United States ex rel. Southwick v. Fisher

39 App. D.C. 545, 1913 U.S. App. LEXIS 2032

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 3, 1913
• Docket: No. 2435
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Relator is seeking the right to compel the respondent to grant her a hearing, upon the case as it now stands in the Department, when, by her demurrer to the answer, she admitted that she had a hearing, upon which it was adjudged that she had mo right to have her entry reinstated. Even if this were a case where the court had jurisdiction to review the action of the Secretary, relator would be without standing, in view of the admissions of the demurrer. But a more serious objection is presented. Under the act of Congress, the Secretary of the Interior, as to the lands embraced within the act, is authorized to reinstate an entry only when it appears that certain conditions exist. The duty is imposed upon him by law of judging and determining whether an application for reinstatement meets fully the requirements of the statute. Such an exercise of discretion and judgment by an executive officer of the government cannot be controlled by mandamus. Fisher v. United States, 37 App. D. C. 436; United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356; United States ex rel. McKenzie v. Fisher, ante, p. 7.

The judgment is affirmed, with costs. 'Affirmed.