In re Emblen

In February, 1885, and long before, the land in question, situated in the Denver land district, Colo., was a part of the unappropriated public domain, suitable for agricultural purposes, and subject to entry and purchase under the pre-emption and homestead laws. On February 26, 1885, Weed filed in the land office of that district a declaratory statement upon the oath, as required by the pre-emption laws, alleging his settlement upon the land, and his purpose to occupy and cultivate it, and to acquire title to it under those laws. On September 19, 1885, the register and receiver of the district received from Weed final proofs of settlement, improvement, and other essential facts, and the government price, and issued to him a cash entry certificate of purchase, entitling him in due course to a patent for the land.

On October 4, 1888, before any patent had been issued, Emblen filed a protest in that office against the issue of a patent to Weed for the land in question, alleging fraud, misrepresentation, and perjury on Weed's part touching his settlement, occupation, and purpose, and demanding a hearing thereon, and asking to be allowed all the rights of a contestant under the act of May 14, 1880, c. 89 (21 Stat. 140). On May 21, 1889, the register and receiver, after hearing evidence and arguments, dismissed the protest and contest. Emblen appealed to the commissioner of the general land office, who, on February 20, 1890, reversed the decision, and held Weed's entry for cancellation. Meanwhile the town of Yuma had been built upon the land, and Weed and the board of trustees of Yuma petitioned for a rehearing, which was granted by the commissioner.

Shortly afterwards a new land district was created, with offices at Akron, Colo. The land being in this district, the rehearing was transferred to the register and receiver thereof. Emblen protested, on the ground that the receiver was interested personally in the result of the contest, because he claimed ownership of a portion of the land by a conveyance from Weed. The protest was overruled, and, Emblen refusing to appear before the register, or to submit to his jurisdiction, an ex parte hearing was had, and a decision was rendered on November 4, 1890, in favor of Weed, dismissing the contest, and was affirmed on successive appeals to the commissioner of the general land office, and to the secretary of the interior. On August 25, 1893, the secretary of the interior granted a petition of Emblen for a rehearing upon newly-discovered evidence, and expressed the opinion that the proceedings before the register and receiver at Akron were invalid.

Before such rehearing was had congress passed the act of December 29, 1894 (chapter 15), confirming Weed's entry, and directing that a patent issue to him for the land. 28 Stat. 599. In February, 1895, a patent was accordingly issued to Weed; and the secretary of the interior, solely by reason of the passage of this act, suspended all proceedings in the contest, and declined to authorize or direct any further hearing, trial, or consideration thereof.

The petitioner further alleged that in good faith, and in reliance upon the acts of congress and the regulations of the land department, he had spent in this contest years of labor, and large sums of money; that he desired that the contest proceed to final adjudication and disposition; and that, should he succeed therein, it was his purpose to claim and to exercise his preference right of entry and purchase of the land, as by law authorized and provided.

The prayer of the petition was that the act of congress be declared unconstitutional and void; that the patent to Weed be like wise declared void, because issued without warrant or authority in law; and 'that a writ of mandamus issue, directed to the secretary of the interior, requiring him to proceed to the final adjudication and disposition of said contest in accordance with the general acts of congress, and the rules and regulations of the land department, in that behalf made and provided.' Henry B. O'Reilly, for petitioner.

[Argument of Counsel from page 54 intentionally omitted]

Asst. Atty. Gen. Whitney, for respondent.

S. M. Stockslager (by special leave), for Lincoln Land Co.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.