Committee of the House of Representatives that they had no personal knowledge on the subject, and did not know that the statements of their certificate of July 25, 1870, were true, and the testimony of other parties connected with the Land Office has been taken before the same committee for the purpose of showing how it was that the record came to be made before the patent had been executed, and that in point of fact the patent never was executed. June 15, 1871, McGarrahan presented to the Secretary of the Interior a petition reciting the history of the patent as recorded, and alleging that the patent was executed and recorded, and that "Secretary Cox ordered that the record of my (his) patent be destroyed, which was accordingly done on the 25th of July, 1870," and he asks that the Secretary "will be pleased to advise the President to order the restoration of the record of my (his) patent upon the records of the Land Office to the same condition in which it was placed by the decision of President Lincoln, and Secretaries Smith and Usher, and to remove the unauthorized and illegal erasures made on it by direction of Mr. Cox, and that an exemplified copy of this unmutilated record be delivered to me (him.") I have given thus briefly the entire history of this case, except the action of Congress, and will now proceed to state the conclusions to which I have arrived. The eighth section of the act of April 25, 1812, (2 Stats., 717,) provided that "all patents issuing from the said office shall be issued in the name of the United States, and under the seal of the said office, and be sigued by the President of the United States, and countersigned by the Commissioner of the said office, and shall be recorded in the said office in books to be kept for the purpose." The duty of countersigning was afterwards imposed upon the Recorder instead of the Commissioner. (5 Stats., 417.) It was the legal duty of the Commissioner to record all patents that had been issued under the seal of his office, signed by the President, and from the fact of such record the law presumes that the patent had been duly signed by the President. In The United States vs. Dandrige, (12 Wheat., 69,) the Supreme Court said: "By the general rules of evidence presumptions are continually made in cases of private persons of acts even of the most solemn nature, when these acts are the natural results or necessary accompaniment of other circumstances. In aid of this salutary principle the law itself, for the purpose of strengthening the infirmity of evidence and upholding transactions intimately connected with the public peace, and the security of private property, indulges its own presumptions. It presumes that every man in his private and official character does his duty until the contrary is proved; it will presume that all things are rightly done, unless the circumstances overturn this presumption according to the maxim omnia presumuntur rite et solemniter esse acta donec probitur in contrarium. Thus it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that upon proof of title, matters collateral to that title shall be deemed to have been done. The books on evidence abound with instances of this kind." In accordance with this settled rule the presumption is that the patent was duly signed. But it is only a presumption, and may be overcome by proof. In Lea vs. Polk County Copper Company, (21 Howard, 494,) the facts were these: A patent from the State of Tennessee had issued to William Park Lea. It was signed by the governor, countersigned by the secretary of state, and sealed with the great seal of the State. As originally filled out before signature, it was in the name of William P. Lea, and was altered to William Park Lea by adding the letters "ark" to the P. This was done by the register of the land office, whose duty it was to prepare the patent for the signatures of the governor and secretary. There was a William Pinkney Lea, and he and William Park Lea wrote their names William P. Lea, the former always, and the latter generally, although he sometimes signed William Park Lea. Both had entered lands, and the register added the letters "ark" to distinguish between them. It was claimed that William Pinkney Lea was the party whose name should have been in the patent. The court, in disposing of the case, said: "Then the presumption comes in that, as a public officer, the register did his duty, and he who impeaches the act as illegal must prove the allegation. On this assumption the register filled up the patent, as it is now found, before the governor signed it, and the seal of the State was attached; that is to say, when the patent bears date. Then, again, all the incipient steps authorizing the register to issue the grant, the governor to sign it, and the secretary to attach the great seal, are presumed as having been regular; nor was the purchaser required to look behind the patent." (Baywell vs. Broderick, 13 Pet., 448.) This case is a clear admission by the Supreme Court that the actual facts in reference to a patent may be shown, and that, if necessary, the record may be contradicted and corrected. But how, and by whom? Shail it be in the Department where it originated, or must it be in court? Obviously, when the patent has not been delivered, it would be much more convenient, and certainly more expeditious, less expensive, and equally safe, to have the correction made in the Department, and under the supervision and control of the Secretary of the Interior, who is selected on account of his high character. If the Secretary had personal knowledge that the record was untrue, and the error had arisen during his term of office, it is clear that he would have the power, and it would be his duty, to make the record speak the truth. Is it any the less his duty, if the error occurred before his term, provided he is fully satisfied there is such error, although he may not have personal knowledge on the subject? It seems to me that personal knowledge is not essential. In the various subjects that necessarily arise in one of the Departments, it is utterly impossible that the Secre-` tary can have personal knowledge of them all. He must trust to those who are under his charge, and it is proper for him to rely on their statements, when he knows that they are credible and worthy persons. In so grave a matter as altering the record of a patent, he should act with extreme caution, and after diligent inquiry. In the case now under consideration Secretary Cox has acted upon evidence that was satisfactory to him. If he had jurisdiction, (which I think he had,) and erred in his conclusions, it is settled by multiplied decisions of the Attorneys General that you, as his successor, have no power to reverse him. See opinion of Mr. Wirt, (2 Op., 9;) of Mr. Taney, (2 Op., 464;) of Mr. Nelson, (4 Op., 341;) of Mr. Toucey, (5 Op., 29;) of Mr. Johnson, (5 Op., 123;) of Mr. Black, (9 Op., 101, 301, 387;) of Mr. Staubery, (12 Op., 358;) of Mr. Hoar, of April 26, 1869, and of Mr. Akerman, of March 7, 1871; also United States vs. Bank of Metropolis, (15 Pet., 401.) In view of these authorities, if I differed with Secretary Cox as to the weight of the evidence; I should not feel justified in advising a reversal by you of what he had done; but I do not differ with him. In my opinion, after careful examination of all the light now shed upon the question, the patent for Panoche Grande was not executed by the President. Entertaining these views, I must advise adversely to the prayer of McGarrahan. Very respectfully, Hon. C. DELANO, W. H. SMITH, Assistant Attorney General. Secretary of the Interior. DEPARTMENT OF THE INTERIOR, SIR: I have examined the application of the New Idria Mining Company for the issuing of a patent for 480 acres of mineral lands in California, and am of opinion that the same should be rejected. Some of the necessary steps in the case were taken in direct violation of the orders of the proper officer in the Interior Department. The evidence is defective in not showing that the proper notice and diagram were posted up on the premises, and in not identifying the claims alleged in the petition and advertisement. There is no sufficient proof of the citizenship of the claimants, and the amount of land claimed exceeds that authorized by law. I inclose a copy of the opinion of Assistant Attorney General Smith in the case. I concur with him in the conclusion that the claim should be rejected. You will take the proper steps to carry this decision into effect. The papers transmitted with your letter of 17th September, 1870, are herewith returned. I am, sir, very respectfully, your obedient servant, Hon. WILLIS DRUMMOND, Commissioner General Land Office. B. R. COWEN, DEPARTMENT OF JUSTICE, SIR: I have examined with care the application of the New Idria Mining Company for the issuing of a patent for 480 acres of mineral lands in townships seventeen and eighteen south, range twelve east, Mount Diablo meridian, California. This company was incorporated on the 25th of January, 1858, under a general law of the State of California, with a capital stock of $23,000, divided into one hundred and fifteen shares, among eleven shareholders. It was to continue fifty years, have its principal place of business at San Francisco, and be governed by a board of five trustees. It filed its application and diagram in the local land office on the 6th day of February, 1867. The application alleged that the New Idria Mining Company was the owner of the mining claim known as the New Idria, situate in the San Carlos district, Fresno county, Cali fornia; that it claimed a vein or lode of cinnabar and other minerals, and had occupied and improved the same under the names of the Molina, San Carlos, and New Idria mines. It contained the other averments necessary to bring it within the act of July 26, 1866, and had attached a diagram, of which the following is a copy: The company published, in the Monterey Gazette, a notice for ninety days, commencing on the 8th of February, 1867, and ending on the 16th of May, 1867, of which the following is a copy; "U. S. LAND OFFICE, SAN FRANCISCO, February 1, 1867. "Whereas the companies known as the Morning Star, the New Idria, and the Victorina, claiming certain mineral veins or lodes ane lands in townships Nos. 17 and 18 south, and Sange No. 12 east, Mount Diablo meridian, included in the San Francisco U. S. land district, (the bounds and extent of said land claims being fully set forth in the notices and on the claim itself,) has this day filod in the U. S. land office for this distriet a declaratory statement, with accompanying diagram of the claim, declaring therein the intention of said companies to mine for cinnebar and other minerals, and apply for a U. S. patent for the lodes and land land claimed; it is hereby ordered that the annexed notices be published for ninety days in the Monterey Gazette, a newspaper published at Monterey, in the State of California. "Given under my hand this 1st day of February, 1867. "Feb. 8-3m." "JAS. W. SHANKLIN, 66 NOTICE. "The undersigned give notice that they intend to apply for a patent for the vein or lode set forth in the diagram and notice posted on the claim, and filed in the U. S. land office, San Francisco, called the Morning Star, situated in the San Carlos district, county of Fresno, State of California. "Dated this 1st day of February, 1867. "THE NEW IDRIA MINING CO., "By WM. H. L. BARNES, "Feb. 8-3m." ፡፡ NOTICE. "President. "The undersigned give notice that they intend to apply for a patent for the vein or lode set forth in the diagram and notice posted on the claim, and filed in the U. S. land office, San Francisco, called the Victorina, situated in the San Carlos district, county of Fresno, State of California. "Dated this 1st day oi February, 1867. "THE NEW IDRIA MINING CO., "By WM. H. L. BARNES, "Feb. 8-3m." NOTICE. "President. "The undersigned give notice that they intend to apply for a patent for the vein or lode set forth in the diagram and notice posted on the claim, and filed in the U. S. land office, San Francisco, called the New Idria, situated in the San Carlos district, county of Fresno, State of California. "Dated this 1st day of February, 1866. (?) "Feb. 8-3m." "THE NEW IDRIA MINING CO., "By WM. H. L. BARNES, "President. A notice and diagram were posted on the claim for ninety days, but what that notice and diagram were, and when the ninety days commenced, is not shown in the case. The survey was made on the 6th and 7th days of June, 1867, by James T. Stratton, United States deputy surveyor, and approved by L. Upson, surveyor general of California, on the 22d day of June, 1868. The papers in the case were forwarded by the register to the Commissioner of the General Land Office on the 29th of July, 1868, and received by him on the 12th of August, 1868. Among these papers was a certified copy of the local laws, adopted by the miners of the San Carlos district on the 4th of December, 1854, by which it was provided that a discoverer of quicksilver or silver mines should be entitled to 160 acres, to be so located that the mine or vein should be situate on the same. Having made this preliminary statement, I will proceed to consider the questions which arise in the case, some of which are purely technical, and others are substantial and important, and affect the merits. 1. It appears from the papers on file that the clerk of the Judiciary Committee of the House of Representatives, on the 1st of April, 1867, transmitted to the Commissioner of the General Land Office a joint resolution (H. R. 45) directing the Secretary of the Interior to "withhold the issuing of any patent, and to permit no proceedings in his Department affecting the title to the tract of land known as the Rancho Panoche Grande, in the counties of Monterey and Fresno, in California, until the claim thereto now pending in Congress shall have been disposed of." On the 18th of April, 1867, the surveyor general of California and the register and receiver of the proper district were instructed, as suggested by said joint resolution, and these instructions were repeated May 23, 1867, February 1, 1868, and August 17, 1868. The New Idria Mining Company was advised of these instructions, and yet, notwithstanding the same, at the request and at the instigation of the company, the surveyor general caused the premises to be surveyed on the 6th and 7th days of June, 1867, and approved the plat thereof on the 22d of June, 1868, and the register forwarded the case to the office of the Commissioner of the General Land Office on the 29th of July, 1863, although the aforesaid instructions were still in force and had never been reversed. Their action seems to have been in accordance with an opinion given by Delos Lake, esq., then United States district attorney of California. They were not officers under the district attorney, but were officers under the superintendence of the Secretary of the Interior. The acts that were thus done against the express direction of the proper officer were material steps in making out the claim of the New Idria Company for the land in question, and I submit that to approve of them now as regular and valid would be a species of self-stultification not complimentary to the Interior Department, and not calculated to promote the just administration of the public business of subordinate officers. 2. There is no evidence that a proper notice or diagram was posted on the claim. The affidavits that have been filed do not describe the notice or diagram, and do not state when they were posted up. Whether they were sufficient in law or not I am unable to say. The applicant should have proved just what the notice and diagram were, and when they were posted on the claim. The third section of the act of July, 1866, requires that such notice and diagram shall be posted in a conspicuous place on the claim. As the method of acquiring mineral lands is a special statutory proceeding, the statute should be carefully followed. 3. The notice published in the Monterey Gazette describes the companies who are making the application as the Morning Star, the New Idria, and the Victorina, whereas the New Idria Mining Company, in their application, describe them as the Molina, the San Carlos, and the New Idria. Now it may be that the Morning Star and the Molina are identical, and that the San Carlos and the Victorina are identical, but if they are, there is no proof of the fact on file in this case. The published notice should agree in description with the application, and if it does not, the applicant has failed to comply with the statute. 4. The second section of the act of July 26, 1866, reads as follows: "That whenever any person or association of persons claim a vein or lode of quartz, or other rock in place, bearing gold, silver, ciunabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than $1,000, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant or association of claimants to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." It will thus be seen that the "vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, (quicksilver,) or copper, to which a patent can be obtained, is one which has been previously occupied and improved according to the local customs or rules of miners in the district where the same is situated, and on which not less than $1,000 have been expended in actual labor and improvements, and also one "in regard to whose possession there is no controversy or opposing claim." Congress had the power to make such qualifications in granting mineral lands as it saw fit. It chose to say that no such lands should be patented unless they were those that were free from all questions relating to the possession. Not content with saying that the possession should be free from controversy which might imply active assertion of right by proceedings in court or otherwise, it did say that the mines shall be free from all opposing claims. That is to say, no patent shall issue for any mineral lands about which any one, other than the petitioner, asserts any right of possession, and all controversy must relate to possession, for title is in the Government, and therefore cannot be in question. Stronger language could not well be used. If we look into the history of these New Idria mines, we shall find that there has been a continuous, persistent, and bitter contest in regard to them from the outset, and up to the present time. William McGarrahan has sought by suits in ejectment, and otherwise, and by congressional action, to possess himself of these identical premises. He is now before your Department, and has been for the last ten years. If this second section were the only provision on this subject, I should entertain no doubt but that this controversy and opposing claim of McGarrahan was fatal to the application now made. But it may be, in view of the provisions of the third section, relating to an "adverse claim," and the manner of presenting it, that the true meaning of the second section is, that there must be no controversy or opposing claim at the time of the final hearing and the issuing of patent. If this be the true construction, and I am inclined to think it is, it may be that this objection is not well taken, as I understand the McGarrahan claim has been virtually rejected by your Department. At all events the question is not free from doubt. 5. The first section of the act of July 26, 1866, provides, "That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States." In other words, the only parties entitled to the benefits of this act are |