governor of the state], cause a patent to be Issued to the state therefor; and on that patent, the fee simple to said lands shall vest in the said state." (9 Stat. at L. 519, chap. 84; Rogers Locomotive Mach. Works v. American Emigrant Company, 164 U. S. 559, 574 [41: 552, 559]; Michigan Land & Lumber Company v. Rust, 168 U. S. 589, 592 [42: 591, 592]).

In this case the record discloses no patent, and therefore no passing of the legal title. Whatever equitable rights or title may have vested in the state, the legal title remained in the United States.

Until the legal title to public land passes from the government inquiry as to all equitable_rights comes within the cognizance of the Land Department. In United States v. Schurz, 102 U. S. 378, 396 [26: 167, 172], which was an application for a mandamus to compel the delivery of a patent, it was said:

"Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

While a delivery of the patent was or[477]dered, yet that was so ordered because it appeared that the patent had been duly executed, countersigned, and recorded in the proper land records of the Land Department, and transmitted to the local land office for delivery, and it was held that the mere manual delivery was not necessary to pass the title, but that the execution and record of the patent were sufficient. And yet from that conclusion Chief Justice Waite and Mr. Justice Swayne dissented. The dissent announced by the chief justice only emphasizes the proposition laid down in the opinion, as heretofore quoted, that so long as the legal title remains in the government all questions of right should be solved by appeal to the Land Department, and not to the courts. See, in support of this general proposition, Michigan Land & Lumber Co. v. Rust, supra (which, like the present case, arose under the swamp land act), and cases cited in the opinion. Indeed, it may be observed that the argument in behalf of appellant was avowedly made to secure a modification of that opinion. We might well have disposed of this case by a simple reference to that decision; but in view of the earnest challenge by counsel for appellant of the views therein expressed, we have re-examined the question in the light of that argument and the authorities cited. And after such re-examination we see no reason to change, but on the contrary we reaffirm the decision in Michigan Land & Lumber Co. v Rust. As a general rule no mere matter or administration in the various executive departments of the government can, pending such administration, be taken away from such departments and carried into the

courts; those departments must be permit ted to proceed to the final accomplishment of all matters pending before them, and only after that disposition may the courts be invoked to inquire whether the outcome is in accord with the laws of the United States. When the legal title to these lands shall have been vested in the state of Oregon, or in some individual claiming a right superior to that of the state, then is inquiry permissible in the courts, and that inquiry will appropriately be had in the courts of Oregon, state or Federal.

We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the District to *as-[478] sert his rights as against a 'proceeding in the Land Department, or when the department refuses to act at all. United States v. Schurz, supra, and Noble v. Union River Logging Railroad Co. 147 U. S. 165 [37: 123], are illustrative of these exceptional


Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to the parties interested, any more than the power of a court to determine legal and equitable rights permits action without notice to parties interested.

"Power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and pay. ment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the commissioner than he can be de prived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected' whenever the matter is presented so that the judiciary can act upon it." (Cornelius v. Kessel, 128 U. S. 456, 461 [32: 482, 484]. "The government holds the legal title in trust for him, and he may not be dispossessed of his equitable rights without due process of law. Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the Land Department." Orchard v. Alexander, 157 U. S. 372, 383 [39: 737, 741].

But what we do affirm and reiterate is that power is vested in the departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as a general rule, be resorted to only when the legal title has passed from the government. When it has so passed the litigation will proceed, as it generally ought to proceed, in the locality where the property is situate, and not here, where the administrative functions of the government are carried on.

In the case before us there is nothing to show that proper *notice was not given; that[479] all parties in interest were not fully heard, or that the adjudication of the administrative department of the government was not

justified by the facts as presented. The exhibits to the complaint and were exactly
naked proposition upon which the plaintiff alike, except that each contained a descrip
relies is that upon the creation of an equita- tion of the particular piece of land to which
ble right or title in the state the power of it related. By the contracts the Southern
the Land Department to inquire into the va-Pacific Company agreed to sell and Darwin
lidity of that right or title ceases. That C. Allen to buy the land described in each
proposition cannot be sustained. Whatever
rights, equitable or otherwise, may have
passed to the state by the approval of List
No. 5 by Secretary Teller, can be determined,
and should be determined, in the courts of
Oregon, state or Federal, after the legal title
has passed from the government. The de-
cree of the Supreme Court of the District of
Columbia, sustained by the opinion of the
Court of Appeals of the District, was right,
and is affirmed.

Mr. Justice McKenna takes no part in the decision of this case.

DARWIN C. ALLEN, Piff. in Err.,




(See S. C. Reporter's ed. 479–492.) Time of allowance of writ of error to state court-decision upon grounds independent of Federal question-power to review.

1. A writ of error from this court to a state

court may be allowed within two years from the final decree. This rule was not changed by the 6th section of the act of 1891.

2. When the state court decided the case upon sufficient grounds wholly independent of the Federal questions involved, this court will not consider such Federal questions.

3. When the decree of the state court is adequately sustained by an independent, nonfederal question, there is no issue presented on the record which this court has power to review.

[No. 144.]

contract upon the following conditions: Al-
len paid in cash a stipulated portion of the
purchase price and interest at seven per cent
in advance for one year on the remainder.
He agreed to pay the balance in five years
from the date of the contracts. The de-
ferred payment bore interest at seven per
centum per annum, which was to be paid at
the end of each year. He moreover bound
himself to pay any taxes or assessments
which might be levied on the property. The
contracts provided:

"It is further agreed that upon the punct-
ual payment of said purchase money, interest,
taxes, and assessments, and the strict and
faithful performance by the party of the sec-
ond part (Allen, the purchaser), his lawful
representatives or assigns, of all the agree-
ments herein contained, the party of the first
part (the Southern Pacific Company) will,
after the receipt of a patent therefor from
the United States, upon demand and the sur-
render of this instrument, execute and de-
liver to the party of the second part, his
heirs and assigns, a grant, bargain, and sale
deed of said premises, reserving all claim of
the United States to the same as mineral

There was a stipulation that the pur-
chaser should have a right to enter into pos-
session of the land at once, and by which he
bound himself until the final deed was ex-
ecuted not to injure the property by denud-
ing it of its timber. The contracts con-
tained the following:

Pacific Company) claims all the tracts here-
"The party of the first part (the Southern
inbefore described, as part of a grant of
lands to it by the Congress of the United
States; that patent has not yet issued to it
for said tracts; that it will *use ordinary dil-[481]
igence to procure patents for them; that, as

Argued January 17, 1899. Decided April 3, in consequence of circumstances beyond its


ERROR to the Supreme Court of the

control, it sometimes fails to obtain patent
for lands that seem to be legally a portion of
its said grant, therefore nothing in this in-

I guaranty or

of that court affirming the judgment of the trial court condemning the defendant, Darwin C. Allen, to pay certain instalments upon contracts for the sale of land within a certain time, or that he be forever barred and foreclosed of all right or interest in said lands, and that said contracts be declared void, in an action commenced by the Southern Pacific Railway Company, plaintiff, against Darwin C. Allen. Dismissed for want of jurisdiction.

See same case below, 112 Cal. 455.

Statement by Mr. Justice White: 10]. This suit, commenced by the Southern Pacific Company (the defendant in error here), against Darwin C. Allen, who is plaintiff in error, was based on eighty-four written contracts entered into on the first day of February, 1888. All these contracts were made

assurance that patent or title will be pro-
cured; that in case it be finally determined
that patent shall not issue to said party of
the first part for all, or any, of the tracts
herein described, it will, upon demand, re-
pay (without interest) to the party of the
second part all moneys that may have been
paid to it by him on account of any of such
tracts as it shall fail to procure patent for,
the amount of repayment to be calculated at
the rate and price per acre, fixed at this date
for such tracts by said party of the first part,
as per schedule on page 3 hereof; that said
lands being unpatented, the party of the first
part does not guarantee the possession of
them to the party of the second part, and will
not be responsible to him for damages, or
cost, in case of his failure to obtain and keep
such possession."

It was averred that after the execution of

the contracts Allen, the purchaser, had entered into possession of the various tracts of land, and so continued up to the time of the Commencement of the suit. The amount claimed was three annual instalments of interest on the deferred price which it was alleged had become due in February 1889, 1890, and 1891. The prayer of the complaint was that the defendant be condemned to pay the amount of these respective instalments within thirty days from the date of decree, and in the event of his failure to do so that himself, his representatives and assigns, "be forever barred and foreclosed of all claim, right, or interest in said lands and premises under and by virtue of said agreements, and be forever barred and foreclosed of all right to conveyance thereof, and that said contracts be declared null and void."

made by the plaintiff as to its title other
than those which were recited in the con-
tract; that the defendant had not lost the
opportunity to sell at an advanced price, as
alleged in the cross-complaint. As to the
title to the land embraced in the contracts,
the facts were found to be as follows:
"That the lands and premises therein de-
scribed were portions of the public domain
of the United States and were granted to
plaintiff by an act of the Congress of the
United States, entitled 'An Act Granting
Lands to Aid in the Construction of a Rail-
road and Telegraph Line from the States of
Missouri and Arkansas to the Pacific Coast,'
approved July 27, 1866. That all of said
lands, save sec. 5, in township 23 south,
range 19 east, M. D. M., are situated within
a belt more than 20 miles and less than 30
miles from plaintiff's railroad, generally
known as the indemnity belt; the said sec.
being within 20 miles of said railroad.

"That the loss to plaintiff of odd-numbered sections within said granted limits, i e., within 20 miles of said railroad, because of the various exceptions and reservations in said act provided for, is fully equal to all the odd-numbered sections within said indemnity belt.

"That on March 19, 1867, an order was made by the Secretary of the Interior of the United States withdrawing or purporting to withdraw from sale or settlement under the laws of the United States, all of said lands situated in said indemnity belt; and that on August 15, 1887, another order was made by said Secretary of the Interior, revoking, or purporting to revoke, said first-named order, and restoring said lands to the public do

The defendant, whilst admitting the execution of the contracts, denied that he had ever taken possession of any of the land, and charged that the contracts were void because at the time they were entered into and up to the time of the institution of the suit the seller had no ownership or interest of any [482]*kind in the land, and therefore that no obligation resulted to the buyer from the contracts. By way of cross-complaint it was alleged that the defendant had been induced to enter into the contracts by the false and fraudulent representations of the complainant that it had a title to or interest in the property; that, in consequence of the error of fact produced by these misrepresentations of the plaintiff, the defendant had paid the cash portion of the price and the interest in advance for one year on the deferred instalment; that, owing to the want of all title to or interest in the land on the part of the complain-main for the usual sale and settlement thereant, the defendant had been unable to take of. The first said order of withdrawal is set possession thereof, and that some time after forth in vol. — of 'Decisions of the Secretary the contracts were entered into the defend- of the Interior' at p.-, and the said second ant had an opportunity to sell the land for a order in vol. 6 of said 'Decisions' at pp. 84-92; large advance over the amount which he had and which said orders as so set forth are here agreed to pay for it, which opportunity was referred to, and make a part of this finding. lost in consequence of the discovery of the fact that the complainant had no title what- That plaintiff is the owner of said lands in ever to the property. The prayer of the fee under the provisions of said act of Concross-complaint was that the moneyed de- gress; that patents or a patent therefor have mand of the plaintiff be rejected; that the not yet been issued to plaintiff by the gov ernment of the United States; that it has contracts be rescinded, and that there be a judgment against the plaintiff for the not been finally determined that patents or amount paid on account of the purchase price a patent shall not issue therefor, or for any and for the damage which the defendant had part thereof, but proceedings are now pendsuffered by reason of his failure to sell the ing before the proper department of the govproperty at an advanced price. The com- ernment of the United States, instituted by plainant put the cross-complaint at issue by plaintiff, to obtain patents or a patent for[483] denying that it had made any representa- said lands and premises, and the whole theretions as to its title to or interest in the land of. That plaintiff has not been guilty of any except as stated in the contracts. It denied want of ordinary diligence in instituting or that at the time of the contracts it had no in-prosecuting said proceedings to obtain said terest in the land, or that the defendant had patents or patent." been prevented from taking possession or had been prevented from selling at an advanced price because of a want of title. Upon these issues the case was heard by the trial court, which made a specific finding of fact embracing, among other matters, the following: That the contracts sued on had been entered into as alleged and the instalments clained thereunder were due despite demand; that no representations had been

There was a decree allowing the prayer of the complaint and rejecting that of the crosscomplaint. On appeal the case was first heard in Department No. 1 of the supreme court of California, and the decree of the trial court was in part reversed. In accordance with the California practice the cause was transferred from the court in department to the court in banc, where the decree of the trial court was affirmed. (112 Cal.


To this decree of affirmance this writ| quoted relates exclusively to writs of error of error is prosecuted.

Messrs. Wilbur F. Zeigler and Edward R. Taylor for plaintiff in error.

Messrs. Maxwell Evarts and William F. Herrin for defendant in error.

[484] *Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

It is asserted that the record is not legally in this court because the writ of error was allowed by the chief justice of the state after the expiration of the time when it could have been lawfully granted. It was allowed within two years of the decree by the state court, but after more than one year had expired. The contention is that writs of error from this court to the courts of the several states cannot now be lawfully taken after the lapse of one year from the final entry of the decree or judgment to which the writ of error is directed.

This rests on the assumption that the act of March 3, 1891 (26 Stat. at L. 826), not only provides that writs of error or appeals in cases taken to the Supreme Court from the circuit courts of appeals created by the act of 1891, shall be limited to one year, but also fixes the same limit of time for writs of error or appeal in cases taken to the Su[485]preme Court from the circuit and district courts of the United States, thereby repealing the two years' limitation as to such circuit and district courts previously established by law. (Rev. Stat. § 1008.) As this asserted operation of the act of 1891 produces a uniform limit of one year for writs of error or appeals as to all the courts of the United States, in so far as review in the Supreme Court is concerned, the deduction is made that a like limit necessarily applies to writs of error from the Supreme Court to state courts, since such state courts are (Rev. Stat. § 100%) subject to the limitation governing judgments or decrees of "a court of the United States." The portion of the act of 1891 from which it is claimed the one year limitation as to writs of error and appeal from the Supreme Court to all the courts of the United States arises is the last paragraph of section 6 of that act. The section of the act in question in the portions which precede the sentences relied upon, among other things, defines the jurisdiction of the circuit courts of appeals established by the act of 1891, and determines in what classes of cases the jurisdiction of such courts is to be final. After making these provisions the concluding part of section 6 provides as follows:

"In all cases not herein before, in this section, made final, there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs. But no such appeal shall be taken or writ of error sued out unless within one year after the entry of the order, judgment, or decree sought to be reviewed.'

or appeal in cases taken to the Supreme Court from the circuit courts of appeals. The statute, in the section in question, having dealt with the jurisdiction of the circuit courts of appeals and defined in what classes of cases their judgments or decrees should be final and not subject to review, follows these provisions by conferring on the Supreme Court the power to review the judg. ments or decrees of the circuit courts of appeals, not made final by the act. To construe the section as relating to or controlling the review by *error or appeal, by the Su-[486] preme Court, of the judgments or decrees of circuit or district courts of the United States, would not only disregard its plain letter but do violence to its obvious intent. Relating only, then, to writs of error or appeal from the Supreme Court to the circuit courts of appeals, it follows that the limitation of time, as to appeals or writs of error, found in the concluding sentence, refers only to the writs of error or appeal dealt with by the section, and not to such remedies when applied to the district or circuit courts of the United States, which are not referred to in the section in question. This is made manifest by the statement, not that all appeals or writs of error to the Supreme Court from all the courts of the United States shall be taken in one year, but that "no such appeal shall be taken unless within one year," etc. If these words of limitation were an independent and separate provision of the act of 1891, thereby giving rise to the implication that the words "no such appeal or writ of error" qualified and limited every such proceeding anywhere referred to in the act of 1891, the contention advanced would have more appar ent force. As, however, this is not the case, and as, on the contrary, the words "no such appeal or writ of error" are clearly but a portion of section 6, it would be an act of the broadest judicial legislation to sever them from their connection in the act in order to give them a scope and significance which their plain import refutes, and which would be in conflict with the meaning naturally begotten by the provision of the act with which the limitation as to time is associated. Nor is there anything in section of the act of 1891, destroying the plain meaning of the words "such appeal or writ of error" found in the concluding sentence of section 6. The language of section 4 is as follows:

"All appeals by writ of error or otherwise, from said district courts, shall only be subject to review in the Supreme Court of the United States or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error or otherwise, from the existing circuit courts shall be had only in the Supreme Court of the United States or in the circuit courts of appeals hereby established *accord-[487] ing to the provisions of this act regulating the same."

This section refers to the jurisdiction of the courts created by the act of 1891, and to the changes in the distribution of judicial

It is apparent that the language just' power made necessary thereby. If the con

unchanged the limitation as to the time within which error might be prosecuted to the courts whose practice in this particular governed the practice in state courts, irresistibly warrants the inference that it was intended that the practice in the state courts as to the time of suing out writs of error should continue unaltered. The writ of error in this case having been allowed within two years from the final decree, was therefore seasonably taken.

cluding words of section 4, "according to the provisions of this act regulating the same," were held to govern the time for writs of error or appeal to the Supreme Court from the district or circuit courts of the United States, the argument would not be strengthened, since there is no provision in the act governing the time for such writs of error or appeal. The contention that Congress cannot be supposed to have intended to fix two distinct and different limitations for review by the Supreme Court, one of two years as We are brought, then, to consider whether to the circuit and district courts of the there arises on the record a Federal question United States, and the other of one year as to within the intendment of Revised Statutes, the circuit courts of appeals, affords no ground § 709. The claim is that two distinct Fedfor disregarding the statute as enacted, and eral issues are presented by the record or are departing from its unambiguous provisions necessarily involved therein. They are: upon the theory of a presumed intent of Con- First. That by a proper construction of the gress. Indeed, if it were conceded that the act of Congress granting land to the railroad provisions of section 4 referred to the pro- (14 Stat. at L. 292, chap. 278), no title to cedure or limit of time in which appeals or lands which were beyond the place limits, but writs of error could be taken, in cases brought in the indemnity limits, passed to the railto the Supreme Court, from the circuit or dis-road until approved selections of such lands trict courts of the United States, such con- had taken place, hence that it was not only cession would be fatal to the contention which drawing in question the validity of an auare considering, for this reason. The thority exercised under the United States,[489] concluding portion of section 5 of the act of but also denying a privilege or immunity 1891 is as follows: claimed under the statute of the United States to decide that the railroad had before such approved selection any right to contract to sell the lands in question. Second. That it was drawing in question the validity of an authority exercised under a law of the United States, and denying a privilege or immunity claimed under such law to hold that the right of the railroad to the lands in question had not been irrevocably adversely determined by the action of the Secretary of the Interior, revoking his previous action withdrawing such lands, even although at the time of such cancelation of the prior general withdrawal, there were pending in the Land Department claims of the railroad to the land in question which at that time were not finally disposed of.


"Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases."

Whilst this language clearly relates to jurisdictional power, and not to the mere time in which writs of error may be taken, yet the same reasoning which would impel the concession that section 4 related to procedure and not to jurisdictional authority would give rise to a like conclusion as to the provision in section 5 just quoted. It follows, therefore, that the only reasoning by which it is possible to conclude that the act of 1891 was intended to change the limit of time in which writs of error could issue from the Supreme [488]Court to the circuit *or district courts, or in which appeals could be taken from such courts to the Supreme Court, would compel to the conclusion that the act of 1891 had expressly preserved the two years' limitation of time then existing as to writs of error from state courts to the Supreme Court.

Conceding arguendo only that the conten tions thus advanced would give rise to the Federal questions as claimed, it becomes wholly unnecessary to consider them if it be disclosed by the record that the state court rested its decision upon grounds wholly independent of these contentions, and which grounds are entirely adequate to sustain the judgment rendered by the state court without considering the Federal questions asserted to arise on the record. McQuade v. Trenton, 172 U. S. 636 [ante, 581]; Capital Bank v. Cadiz Bank, 172 U.S. 425 [ante, 502].

From the conclusion that the sixth section of the act of 1891 did not change the limit of two years as regards the cases which could be taken from the circuit and district courts of the United States to the Supreme Court, it follows that the act of 1891 did not operate to reduce the time in which writs of error In inquiring whether this is the case we could issue from the Supreme Court to the are unconcerned with the conclusions of the state courts. That period was two years, in trial court, or with those of a department of analogy to the time limit established by stat- the supreme court of California, and consider ute with reference to writs of error to the dis-only the final action of the supreme court of trict and circuit courts of the United States, which courts, at the time of the passage of the act of 1891, answered to the designation of "a court of the United States" contained in section 1003 of the Revised Statutes, regulating the subject of writs of error to state courts. The circumstance that Congress, in creating a new court of the United States, affixed a different limitation as to the time for prosecuting error to such court and left

the state in disposing of the controversy now
before us. A reference to the opinion of the
supreme court of California makes patent
the fact that that court rested its decision
solely upon a construction of the contract,
and therefore that it decided the case
upon grounds wholly independent of the
Federal questions now claimed to be in-
volved. The court held that the contract dis-
closed that both parties dealt with reference

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