patent did not cover all the land granted and confirmed, a new patent · was issued for the whole,-the first in 1866 and the last in 1870.

The court say of these two patents: "If the conveyance of 1866 passed the title to the claimants of a part of the land recovered by their confirmed grant, there is no reason why an additional patent should not convey the remainder when the proper officer became satisfied that the first did not convey all that had been confirmed to them." It so happended in this case that, in addition to the land omitted in the first patent, the last patent purported to convey also what was already patented, and the question arose whether this patent covering the whole claim, as well that included in the first patent as that in the last, was on that account invalid. The court said not; "The deeds are not in conflict. If the power of the Land Office was exhausted by the first deed, it was only so as to the land which it included. The legal title to that alone could pass by that patent, and if the title to the land now in question remained in the government, the patent of 1870 was sufficient to convey it." The whole force of the decision lies in the fact that it does not subtract in any way whatever from the right conveyed to the grantee by the first patent, but simply covers land omitted from that patent which was included in the grant. Clearly there was no objection to the issue of a second patent for the land omitted. Indeed, it was the duty of the Department to do so. If three parcels should be confirmed to a claimant and a patent should be issued for only two of them a subsequent patent might be issued for the third one and ought to be. Whilst there might be an objection to issuing a new patent for the whole three, except as to the land not embraced in the original patent, no additional title would be transferred thereby. But that is a very different thing from any attempt to recall a title which has once been passed by a patent issued. If an individual intending to convey three lots should, by mistake, only describe two, he, of course, might make a separate conveyance of the third, or a new conveyance embracing all three, but he could not recall the title which he had originally given. The Land Office may make as many patents as may be necessary to convey all that has been granted and confirmed to a claimant, but that does not give it the right to recall a title that has once passed from it. A recall cannot be accomplished except through regular judicial proceed. ings.

The rule of the Department in reference to the opening of a matter by one Secretary which has been formally adjudicated and closed by his predecessor, is well settled. The almost uninterrupted current of anthorities on this point sustains the general proposition that a Secretary has no power or authority to revise or reverse the final decree of his predecessor in a matter properly before him. 2 C. L. O., 83; (2 Opin. Atty. Genl. 9; Id., 464; 4 Opin., 431; 5 Opin., 29; Id., 123; 9 Opin., 101, 301, 387; 12 Opin., 358; 13 Opin., 35; Id., 226; Id., 457; 15 Peters 401; Sec'y's., Dec., Beaubien & Miranda case, July 28, 1871). That

there may be and are exceptional cases which justify a departure from the general rule is undoubtedly true. Among them is the case where the action of a previous Secretary was without jurisdiction and void; it is, of course, not then binding upon his successor.

It is claimed that the patent under consideration is null and void for the reason that Secretary Schurz had no authority to modify or reverse the action of Commissioner Williamson in approving the Stratton survey. My authority is no greater than his, and if he had no authority to reverse Commissioner Williamson's decision approving the Stratton survey before any patent was issued, I certainly have none to reverse Land Commissioner McFarland's decision approving the Von Licht survey, especially after the patent is issued. If Secretary Teller had no authority to direct the Commissioner to issue a patent on the Von Licht survey, I certainly have none to direct Commissioner Sparks to issue a patent on the Stratton survey.

In view of the earnestness with which it is insisted that the Secreretary of the Interior has not the power to reverse the action of the Commissioner upon the survey of a private land claim pending before him, I deem it proper to pass upon the proposition for the purpose of putting it at rest; at least until it has received an authoritative determination superior to my own.

By various acts of Congress the powers of the Department are clearly defined.

These acts are, so far as it is necessary for me at present to consider them, embodied in the Revised Statutes. Title XI treats of the Department of the Interior, and makes the Secretary of the Interior the head thereof. The second Chapter (Section 441) declares that the Secretary is charged with the supervision of public business relating to many subjects, among which are enumerated "public lands, including mines". The third Chapter (Section 453) provides as follows: "The Commissioner of the General Land Office shall perform, under direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to the private claims of land, and the issuing of patents for all (grants) of land under the authority of the government". The position of the applicants against the authority of the Secretary to review the decision of the Commissioner of the General Land Office rests upon the ground that the action of the Commissioner in passing upon the correctness of surveys of private land claims is a quasi judicial proceeding and therefor not subject to review, as no appeal to the Secretary in such cases is specifically provided. Passing upon the correctness of surveys of private land claims made by subordinate officers necessarily involves the exercise of judgment and may properly be called a quasi judicial proceeding; but it is none the less a proceeding taken in the discharge of an executive duty of the Commissioner,

within the meaning of section 453, and as such is under the direction of the Secretary by the express terms of that section. It is also under the supervision of the Secretary by virtue of section 441, as a proceed. ing relating to the public lands, inasmuch as a govern ment survey of a private claim is necessary to segregate the lands included within the grant from the public domain.

There seems to be some misapprehension as to the meaning of the term "executive duty". The executive duties of any one of the Departments are such as are required of its officers in the administration of the law upon the subjects under its jurisdiction. They are not the less executive duties because they require in their performance the examination of evidence and the exercise of judgment thereon. All execu tive duties which are anything beyond the performance of ministerial acts, involve the exercise of judgment, such as examination, decision and final judgment, but they are not judicial acts in the sense that they can only be the subject of review by judicial tribunals or upon a formal appeal to some higher judicial authority. There is hardly an act of any moment performed in an executive Department which would not, if such were the case, be taken from the supervision and control of its head.

The statutes in placing the whole business of the Department under the supervision of the Secretary, invest him with authority to review, reverse, amend, annul or affirm all proceedings in the Department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands with a just regard to the rights of the public and of priv ate parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exe rcised in the absence of statutory direction may be prescribed by such rules and regulations as the Secretary may adopt. When proceedings affect ing titles to lands are before the Department the power of supervision may be exercised by the Secretary whether or not these proceedings are called to his attention by formal notice or by appeal. It is su fficient that they are brought to his notice. The rules prescribed are de signed to facilitate the Department in the despatch of business, not to defeat the supervision of the Secretary. For example, if, when a patent is about to issue, the Secretary should discover a fatal defect in the proceedings, or that by reason of some newly ascertained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the Attorney-General to institute proceedings for its annul ment, it would hardly be seriously contended that the Secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated which it would be immediately his duty to ask the Attorney-General to take measures to annul. It would not be a sufficient answer against the exercise of his power that no appeal had been taken to him and therefore he was with out authority in the matter.

The case of Butterworth v. Hoe (112 U. S. 50) does not at all conflict with this view. There the words: "supervision and direction" of the Secretary were not held to give jurisdiction to revise the action of the Commissioner of Patents in issuing a patent, for the reason that the law had provided an appeal from his decision in such cases to the supreme court of the District of Columbia. The provision for that mode of review necessarily operated as a limitation to what would otherwise have been the natural meaning of the term "supervision and direction". Said the court, after referring to the legislation on this subject: "Congress has thus provided four tribunals for hearing applications for patents, with three successive appeals, in which the Secretary of the Interior is not included, giving jurisdiction, in appeals from the Commissioner, to a judicial body, independent of the Department, as though he were the highest authority on the subject within it. And to say that, under the name of direction and superintendence, the Secretary may annul the decision of the supreme court of the District, sitting on appeal from the Commissioner, by directing the latter to disregard it, is to construe a statute so as to make one part repeal another, when it is evident both were intended to co-exist without conflict".

The language of the act of July 1, 1864, (13 Stat., 332) which provides for the issue of a patent after the approval of the survey by the Commissioner of the General Land Office, is to be read in connection with the Revised Statutes subsequently adopted, placing all the business relating to the survey of private claims under the direction and supervision of the Secretary.

The argument based on the change of the mere verbiage of the statute of 1849 to the words contained in the Revised Statutes, does not impress my mind. It applies with as much force to the Indian Bureau as to the Land Office. If admitted, the Secretary would be not only deprived, except in one or two instances, of any appellate power over all the Bureaus of the Department, but shorn of any power which renders his supervision and direction effectual. No case has been brought to my attention supporting a construction so directly against the prac tice of the Department, and which, if sustained, would work such a radical change in its organization. On the contrary, running through the decisions of the supreme court, as well after as before the adoption of the Revised Statutes, this appellate power is recognized and asserted as clear and undeniable. Such recognition and assertion is distinctly made in the cases already cited for another purpose. Among numerous cases that of Lee v. Johnson, (116 U. S., page 48,) decided in the October term of 1885, may be cited. In that case, one, Enos Johnson, entered the land in controversy under the homestead laws. On account of certain acts which one Lee contended amounted to an abandonment of the land, a contest was initiated between Johnson and Lee. The Commissioner decided in favor of Johnson and on appeal the decision was reversed by the Secretary of the Interior, and the entry ordered to be canceled. The case coming before the supreme court on appeal,

the court uses the following language: "So in the present case the Secretary of the Interior came to the conclusion, from the evidence returned by the register, that Johnson 'must be considered not as a bona fide homestead claimant acting in good faith, but as one seeking, by a seeming compliance with the forms of law, to obtain a tract of land for his son-in-law who had previously exhausted his homestead privileges, observing that the element of good faith is the essential foundation of all valid claims under the homestead law. Under these circumstances, so far from having exceeded his jurisdiction in directing a cancellation of the entry, he was exercising only that just supervision which the law vests in him over all proceedings instituted to acquire portions of the public land."

Such being the nature and extent of the supervisory and directory authority of the Secretary, he had jurisdiction to revise the action of the Commissioner upon survey of the claim of the City of San Francisco, whenever his attention was called to it, whether in a formal way by appeal, or in any other manner. In point of fact, an appeal was regularly and formally taken from the decision of the Commissioner by the special attorney of the City. It is true that the supervisors, in whom the legislative power of the municipality lies, voted not to appeal from the decision, but the special attorney rightfully regarded the city as a trustee for the lot-holders, to whose benefit the confirmation inured. The concluding terms of that confirmation are: "This confirmation is in trust for the benefit of the lot holders under grants from the pueblo or City of San Francisco, or other competent authority, and as to any residue in trust for the use and benefit of the inhabitants of the City." The appeal of the city attorney, or as it has been called, "notice of the appeal," is in these words:

"IN THE DEPARTMENT OF THE INTERIOR,

"General Land Office.

"The City of San Francisco and its successor, the City and County of San Francisco, in discharge of its trust for the benefit of the lot-holders under grants from the pueblo, town or city of San Francisco, or other competent authority, and for the benefit of the inhabitants of the city, created by the final decree of the circuit court of the United States," "hereby appeals to the Honorable Secretary of the Interior from the decision of the Honorable Commissioner of the General Land Office," etc., approving the Stratton survey.

True, the supervisors passed a resolution characterizing the appeal as unauthorized, but they neither dismissed the appeal, nor did they withdraw their protest against the survey. On the contrary, they passed the following resolution: "Resolved, that the Secretary of the Interior, before whom the matter relating to the boundaries of the pueblo decision which relates to the presidio reservation of San Francisco, is now pending, be requested to take up and decide said case without further delay, and that the officials of this city and county be directed not to ask for further postponement of said cause on behalf of said city;" thus recognizing that the case was pending before the Secretary.