CHAPTER III. OF THE COMMISSIONER OF THE GENERAL LAND OFFICE. § 610. Commissioner, office, when created-Duties of office- The stat ute. 611. General supervisory authority of - Regulations. 612. Has general authority and his actions are judicial. 613. May investigate conditions in adverse suits and decide whether either party is entitled to patent notwithstanding judgment. 614. Miscellaneous matters · Decision by acting commissioner. § 610. Commissioner, office, when created - Duties of office The statute.-The general land office was originally established by the act of April 25, 1812, as a bureau of the department of the treasury,' and the office of commissioner was created by act of 1836,2 the entire bureau becoming a part of the department of the interior upon the creation of that department in 1849.3 The duties of the office, in a general way, are provided for by the following comprehensive section of the law: "The commissioner of the general land office shall perform, under the direction of the secretary of the interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government." 1 Act of April 25, 1812, 2 Stat. at L. 715. 2 Act of July 4, 1836, 5 Stat. at L. 107; R. S. U. S. 446; Instructions General Land Office, July 3, 1891, 13 Stat. at L., p. 13. Act of March 3, 1849, 9 Stat. at L 395; R. S. U. S. 437, 13 L. D., p. 13; Johnston v. Morris, 72 Fed. Rep. 890. 4 R. S. U. S. 453. § 611. General supervisory authority of- Regulations.- Necessarily, as the head of his particular department, he may, with the consent and approval of the secretary of the interior, make and enforce such reasonable rules as are necessary to carry into effect statutes, and for the performance by subordinates of their respective duties, and such acts are, in contemplation of law, the acts of the secretary of the interior.1 § 612. Has general authority, and his actions are judicial. The jurisdiction of the commissioner of the general land office is that of an intermediate supervisor over the acts of registers and receivers and surveyors-general under the law, rules and regulations of the department, and this supervisory jurisdiction is an appellate one; and while the actions of the commissioner in passing upon such matters have all the force and effect of judicial decisions,' he is likewise vested with the same judicial discretion within his sphere as is the secretary of the interior.' § 613. May investigate conditions in adverse suits and decide whether either party entitled to patent, notwithstanding judgment.- Since it is settled law, from the very nature and jurisdiction of the department, that it must finally determine when, and under what circumstances, the government shall part with its land, including its mineral land,” and since the judgment roll in an adverse suit can only deter 1 Hooper v. Ferguson, 2 L. D. 712, 714; Wolsey v. Chapman, 91 U. S. 755, 769; John C. Turpin, 5 L. D. 25, 27; Com'r McFarland to Aberdeen Office, 1 L. D. 45. 2 John McDonogh School Fund, 8 L. D. 463, 466; Chas. W. Filkins, 5 L. D. 49; Adolph Peterson, 6 L. D. 371; Sam'l H. Vandevoort, 7 L. D. 86; Stephen Sweayze, 5 L. D. 570; Instructions March 3, 1891, 13 L. D. 8, 13; Dippert v. Berger, 13 L. D. 496; Bell v. Hearne, 19 How. 262; Barnard v. Ashley, 18 How. 43; Baca Float, 13 L. D. 624; R. S. U. S. 453. 3 Morrison v. McKissick, 5 L. D. 245, 247. 4 Gibson v. VanGilder, 9 L. D. 626; David B. Emmert, 3 L. D. 55; Stiles v. Newman, 10 L. D. 491. 5 Moore v. Robbins, 96 U. S. 530; Alice Placer Mine, 4 L. D. 314. mine after all the matters before the court, and the decision can only specify who, if either, has complied with the law and is entitled to possession,' it has been decided by the department, in a very able opinion by the late Secretary Lamar, and correctly we think, that the commissioner of the general land office, in virtue of his supervisory authority and in the due discharge of his duties under the law, has the right to go behind the judgment roll in an adverse suit, not for the purpose of reversing or setting aside anything decided there, but for the purpose of deciding after all, whether, from matters brought to his notice dehors the judgment roll, the applicant, or either applicant, is entitled to a patent.2 § 614. Miscellaneous matters-Decision by acting commissioner.-Manifestly, and for the reasons already noticed, it is the officer and not the person who makes the decision. Whence it follows that wherever the acting commissioner is acting in the place of the commissioner, his decisions are entitled to the same respect as those of the commissioner.3 The department is likewise authorized to employ special agents for certain purposes, but it is very rarely that this is done with respect to mining property, and it is therefore unnecessary to notice it further at this time, as the authority of such agents is merely that of collecting ocular evidence by visiting the property, and is limited to the particular matter in hand. But he should not examine claims and report thereon at the request of interested parties. 1 Branagan v. Dulaney, 2 L. D. 744. 2 Alice Placer Mine, 4 L. D. 314. 3 John M. Walker, 5 L. D. 504. CHAPTER IV. SURVEYOR-GENERAL. § 620. Surveyor-general-Appointment and duties. 621. His deputies and their appointment-Discretionary powers. 622. Neither deputy mineral surveyors nor clerks in the office may be interested in acquiring patent to lands within their district. § 620. Surveyor-general - Appointment and duties.— While the surveyor-general is appointed by the president, he is essentially a subordinate and under the control of the commissioner of the general land office. He is amenable to the department and is bound to follow the circular of instructions issued for his guidance. While his official actions are presumably and prima facie correct, they are subject to review by appeal, and may be set aside by the commissioner, or on appeal to the secretary of the interior. § 621. His deputies and their appointment-Discretionary powers.- Manifestly and essentially, in the discharge of his duty in a competent manner, the surveyorgeneral should be and is vested with a wide discretion in respect to the appointment of deputy mineral surveyors. And while it is not absolutely essential that a deputy mineral surveyor be a resident of the district in which he is appointed, the commissioner will not interfere with the action of the surveyor-general in refusing to appoint a non-resident 1R. S. U. S. 441, 453. See also § 2207 et seq.; State of California, 3 L. D. 492, 495. 2 State of California, supra. 3 Snyder v. Sickels, 98 U. S. 203; Magwire v. Tyler, 1 Black, 195; Patterson v. Tatum, 3 Sawy. 164; Magwire v. Tyler, 8 Wall. 661; State of California, supra; Lytle v. Arkansas, 9 How. 333; Barnard's Heirs v. Ashley's Heirs, 18 How. 48; Robert Golinski, 20 L. D. 283. 4 William E. Jacobs, 21 L. D. 379; R. S. U. S., § 2334. 5 Chas. W. Helmick, 20 L. D. 163; Richard H. Brown, 27 L. D. 582. of his district as deputy mineral surveyor, or in refusing to reinstate a non-resident who had previously held such appointment.' But the general supervisory power of the commissioner is a sufficient warrant for reviewing the action of a surveyor-general, including the right to restore a deputy mineral surveyor suspended by a surveyor-general.2 622. Neither deputy mineral surveyors, nor clerks in the office, may be interested in acquiring patent to lands within their district. No man should be judge of his own case. And, proceeding upon this principle, as well as from considerations of the soundest public policy, it is well settled that neither deputy mineral surveyors nor clerks in the surveyor-general's office are qualified to locate and acquire patents to public mineral lands. By provision of the statute, officers and clerks of the department in general, that is to say, the general land office, are prohibited from directly or indirectly purchasing, or being interested in the purchase of, any public lands; and this has been correctly decided to include within its spirit any officers, clerks or employees in any branch of the public service under the control and supervision of the commissioner of the general land office, and to extend to all officers, clerks and employees of the surveyors-general and the local land offices.5 1 Richard H. Brown, 27 L. D. 582; William E. Jacobs, 21 L. D. 379. 2 Robert Golinski, 20 L. D. 283. 3 Floyd v. Montgomery, 26 L. D. 122; John S. M. Neill, 24 L. D. 393; Muller v. Coleman, 18 L. D. 394; Herbert McMicken, 10 L. D. 97; 4 R. S. U. S. 452. 5 See authorities in note 3, ante. See also Circular of Sept. 15, 1890, 11 L. D. 348. |