PART IX.

OF THE LAND DEPARTMENT.

CHAPTER I.

OF THE GENERAL JURISDICTION OF THE LAND DEPARTMENT, INCLUDING THE JURISDICTION AND FUNCTIONS

OF ALL SUBORDINATE DEPARTMENTS.

§ 595. Preliminary observations - Why reproduced here. 596. The organization of the interior department and its functions in connection with mining claims.

597. Functions of the department - How exercised.

598. Regulations of the department have the force and effect of law. 599. Presumptions in favor of regularity.

600. Binding force of the decisions of the department upon questions of fact or upon mixed questions..

601. Contemporaneous construction of the statutes by the depart

ment.

§ 595. Preliminary observations Why reproduced here.-Law books being the working tools of the busy lawyer, their value is enhanced or diminished according as they furnish all the information he seeks. The jurisdiction and functions of the land department of the government are often brought in question in the determination of matters submitted to the consideration of the mining lawyer. He will be better able to answer the necessary questions with certainty and satisfaction to himself and usefulness to his client, if all matters are grouped together and brought to his attention in one book or set of books.

§ 596. The organization of the interior department and its functions in connection with mining claims.— It is common history that prior to 1849 the functions now ex

ercised by the department of the interior respecting public lands devolved upon the department of the treasury.1 In that year, however, congress passed a law creating the department of the interior, and by various amendments thereto providing for extending the organization in detail of the land department thereof has committed the entire charge and disposal of public lands to that department.' The land department was until that time a bureau of the department of the treasury.

$597. Functions of the department How exercised. The functions of the department, so far as applied to our inquiry, are exercised by the secretary as the supervisory power, the details of whose business relating to public lands are performed under the direction of the assistant attorneygeneral for the interior department. The actions and duties of surveyors-general and of registers and receivers are under the supervision of the commissioner of the general land office. From this supervisory control flows the right of appeal, controlled by general regulations issued by the department, whereby appeals are allowed from the surveyorgeneral of any state or territory and from the register or receiver of any land district to the commissioner of the general land office, and from him in turn to the secretary of the interior. The recorder of the general land office is also a functionary of this department and under its control." Likewise the secretary, specially authorized by congress, who is authorized to sign the president's name for him to all land patents.

1 Analysis of Our Government, by Bancroft, p. 320.

2 Act of March 3, 1849, 9 Stat. at L., p. 395; R. S. U. S., 437 et seq.

See R. S. U. S., tit. XI, ch. III, for act creating commissioner of the general land office. See act of April 25, 1812, 2 Stat. at L., p. 717.

4 Instructions, 13 L. D. 13; Snyder V. Sickels, 98 U. S. 203.

5 R. S. U. S., tit. XI, ch. III, §§ 446 et seq.; Parker v. Duff, 47 Cal. 554. 6 Richard Dotson, 18 L. D.275–279; Rules 43-81.

7R. S. U. S., 447, 459.

8 Act of July 4, 1836, 5 Stat. at L., p. 111; R. S. U. S. 450.

§ 598. Regulations of the department have the force and effect of law. The regulations of the department, promulgated by or under the authority of the secretary of the interior, áre manifestly of the same dignity as ordinary rules of court, and if made in conformity to the statutes have, for the time being, all the force and effect of law.1 But of course these regulations will never be permitted to defeat a statutory right, nor in any way to abridge the same.3

§ 599. Presumptions in favor of regularity. It has been held, over and over again, that the actions of the departments of government, and especially of those officers clothed with the responsibility and duty of properly disposing of the public lands under the law, are presumed to have been correctly performed. As was said by the supreme court of the United States in a leading case: "The officers of the land department are specially designated by law to receive, consider and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any case, or if fraud is practiced upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions; but, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the president. It may also

1 Rogers v. Lukens, 6 L. D. 111; Henry W. Fuss, 5 L. D. 167, 169, citing Minor v. Marriott, 2 L. D. 709; Robb's Lessee v. Irwin, 15 Ohio, 703; Ohio Life & Trust Co. v. De Bolt, 16 How. 432; Gelpcke v. Dubuque, 1 Wall. 206. See also Sec'y

Noble to Com'r Stone, 9 L. D. 86;

Mary R. Leonard, id. 189; John M. Lindback, id. 284; Hessong v. Burgan, id. 353.

2 White v. Sullivan, 2 L. D. 283.

Francis M. Bishop, 5 L. D. 429. See also Original Co. v. Winthrop, 60 Cal. 631.

be and probably is true, that the courts may furnish, in proper cases, relief to a party where new evidence is discovered, which, if possessed and presented at the time, would have changed the action of the land officers; but, except in such cases, the ruling of the department on disputed questions of fact made in a contested case must be taken, when that ruling is collaterally assailed, as conclusive."1

§ 600. Binding force of the decisions of the department upon questions of fact, or upon mixed questions.-Pursuing the same line of thought, inasmuch as the various departments of government are functionaries, within their particular spheres, for the execution of the laws; and particularly, the land department is a special tribunal organized for the purpose of providing an orderly and systematic channel for the disposition of the public lands, it has become so well settled as to be axiomatic that the decisions of the department upon questions of fact, or of mixed questions of law and fact, in the absence of fraud or imposition, and if done within the scope of its authority under the law, and especially in matters pertaining to the issuance of patent, are not open to collateral attack, but only by special proceedings instituted for that purpose.2 The reason of this

1 Shepley v. Cowan, 91 U. S. 330. See also Rancho Casmalia, 2 L. D. 465; Murray B. Patten, id. 242; Sec'y Teller to Com'r McFarland, id. 606, 610; St. Louis S. & R. Co. v. Kemp, 104 U. S. 636; Steel v. St. Louis S. & R. Co., 106 U. S. 447; Johnson v. Towsley, 13 Wall. 72; United States v. Schurz, 102 U. S. 378, 26 L. ed. 167; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038.

2 Steel v. St. Louis S. & R. Co., 106 U. S. 447, 451; Lee v. Johnson, 116 U. S. 51; Noble v. Union River R. R. Co., 147 U. S. 175; Astizaran

v. Santa Rita M. Co., 148 U. S. 83; Barden v. Northern Pacific R. R. Co., 154 U. S. 288; Bishop of Nesqually v. Gibbon, 158 U. S. 106; Holmes v. State, 100 Ala. 295, 14 So. Rep. 52; Saunders v. Purisima Land Co., 125 Cal. 163, 57 Pac. Rep. 658; Gale v. Best, 78 Cal. 238, 20 Pac. Rep. 551; Poire v. Wells, 6 Colo. 408. A further collection of authorities on this matter will be found in the discussion as to the effect of a patent, post, Part X, ch. V. See also Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038.

rule is well stated by the supreme court of the United States, speaking through Mr. Justice Field, in the following words: "It would lead to endless litigation and be fruitful of evil if a supervisory power were vested in the courts over the action of the numerous officers of the land department on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case, as established before the department, and thus have denied to parties rights which, upon a correct construction, would have been conceded to them, or, where misrepresentations and fraud have been practiced, necessarily affecting their judgment, that the courts can, in proper proceedings, interfere and refuse to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled."1

§ 601. Contemporaneous construction of the statutes by the department. It is a well settled principle of statutory construction that wherever a statute is of doubtful import, the construction placed upon it by those who are called upon to construe it is of persuasive if not controlling force. Upon this principle it has become well settled with reference to department rulings that the construction placed upon the statute by executive officers will not be overruled except for cogent reasons. The doctrine is thus announced by the supreme court of the United States: "The principle

1 Quimby v. Conlan, 104 U. S. 420, 426. See also Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; United States v. Moore, 95 U. S. 760; Craig v. Leitensdorfer (Downs v. Hubbard), 123 U. S. 189, 31 L. ed. 114. See also Rose's notes to U. S. Rep., vol. 10, p. 195.

3 United States v. Moore, 95 U.S. 760; Hahn v. United States, 107 U. S. 406; Hastings, etc. Ry. Co v. Whitney, 132 U. S. 366; McConnaughy v. Pennoyer, 43 Fed. Rep. 203; St. Paul, etc. R. Co. v. Sage, 71 Fed. Rep. 32; Northern Pac. Ry. Co. v. Dudley, 85 Fed. Rep. 82; Doe v. Waterloo M. Co.,

2 Suth. Stat. Const., § 307 and 70 Fed. Rep. 463; Montana Co. v. cases cited.

Clark, 42 Fed. Rep. 626.