United States v. Commissioner

72 U.S. 563, 18 L. Ed. 692, 5 Wall. 563, 1866 U.S. LEXIS 961

• Court: Supreme Court of the United States
• Decided: May 13, 1867
• Status: Published

Opinion

72 U.S. 563 (____) 5 Wall. 563

UNITED STATES
v.
THE COMMISSIONER.

Supreme Court of United States.

Mr. McDougal, for the relator.

Mr. Justice NELSON delivered the opinion of the court.

Where the merit of the several objections and questions made in this case lie, we do not undertake to determine, nor can they be determined, understandingly, upon this record. Many of the acts of the parties, and of the officers, the registers, and commissioners of the Land Office, may be valid or void, depending upon the facts and circumstances attending them at the time, and which rest in parol, and are the proper subject of proofs. We have referred to them for the purpose of showing that this case is not one to which the remedy by mandamus can be applied. It calls for the exercise of the judicial functions of the officer, and these of no ordinary character. Indeed, however eminent, it is plain no intelligible decision could be made without the aid of facts not within his knowledge, nor attainable by proofs consistent with the proceedings in the case of mandamus. The duty is not merely ministerial, but involves judgment and discretion, which cannot be controlled by this writ. Besides, it appears that Kenzie was in possession when his entry was made in May, 1831, and was there in 1836; and, as the premises are situated in the settled part of the city of Chicago, it is but reasonable to presume that persons are at this time in possession of the same premises under his title who should have an opportunity to defend it. The relator has mistaken his remedy, for if his title under the certificate is valid, and presents a superior equity over the opposing title, as in the case of Lyttle et al. v. The State of Arkansas,^[*] and Lindsey v. Hawes,^[†] the appropriate remedy is by bill in equity.

Whether or not a mandamus will lie in any case to compel the issuing of a patent is a question not necessarily involved in this case; we have not therefore examined it, and express no opinion upon it. We have found no case in which this power has been exercised.

Patents are to be signed by the President in person, or in his name by a secretary, under his direction,^[*] and countersigned by the recorder of the General Land Office.^[†]

Judgment of the court below

AFFIRMED.

Mr. Justice MILLER did not sit in the case.

NOTES

[*] 9 Howard, 315.

[†] 2 Black, 554.

[*] 4 Stat. at Large, 663.

[†] 5 Id. 417.