Pierce v. Frace

26 P. 192, 2 Wash. 81, 1891 Wash. LEXIS 10

• Court: Washington Supreme Court
• Decided: February 11, 1891
• Docket: No. 64
• Status: Published

Opinions

The opinion of the court was delivered by

Hoyt, J.

— -Plaintiff in error filed his complaint in ejectment and sought to recover possession of certain land therein described. Defendant in error answered, denying the allegations of the complaint and alleging as an equitable defense facts substantially as follows:

On December 20, 1880, the plaintiff in error filed his declaratory statement for the premises in controversy under the pre-emption laws of the United States. On February 13, 1883, lie made final proof to the satisfaction of the register and receiver of the United States land office at Olympia, and on March 12, 1883, his cash entry was allowed by the register and receiver and a final receipt issued to him; that on August 7, 1883, and while the final proof of plaintiff in error was in the hands of the commissioner of the general land office, defendant in error filed with said commissioner his corroborated affidavit in which he alleged that plaintiff in error “had at no time established his residence on said land, and that he had failed to improve and cultivate the same as required by law, and that the said cash entry had been procured by fraud.” The commissioner, on the 16th day of May, 1885, suspended the entry and ordered a hearing to be had before the register and receiver, touching the charges made by defendant in error in said affidavits. On July 13, 1885, said hearing was had, at which plaintiff in error appeared with his witnesses, as did also the defendant in error. The evidence was taken, and after argument the register and receiver found that plaintiff in error “at no time established his residence on the land embraced in his said cash entry; that he failed to cultivate and improve said land as required by law;” and they, therefore, advised that said cash entry be canceled. Plaintiff in error thereupon took an appeal from the decision of the register and receiver to the commissioner of the general land office, and on June 3, 1886, the commissioner affirmed said decision and ordered plaintiff in error’s cash entry to be canceled. Again plaintiff in error took an appeal, this time to the secretary of the interior, and on March 31, 1888, the secretary affirmed the decision of the commissioner of the general land office, and thereafter canceled said plaintiff’s cash entry. Subsequently the defendant in error filed upon said premises embraced in said cash entry under the homestead laws of the United States, and thereafter made his final proof, and received from the register and receiver of the land office his patent certificate for said premises.

To this answer plaintiff in error filed a reply, in which he asserted that the proceedings of the land office after the 12th day of March, 1883, the date on which his certificate was issued, “ were wholly void, for the reason that said officers had no jurisdiction whatever over the said land or the plaintiff’ in error,” and denied that the defendant in error, in the affidavit filed by him with the commissioner of the general land office, alleged that the plaintiff in error failed to improve and cultivate said land as required by law, or that said entry of plaintiff in error had been procured by fraud. He further denied that the decision of the commissioner of the general land office was affirmed by the secretary of the interior, except as to the findings of the register and receiver and commissioner that plaintiff in error had not made his residence upon said land. Defendant in error demurred to this reply, and the ruling of the court sustaining said demurrer is relied upon as cause for the reversal of the judgment rendered thereon.

Upon this record two questions have been argued — (1) Had the court jurisdiction of the subject-matter of the action? (2) Had the officers of the land department jurisdiction to cancel the entry of plaintiff in error?

The first proposition is so largely dependent on the latter that it is necessary only to say that, if the final receipt was in force and uncanceled, it would under the laws of this state authorize the holder to maintain an action for the protection of his possession thereunder. The authorities cited are to the effect that the courts will not take jurisdiction to determine the title of adverse claimants to land until the land department is through with it and the legal title has passed from the government, and are not applicable to a case like the one at bar, where the right of possession under the laws of the state is alone in question. It is true that the language of the court in the case of Hays v. Parker, 2 Wash. T. 198 (3 Pac. Pep. 901), seems to warrant the contention of defendant in-error; but the language used must be interpreted in the light of the facts of the case, and, thus interpreted, is not inconsistent with the above stated conclusions; for, though that was an action of ejectment and the plaintiff relied upon a final receipt as in this case, yet it appeared that at the time the action was commenced the plaintiff was in the land office of the United States waging a contest with the defendant as to the validity of the right upon which his action was founded, and under these circumstances the court very properly refused to aid either party in so changing the situation as to affect, or have a tendency to affect, the contest then being waged in the land office. Under the second question above stated, the contention of the plaintiff in error is, that a patent certificate issued in due form, in favor of a pre-emptioner, for lands subject to entry under the pre-emption law, where no appeal is taken from the decision of the register and receiver in granting the same, cannot be set aside by the land department upon proceedings subsequently initiated by a stranger and upon the ground of failure to comply with the law in relation to settlement and improvement; while the defendant in error contends that until the issuance of the patent the commissioner of the general land office may suspend an entry, and place the pre-emption claimant in the same position that he was prior to the offering of proof, and that on said second hearing the government can itself, through its officers and agents or by the efforts of an informer, re-examine the question as to the pre-emption claimant’s compliance with the law, and if on said hearing it is shown that the claimant has not done so, that the commissioner of the general land office may cancel the entry and allow another to file upon the land.

These contentions have been elaborately argued by counsel for the respective parties, who, by their zeal and ability, have brought together and summarized nearly all the authorities upon this subject] and the labors of the court in coming to a conclusion as to these important questions have been thereby greatly facilitated. Plaintiff in error, to maintain his contention above stated, relies upon the provisions of § 2263 of the Bevised Statutes of the United States, which, he claims, constitute the register and receiver a tribunal to hear and determine all questions relating to the settlement and improvement of pre-emption claims, and that in the absence of a contest there is no appeal to the higher officers of the land department] the only exception being that they shall hear and determine these questions agreeably to such rules as may be prescribed by the secretary of the interior. The language of this section is as follows s “ Prior to any entries being made under and by virtue of the provisions of § 2259, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the secretary of the interior ] and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void,33 and would seem to warrant such construction, though it might be contended that, under the power given to the secretary of the interior, he might provide by rules that the decision of these facts should, in the first instance, be only tentative, and that before such decision should .become final the register and receiver should, when directed by the commissioner of the general land office, again pass upon the question, and so continue to do until their superior officers were satisfied with the correctness of their determination. This latter contention would, however, be an unnatural and forced one, and if said section stood alone, unqualified by other provisions of the land law, we should have little trouble in coming to the conclusion that the contention of the plaintiff in error was correct.

This language, however, must be interpreted in the light of all the provisions of law relating to the disposition of public lands. Upon an investigation of these provisions, we find that the entire duty of supervising the disposal of such lands is vested in the secretary of the interior and the commissioner of the general land office; that such commissioner is the head of a bureau having in charge all matters relating to such lands; that the register and receiver are inferior officers in such bureau, who must make full report of all their proceedings to such commissioner, who is charged with the duty of seeing that a patent issues to persons entitled thereto. These provisions were in existence at the time of the enactment of the pre-emption law of 1841, in which was found the section above quoted from the Revised Statutes. Under such provisions it had been the constant practice of registers and receivers, not only to send up to the commissioner their finding of facts, but to send therewith all the proofs taken by and before them upon which such findings were based. This practice could only be justified upon the theory that such register and receiver were inferior officers to the commissioner, and their findings were subject to review by him. Viewing the language of the section in question in the light of the law and the practice thereunder existing at the time such section was enacted, we think it is not sufficient to show the intention of congress to overturn such law and practice, and by indirection take from the commissioner his powers of supervision, and transform the theretofore inferior officers of register and receiver into courts of final determination, by whose decisions, however erroneous, the government would be absolutely concluded. The responsibility of finally determining as to the conditions precedent to the issuing of a patent for lands of the United States could not thus indirectly be taken from one of the higher officers of the government, acting under the immediate supervision of the president, and cast upon inferior and comparatively unknown ones, exercising their powers in places remote from the seat of government.

It is true that to hold that these findings of the register and receiver may be reviewed by the commissioner, and a rehearing ordered, may work great hardship to individuals who may thus be called upon to prove facts that they had long supposed settled by the finding of such register and receiver; but these considerations can have but little weight in construing the statutes, as courts are bound to assume that the higher officers of the land department will not act arbitrarily, and causelessly put the burden of a second hearing upon an applicant. On the other hand, to hold otherwise would place the entire interests of the government, as to these important questions, in the hands of these inferior and remote officers, who, by their careless or corrupt administration of the trust reposed in them, might to a great extent nullify the policy of the government as to the disposal of its lands to actual settlers and improvers only. That a policy that congress had, and since has, taken such pains to establish and carry out, should be left at the mercy of such inferior and remote officers, does not seem reasonable. The opportunities for evasions of such policy are very great, even under the most careful supervision of the highest officers of the government; and without such supervision there would • be little practical utility in all the laws enacted by congress upon that subject. The language of the section in question is susceptible of the interpretation claimed for it by plaintiff in error, but when viewed in the light of other statute law and public policy, we cannot believe that such was the intention of congress.

The adjudicated cases upon this subject are quite numerous, and, though there may be found in some of them expressions which seem to give force to the claim of plaintiff in error, yet we think that, when examined in the light of the facts of each particular case, they will be found to better harmonize with the contention of defendant in error. In fact, after a somewhat exhaustive research, we have been unable to find any case that fully supported the plaintiff in error’s contention, or that could not be harmonized with the positions of the defendant in error, except two cases in the circuit court of the United States for the district of Oregon. Smith v. Ewing, 11 Sawy. 56 (23 Fed. Rep. 741); Wilson v. Fine, 40 Fed. Rep. 52. The long experience and great reputation for learning and ability of the judge who tried those cases is well known, and they on that account are entitled to great consideration and weight. The court which rendered these opinions was, however, an inferior one, whose decisions were subject to reversal on appeal, and its judgments are not entitled to the same weight as courts of last resort. The opinions in said cases, however, show that the most painstaking research was brought to the aid of the court in the decision thereof, and the argument therein is very strong; and did we not think that they stand alone, while on the other hand are a large number of cases tending more or less strongly in an opposite direction, we should perhaps be content to accept the argument of the learned judge who decided them, and sustain the contention of the plaintiff in error; but in the light of such other cases we are led to the belief that said decisions were founded too much upon the language of the particular sections in controversy, and that due weight was not given to other portions of the statutes relating to the disposition of public lands.

We shall not attempt a review of the cases cited from the state reports, as their number is too great to make a careful review of them all practicable. Besides, this is a purely federal question, and, so far as the supreme court of the United States has spoken, its decision must be taken as final. Cases more or less conclusive upon the subject-matter under discussion have been from time to timé decided by the supreme court of the United States, and to these we must mainly look for guidance. And, first, we may say generally that a large number of cases cited by plaintiff in error passed upon the effect of a final receipt in cases where the land was subject to private entry, and where proof of any fact was not required as a prerequisite to the purchase. In this class of eases it has often been held that by the payment of the money to the government the substantial title at once vested in the purchaser, and that there was nothing further for the government to do except to complete the sale by the conveyance of the bare legal title. These cases, however, are only remotely applicable to the case at bar. In this case, while it is true that the government has received the money for the laud, yet it has done so upon the assurance and proof of the purchaser that he had qualified himself under the land laws to become such purchaser; and if such assurance and proof were false, then the government has acted under a mistake as to the facts, and the reasons for concluding it would not be nearly so strong as in the former case. The settlement and improvement may be said to be a substantial part of the purchase price for which the government consents to part with its title. At the time the final receipt is issued it is supposed that that part, as well as the cash part, has been paid; but before the government has parted with its title it is found that such part of the purchase price has not been paid, and therefore the government asserts only the right which a private party would have under like circumstances in refusing to convey the contracted premises.

We shall now briefly examine a few of the cases decided by the supreme court of the United States bearing upon this question. The case of Wilcox v. Jackson, 13 Pet. 498, is much relied upon by plaintiff in error. In its opinion in that case the court says: “Even assuming that the decision of the register and receiver, in the absence of frauds, would be conclusive as to the facts of the applicant then being in possession and his cultivation during the preceding year, because these questions are directly submitted to them, yet if they undertake to grant pre-emptions in land in which the law declares they shall not be granted, then they are acting upon a subject-matter clearly not within their jurisdiction ;r> which language is far from conclusive, as, instead of indicating that the court had actually determined the law as thus stated, it clearly shows that it was only an admission by way of argument. It is but fair to say, however, that the above quoted language, when taken in connection with the contest, and of the reference therein made to the case of Elliott v. Peirsol, 1 Pet. 328, 340, very strongly supports the contention of plaintiff in error and, if the statute law upon the subject was the same now as when that decision was rendered, might well be cited as nearly conclusive of the question. Such, however, is not the case, for not only has the law been materially changed, but the law as thus changed has received an interpretation by the same court which, as we shall see hereafter, has destroyed the force of the case under consideration. The case of Lytle v. State of Arkansas, 9 How. 314,. is a still stronger one and, were it not qualified by the statement just made, might well conclude our inquiry; for Justice McLean, in the course of his opinion, says that the findings of the register and receiver are final. These cases are entitled to but little weight in determining the proper practice under the law as it now stands. At the time the proceedings passed upon therein were had the law provided that the fact of settlement and cultivation should be proved to the satisfaction of the register and receiver, from whom no appeal was given and over whose acts, in that regard, no control was given by the higher officers of the land department. At the time the proceedings were had which are under review in the case at bar, the law, as we have seen, was very different. At this time the entire responsibility as to the control and disposition of the public lands had been cast upon the commissioner of the general land office; and the effect of all these provisions would seem to be sufficient to change the ruling of the court as above set forth; and, as we read the cases, such has been their effect.

In deciding the case of Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, Mr. Justice Catron uses the following language: “In cases arising under the pre-emption laws of the 29th of May, 1830, aud of the 19th of June, 1834, the power of ascertaining and deciding on the facts which entitled a party to the right of pre-emption was vested in the register and receiver of the land district in which the land was situated, from whose decision there was no direct appeal to higher authority. But, even under these laws, the proof on which the claim was to rest was to be made, c agreeably to the rules to be prescribed by the commissioner of the general land office/ and, if not so made, the entry would be suspended, when the proceeding was brought before the commissioner by an opposing claimant. In cases, however, like the one before us, where an entry had been allowed on ex parte affidavits, which were impeached, and the land claimed by another, founded upon an opposing entry, the course pursued at the general laud office was to return the proofs and allegations in opposition to the entry to the district office, with instructions to call all the parties before the register and receiver, with a view of instituting an inquiry into the matters charged; allowing each party, on due notice, an opportunity of cross-examining the witnesses of the other, each being allowed to introduce proofs; and, on the close of the investigation, the register and receiver were instructed, to report the proceedings to the general land office, with their opinion as to the effect of the proof, and the case made by the additional testimony. And, on this return, the commissioner does in fact exercise a supervision over the acts of the register and receiver. This power of revision is exercised by virtue of the act of July 4, 1836, § 1, which provides ‘that, from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed, by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of 'the general land office, under the direction of the president of the United States/ The necessity of ‘supervision and control,5 vested in the commissioner, acting under the direction of the president, is too manifest to require comment, further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter sections of land, when the fact is untrue. That the act of 1836 modifies the powers of registers and receivers to the extent of the commissioner’s action in the instances before us, we hold to be true. But if the construction of the act of 1836 to this effect were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety;55 which language, we think, directly approves of the course pursued by the land department in the case at bar; for, though it is true that in that case the contestant claimed an interest in the land at the time of the institution of the contest, yet that fact could not'affect the question, as, without any appeal having been taken to the commissioner, he reversed the finding of the register and receiver, and ordered another hearing before them.

Had the court said only as above quoted, it would be reasonably clear that the cases of Wilcox v. Jackson, and Lytle v. State of Arkansas, supra, were not applicable after the passage of the act of 1836; but we are not left in doubt upon this question as the court in the case under review proceeded further to say: “The case relied on of Wilcox v. Jackson, 13 Pet. 511, was an ejectment suit, commenced in February, 1836; and as to the acts of the register and receiver, in allowing the entry in that case, the commissioner had no power or supervision, such as was given to him by the act of July 4, 1836, after the cause was in court. In the next case (9 How. 333) all the controverted facts on which both sides relied had transpired, and were concluded before the act of July 4, 1836, was passed; and therefore its construction, as regards the commissioner’s powers, under the act of 1836, was not involved; whereas in the case under consideration, the additional proceedings were had before the register and receiver in 1837, and were subject to the new powers conferred on the commissioner.” The case of Harkness v. Underhill, 1 Black, 316, fully sustains the right of the commissioner to review the action of the register and receiver, and makes use of language which would seem to indicate that the question was fully settled. The court say: “The question is again raised whether this entry, having been allowed by the register and receiver, could be set aside by the commissioner. All the officers administering the public lands were bound by the regulations published May 6, 1836 (2 L. L. & O. 92). These regulations prescribed the mode of proceeding to vacate a fraudulent occupant entry, and were pursued in- the case before the court. The question has several times been raised and decided in this court, upholding the commissioner’s powers.” The above citations are sufficient to show that the supreme court of the United States has more than once had substantially the same question before it, and that since the act of 1836 the jurisdiction of the commissioner has been sustained and approved. The case of Cornelius v. Kessel, 128 U. S. 456 (9 Sup. Ct. Rep. 122), does not militate against the doctrine of the eases before decided in that court. On the contrary, when carefully considered, it tends to confirm them; for while it is true that Mr. Justice Field, in deciding that case, in setting out the findings that may be reviewed by the commissioner, omits that of settlement and improvement, yet he does not say that this question cannot, in a proper case, be reviewed. On the contrary, he by inference recognizes that right, but says that it cannot be exercised arbitrarily, or so as to deprive an applicant of land lawfully paid for. The language of the opinion, taken as a whole, does not sustain the position of plaintiff in error; and, even if it did, it would lose much force from the fact that this was a case of private entry, where no act was required but the payment of the purchase money. This case, as we understand it, only asserts the recognized doctrine that the courts will inquire into the decisions of the land office as to questions of law, and, if erroneous, correct them. It may also be gathered from this case, as well as many others decided by the same court, that if the land officers have been imposed upon, and by mistake and fraud been induced to decide a question of fact wrongly, the court will interfere to. protect the rights of the parties. This last question may at some future time arise upon the facts of the case at bar. But that question has not and probably could not have been raised in this case, and it is not necessary that we should say anything in regard thereto. On the whole case, we agree with the contention of the defendant in error, and the case must be affirmed.

Anders, C. J., and Scott, J., concur. Stiles, J., not sitting.