The ground which it is claimed in argument justifies such a decree is that, pending Leitensdorfer's appeal to the commissioner of the general land-office, the delivery by the surveyor general of the approved survey and plat, under the order of the president, was illegal and void, and that by reason thereof the subsequent issue of the patent could not operate as a confirmation or conveyance of the title. But if the order of the president, interrupting the course of the appeal in the land department, and the action of the officers of that department in compliance with it, were illegal, and therefore void, they were and are of no force and efficacy, either at law or in equity, and are not binding on any succeeding incumbents of the offices of commissioner of the general land-office or secretary of the interior. It follows that the case of the complainant, based upon his right to prosecute his appeal, is as complete without such a decree as with it. If the duty of the commissioner of the general land-office to entertain and determine that appeal exists as contended, it is a legal duty. That duty is to take up, consider, and adjudge the rights of the parties in interest, and the entertaining of the appeal is a purely ministerial act, although the questions to be considered in the course of that appeal are to be resolved by the exercise of official discretion and judgment. Nevertheless, it is quite clear, as it has been oftentimes decided, that the duty of entering upon their consideration and proceeding to their determination is strictly ministerial. The remedy in such cases is at law, by means of a writ of mandamus, and not in equity. Ex parte Parker, 120 U. S. 737, 7 Sup. Ct. Rep. 767; Ex parte Brown, 116 U. S. 401, 6 Sup. Ct. Rep. 387. If, to such a writ, issued by a competent court, the officer should make return that he was precluded from entertaining the appeal by reason of the prior action of a predecessor in office, under the order of the president, the question of the sufficiency of that return would be presented to the court issuing the writ, and would involve necessarily the adjudication of the questions mooted in this case. If such a return should, in such a tribunal, be adjudged to be sufficient, then the complainant would be without remedy, for the right which he claims, if it exists, is a legal right cognizable in courts of law, and not a right resting upon any equity within the jurisdiction of chancery courts. If, on the other hand, such a return in such a proceeding should be adjudged to be insufficient, then the complainant would have the remedy which he is here seeking, by a direct and effective process, binding upon the parties whose conduct he is seeking to control. In either alternative, ther fore, it is equally conclusive that the complainant cannot obtain in this cause the relief which he seeks, and which alone is adequate to the redress of the wrong of which he complains.

This conclusion is not disturbed or affected by the assumption that the decision and award of the register and receiver was obtained by corrupt and fraudulent practices for which Craig is responsible. The right of appeal from that decision to the commissioner of the general land-office, if it exists in any case, is not hindered by the fraudulent character of the decision appealed from, and the appeal itself is the mode pointed out by law for the correction of any error that may be shown in the decision complained of, whether that error has been produced by the practice of fraud and corruption, or was merely an honest mistake. The proof of such fraud and corruption does not, as has been already stated, demonstrate error. The decision may be right, not withstanding the fraud, and on the appeal Craig's title, as it now stands upon the approved survey and plat and the patent, may be adjudged to be valid, and any error in it we must assume will be corrected, whether fraudulent or innocent. The question of fraud, therefore, alleged against Craig and the register and receiver, in view of the relief asked, is immaterial.

There is an alternative in which it might be supposed that the question of fraud in procuring the decision of the register and receiver, and thereby obtaining the muniments of title on which Craig's claim now rests, might become material for determination in a judicial cause. That alternative is the

supposition, contrary to that on which the complainant rests his case, that the decision of the register and receiver, the issue of the approved survey and plat, and of the patent based thereon, are final and conclusive upon the department of the interior, and not subject to the appeal taken to the commissioner of the general land-office. It may be asked whether such a determination of inferior officers of the land department, involving private rights and interests of great magnitude and value, infected with fraud, is to be protected from attack by judicial process. We are told that "equity has always had jurisdiction of fraud, misrepresentation, and concealment, and it does not depend upon discovery." Jones v. Bolles, 9 Wall. 364, 369. That equity will interfere by a proper proceeding where the executive power has exhausted itself. Commissioner v. Whiteley, 4 Wall. 522; Gaines v. Thompson, 7 Wall. 347; Litchfield v. Register, etc., 9 Wall. 575; Samson v. Smiley, 13 Wall. 91; Johnson v. Towsley, Id. 72; Warren v. Van Brunt, 19 Wall. 646. "That the officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions." Shepley v. Cowan, 91 U. S. 340; Moore v. Robbins, 96 U. S. 530. This doctrine is undoubtedly true, but its limitation is found in the statement that such rulings "may be reviewed and annulled by the courts when a controversy arises between parties founded upon their decisions." The jurisdiction to determine such questions does not arise in the courts of the United States by virtue of any power of supervision given to them whereby they have a right to control, to correct, to reverse, and to dictate the procedure and action of executive officers within the scope of the duties confided to them by law. No such power of revision is given, and none such can be exercised. Such a function is not judicial; it is administrative, executive, and political in its nature. The abstract right to interfere in such cases has been uniformly denied by judicial tribunals, as breaking down the distinction so important and well defined in our system between the several, separate, and independent branches of the government; and where the character of the interference sought falls within that designation, the application for it has been uniformly denied.

The case is different in a litigation between parties involving a contest of conflicting claims, where, under some known head of jurisdiction, definite relief or redress may be conclusively administered in favor of one and against the other party. In such cases, the right at law or in equity belongs to one or the other of the contestants; to which of the two it should be awarded is the judicial question involved. The solution of that question may depend upon the effect to be given, either at law or in equity, to some action or determination of the executive officers charged in the first instance with duties of administration in connection with the subject of the litigation, such as, for example, the officers of the land department in the administration of the system of law in reference to the public domain of the United States. It is in such cases that the question has most frequently arisen. In those cases it has, indeed, been held, as claimed, that if the executive officer has made a mistake of law in his administration; if he has exercised power without authority of law; if his determination has been procured by the fraudulent practices of one party upon the officer or upon the opposite party; or if the officer has himself fraudulently decided in favor of one and against the other, a court of justice will give effect to the rights of the parties as between themselves, notwithstanding the errors and the frauds alleged and shown. The principle is that "the decision of the officers of the land department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, ex

cept when considered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice when the title afterwards comes in question. But that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have by a mistake of the law given to one man the land which on the undisputed facts belonged to another, to give appropriate relief." Moore v. Robbins, 96 U. S. 530, 535; Shepley v. Cowan, 91 U. S. 330; Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U. S. 473; Vance v. Burbank, Id. 514; Quinby v. Conlan, 104 U. S. 420, 425; White v. Cannon, 6 Wall. 443; Silver v. Ladd, 7 Wall. 219, 228.

In Smelting Co. v. Kemp, 104 U. S. 636, 647, it was said: “If in issuing a patent its officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and even there his complaint cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent; and he inust possess such equities as will control the legal title in the patentee's hands."

And in Silver v. Ladd, 7 Wall. 219, 228, the doctrine was stated in these terms: "The relief given in this class of cases does not proceed upon the ground of annulling or setting aside the patent wrongfully issued. That would leave the title in the United States, and the plaintiff might be as far from obtaining justice as before. And it may be well doubted whether the patent can be set aside without the United States being a party to the suit. The relief granted is founded on the theory that the title which has passed from the United States to the defendant inured in equity to the benefit of the plaintiff; and a court of chancery gives effect to this equity, according to its forms, in several ways.'


But if the court, by reason of other circumstances, is powerless to adjust and adjudge with final and conclusive effect the opposing claims of the litigating parties, so as to award to one what has been wrongfully given to another, then the mere circumstance that the official act of the executive authority is challenged for error of law or for fraud does not and cannot constitute the ground of an independent jurisdiction. It is only as necessarily incident to the proper decision of a case at law or in equity between parties regularly in court for a determination of their rights as between themselves that such questions can be discussed or decided. Where the whole force of the judgment is spent upon a mere declaration that the act in question is void for want of authority, or voidable by reason of being infected with fraud, and it cannot, consistently with known principles of law or equity, go further by changing the relations between the parties to the suit towards each other, or towards the subject-matter of the litigation, the case is not judicial. This is precisely the present case. Here a declaration by a decree that the decision of the register and receiver was fraudulent, and therefore voidable; that the action of the president in ordering the issue of the approved survey and plat by the surveyor general of Colorado, and its delivery in pursuance thereof, and the subsequent issue of the patent to Craig, were without warrant of law, and therefore void absolutely, -does not decide the controversy raised by Leitensdorfer, nor settle and adjudge the rights of any of the parties thereto. Nor does it, as we have already shown, remove any obstacles which have been wrongfully and unjustly interposed by the defendant to the prosecution in another forum of the rights which the complainant seeks to recover. It is entirely inefficacious for any such result, because, as already intimated, if the acts complained of are, as complainant contends, void, as being without authority of v.8s.c.-7

law, then they can have no legal effect whatever, and cannot be set up by the officers of the department of the interior as reasons for refusing to entertain and determine the appeals of Leitensdorfer from the decision of the register and receiver to the commissioner of the general land-office. If, in point of fact, such a right of appeal is secured to him by the law, and the officer whose duty it is to hear and determine it refuses without just reason so to do, the proper remedy is by a writ of mandamus, and not by a bill in equity.

But it is shown in this record that Leitensdorfer, in pursuance of an interlocutory order of the circuit court, and as a condition on which the original injunction was granted, in June, 1877, made his application to the supreme court of the District of Columbia for a mandamus against the commissioner of the general land-office, to require him to proceed with the hearing of the appeals alleged to be pending before him, and that his application was denied by that court; and he alleges that he did not appeal from that judgment, because he was advised by counsel that no appeal would lie from such a judgment. But this is not sufficient to confer jurisdiction upon a court of equity. We are not called upon in this cause to decide whether the judgment of the supreme court of the District of Columbia at special term is or is not erroneous, nor whether an appeal would lie from it, nor whether by law Leitensdorfer is entitled to be heard before the commissioners of the general land-office upon his appeal from the decision of the register and receiver. What we do say, and all we say, is that if he is entitled to such an appeal his remedy is not by a bill in equity.

For these reasons the decree of the circuit court is reversed, and the cause remanded, with instructions to dismiss the bill; and it is so ordered.

STATE OF MISSOURI ex rel. HARSHMAN v. WINTERBOTTOM and others. (October 31, 1887.)


Suit was brought by the state, on relation of the owner of county warrants, finding no money in the county treasury to pay his warrants, against the tax collector and his surety, alleging that the collector had improperly received other warrants in payment of taxes, and had thus intentionally prevented any money coming into the treasury. The collector had settled according to law with the county for taxes collected, and the county court had approved his accounts. Held, that there was no relation of contract or legal obligation between the owner of the warrants and the collector to sustain the action.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

T K. Skinker, for plaintiff in error. Clinton Rowell and John W. Dryden, for defendants in error.

MILLER, J. This is an action brought in the circuit court of the United States for the Eastern district of Missouri against John Winterbottom as principal, and the other defendants as sureties, on a bond given by Winterbottom to the state of Missouri as collector of the revenue of the county of Knox, in said state. No copy of the bond is found in the record, but the allegation of the petition in regard to the substance of it is "that on the thirtieth day of December, 1878, said Winterbottom as principal, and the other defendants as sureties, executed a bond, whereby they acknowledged themselves to be held and firmly bound unto the state of Missouri in the sum of $100,000, for the payment of which they bound themselves, their heirs, executors, and administrators; that said bond was conditioned that said Winterbottom should faithfully and punctually collect and pay over all state, county, and other revenue for two years next ensuing the first day of March, 1879, and should in all things faithfully perform all the duties of the said office of collector ac

cording to law, and that said bond was, on the day last aforesaid, approved by the said county court."

The petition also declares "that by law it was the duty of said Winterbottom, as such collector, to collect all county taxes of said county in money, except that he was authorized and required to receive any county warrants issued by said county, when presented to him by the legal holder thereof, in payment of any county tax existing against said holder and accruing to said county; that he was not required or authorized to receive any such warrant from any one other than the legal holder thereof, and not from such holder except in payment of a county tax assessed against him; that the legal holder of a county warrant is the person to whom the same is issued as payee, or to whom the same has been transferred by one or more assign nents in full; that by law all county warrants must be made payable to a person therein named, and no county warrant can be made payable to bearer, and any county warrant payable to bearer is null and void."

The petition also alleges that Harshman, for whose use the action is brought, was the owner of two county warrants,-one for the sum of $3,315.05, and the other for the sum of $6,821.74,-with interest, which he had presented to the treasurer of said county for payment, and it was refused because there was no money in the treasury out of which they could be paid. This fact was certified on the back of the warrants, which the treasurer entered in his registry of warrants as required by the statute of Missouri. This occurred on the eighteenth day of March, 1879, and the petition filed June 13, 1883, alleges that no part of said warrants has been paid, though demand had been made for said payment. It is then alleged that Winterbottom, intending to prevent any money coming into the treasury of the county out of which these warrants could be paid, had, in the collection of the taxes, received other county warrants in payment, and had thus collected and given receipts to all the tax-payers for their taxes. This action of Winterbottom, he alleges, was an unlawful violation of his duty as collector of the county, and a breach of his official bond. He then describes with more minuteness the particulars in which this conduct was a violation of his official duty, alleging that by the law the collector had no authority to receive any warrant in payment of taxes which was not originally issued to the man who offered it in such payment, or was regularly assigned to him, and that even such holder could only use it to pay his own taxes. The petition alleges a disregard of this provision of the law by the collector, who "did, during his said term of office, unlawfully and wrongfully receive from divers and sundry persons, in payment of taxes of said county, divers and sundry warrants of said county, the said persons not being the legal holders thereof, because the said warrants were in no case payable to such persons, and were in no case transferred to such persons by assignment in full, and said persons not being entitled to pay the same in for taxes, because no taxes were assessed or existing against them; that said Winterbottom, upon receiving such warrants, gave receipts discharging from further payment the persons against whom said taxes were so assessed and existing, to an amount equal in each case to the amount of warrants so received; that from the eighteenth day of March, 1879, to the first day of March, 1881, said Winterbottom collected all the county taxes of and in said county in warrants, as aforesaid, and not otherwise; that all the tax-payers of said county from whom any county taxes were due during said period have received from said Winterbottom full acquittances without the payment of any money, and without any payment except in warrants as aforesaid."

The petition then states "that the said Winterbottom, as required by law, once in each month during the said period, made settlements to the clerk of said county court of the county taxes so collected by him, and delivered to the treasurer of said county the said warrants so received as aforesaid; that the said Winterbottom, as such collector, and the said treasurer, at various times

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