In re Emblen/Opinion of the Court

This is an attempt to use a writ of mandamus to the secretary of the interior as a writ of error to review his acts, and to draw into the jurisdiction of the courts matters which are within the exclusive cognizance of the land department.

By section 2273 of the Revised Statutes: 'When two or more persons settle on the same tract of land, the right of pre-emption shall be in him who made the first settlement, provided such person conforms to the other provision of the law; and all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers, in cases of contest for the right of pre-emption, shall be made to the commissioner of the general land office, whose decision shall be final, unless appeal therefrom be taken to the secretary of the interior.'

By the act of May 14, 1880 (chapter 89, § 2): 'In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands.' 21 Stat. 141.

The contest between Emblen and Weed was conducted in accordance with these statutes. After the last decision of the register and receiver, affirmed by the commissioner of the general land office and by the secretary of the interior, in favor of Weed, and after the secretary of the interior had granted a petition of Emblen for a rehearing, and before the rehearing had been had, congress passed an act confirming Weed's entry, and directing that a patent issue to him for the land in controversy. The secretary of the interior thereupon suspended the pending proceedings, and declined to authorize any further hearing of the contest, and a patent was actually issued to Weed before this petition for a writ of mandamus was filed.

Such being the state of the case, it is quite clear that (even if the act of congress was unconstitutional, which we do not intimate) the writ of mandamus prayed for should not be granted. The determination of the contest between the claimants of conflicting rights of pre-emption, as well as the issue of a patent to either, was within the general jurisdiction and authority of the land department, and cannot be controlled or restrained by mandamus or injunction. After the patent has once been issued, the original contest is no longer within the jurisdiction of the land department. The patent conveys the legal title to the patentee, and cannot be revoked or set aside, except upon judicial proceedings instituted in behalf of the United States. The only remedy of Emblen is by bill in equity to charge Weed with a trust in his favor. All this is clearly settled by previous decisions of this court, including some of those on which the petitioner most relies. Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U.S. 530; Marquez v. Frisbie, 101 U.S. 473; Smelting Co. v. Kemp, 104 U.S. 636; Steel v. Refining Co., 106 U.S. 447, 1 Sup. Ct. 389; Cattle Co. v. Becker, 147 U.S. 47, 13 Sup. Ct. 217; Turner v. Sawyer, 150 U.S. 578, 586, 14 Sup. Ct. 192.

Writ of mandamus denied.