Ballinger v. United States ex rel. Ness

33 App. D.C. 302, 1909 U.S. App. LEXIS 6066

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 20, 1909
• Docket: No. 1984
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. Responding, first, to the persistent pressing of the question of jurisdiction to review the action of the head of an executive department, it is sufficient to say that this is not the case of one seeking to establish a title to lands as against the United States, but of one seeking to compel the performance of a ministerial duty imposed upon the officer by the terms of a statute. The duty, if such, does not cease to be ministerial because it requires, in some degree, the construction of the language of a statute. Roberts v. United States, 13 App. D. C. 38, 46; Roberts v. United States, 176 U. S. 221, 231, 44 L. ed. 443, 447, 20 Sup. Ct. Rep. 376.

2. In legislation of this kind, requiring the performance of administrative duties by the head of a department to put it in execution, it is usual, as was done in the foregoing statute, to confer the power to make appropriate regulations for carrying the same into effect. Such supplementary regulations have all the force of law if not in conflict with the law itself, or in plain excess of its requirements. The officer is not authorized to make the law, but to prescribe reasonable regulations for its effective administration, not inconsistent therewith or in addition thereto. Re Kollock, 165 U. S. 526, 533, 41 L. ed. 813, 815, 17 Sup. Ct. Rep. 444, and cases there cited; Davis v. Massachusetts 167 U. S. 43, 48, 42 L. ed. 71, 72, 17 Sup. Ct. Rep. 731; Williamson v. United States, 207 U. S. 425, 462, 52 L. ed. 278, 297, 28 Sup. Ct. Rep. 163.

The construction of a statute by the department charged with its administration, early made and uniformly followed for a number of years, is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. United States v. Moore, 95 U. S. 760, 763, 24 L. ed. 588, 589; Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 366, 33 L. ed. 363, 367, 10 Sup. Ct. Rep. 112; United States v. Finnell, 185 U. S. 236, 244, 46 L. ed. 890, 893, 22 Sup. Ct. Rep. 633, and cases there cited.

3. After a careful consideration of the provisions- of this statute, we are not prepared to say that the regulations of the department are in conflict therewith, or that the action of the Secretary in rejecting the application is founded on an erroneous construction of its language. While extending its benefits to-all citizens of the United States and persons who have taken the necessary steps to become such, without regard to residence, the statute expressly requires that the oath shall be made in person before the local officer of the district in which the land lies, and seems to contemplate that it shall, in part, be made upon actual, personal knowledge. The necessary facts, that the land shall be unoccupied, unfit for cultivation, and chiefly valuable for timber and stone, are capable *of exact and certain statement after its inspection. Whether there may be mineral deposits in the land is a fact that.the average applicant would not, ordinarily, be able to determine by going upon thé land and making careful examination. Hence, while the first statement must be positive, as of actual knowledge, the second may be upon belief merely.

While it is true, as stated in a case relied on by the appellee, and which will be reviewed later, that the statute does not expressly provide that the verification of the application shall be upon personal knowledge only, yet that intention seems to be clearly implied. If not so intended, why the insertion of the provision that the fact as to the existence of mineral deposits may be stated upon belief ? This was wholly unnecessary if it had been intended that the preceding facts might be stated as a matter of belief also. Moreover, the statute requires that the verification shall be by the applicant in person. It cannot be made in his name by an agent or attorney. Martin v. Martin & B. Co. 27 App. D. C. 59, 62, 7 A. & E. Ann. Cas. 47. This requirement would be practically nugatory if the affidavit of necessary facts could be made solely upon information derived from an agent. That it was the intention that the necessary positive statement of facts should be upon the personal knowledge of the applicant, necessarily to be acquired by examining the land, seems to be confirmed by the last clause of sec. 2, which declares that, if any person shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same. If the entire affidavit can be made upon information and belief, it is difficult to see how the pains and penalties of perjury could be visited upon the applicant. If perjury could be maintained at all upon such an affidavit, the question of guilt would depend not upon the falsity of the statement of the facts as to occupancy and unfitness for cultivation, but upon the falsity of the applicant’s belief in the truth of the representations made to him in this' regard by his agent or representative. It would be practically impossible to establish wilful and corrupt false swearing in such a case.

The construction given to the statue by the regulations of the Land Department has been upheld in the circuit court for the district of Oregon in a prosecution for perjury. United States v. Wood, 70 Fed. 485, 486. In that case it was said by Judg’e Bellinger: “It is competent under this statute for the proper officers of the government, as a regulation in the sale of these lands, to require the affidavit of personal examination and personal knowledge on the part of the applicant. The oath required by the act of Congress providing for the sale of these lands contains two parts: One, that the land is unfit for cultivation, uninhabited, and unimproved; and the other, that, to the best of the belief of the applicant, the land contains no valuable deposits-of mineral, etc. This last part may be made on information, but the first statement necessarily implies a personal knowledge of the land. The requirement of the Department as to the affidavit of personal examination is in conformity with the requirement of the first part of the oath provided by the statute.” . •

A different construction has been given in a later case by the court of appeals of the seventh circuit, upon which the appellee relies. Hoover v. Sailing, 49 C. C. A. 26, 110 Fed. 43, 46.

That suit was against a defendant holding under a patent. Complainant alleged that she had made application for the land, and made the preliminary oath in due form.. That she had submitted the proof required by sec. 3 and tendered payment of the purchase price. That one Toole had made a later application and filed a patent against complainant’s entry, alleging that she had never been upon or seen the land or any part thereof. That the Land Department rejected complainant’s application upon the ground that she had not complied with the regulation requiring a personal examination of the land, and issued the patent to Toole, under whom defendant held. A decree dismissing the bill was reversed. After reciting the procedure required by the statute, the court said: “It is clear to us, in view of this, that the statement is meant simply as an initial paper — the claim or pleading — upon which the machinery of the land office is to be set in motion. The statement is not accepted as proof, and it does not perform the office of proof; that must come at the hearing. It is in the nature of a petition to the Land Department, setting forth all the material facts upon which action is invoked, and is, in this general respect, analogous to verified petitions, or bills, in courts of chancery. * * * Section 2 of the act provides that the statement shall be verified by oath, but it does not, in terms, at leást, provide that the verification shall be on the personal knowledge only, and shall not * * * he upon information and belief. We think we should apply to this section of the statute the rule adopted in analogous pleadings where verification is required; and, so doing, we cannot see why that portion of the statement relating to the character of the land — that it is uninhabited, is unfitted for cultivation, and valued chiefly for timber or stone — may not be predicated upon information and belief. Any other interpretation would, in our opinion, import into the procedure a restriction not to be found in the procedure of the courts in analogous inquiries; and would defeat one of the main purposes of the act.”

With the greatest respect for the learned court from whose opinion we have quoted, we are nevertheless constrained to say that we are not impressed with the soundness of its reasoning. We cannot regard the presentation of the verified application as a mere initial paper in the form of a pleading, setting forth facts thereafter to he established upon hearing. It is rather in the nature of “preliminary proof,” as called in Williamson v. United States, 207 U. S. 459, 52 L. ed. 295, 28 Sup. Ct. Rep. 163. As indicated in that case, there are two stages of hearing, —the preliminary one, after which notice is published, and the second, or final one, after publication. This preliminary proof is the essential step by which the applicant secures pre-emption. It is important as well as reasonable that such proof should be positive and direct in order to secure a preference over other applicants. While this proof is not made sufficient to warrant the issue of the patent, and must be followed by publication, and supported by other satisfactory evidence that the land is of the character contemplated, that is to say, unoccupied, without improvements, unfit for cultivation, and valuable chiefly for timber or stone, it is sufficient as'to other material facts, namely, that the application is made in good faith for the exclusive benefit of the applicant, and that he has not, directly or indirectly, made any agreement or contract by which the title he might obtain should inure to the benefit of any other person than himself. As to these, the preliminary proof is all that is required by the statute, and the Land Department has no power to require more. Williamson v. United States, 207 U. S. 425, 460, 52 L. ed. 278, 296, 28 Sup. Ct. Rep. 163.

We regard the analogy of the procedure under this statute as rather with those special statutory proceedings which are required to be supported by affidavit, than with the ordinary procedure in accordance with the equity rules. In the procedure of the first kind, providing for the issue of attachments, temporary injunctions, etc., the required affidavit may be separate, or by way of verification of initial pleadings; but,- in either case, the facts must be alleged as within the personal knowledge of the party, and not upon information and belief. Atchison v. Bartholow, 4 Kan. 124, 127; Thompson v. Higginbotham, 18 Kan. 42, 44; Dyer v. Flint, 21 Ill. 80, 83, 74 Am. Dec. 73; Gawtry v. Doane, 51 N. Y. 84, 89; Neal v. Gordon, 60 Ga. 112, 114; Lewis v. Connolly, 29 Neb. 222, 224, 45 N. W. 622.

Our conclusion is that the regulation of the Land'Department is not in conflict with, or in excess of, the power conferred by the statute. The judgment must, therefore, be reversed with costs and the cause remanded with direction to dismiss the petition.

Reversed.

On application of the appellee, a writ of error to the Supreme Court of the United States was allowed May 14, 1909.