Edward Douglass White

“ The difference between the two is that which must obtain between the power to decide, on the one hand, whether the prerequisites to an entry exist, and the right, on the other, of the Land Department, after finding that an applicant has fully complied with the law and is entitled to make the entry which he asks, to permit somebody else to enter the land under the assumption that the law vests a discretion which enables that to be done. ”

“ In June, 1902, the state of Oregon prepared lists selecting lands in place of certain designated school lands for which it claimed to be entitled to be indemnified, and these lists were filed in the local land office and were transmitted for approval to the Commissioner of the General Land Office. The state, before such approval, sold to Daniels the land covered by the lists, including that with which this controversy is concerned. The Land Department subsequently refused to approve the state lists because of error concerning the school lands for which the right of indemnity was asserted. ”

“ The Department directed attention to the fact that in the meanwhile the right of the vendees to make the proposed entry would be indubitably preserved, as the filing of the previous lists by the state had segregated the land, and until the relinquishment was presented that segregation would continue; and further, that if the relinquishment and the application to enter the lands were filed together, no danger of loss of right would exist. ”

“ That although Congress may have the power to provide for the disposition of the public domain and fix the terms and conditions upon which the people may enjoy the right to purchase, it has not done so, since every command which it has expressed on this subject may be disregarded, and every right which it has conferred on the citizen may be taken away by an unlimited and undefined discretion which is vested by law in the administrative officers appointed for the purpose of giving effect to the law. ”

“ In addition, in the brief for the appellee in this case various mixed contentions of law and fact are stated under six propositions which it is deemed establish that the demurrer was rightly sustained even although the Land Department did not possess the discretion which it assumed it had. Some of them we think too obviously devoid of merit to require anything but statement. For instance, the contention that because a patent of the United States is involved, therefore the United States is a necessary party. ”

“ As to the others, we think whatever be their merit, as to which we intimate no opinion, they plainly concern themselves with the merits of the case, and have no tendency to establish the proposition that the demurrer was rightly sustained. ”

“ The averments of the bill were full, and embraced the facts above recited, and the opinion of the Secretary, rendered in 1910, was made a part of the bill. The bill was demurred to as stating no case for relief. ”

“ Hoyt concerned a question of the selection of indemnity lands by a railroad company under a railroad grant, but the reasoning in that case, we are of opinion, in the very nature of things is repugnant to the possibility of the possession of the discretionary power in the Department here asserted. ”