Samuel Freeman Miller

“ We do not think, therefore, that it can be successfully denied that there exists in the attorney general, as the head of the department of justice, the right to institute, in the name of the United States, a suit to abrogate, annul, or set aside a patent for land which has been issued by the government in a case where such an instrument, if permitted to stand, would work serious injury to the United States, and prejudice its interests, and where it has been obtained by fraud, imposture, or mistake. ”

“ But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and, if restrictions are to be placed upon the exercise of this authority by the attorney general, it is for the legislative body which created the office to enact them. ”

“ The strongest argument against the commission of any fraud, and in favor of the correctness of the location of the grant by the survey, is to be found in the fact that it went through all the different offices in the land department to which it could possibly be taken, from its being filed by Thompson in the office of the surveyor general up to its consideration by the secretary of the interior himself, and in all these offices ample time was given for careful examination ”

“ The fraud, if one exists, has been practiced on the government, and, as the party injured, it is the appropriate party to assert the remedy or seek relied.' In U.S. v. Throckmorton, 98 U.S. 70, the court said: 'In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the attorney general as indorsing the suit before it will be entertained. ”

“ If it be a question of property, a case must be made in which the court can afford a remedy in regard to that propet y; if it be a question of fraud which would render the instrument void, the fraud must operate to the prejudice of the United States ”

“ The deputy who was directed to make the survey of the sobrante was George H. Thompson. Neither Surveyor General Beale nor Thompson had any interest, present or contingent, in the sobrante at that time, or any promise of any interest. I know positively that they had no interest, or promise of interest. Surveyor General Beale has never owned any interest in the sobrante rancho, nor ever owned any stock in the San Jacinto Tin Company, either by himself or in trust, or in any other manner. ”

“ Upon a careful consideration of the subject, we are of the opinion that the most that can be reasonably said against the location is that the record presents a fair case for an honest difference of opinion; that a plausible argument can honestly be made in support of either side of the proposition. ”

“ He gives a history of his connection with the claim, and with the land-office during its pendency before it, and also states the connection that other parties sustained to this transaction who are asserted to have been interested in it during that time. It seems to be a fair and candid statement of all the facts about which he was interrogated. He contradicts himself nowhere during a long examination and cross-examination, and he is not anywhere successfully contradicted by other testimony in the case. ”

“ There is no express authority vested in him to authorize suits to be brought against the debtors of the government, or upon bonds, or to begin criminal prosecutions, or to institute proceedings in any of the numerous cases in which the United States is plaintiff ”

“ He was then asked, 'By whom was he selected?' to which he replied, 'I don't know, but I presume that the surveyor general appointed him on his own motion;' and proceeded to say that the instructions were signed by the surveyor general. ”