Conway to contain, and did in fact contain, valuable lodes of tin and other mineral ores, and that all this was well known to the defendant, or to persons composing its stockholders, at the time the patent was issued. It is further alleged that Upson, the surveyor general, Conway, the chief clerk in his office, and Thompson, the deputy who was directed to make the survey and did make the plat, and Joseph H. Wilson, the commissioner of the general land-office at Washington, were all interested in and part owners of the claim at the time this survey was made, and at the very time they acted in reference to its final confirmation. Other persons are also said to be inculpated in this fraudulent proceeding, whose names it is not necessary at present to mention. It will thus be seen that the entire foundation for the relief sought in this case rests upon a fraud alleged to have been committed upon the government by its own officers, they being interested in the claim to be surveyed and patented. There is no pretense of any mere mistake in the matter, but, on the contrary, it is asserted that the parties knew exactly what they were doing, and that it was intended to cheat the United States out of valuable mineral ores for the benefit and advantage of those parties and their confederates. The issue is thus narrowed exclusively to the question of fraud.

Another question, however, is raised by counsel for the defendant, which is earnestly insisted upon by them, and which received the serious consideration of the judges in the circuit court; namely, the right of the attorney general of the United States to institute this suit. The question as presented is one surrounded by some embarrassment; but as it is, in some form or other, of frequent recurrence recently, and, if decided in favor of the appellees, will require the dismissal of the case without a judgment by this court upon its merits, we feel called upon to give the matter our attention. It is denied that the attorney general has any general authority under the constitution and laws of the United States to commence a suit in the name of the United States to set aside a patent, or other solemn instrument issued by proper authority. It is quite true that the Revised Statutes, in the title which establishes and regulates the department of justice, simply declares, in section 346, that "there shall be at the seat of government an executive department, to be known as the Department of Justice,' and an attorney general, who shall be the head thereof." There is no very specific statement of the general duties of the attorney general, but it is seen from the whole chapter referred to that he has the authority, and it is made his duty, to supervise the conduct of all suits brought by or against the United States, and to give advice to the president and the heads of the other departments of the government. There is no express authority vested in him to authorize suits to be brought against the debtors of the government, or upon bonds, or to begin criminal prosecutions, or to institute proceedings in any of the numerous cases in which the United States is plaintiff; and yet he is invested with the general superintendence of all such suits, and all the district attorneys who do bring them in the various courts in the country are placed under his immediate direction and control. And, notwithstanding the want of any specific authority to bring an action in the name of the United States to set aside and declare void an instrument issued under its apparent authority, we cannot believe that where a case exists in

which this ought to be done it is not within the authority of that officer to cause such action to be instituted and prosecuted. He is undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the government. If the United States, in any particular case, has a just cause for calling upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of the country must primarily be decided by the attorney general of the United States. That such a power should exist somewhere, and that the United States should not be more helpless in relieving itself from frauds, impostures, and deceptions than the private individual, is hardly open to argument. The constitution itself declares that the judicial power shall extend to all cases to which the United States shall be a party; and that this means mainly where it is a party plaintiff is a necessary result of the well-established proposition that it cannot be sued in any court without its consent. There must, then, be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be reponsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision and control of the attorney general. How, then, can it be argued that if the United States has been deceived, entrapped, or defrauded into the making, under the forms of law, of an instrument which injuriously affects its rights of property, or other rights, it cannot bring a suit to avoid the effect of such instrument, thus fraudulently obtained, without a special act of congress in each case, or without some special authority applicable to this class of cases, while all other just grounds of suing in a court of justice concededly belong to the department of justice, and are in use every day? The judiciary act of 1789, in its third section, which first created the oflice of attorney general, without any very accurate definition of his powers, in using the words that "there shall be appointed a meet person, learned in the law, to act as attorney general for the United States," (1 U. S. St. at Large, 93,) must have had reference to the similar office with the same designation existing under the English law; and, though it has been said that there is no common law of the United States, it is still quite true that when acts of congress use words which are familiar in the law of England, they are supposed to be used with reference to their meaning in that law. In all this, however, the attorney general acts as the head of one of the executive departments, representing the authority of the president in the class of subjects within the domain of that department, and under his control.

In the case of U. S. v. Hughes, 11 How. 552, one Godbee had entered and paid for land at the United States land-office in New Orleans, but had not taken out his patent. Hughes, well knowing this fact, entered, paid for, and received a patent for the same land, the prior entry of Godbee being overlooked by the land-officers. The United States having tendered Hughes his purchase money, the attorney general filed an information on behalf of the United States to repeal the patent. The defendant, Hughes, demurred, on the ground that no authority existed for bringing such a suit; but this court, saying that "it cannot be conceived why the government should stand on a different footing from any other proprietor," overruled the demurrer. When the case afterwards came into this court on appeal from the decree on the final hearing, it said: "It was the plain duty of the United States to seek to vacate and annul the instrument, to the end that their previous engagement might be fulfilled by the transfer of a clear title, the only one intended for the purchaser by the act of congress." 4 Wall. 236. In U. S. v. Stone, 2 Wall. 525, Mr. Justice GRIER, delivering the opinion of the court, said: "A patent is the highest evidence of title, and is conclusive as against the government, and all

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