United States ex rel. Champion Lumber Co. v. Fisher

delivered the opinion of the court

This is a petition for the allowance of a writ of error to the Court of Appeals of the District of Columbia to review' the judgment of that court affirming the judgment of- the Supreme Court of the. District of Columbia, dismissing the petition of the Champion Lumber Company against the Secretary of the Interior and the Commissioner of the General Land Office.

It appears that on April 26,1910, a petition was filed by the petitioner in the Supreme Court of the District of Columbia praying for a writ of mandamus against the Secretary of the Interior and the Commissioner of the General Land Office to issue a patent for the land hereinafter referred to. The grounds of the petition were that the Lumber Company was the owner of certain lands which .had been finally entered under the homestead laws by one Lucy Johns, from whom the petitioner derived title; that the only authority left in the Land Department on the facts set forth was to issue a patent for the land,

On September 17, 1897, Lucy Johns made entry under the homestead laws at Jackson, Mississippi, of certain land subject to entry, the papers showing that she was qualified to make the entry, which showing has not been questioned; on September 24, 1902, she having made prima facie proof of compliance with the requirements of the homestead laws, final certificate and receipt were issued to her, and the proof was, forwarded to the Com-missioxier of the General Land Office at Washington during October of that year. On January 15, 1903, she conveyed all her interest in the entry to the petitioner, Which subsequently conveyed it to one Hines, who later conveyed it back to the petitioner. On November 19, 1902, a special agent of the General Land Office named Hammer wrote the Commissioner that he had reason to believe that ninety per cent, of the proofs in the territory where, petitioner’s land is situated were fraudulent, and that he' had under investigation certain entries, including the one in question, and requested, that all patents be withheld until a full report was made; on November 28, 1902, Hammer informed the Commissioner that the investigation so far made had disclosed flagrant frauds', and renewed his request to withhold patents to such lands, and on

The ’Supreme Court of the District of Columbia dismissed the petition. Upon appeal to the Court of Appeals that court affirmed the judgment of the Supreme Coúrt. 40 Washington Law Reporter, 780. In the course of the opinion the Court of Appeals said (p. 781):

“Every point advanced by appellant in this case is, in our view, settled by the following very recent decisions: Fisher v. Grand Rapids Timber Co., 37 App. D. C. 436 ; Ness v. Fisher, 223 U. S. 683 ; McKensie v. Fisher, 39 App. D. C. 7 . In Fisher v. Grand Rapids Timber Co., which involved the interpretation of the very statute upon which appellant here relies,, this court, speaking through Mr. Justice Van Orsdel, saidWhile it is true that ar

“The communications of Special Agent Hammer respecting this entry were made within the two years contemplated by said act of March 3, 1891, as was the communication of June 18, 1904, from the Commissioner to. said agent. It is apparent that these communications resulted in the withholding of a patent; in other words, that the Commissioner regarded the right to that patent as dependent upon the outcome of the investigation which was to ensue. The subsequent decision of the Secretary that what was done within the two-year ■ period constituted a protest against the patenting of the entry, was not arbitrary or capricious, but was based upon evidence; and the sufficiency of that evidence was for his and not our determination.”

The writ of error is asked for under § 250 of the Judicial Code, which provides:

“Sec. 250. Any final judgment or decree of the court of appeals of the District of Columbia may be reexamined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases:

* * tj: * H* * * *

“Fifth. In eases in which the validity of kny authority exercised under the United States, or the existence or

scope of any power or duty of an officer of the United States is drawn in question.”

The case therefore to be appealable to this court from the Court of Appeals of the District of Columbia must be one in which the validity of the authority exercised or the existence or scope of the authority of the officer named is drawn in question.

“Drawn in question” is a phrase long used in other statutes of the United States regulating appellate jurisdiction. It is found in § 709 of the Revised Statutes, governing appeals from state courts to this' court. It is in the fifth section of the Circuit Court of Appeals Act of March 3, 1891 ( 26 Stat. 826 , 828, c. 517). It is in the statute regulating territorial appeals, (March 3, 1885, 23 .Stat. .443, c. 355). The meaning of this phrase has been the subject of frequent consideration in this court, and it is unnecessary to review the numerous cases in which it has been interpreted.

As we have said, it is in the Circuit Court of Appeals Act, which provides that cases may be brought directly to this court from the Circuit Court in which, among other things, the validity or construction of any treaty made under the authority of the United States is drawn in question. In Muse v. Arlington Hotel Co., 168 U. S. 430 , in considering whether the provisions of a certain treaty were drawn in question, so far as the validity or construction thereof was concerned, with a view to the exercise of the appellate jurisdiction of this court, Mr. Chief Justice Fuller, delivering the opinion of the. court, reviewed the cases in this court and stated as the conclusion of the matter that in order to involve .the validity or construction of a treaty “some right, title, privilege or immunity dependent on the treaty must be so set up or claimed as to require the Circuit Court to pass on the question of validity or construction in disposing of the right asserted.” In Pettit v. Walshe, 194 U. S. 205 , 216, the construction of a

In clause five of § 250, under consideration, the added ground of appeal is given if the existence or .scope of any power or duty of an officer of the United States is drawn in question. Within the meaning of this statute, was any such validity or existence or scope of authority drawn ip question? It appears that the petitioner contended that no protest was pending in the Department which could rightfully justify the withholding of the patent. The officers of the United States took issue upon this allegation, and the Court of Appeals decided that there was testimony before the Secretary authorizing the exercise of the discretion conferred by law to withhold the patent, and upon that ground affirmed the decision, refusing the writ. The case was therefore submitted and decided upon the issue whether the action of the Secretary was justified in the exercise of his lawful discretion because of the-facts disclosed in the record. The petitioner did not challenge, nor did the court pass upon, the validity of any authority exercised under the United States, nor was the existence or extent of the authority <¡>r duty, of an officer of the United States drawn in question in the sense in which it is

It follows that the petition for writ of error must be denied.