United States v. San Jacinto Tin Company/Concurrence Field

FIELD, J.

I concur in affirming the decree of the court below dismissing the bill in this case. The bill was filed to set aside a patent of the United States issued to Maria del Rosario Estudillo de Aguirre, and her heirs, for land situated in Southern California, in what is now known as 'San Bernardino County,' granted to her by the Mexican government. The grant was of the sobrante, or surplus lands remaining within the boundaries of a tract called 'San Jacinto,' after satisfying two previous grants. The claim under it was presented to the board of land commissioners created by the act of congress of March 3, 1851, to ascertain and settle private land claims in California, and was adjudged to be valid to the extent of five leagues. On appeal to the district court of the United States for the Southern district of California, the claim was confirmed to the surplus land lying wih in the designated boundaries, not exceeding in extent 11 square leagues. The case being brought to this court, the latter decree was affirmed. The judgment here was rendered at the December term, 1863. Then followed a protracted contest, accompanied with much feeling, for the location of the claim. There being within the San Jacinto tract a tin mine, then supposed to contain a rich body of metal, every step in the survey was contested. Witnesses were examined, and repeated arguments made by counsel representing the parties for and against the location sought. As there were no boundaries of the sobrante marked, by which the claim could be specifically designated, much was left to the judgment of the surveyor general, after having examined the topography of the county, and heard the statements of witnesses familiar with it. The limitation made by the grant itself only required that the claim should be located within the exterior boundaries of the San Jacinto, and not encroach upon the land covered by the previous grants. In the determination of the survey and location several years were occupied. The matter was at different times before all officers of the land department whose judgment could control any of the several steps of the proceedings, the United States surveyor general for the state, the commissioner of the general land-office, and the secretary of the interior. Every objection now urged against the survey as a ground for revoking the patent was taken before them, fully argued and held to be untenable. At length, on the 26th day of October, 1867, a patent was issued to the claimants, from whom the defendant, the San Jacinto Tin Company, derives its title. In April, 1883, after the company had been in possession of the property for nearly 16 years, and after all the other land within the exterior boundaries of the San Jancinto tract had been patented to the previous grantees, or sold by the United States, so that, if the location and survey on which the patent was issued could be set aside, there would be no land left to satisfy the grant without annulling titles which the United States had conveyed to other parties, this suit was brought. And it was not brought upon any new fact produced, nor any new reason assigned why the original survey should be disturbed. All the grounds of complaint presented for the new litigation had been urged, and fully considered before. And as if convinced that no beneficial result could come to the United States from the re-opening of the old controversy, as if afraid that the United States might be cast in the litigation,-a bond was taken from one R. S. Baker, with sureties, to keep the United States harmless from all costs and expenses which might be incurred by or against them in the prosecution of the suit. The original contest upon the survey was carried on, and the expenses of it borne, by one Abel Stearns. Since his death this R. S. Baker married the widow of Stearns, and has sought to retry the issues as to the survey which were decided and determined in the land department years before, when Abel Stearns was living. The bond recites that 'the attorney general of the United States of America has this day filed, at the request of the above-named R. S. Baker, a bill in equity in the name of and on behalf of said United States of America against the San Jacinto Tin Company' to vacate the patent. Not for the interest of the United States, not for the protection of their property, or to vindicate their honor, but at the request of a private litigant, the name and power of the United States are invoked by the attorney general to set aside a patent issued after a protracted contest upon the survey with the predecessor of this litigant.

If this were a solitary instance where the name and power of the United States have been used to serve the interests of private parties, it might be passed by with the simple statement of the facts. But, unfortunately, it is not a solitary instance. The records of this courts how that it has been a frequent practice of the department of justice in authorizing suits for the cancellation of patents. In U.S. v. Throckmorton, 98 U.S. 70, which was here at the October term, 1878, it appeared that the district attorney of California was directed by the attorney general to bring suits to vacate patents for lands in that state, upon security being given by one John B. Howard, or a deposit made by him, of a sufficient sum to defray the expenses which might be incurred in the litigation, and the bills filed upon such authority were not sworn to, nor even authenticated by the signature of the attorney general. In this case the bill bears the signature of the attorney general in office at the time it was filed. His signature gives some assurance, which was wanting in the Throckmorton Case, of his belief in its allegations, and that the suit is really brought by the United States to protect their rights, and not merely to promote the interests of private individuals. In that and other cases brought on the authority of the attorney general, the patents embraced many thousand acres of land, and one of the judges holding the circuit court observed that 'It is not to be supposed that, if the attorney general were persuaded that so large and valuable a property belonged to the United States, he would have made the assertion of its rights to depend upon the willingness or ability of private individuals to defray the expense of the litigation.' U.S. v. Flint, 4 Sawy. 83. In the present case the bill seeks, by setting aside a patent of the United States, to restore 11 leagues of land to the public domain; and yet so doubtful did the attorney general appear to consider the rights of the United States to this vast tract that he required from the party at whose instance the suit was brought a bond of indemnity against the expenses of the proceeding. In commenting upon a similar bond, when the Case of Throckmorton was here, the court, speaking by Mr. Justice MILLER, said: 'It would be a very dangerous doctrine, one threatening the title to millions of acres of land held by patent from the government, if any man who has a grudge or a claim against his neighbor can, by indemnifying the government for costs, and furnishing the needed stimulus to a district attorney, institute a suit in chancery in the [name of the] United States to declare the patent void. It is essential, therefore, to such a suit, that, without special regard to form, but in some way which the court can recognize, it should appear that the attorney general has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his control of the cause.' 98 U.S. 61, 71. And yet this requirement does not seem to have been potential enough to induce such an examination of the rights of the United States as to justify in the present case the attempt to enforce them without security from private parties.

I cannot admit that the attorney general can, at the request of private parties, rightfully allow the use of the name and power of United States in proceedings for the annulment of patents, upon such parties executing a bond as security for costs, or opon any other stipulation of indemnity to them. If the United States have not sufficient interest in property to justify the expenses of proper litigation for its maintenance, they had much better let it go. It would seem that congress designed to put its mark of condemnation upon the practice of obtaining services from private parties, without incurring liabilities for them, such as was adopted in this case, when, on May 4, 1884, it declared that 'hereafter no department or officer of the United States shall accept voluntary service for the government, or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property.' 23 St. U.S. 17. The language here used clearly indicates that the gv ernment shall not, except in the emergencies mentioned, place itself under obligations to any one. The principle condemned is the same, whether the party rendering the service does so without any charge, or because paid by other parties. The government is forbidden to accept the service in either case. It is not to be supposed that any head of the department of justice has or would intentionally lend the name and power of the government to further private ends, and yet there is no practical difference between that course of procedure and the one adopted in this case. The opinion of the court shows, above all controversy, the utter groundlessness of the charges upon which it is sought to set aside the survey. A very little attention to the proceedings had before the land department in the contest upon that survey would have satisfied the attorney general of the futility of any attempt to disturb it, and it is not probable that he would have authorized any.

But, independently of these considerations, I cannot assent to the position announced in the opinion of the court that the attorney general has unlimited authority, by virtue of his office, to institute suits to set aside patents issued by the government. He is the head of the department of justice, and, as such, he is charged with the superintendence and direction of all district attorneys of the United States, and generally of all litigation in which the United States are interested. He is also the legal adviser of the heads of the executive departments; and if they are fraudulently imposed upon in the discharge of their duties, or have mistaken the law, he may, at their request, take such legal proceedings as are necessary to correct their errors and revoke their action. The legislation of congress points out the infinite variety of cases where legal proceedings may be taken on behalf of the United States in the enforcement of their rights, the protection of their property, and the punishment of offenses; and wherever no authority is conferred by statute, express or implied, for the institution of suits, none in my judgment exists. Whenever congress has felt it important that patents for lands should be revoked, either because of fraud in their issue, or of breach of conditions in them, it has not failed to authorize legal proceedings for that purpose. In a multitude of cases, titles to lands, upon which whole communities live, rest upon patents of the United States. In several instances, cities having more than a hundred thousand people residing within their limits are built on land patented by the government. I cannot believe that it is within the power of the attorney general, to be exercised at any time in the future,-this generation or the next,-as no statute of limitations runs against the government, to institute suits to unsettle the title founded upon such patents, even where there are allegations of fraud in obtaining them. There must be a time when such allegations will not be heeded. The examination into alleged frauds, when the patents are applied for, ought to close all controversy respecting them; clearly so, unless, upon newly-discovered evidence of the most convincing character, congress should direct proceedings to be instituted to set aside the patents, and that result can be obtained without impairing the title of innocent parties. The power of the attorney general, if admitted when a single person holds title under a patent, may be exercised in cases where a whole community holds under a similar instrument. If, without the authority of congress, such proceedings may be instituted by him upon the repetition as in this case, of old charges, or upon the unsupported statements of interested parties, a cloud may at any moment be cast upon the titles of a whole people, and there would be in his hands a tremendous weapon of vexation and oppression. I can never assent to the position that there exists in any officer of the government a power so liable to abuse, and so dangerous to h e peace of many communities.

I do not recognize the doctrine that the attorney general takes any power by virtue of his office except what the constitution and the laws confer. The powers of the executive officers of England are not vested in the executive officers of the United States government, simply because they are called by similar names. It is the theory, and, I may add, the glory, of our institutions, that they are founded upon law; that no one can exercise any authority over the rights and interests of others except pursuant to, and in the manner authorized by, law. In the case of The Floyd Acceptances, 7 Wall. 676, speaking of the powers of an officer of the government,-in that case, of the secrerary of war,-this court said: 'When this inquiry arises, where are we to look for the authority of the officer? The answer which at once suggests itself to one familiar with the structure of our government, in which al power is delegated, and is defined by law, constitutional or statutory, is that to one or both of these sources we must resort in every instance. We have no officers in this government, from the president down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority.' If the attorney general possesses the powers ascribed to him, in the absence of any law defining them, we have this singular condition presented: that the owner of property, derived from the United States by the most solemn instruments, holds his possession subject to the liability that it may be disturbed at any time by a suit of the government, brought at the will of that officer,-a not very creditable commentary on our institutions; but, if the owner can trace his title to some other source, he may have a reasonable degree of certainty that he will not be unnecessarily disturbed.

Aside from the qualifications thus expressed to the views of the court, there is much in the opinion which gives me great satifaction. It holds that in suits brought by the government for relief against an instrument alleged to have been obtained by fraud or deceit, or any practice which would justify a court in granting relief, the government must show, like a private individual, that it has such an interest in the relief sought as entitles it to move in the matter. If it be a question of property, a case must be made in which the court can afford a remedy in regard to that property; if it be a question of fraud, which would render the instrument void, the fraud must operate to the prejudice of the United States; and if it is apparent that the suit is brought for the benefit of some third party, and that the United States have no pecuniary interest in the remedy sought, and are under no obligation to the party who will be benefited, to sustain an action for his use. In short, if there does not appear any obligation on the part of the United States to the public, or to any individual, or any interest of their own, they can no more sustain such an action than any private person could, under similar circumstances. From this ruling some degree of peace and security may come to holders of titles derived by patent from the government.

From the clear and full statement in the opinion of the court of the case and of the controversies before the land department, involving the same questions now presented, there can be but one conclusion, and that is that the decree below dismissing the bill was in consonance with justice and right.