CITY &S'f. P.R. Co·.,'" UNI'rED STATES.
(Oircuit Oourt. N.D. Io'lJla.,:, November 23, 1888.)
CounTs-BUITS AGAINST UNITED STATES-PuBLI(J LANDSOFFtCERS-4NJUNCTION Actr'OFMAROH B, 1887.
. 'Act .March B, 1887, which confers upon the court of claims jurisdictlonto hear and determine all claims founded on the constitution of the United . States, or any law of congress, or on any regulation of an executive department,':or.on any c'ontract. express. or implied, with the government of the United States, and gives the United States circuit courts concurrent jurisdiction with the court of claims, simply removes the exemption of the United States from suit in those cases, and does not confer upon the circuit court jurisdiction the lalld department officials from allowing land to' be entered as a portion ohhe public domain, which is claimed by a railro"d cpmpany; to ha.ve l1een earl)edunder its grant.
In Equity. On demurrertol;>ill. '. . Bill by the Sioux City & St. Paul Railroad Company against the United States to have complainant declared the..owner .of certain lands, and to have the officers of the United States enjoined frorlldisposing of the same, or allo\Ving made of the same under the homestead, culture, or pre-emption laws. .. J. If. &,,(J.;M. Swan, · . S·.,P.Mv,rpn"y,U. S. Dlst. Atty., for the Umted States· .SHIRAS,J·. : Complainant in its bill herein filed avers that by the. terms of the act ofcongress of May 12, 1864, there was granted to the state of Iowa, for the purpose of aiding in t.11.e construction of a line of railway froln. Sioux City to the Minnesota state line, every alternate section of Ip.nd designated. by odd numbers for 10 sections in width on each side of the proposed line of that the state of Iowa in 1866 accepted said grant, and by an ,act of the legislature conveyed the lands to the.complainaJ1t. company, and that the complainant, by the construction ofa line of railway from the. Minnesota line to Le Mars, Iowa, and by; the bui1d.ing,of a short line in Sioux City, earned and became entitled to 320,OOO,aeres of land; that a large part thel'eof was duly selected and patented to the state Qf Iowa by the secretary of the interior, but that the state of lowa. refllsed .to the legal title of said lands to complainant, and Marcl1 1884, wrongfully relinquished I'tnd conveyed said, lands to the. United States; the officers of the United States, to-wit, the I!lecretary of the interior,commissioner of the general land-office; apd· th,e office.rs,o! t4e. local land"office at Des Moine.s have wrongfully declared the said lands t6 be a part and parcel of the public domain, and as such to be open and subject to settlement and entry under the homestead, timber culture, and pre-emption laws of the United States. The bill further avers that certain named individuals have been permitted to make application for the purchase of certain named parts of sections, amounting in all to 720 acres, which it is averred in fact belong to the complainant as part of the lands by it earned under the grant
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SIOUX CITY .Ii:
P.R. CO.V.tmITED STATES.
:<>£1864j.And.,that, unless iTellti'dined from"so: doing"the ofMe1'8' of :the department: will· issue .patehts therefor to the nanied parties, therhby casting a cloud upon complainant's title; The 'prayer isthat."judgment and decree be ren.dered declaring yonrcomplainantto be the owner<of the said lands, and forbidding and enjoining the officers of the United States from l;lellingor diBposing of the same, or allowing any entries' to be made of the same under said homestead, timber culture, or pre-emption laws." It is averred in the bill that jurisdiction to entertain the bill is conferred upon the court by the provisions of the act of congress of March 3, 1887. The demurrer presents the question whether such jurisdiction exists. In support thereof it is urged that the act of congress of May 12, 1864, granted the lands Jor the express purpose of aiding in the constru9tion of the named line of railwa y, and that. the company, rely. ing upon s.uch grant, undertook the construction of the road, and tbat in effect thereby there was created a contract between the United States and the company entitling the company to said lands upon the building of the line of railway as contemplated in said granting act; thatthe.company's claim is based, not only upon the law ofcongress of May 12; 1864, but also upon the contract which was created between the company and the United States when the former undertook the building of the line of railway pursuant to the terms of said act of May 12, 1864; and ·that therefore the cause ofactiol1 is clearly within the provisions of the act of March 3, 1887. That act provides "that the court of claims llhall have jurisdiction to hear and determine the following matters: First. All claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an .cxecutive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in caBes not sounding in tort, in respect of which claims the party would be entitled to redress against. the Uuiied States, either ina court of law, equity, or admiralty, if the UnitedHu.dtes wpre suable," etc. Itis also provided that the circuit courts of the United States shall have concurrent jurisdiction with. the court of claims in all cases where the amount of the claim exceeds one thousand and does not exceed ten thouBand dollars. There can be no doubt that, granting the several allegations in the bill to be true, the complainant has a claim to the lands described in the act of :May 12, 1864, and that such claim may be said to be founded, ,not only upon the act of congress, but also upon the contract which the law would imply in lavor of the company, if it be true that, relying upon the grant of lands therein made, the company has built the road incompliance with the terms of the act; but it does not folJoow that this court has jurisdiction of every possible claim that may arise upon an act of con· gress or a contract with the government. Tile act itself expressly,restricts the meaning of the words" all claims" by the provision "in-respect of which claims the party would be entitled to redress against the United States, either ina court of law, equity, or admiralty, if the United States weresuable." The effect of the act is to provide that if a party. has a
claim of the classes named in the act which he would otherwise have a. right to prosecute in a court oflaw,equity, or admiralty, he shall not be debarred from so doing by renson of the fact that the United States is the adversary party. If, however, aside from the fact that the adversary party is the United States, there exists any reason or rule of law why a court has not jurisdiction of the claim or of the relief sought, then the act of March 3, 1887, does not confer it. Two views may be taken of the true scope of the bill filed in the present cause, and of' the claim sought to be established thereby. One is that the purport thereof is to settle, as against the United States, the right of the complainant to the land, which it is averred the state of Iowa wrongfully reconveyed to the United States, and which complainant avers had been earned by it under the terms of the original grant. Assuming this to be the real purpose of the bill,then the subject of the controversy inclUdes many thousands of acres of land, the value of which largely exceeds the limit of $10,000, which the act of congress itself imposes upon the jurisdiction of this court; and for that reason, if for nontl other, the court would be without jurisdiction. If it be held, however, that the real matter in controversy is only the 720 acres of land specifically described in the bill, and which it is averred the officers of the land-office have permitted to be entered by the individuals named, then the value thereof, being below $10,000, would not defeat the jurisdiction, if it otherwise exists. What, then, are the facts touching this 720 acres of land, which complainant shows by the averments of the bill as the grounds for relief sought? In substance it is averred that complainant earned these lands by constructing the line of railway described in the act of May 12,1864; that the title thereto should have been perfected in complainant by the issuing of patents th.erefor by the state of Iowa, to whom the same had been conveyed in trust by the United States; that, in disregard of complainant's rights, the state of Iowa had re.veyed the lands to the United States, that the officials of the land had declared said lands to be open to entry as part of the public domain of the United States, and had permitted the entry thereof by the parties named, who were completing the evidences of entry and occupation; and that, unless restrained, the officers of the land department would issue to the occupants patents for eaid lands. If these lands form part of the public doman, and are therefore open to entry, then the individuals named in the bill have the right to perfect their proofs of title, and procure the proper evidences thereof. The detern1ination of this question calls for the exercise of judicial judg,ment and discretion on part of the ofiicersof the land department. It is a well and long settled principle that the courts cannot control the officers of the department in the exercise of duties which are judicial or discretionary in their nature. Gaines v. Thompson, 7 Wall. 347; Secretary v. MeGarrahan, 9 Wall. 298; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; Moore v·. Robbins, 96 U. S. 530; Oraig v. Leitertsdorjer, 123 U. S. 189, 8 Sup. Ct. Rep. 85. In Litchfield v. Register, 9 Wall. 575, it was sought to restrain the officers of theland-oflice at Fort Dodge, Iowa, from acting upon applications
SIOUX CITY & ST. P. R. CO. fl. UNITED STATEs.
made to prove up pre-emption on certain lands which it was averred had become the property of complainant through certain acts of congress and of the legislature of Iowa. The supreme court held" that the judiciary cannot interfere, either by mandamu8 or injunction, with executive officers,such as respondents here, in the discharge of their official duties unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion." The decision is placed upon the ground that the duty of deciding primarily whether given lands are or are not open to entry as part of the public domain is conferred upon the land department; that the duty is not ministerial, but is judicial, in its nature, and that the courts cannot interfere with the exercise thereof by the department. Before the passage, therefore, of the act of March 3, 1887, it is clear that this court did not possess the right to interfere with the land department in the discharge of the duty imposed upon it, towit: of deciding whether any given sections of land were open to entry, or whether the same had been reserved from public sale or had been granted away, and had thereby ceased to be part of the public domain. The cases cited point out clearly the remedy to be pursued by one who claimed that his rights had been denied or ignored. Does the act of March 3, 1887, change the relations of the judicial and departmental branches of the government in this particular, and confer upon the courts increased jurisdiction in matters of this character? So radical a change in the relations of these branches of the government cannot be supposed to have been intended by congress, unless it is declared in unmistakable language; and such declaration cannot be found in the act in question. Not only so, but the restriction found in the declaration that the claims meant by the act are such claims as the party would be entitled to redress either in a court of law, equity, or admiralty, if the United States were suable, shows that the only purpose of the act was to remove the bar of the non-suability of the United States, and not to confer jurisdiction upon the courts to interfere with the action of the department in matters confided to it by the then existing laws. So long, therefore, as the land department has control of the question whether these lands are or are not portions of the public domain open to entry, and is dealing with that question, its action is beyond the control of this court, and the court cannot, as is asked in the bill filed herein, enjoin the officers of that department from deciding that question primarily, nor from executing the usual evidences of title if the decision is in favor of thof'e claiming the land under the homestead, pre-emption, or timber culture laws. As the averments of the bill show that the land depart. ment is in the exercise of its undoubted jurisdiction in entertaining, considering, and deciding upon the claims of the parties named to hold said lands under the homestead laws of the United States, it follows that this court has not the jurisdiction to control or interfere with the action of the department in the premises. The facts averred in the bill touching ,the 720 acres of land specifically described do not present the question whether the court has the jurisdiction to hear and determine whether the complainant or the United States is the owner in fact of a given sec-;
tion or sections QUand. If averred that the complaipant had, by builditlg the line of railway in accordance with ,theterflls of the act of congress,earned certainlands, and that the United States refused to convey the legd title. therflof to complainant, then it might be that jurisdiction to hear and determine that question might exist, provided the value of the lands did not exceed the limit fix.ed by the act itself, and proyidtld further that the land department had not the question before it for consideration and determination. In other words, if the sole parties in interest were the complainant and the United States, the court might have jurisdiction to hear and determine the question whether the complainant had earned certain lands, and was therefore equitably entitled to demand a conveyance of the legal title from the United States. However this may be, and not deciding it, it still remains clear that when third parties assert rights to the lands under the homesteetd laws, and are proceeding according to law to submit their claims to the determination of the land department, then the primary jurisdiction to hear and determine the questions'involved is with the department, and the court eannot interfere therewith. If the department holds that the lands are open to settlement, and evidences of title are executed to the applIcants, then by suit against the latter the legal questions involved may be brought for adjudication before the courts; but so long as the matter is pending before the department the jurisdiction of the court is, to say the least, in ,abeyance, and eaonot be invoked. The demurrer to the bill is therefore sustained.
BEmNE et at 'D. WADSWORTH.
(Circuit Oourt. D. Minnesota.
November 14, 1888.)
EQUITY-PJ,tAQTICE-DISMI88AL FOR WANT OF PROSECUTION.
Under c.ircuit court rule 69, giving a complainant three months after Issu8 joined in which to take depositions, a cause will not be dismissed for want of prosecution for nine month!!' delay. where it appears from the affidavits of complain ant's counsel that from a conversation with defendant's counsel they were led to believe that a compromise was mutually desired and would be ef.fected, and that they in good faith submitted the matter to their clients. who lived in Ireland, and, not having been yet advised of their intentions as to the proposition, took no proof. understanding defendant to agree that none need be taken pending negotiations, though from the stateI\lent of the conversation in the affidavits of defendallt and his counsel such impression and delay were not warranted thereby.
In Equity. On motion to dismiss for want of prosecution. .Bill by Sarah Beirne and James Beirne, her husband, to set aside a conveyanqe m,ade by said Sarah Beirne to defendant, Harry H. Wadsworth. OAthe 26th day of September, 1888, the cause being at issue on bill, answer, and replication, defendant moved to dismiss the cause for want of prosecution, basing his motion on his affidavit, in which he stated that ,t4e cause had been at issue upon the pleadings since Decem-