(Oircuit OO'Urt, D.,
N. D. April 10, 1891.)
The power of the commissioner of the generalland-oftlce to cancel entries of public land!B,after finalprqpf ,has been J;Ilade, and a final certi:llcate issued, extends only to cases of entries'made upon false' testimony or Without authority of law; and the decisions made in the land department are only conclusive in so far as they relate to pure questions of factunmlxed with conclusions of law. In a 8nit for an injunction to prevent waste, held, upon exceptions for insufficiency, to a plea alleging cancellation of the pre-emption entry under which the plaintiff claims the land pursuant to a decision of the secretary of the interior in a contest proceeding initiated after final pre.of, that such a d.ecision containing no special or separate findings of fact, and 'only a declamtiqn to. the effect that. the pre-emptor "had not made his filing, application, and 'entry in .good faith to appropriate the land to bis own use and benefit, as required by law," and tbat be bad not "made tbe necessary residence, cUltiv'll.tioll\ and improvement to entitle him to enter said land," is not conclusive upon the courts, and that the plea is insufficient. '
IIi Equity. &: Jenner, for pll1ointiff. D.,Q; for
HAN'FoRD, J. ThEfeoI1lplainartt claims ownership of certain land by virtne of mesne conveyances from one who entered the same as public land of the United States under the pre-emption law, and obtained a final receipt or patent certificate from tlle land-office of the district in which the lands are situated, after having'made the affidavits, proofs, and payment required by said law; and he brings this suit for an injunction ,tt! the of waste upon said land by the defendant. . legal title to tl;1e land is in the governmeilt, :q.o patent having been issued. 'l'he .is iIi possession, claiming the right toacquire title thereto byfllsidence and cultivation under the land laws of the United States. the prior entry of the plaintiff's grantor the defeq<jant in bis answer makes the following plea:
"That"the special agent o,Uhe, land department, in his report as to said entryand)Uings of thl)said William Carley, charged that the same was not made jJ1. good faith to appropriate the said land to his own exclusive use and benefit, as required by law; and that tbe said pre-emptor, William Carley, had failed to comply with the law in the matter of the settlement, cultivation, and improvement of the land. That upon the investigation had upon notice and appearance of the parties as bereinbefore alleged, the register and recei ver of·. the ·Iand-office found asa matter of .fact tbat the charges. so made by the of the la,nd department wt;lre true, and held the said entry for and that JIpon appeal tbe commissioner of the general land-office tbe find\ngsoftbe register and receiver; and that upon appeal to the secretary of the interior the said secreta)!)' by his decision rendered on the 2d day of Match, 1889, affirmed the rulings of the register and recei ver and com,missioner Of tbe general land-office, and beld the entry of the said William Carley for cancellation for tbe That said Carley had not made hiB filing, application, "cd entry in good faith to approp,riate the land to his own use and benefit, as reqUired by law. Second. That the said Carley had 'Jot made the necessary residence, cultivation, and improvement to entitle him to enter said land; and that, in accordance with said findings, ordered tbe laid llntry canceled, and that the same be restored to sale to the first legalappli-
cant; and that by reason of said findings and said order the said entry was duly canceled in accordance with the rules and regulations of the land department, as prescribed by the commissioner of the general land-office and the secretary of the interior."
The plaintiff has filed exceptions to this part of the answer for insufficiency; and upon the questions so presented the case has been gued and submitted. By the .above plea no issue is tendered as to whether in fact the entry allegecl. to have been canceled was subject to cancellation by reaSOn of any false affidavit or other representation hllving been made by the entry-man, or any other fraudulent act on his part in procuring the allowance of his entry at the local land-office, or, by reason of non-fulfillment OJ} his part in good faith of all the terms, conditions, and requirements of the pre-emption law; but it is assumed that the decision of the officers of the land department set forth in the plea is conclusive. The defense as pleaded rests-First, upon the proposition that the officers of the land department are by law vested with power to decide finally and conclusively all questions of fact affecting rights claimed under the land laws relating to the, disposal of the public lands; /loud, secondly, the assumption that in deciding the main issue as to the lawfulness of the entry under which the plaintiff claims the land in controversy in this case those officers have' necessarily passed upon, and so decided finally and conclusively, all questions of fll-ct touching tiff's. rights in the premises, and that such decision therefore amounts to a finding of facts sufficient to warrant the canceling of the entry; and, thirdly, the conclusion that therefore the parties and the courts are bOtlnd by the action of said officers, so tbat.there can be no further inquiry as to whether the plaintiff did or did not in good faith settle and reside upon and cultivate and improve the land; nor as to. whetber he did Qr did not, in making his fin/l.l proof, make or procure to be made any, false representation or statement, or any fraudulent act in obtaining the patent certificate. No person willl!leriously contend that any scheme to obtain title to land from the government by fraud, or without fuU compliance with the requirements of the lan:d laws, ought to succeed 01 be protected by the courts; and, on the other hand, the thought of judi. . ia! protectiop to fraud ianot more abhorrent to a.n honest mipd than C the idea that an honest settler up<>n public land, who in good faith bas fully performed all the conditions prescribed by law, and paid thegovemment in full its price for a tract of land, can be convicted of fraud, and on that ground subjected to the loss of the land and the forfeiture of the money paid therefor. without a trial or opportunity for defending against an unjust accusation other than a contest in the land department. In such proceeding, the officers have no pC/wer to issue process to bring the witnesses necessary to establish the truth, and the only evidence that can be produced is 'that of willing or paid witnesses; and the manner in which such contests are conducted involves such enormous that honest man of moderate means cannot reasonably hope to prevail adversary:possessed of greater wealth and not incumbered , ,', ; 'I with a c o n s c i e n c e . ,
the United states'. is the 'paramount law of this the its. guarantie(is' the that no person shall be deprIved of hfe, lIberty, or property wIthout due process of law. The decisions of the supreme court establish the doctrine tha:t"atract of land may be segregated from the body of the public domaiiland become the propetty of an individual, llnd as such, subject to all the incidents of private ownership, including taxation hy the local governrnent,without a formal conveyance of the legal title, by the issuance ofilipatent. By full compliance with the requirements of the statutes on t'h:epart of a claimant or purchaser from the government his lights and' responsibilities as Qwner of the land hecomeperfect. Now, ifafterwardshe'may be divested of all his righta as owner of the property,' and>alsodeprived oitha purchase money by a decision of the officersof'the exectttivebranch of the government by reason of charges of fraud supported only by the testimony of volunteer witnesses, while he is denied compulsory pt6cesa,' necessary perhaps to obtain the only testimony by which such volunteer witnesseecan be contradicted and the truth eatabli$hediand if, 'l1ponan appeal to the courts, he is denied a hearing.......oon it he said that he has notheen deprived of property, or that he has had the benefit or the protootionof due prOCess of law. or that the constitiltion hasnbtbeendisregarded in his case? In the argument it is insisted thatsnch and similar inquiries are all answered affirmatively by Dumerousdebisions of theoourts. It is true that there are a nu'mbe'r of'decisions so holding' by state and territorial courts, in which the opinions are predicated upon what are assumed to be the conclusionsnecessarily deducible from rulings of the supreme court of the United States; This court recognizes the' binding authority of the dedsiopsof thestiprem:e court; follow them; but from myexamitul'tion of casesIdo not find the doctrine supported. In the .case of CdrneliU8 v. Keh8el·;128 U. S. 461, 9 Sup. Ct. Rep. 122, the 'Views oftheeourtare thus stated: llUpervision,possessed by the commissioner of the general over' the acts. of receiver of the local land-offices the dispositiqn of the public lands undountedlyauthorizes him to correct and annulent.ries of Ilmd 1\110wMby them. where the lands are not subject to entry.: or thepartles do not possess the quaJifications rllquired. or have pre viouslyentel'ed all that the law 'permits. The exercise of this. power Is necessary to the due ,administratia1ll.of the land, department. If an investigation at .sueh entries were ill the ·oUa w before they ,,9puld, c,3,?cel.ed. the attending examination would not destroy. the But the Jlower of supervlslOna.l1dcorreetiOJ1 is not 'an unlImIted or an arbItrary power. It can 'be' exertedbnly whehthe entry was made upon false testimony. or .ithout authoJ:lty.of law;.'!t:cantlot be exercised so as to deprive any person 'ofland lawfully: entered and paid .for. Bysuoh entry' and payment the pur. ;cbWler seQurell 1lo vested interll.stin'the proPllr.ty. flnd3rigbt a patpnt therethan be for, and can no more ,be depriv,edof it by 9rderof 'can be order of any' ?tber 'iawfullyacquired property. Any attempted depdtatibii ihthilt way of sueli iJiterest win be corrected whenever the matter is pretlented so that the jUdioiary can act upon it." ,
STIMSON :fI. CLARKE.
It is true that in its opinion the court in so many worns declares that powElr to cancel entries of public bind, after been made and approved by the register and receiver and a final receipt issued, is vested in the commissioner of the general land-office ; and in connection with this decision the recent decision in the case of U. S. v. Coking 00.,137 U. S. 160, 11 Su;p. Ct. Rep. 57, may alsobe.consideted,'in wbicli.:iP$lleld that it is not necessary for the go,vernment to return' the money paid as the purchase price for the lahd,before be lawfully. canceled; and also to consider the furtber proposition,established by the decisions of the court, that the decisions ofthecominissioner upon questions of''fact made within the scope of his authority are .not by the. courts; and still the decisions of the supreme court, up to the present time, do not enunciate or support any rule broad enough to sustain the defense pleaded in this answer. The of the commissioner has limits, and ih the case of Corneli1l8 v. Kessel. the limits are cleaHydefined. In .the opinion of the court it is pointedly said that his power to correctnnd anuul entries of land allowed by the district officers" can be only when the entry was made upon fa,lse testimony, or without autHorityof law." The supreme court has never yet decided that in a contest proceeding instituted after an entry has been allowed, in which there is a conflict of evidence, 'the commissioner can make a decision adverse to thEientry upon a mere prepondetance of evidence, or that any decision of the commissioner stated merelyi,ngeneral ter111s, or as an ultimate con.clusion to the effect that 'a party has not in good faith complied with the law so as to be lawfully entitled to make the entry, is such a decis. ion as to justify the canceling of the entry or warrant any claim-jumper in wresting from another the fruit!! of years of toil. Until the court of last resort, in a proper case, does make such a I cannot do so. In this answer it is not alleged that the allowance of the entry under which the plaintiff claimS was predicated upon false testimony, and no' want of lawful authority ·for allowance of the entry is shown. In my o'pinion, it does not appear from the facts stated that it was within the power of any officer of the government to annul the entry made by plaintiff's grantor, or deprive plaintiff of his rights as owner of the land,and I therefore sustain the exceptions.
(OirOUl£t Oourt, E. D. Louisiana. April 6, 1891.)
On libel by paSsengers against the master of a steam-ship for failure to furnish 'wholesome and proper food, equal in value to one and a half navy ratioDs of the as required by thep!'s$enger act, (U. S. St. 1882, c.374, § 4,) libelants cannot recover if the evidence'does not show the money or nutritive value of the 'provisions furnished, or that they were not equal in value to one and a half navy rations, though they may have been poor in qUality. 9. OJ' CONTRAOT. ' In such adtion it appesred that, instead of furnishing the amount and quantity of food ,stipulated on the tiokets, the master them unwholesome and insufficient provisioIlS; that fresh water was not furnished them as agreed upon; that the water-o!osetsfor the female passengers were not decently arranged and inclosed, and'-yvere in a disgustingly filthy condition. For tl:le inSUfficiency of the water-olos! ets, the sb;ip was convioted under the passenger act of 1882, and fined $250. that damages should be allowed libelants, '$50 to each for breach of contract as to provisions, and $50 additional to each female for breach as to water-closets.
TO FuRNISH PROPER FOOD.
In Admiralty. .. The pa8$enger act, (U. S. St. 1882, c. 374:, § 4,) relating to the ment ofsteam-boat passengers, provides that"An all0'Yance of Rood, wholesome, and ,proper food, with a reasonable quantity of fresh prOVisions, which food be equal in value to one and a half navy rations of the United States, and of fresh water, not Jess than four quarts perday, shall be furnished each of suchpassElDgers. '" '" * If any any sul;jh passengers shall at any time during the voyage be put on short' allowance fClrfood and water, the master of the vessel shall pay to each passenger three ,401lars for each and every daytbe passenger :may have been put pn short a1l9wance. '" '" '" And for ev:ery willful violation of. any of the provisions of this the JlIastllr ,of the vessel shall be deemed guilty of a misdemeanor, and shall be fined, not mOre than five bundred dollars. and be .imprisoned 'for a term not exceeding six months. The enforcement of tqis pemmYI hOwever,'shallilot affect the civil responsibility of the master and owners of.the vessel to sllchpassengers as may have suffered from any negH.: gehce,breacboJ: contract, or default on the part of suoh master and owners." T. J. Semme8, for claimant. R.· DeGray, for libelants.
PARDEE, J. The libelants, some 20 odd in number, alleging that they were steerage passengers on board the steam-ship Havre, on her voyage from the port of Antwerp, via Bordeaux, to the port of New Orleans, made between the 12th of January and the middle of February, 1890, for grounds of complaint against said vessel charge that the master and officers of said vessel, in violation of libelants' contract of passage, neglected, failed, and refused to furnish, without any just reason or cause, the libelants with proper or sufficient food; and such as they were entitled to under their contract, but, on the contrary, starved them, although said steam-ship had an abundance of wholesome and sufficient food on board during the whole of the voyage; and, further, refused to furnish them with water-closets of the kind or character demanded by ordinary decency, and by the statutes of the United States, "\'I'hereby