United States ex rel Turner v. Fisher/Opinion of the Court

1. Where, under the provisions of acts of Congress, and after a hearing, the names of relators were duly entered as Creek freedmen by blood on the rolls made and approved by the Secretary of the Interior, rights were acquired of which the freedmen could not be deprived without that character of notice and opportunity to be heard essential to due process of law. Garfield v. United States, 211 U.S. 249, 53 L. ed. 168, 29 Sup. Ct. Rep. 62.

2. Notice to the attorney of such freedmen, given a few hours before the hearing of a motion to strike their names, on the ground that their enrolment had been secured by perjury, was not such notice as afforded due process. Roller v. Holly, 176 U.S. 399, 409, 44 L. ed. 520, 524, 20 Sup. Ct. Rep. 410; Hagar v. Reclamation Dist. No. 108, 111 U.S. 708, 28 L. ed. 572, 4 Sup. Ct. Rep. 663; Iowa C. R. Co. v. Iowa, 160 U.S. 393, 40 L. ed. 469, 16 Sup. Ct. Rep. 344; Hovey v. Elliott, 167 U.S. 414, 42 L. ed. 220, 17 Sup. Ct. Rep. 841.

3. In the absence of other controlling facts, the Secretary of the Interior could have been required by mandamus to restore the names of those thus arbitrarily stricken off without notice. Garfield v. United States, supra.

4. But mandamus is not a writ of right. It issues to remedy a wrong, not to promote one, and will not be granted in aid of those who do not come into court with clean hands.

5. Although the petition for the writ alleged that relators were freedmen, duly enrolled, and denied the truth of the testimony on which their names were stricken off, yet, where the answer of the Secretary referred to that testimony, and alleged, 'on information and belief, that the relators were not freedmen members or members by blood or marriage of the Creek Nation, and that their enrolment had been procured by fraud,' a defense was stated, proof of which would have defeated the right to a restoration of relators' names, even though they had been improperly stricken from the rolls without due process. United States ex rel. Redfield v. Windom, 137 U.S. 636, 646, 34 L. ed. 811, 815, 11 Sup. Ct. Rep. 197; Re Sanford Fork & Tool Co. 160 U.S. 257, 40 L. ed. 417, 16 Sup. Ct. Rep. 291.

6. Where a general demurrer to an answer containing such defense was overruled, and the relators, instead of replying, elected to stand on their demurrer, the writ of mandamus was properly refused. Re Sanford Fork & Tool Co. supra.

7. To have issued the writ would have involved the useless thing of requiring relators' names to be re-entered, and in other proceedings having their names stricken because the original enrolment had been procured by fraud, thus admitted by the demurrer.

Affirmed.