GERMANIA IRON CO. v. JAMES et al., 89 F. 811

SANBORN, Circuit Judge (after stating the facts). The “land department of the United States (including in that term the secretary of the interior, the commissioner of the general land office, and their subordinate officers) constitutes a special tribunal, vested with the judicial power to hear and determine the claims of all parties to the public lands which it is authorized to dispose of.” 9 Stat. 395, c. 108, § 3; Rev. St. pp. 441, 453; U. S. v. Winona & St. P. R. Co., 15 C. C. A. 96, 163, 67 Fed. 948, 955, and 32 U. S. App. 272, 283.

It is a part of the daily business of that tribunal to hear evidence and argument, and to decide who has, by purchase, by pre-emption, by the location of scrip or land warrants, or by any other recognized mode, established a right to any part of the public domain.

It has determined thousands of such controversies, and the title to millions of acres of land rests upon its decisions. livery judicial tribunal upon which the duty of determining many and varied contested rights is imposed finds it necessary to establish and to steadily maintain a uniform practice and method of procedure for the commencement and conduct of contests before it. It is perfectly obvious that even-handed justice to all litigants can be impartially administered in no other way. Take the case in hand.

The question it presents is whether strangers to a contest, in which a decision of the secretary of the interior was filed in his office in Washington to the effect that a certain entry of the land in question was illegal, and should be canceled, and that the land should be left open to disposal under the public land laws of the United States, had the right to enter that land at Duluth, in the state of Minnesota, the moment that decision was filed in Washington, or' had no such right until the local land officers had received the decision, and had canceled the former entry on their plats and records where it was made.

The title to-the land hinges on the decision of this question. The acts of congress do not answer it. Obviously, unless the land department had established some rule or practice on the subject, the question might have been answered in one way in one case, and in another way in another case; and the rights of entrymen would have been left to the arbitrary and whimsical discretion of the officers before whom their cases happened to arise, without law or rule to guide them.

Such a deplorable condition of affairs would have been in conflict with the fundamental principles of civilized government, which attempts, by a uniform administration of law, to secure equal rights to all, free from the arbitrary and whimsical will of any. The subject-matter of this rule and practice was therefore one which it was eminently fitting and proper that the land department should regulate by rule or practice, to the end that the determination of the rights of entrymen should be just and uniform.

The acts of congress gave ample power to the officers of the land department to make a rule, and to establish and maintain a uniform practice upon this subject. Rev. St. §§ 453, 2478. The rule and practice which the bill alleges that the land department had established was reasonable and just. It was that, after a decision of the secretary had been rendered that a former entry was void and should be canceled, no subsequent entry of the land could be made until that decision was officially communicated to the local land officers, and a notation of the cancellation was made on their plats and records.

The secretary of the interior is an appellate tribunal in these cases, whose court is held, and whose decisions are filed, more than 1,000 miles from most of the inferior tribunals in which the parties appear and institute and try their contests. It is according to the almost universal practice of judicial tribunals, for the inferior court to take no action, and to allow none to be taken in it, until the decision and order of the appellate court has been officially received and recorded.

The reasons for such a rule in the-land department are far stronger and more imperative than in the ordinary courts of law or equity. It is in the local land office that the rights of the entrymen must be initiated as well as contested. The policy of the government is to afford to the actual settlers, to the pre-emptors and homesteaders, to those who live on or near the-public land to be disposed of, every facility to acquire it without burdensome expense or unnecessary trouble.

The very existence of the local land offices is the outgrowth of the purpose of congress to carry to the residents of the districts in which the lands are situated, not only the tribunals in which they may initiate and try their rights to obtain portions of the public domain, but all the information to. enable them to intelligently prefer and establish their claims.

To this end, the surveyor of each district is required to transmit to the registers and receivers of the local land offices general and particular-plats of all lands surveyed in tlieir respective districts, and these reg isters and receivers are required to keep a record of all entries and cancellations on these plats and in their books, so that any applicant for land may there learn when it is open for entry.

To this end, these plats and records in the local land office are declared to be ojien to public Inspection, and the register and receiver are charged with the duty of giving correct information regarding them to every inquiring applicant. To this end, applicants to enter the public land may noi make their entries or institute their proceedings to obtain them in the general land office at Washington, but must first apply to the local land office of the district in which the lands are situated. 2 Stat. 73, c. 55, §§ 7, 8; Rev. St. §§ 2223, 2295, 2217.

In view of this legislation, that would indeed be a strange rule, glaringly inconsistent with the evident inieniion of congress in establishing local land offices, and with the express provisions of the acts by which they established and develojied the land department, which would make the rights of applicants to acquire land more than 1,000 miles from Washington depend on action upon a decision filed there, in a contest to which they were strangers, before it was officially communicated to the officers of the local land office, or generally known to the public.

Such a rule would enable a sentinel in the office of the secretary of the interior to secure for himself, and to deprive the citizens of the vicinage of, every valuable tract of land restored to the public domain by such a decision, while it would offer patent opportunities for the play of secret and mischievous machinations that might well be avoided.

It is the converse of such a rule and practice — it is the rule and practice that the land remained withdrawn from entry or sale until the decision of the secretary was officially made known to the local land officers, and the notation of the cancellation of the former entry was made on their plats and records — ■ which the bill alleges was in force when the decision of February 18, 1889, was filed.

That practice was consistent with the purpose and provisions of congressional legislation on the subject, gave equal opportunities to all applicants, brought the necessary information to the local land officers in time to enable all who intended to aj>ply for the land to obtain and act upon it without expense, and was fair, fitting, just, and reasonable.

An attempt is made to escape from the effect of this jtraetice on the ground that the averments of this rule and practice in the bill are mere conclusions of law, that there is consequently no admission of their existence by the demurrer, and (hat it is for1 this court to consider and decide whether or not such a rule or practice ever existed. The allegation is, however, that there "was in force “a rule and regulation and a settled practice, and a long line of decisions by the department officers” to the effect which we have repeatedly stated.

Conceding that the allegation of the long line of decisions, if it stood alone, might be met upon this demurrer by counter decisions of the department officers, the averment of the rule and practice is clearly sufficient, and stands uncontroverted. The suggestion that the allegation concerning them is insufficient because the rule is not stated by number, or by reference to any publication of the department, and that the practice is not alleged in greater detail, is not entitled to serious consideration.

Both the rule and the practice are succinctly and clearly set forth in the bill, and, if greater particularity was desired, the remedy was not a demurrer. The rule and practice then stand conceded, and there have been some decisions of the secretary of the interior to the effect that they existed. Crystal v. Dahl, Copp, Pub. Land Laws (1875) 363; Eno v. McDonald, Id.; Jayne v. Gowdy, Id. (1882) 652.

If there have been decisions to the contrary, that fact establishes nothing, under the admission made by the demurrer, except that the case at bar is not the only one in which the secretary has wrongfully permitted the rule to be violated and the practice to be disregarded. It is insisted that the closing words of the decision of February 18, 1889, abrogated the rule, abolished the practice, and opened the land in question in this case to entry at once. We are unable to so interpret them.

They were: “This * * * leaves the land in question open to disposal under the public land laws of the United States applicable thereto, and such is the judgment of this department.” It may or may not be that, as between-the parties to the contest which resulted in this decision, it took effect as.the judgment of the department when it was filed. That is not the question before us. The question here is whether this decision left the land in question open to disposal to strangers to the contest and decision, in accordance with, or in violation of, the rule and practice of the department.

About this theré ought not to be two opinions. If a judge decides a case, and orders a judgment or decree to be entered, or any other act to be done,- in his court, according to law, or under a certain statute, it goes without saying that it is to be done according to, and not in disregard of, the rules and practice of the court; and there is nothing in the terms of this decision to indicate any other intention.

When it reached the register and receiver at Duluth, they found nothing of that character in it, and they followed the established rule and practice in the usual way, persisted in their rejection of the application of James, made before it was received, and before the former entry was canceled, and accepted the application of Hartman, which was the first made after the receipt of the decision and the cancellation of the former entry. In our opinion, their construction was right, and their action was in accordance with the obvious and true meaning of the final clause of the opinion.

The case therefore stands in this way, under the bill and the demurrer to it: When the decision of February 18, 1889, was filed in the secretary’s office at Washington, there was a rule and a settled practice of the land department that no application to enter or to appropriate land withdrawn from disposal by a prior entry which was adjudged void by such a decision could be accepted until after the decision had been officially made known to the local land officers, and they had noted a cancellation of the former entry on their books.

The register and receiver followed the rule and practice, and accepted the first legal application which ■ was made after the decision was received.

Notwithstanding these facts, the secretary of the interior held on December 21, 1894, five years afterwards, that a prior application to enter the land, made on February 19, 1889, in violation of the rule and practice of the department, was superior in right to that of the first applicant after the receipt of the decision, caused the entry of Hartman to be canceled, and patented the land to another, when he would have caused it to be patented to him if he had not so held. This ruling was clearly an error in law, and it entitles the appellant to the relief it seeks. Bogan v. Mortgage Co., 11 C. C.

A. 128, 130, 63 Fed. 192, 195, and 27 U. S. App. 346, 350, and cases there cited. The reasonable and established rules and practice of judicial tribunals become as much a part of the law of the land as the statutes under which they act. Witness the innumerable reversals of the trial courts for errors of law in deciding questions of practice which crowd the reports of the appellate courts. Moreover, the rule and practice here under consideration stand upon far higher ground than the ordinary rules for the mere conduct of proceedings in courts.

They condition the inception, the foundation, the very existence, of all rights and title to this land. Rights initiated in accordance with them became vested interests in property, and attempts to establish rights in violation of them were as though they had not been. They had become an established rule of property, upon which men relied and had the right to rely. The maxim, “Stare decisis, et non quieta movere,” applies nowhere more universally, or with more salutary effect, than to those rules and that practice under which property is acquired or secured.

It is often far more important that these should be certain and changeless than that they should be right. Men engage in business occupations, buy, sell, and contract, in reliance upon them. Lawyers advise their clients and enforce and protect their rights with constant reference to them, and while all interests will readily adjust themselves to, and protect themselves under, erroneous rules, there is neither protection nor safety for anv interest under shifting rules. Shreve v. Cheesman, 16 C. C. A. 413, 419, 69 Fed. 785, 791, and 32 U. S. App. 676, 687; Seale v. Mitchell, 5 Cal. 401, 403; Bates v.

Relyea, 23 Wend. 336, 341; Goodell v. Smith, 20 Johns. 693, 722. hfor was it within the supervisory power of the secretary or of the commissioner to set aside or annul rights acquired under this rule and practice, or to deprive Hartman of his title to this land, by a retroactive decision, made five years after his right to it had vested, to the effect that the established rule or practice when he made his entry was either inconvenient or erroneous.

They might undoubtedly have made and promulgated a new rule which would have governed cases arising after a new rule of practice had been made and had become known, but Hartman and the other applicants who crowded the offices of the register and receiver of the land office at Duluth at 9 o’clock in the forenoon of February 23, 1889, at the earliest moment when this land could be entered, according to the then established and known rule and practice of the department, had the right to the determination of their claims according to the practice as it then existed.

Retroactive decisions of judicial tribunals are as vicious and ineffectual as retroactive laws. Shreve v. Cheesman, 16 C. C. A. 413, 419, 69 Fed. 785, 792, and 32 U. S. App. 676, 689. System, order, and the uniform application of the laws, the rules, and the practice to all litigants alike, are as essential to the administration of justice in the land department as in the courts.

Doubtless every applicant for this land, but one, relied upon the settled practice of the department, and presented his application for it at 9 o’clock in the forenoon on February 23, 1889; yet that one who violated the rule and practice, and made application to the officers out of office hours, and before the land was open for entry under the practice of the department, has defeated all the •others.

He who came in by some other way has defeated every applicant who came “by the door.” What a farce the attempt to secure rights in any judicial tribunal must become, if its rules and practice are ignored or applied at the arbitrary will of the judge who presides over the court! Under such an administration of the land department, the rights and titles which the law attempts to protect and secure would become naught but privileges dependent upon the gracious favor of its officers. The power to degrade them to this rank cannot be found in the supervisory authority of the secretary or of the commissioner.

Their power of supervision is not unlimited or arbitrary. “It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property, and a right to a patent therefor, and can no more be deprived of it by order of the commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it.” Cornelius v. Kessel, 128 U. S. 456, 461, 9 Sup. Ct. 122; Bogan v.

Mortgage Co., supra. The decree below must be reversed, and the case must be remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion.