The defendants, Daniel J. McDaid, et al, as townsite trustees, under the act of May 14, 1890, and under R. S. 2387 and 2388, entered the townsite of Guthrie, and in discharge of their duties awarded certain lots to the relators; from that award the heirs of John M. Galloway appealed to the commissioner of the general land office.
This action was brought to compel the trustees to convey said lots to said relators.
The important question in the case is, does an appeal lie to the commissioner of the general land office? *Page 107
These defendants are certainly officers of the United States government, connected with the interior department, appointed by the Secretary of the Interior, and have under the law certain important duties to discharge.
The question arises, how far has the head of that department supervision over these officers and their acts? Under the law it seems that they hold in trust not the whole land, but perhaps certain interests in these lands for the use of others; and that the Secretary of the Interior has power to dispose of certain portions of these lands, as his judgment may dictate; and that it is his duty to prescribe rules and regulations governing these trustees in the discharge of the duties devolving upon them.
Can he investigate and see whether these appointees of his dispose of these lands pursuant to law, and pursuant to the regulations prescribed by himself and to the proper persons? Or must he leave it to the courts alone to correct the errors of these appointees?
Clearly, these errors can be corrected by the courts in a proper case; but can he, on his own motion, or on an appeal, review any judgment of these trustees, however gross? If he can, in any particular, an appeal lies to the commissioner and from the commissioner to him.
A portion of § 2387, touching the entry of townsites, might cast some light upon the matter. It reads as follows:
"It is lawful for * * * the corporate authorities, or for the judge of the county court * * * to enter the land so settled and occupied in trust for the several uses and benefits of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated." *Page 108
Under this section the title and the proceeds of the sales of lots, and the mode of conducting the sales of lots, and the conveyance of lots, are to be conducted under regulations to be prescribed by the legislative authority of the state or territory where situated.
So far as the government is concerned, after the issuing of the patents under this section, its connection is ended with the land in question.
But the act of May 14, 1890, creates a new set of officers appointed by the Secretary of the Interior, to perform their duties under rules and regulations to be prescribed by him.
Section 1 reserves to the Secretary of the Interior the power to prescribe rules and regulations for the proper execution of the trust, by such trustees, including the survey of the land into streets, alleys, squares and blocks and lots, "or the approval of such survey as may have been already made by the inhabitants thereof; the assessment upon the lots of such sum as may be necessary to pay for the lands included in such townsite, costs of survey, conveyance of lots and other necessary expenses, including compensation of trustees."
It will hardly be denied that the Secretary of the Interior can, on his own motion, or on appeal, set aside any survey made or adopted, since the opinion in Knight v. U.S. LandAssociation, 142 U.S. 177. For a like reason he could set aside an unjust or unequal assessment. If he, on appeal, can correct their mistakes in such matters, why may he not correct their mistakes in conveyances, and, as the general superintending agent, set aside their finding and see that the lots are conveyed to the proper parties?
These officers are paid by the United States government in the first instance at least. It is true, that certain fees are to be collected by them the same as fees are to be collected by registers and receivers. *Page 109
Their per diem is fixed by the department. (§ 7.) They unquestionably could be removed by the power that appointed them, and cannot be removed by the territorial authorities.
They are responsible, and have to account to the former, and not to the latter.
It is reasonable, then, to infer, that the act does not vest the entire title in the trustees. Their superior officer, the Secretary of the Interior, still has the control, for it leaves in his discretion the selling and setting apart of certain indefinite portions. Certain indefinite portions may be sold under his directions, and he may reserve certain parts for public use; and the Secretary must execute conveyances. (§ 4.)
If the government has been divested of the title to these townsites, and the title vested in the trustees, why should the Secretary execute conveyances of certain portions of these townsites, and why should other portions be sold under the directions of the Secretary? If the government is divested of the fee title and the title is vested in private individuals, why are the records and proceedings of these boards to be filed in the general land office?
The government has no interest in the future transfers of the property after the patent issued, if it was entirely divested of title, and of the power to dispose of the lots at the time the patent issued to the trustees.
It has a very different interest in those lands, from what it has in townsites, when the title has been vested in a mayor or a county judge. In the latter case it takes no notice of the actions of the trustees, but leaves the local authorities to adjust their mistakes.
If the moment the patent was issued to the trustees the government was divested of title, the lands must have that moment become taxable and liable to be sold *Page 110 on execution. It will hardly be claimed that such is the case.
We submit that the only correct position is that the trustees are merely agents of the government for the purpose of divesting it of its title to these small subdivisions of the public lands.
Under the practice of the land department, which has been recognized by the Supreme Court as law, the Secretary of the Interior has been recognized as the supervising agent of the government. It has always been recognized as his duty to see that justice be done claimants. He is the agent and trustee of the government; has supervised all the acts of the officials below him.
I do not understand that in such matters an appeal is only a statutory remedy.
By § 2478 of the R. S., the commissioner of the general land office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specially provided for "(public lands)".
In 142 U.S. 177, Knight v. U.S. Land Association, the court quoted approvingly the 5th Land D., 494, that held as follows:
"Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised in the absence of statutory directions may be prescribed by such rules and regulations as the Secretary may adopt."
In Buena Vista Co. v. Iowa Fall Sioux City R. R.,112 U.S. 165, a question arose whether an appeal would lie from the decision of the commissioner of the general land office under the act of March 5, 1872, donating certain swamp lands in certain counties in Iowa. The commissioner was to allow or disallow the selections. *Page 111
Although the statute was silent, and it apparently made the decision of the commissioner of the general land office final, yet the court held that an appeal lay to the Secretary of the Interior.
The court in 142 U.S. 181, Supra, held that an appeal lay, and that,
"The Secretary is the guardian of the people of the United States over the public lands. The obligation of his oath of office obliges him to see that the law is carried out, and that none of the public domain is wasted or disposed of to a party not entitled to it.' (Page 182).
There is nowhere any express power given to the Secretary of the Interior to hear and determine appeals from the commissioner of pensions; yet the power is exercised daily without question.
The same remarks apply to the powers of the Secretary of the Interior to supervise and control the management of the bureau of Indian affairs, which power, as far as we are advised, has never been questioned.
Page 182. "But if there was any doubt of the existence of such power in the Secretary of the Interior, as an original proposition, still the exercise of it for so long a period, — going back to the organization of that — department, without question, ought to be considered as conclusive as to the existence of the power. That whole case is worthy of careful consideration in the search for the powers of the Secretary of the Interior."
We are not left entirely to these general deductions. Analagous legislation has received a like liberal construction by the departments and by the courts. The right of pre-emption (§ 2263 R. S.) was to be allowed agreeably to rules to be prescribed by the Secretary of the Interior, but no appeal was provided for except where two persons settle upon the same land (2273.)
Neither is there a special statutory provision for appeal in the homestead law, yet the uniform practice has been to allow appeals in all cases where applicants for *Page 112 titles to public lands feel aggrieved by the action of the local officers, and their action has been recognized uniformly by the courts as being within the scope of the authority, properly exercised by the interior department. (United Statesv. McDaniels, 7 Pet. 114.)
The construction of the act of May 14, 1890, made by the head of the department charged with its execution, should have great weight with the courts and should not be overturned unless clearly erroneous. (United States v. Moore, 95 U.S. 760; UnitedStates v. Philbrick, 120, U.S. 52; and 132 U.S. 357.)
The position that the government has parted with its whole title is not well taken. The patent is conditional and is made, it seems to me, to officers of the government for the benefit of the occupants; but in determining the beneficiaries the claimant has a right to the decision of the Secretary of the Interior, and has the right to appeal to him.
In the conditional patents issued to Indian allotments under the provisions of § 4, act of February 8, 1887, the right is exercised by the interior department to cancel, annul or change said patents at the discretion of the Secretary of the Interior.
Since it is not to be presumed that jurisdiction would be retained by the Secretary of the Interior, as to a part of such townsites and not as to the whole, I must conclude that an appeal as provided for in paragraph 13 of the circular of instructions (10 L. D. 666), from the decision of said townsite board, will lie, if perfected, as required therein.
Nor should we forget that this action was commenced on the Territorial side of this court.
In the 3d Wallace, p. 236, Nebraska v. Lockwood, a question very much like this was before the courts. An information had been filed by the district attorney of the county in the nature of a quo warranto on the relation *Page 113 of Eleazar Wakely against the defendant, Lockwood, to test his right to the office of associate justice. To the information a demurrer was filed. The demurrer was sustained and the case was carried to the Supreme Court. Justice Swain delivered the opinion. The court quoted approvingly, (6 Wheaton 292,Miner's Bank v. United States), wherein it was held that,
"A state court cannot issue a writ of mandamus to an officer of the United States. His conduct can only be controlled by the power that appointed him.
"The people of the territory have no agency in appointing these judges and no power to remove them. The territorial legislature cannot prescribe conditions for the tenure or loss of the office. Such legislation on their part would be a nullity. Impeachment and conviction by them would be futile as to removal. The right of the territory to prosecute such an information as this would carry with it the power of a motion without the consent of the government from which the appointment was made, This the territory can no more accomplish in one way than another."
Thus spoke the Supreme Court of the United States.
But take another view of this matter. If the trustees should feel themselves constrained to obey the commands of their superior officer, the Secretary of the Interior, and disobey the mandate of this court, they are liable to be imprisoned and fined and mulcted in costs. On the other hand, should they disobey the command of the Secretary of the Interior and obey the mandate of this court they might be removed by that officer.
The whole matter amounts to this: We find ourselves, as a Territorial court endeavoring to control a United States office or close it up for not obeying the mandate of this court. This court surely has no such power. It cannot remove the trustees. It cannot imprison for such an offense, and therefore cannot enforce its mandates. It occurs to me that the sheriff, should he attempt, *Page 114 in a state, to enforce such a mandate of a supreme court, would be in danger of peing punished for interfering with United States officials.
But take another view of this case. If the title is vested in the trustees for the benefit of others and the United States was entirely divested of title the trustees must convey the title to the cestui que trust and to no other person. He must make no mistakes. The beneficiary can bring suit against the grantee of the trustees to have the deed to him declared a trust deed. He can follow his property into the hands of others wherever it may go, but the trustee is also personally liable for his mistake as well as for his frauds. And may he not be compelled to pay the costs of the real party in interest in procuring the title to his property or the return of it?
On the theory of the prosecution the fee title of property worth immense sums of money, has been conveyed in trust to the trustees. They must convey to the real party in interest. Grant that they act honestly, but is that a legal excuse should they convey to the wrong person? The law, neither Territorial nor national, says that they shall be held harmless. In case of a breach of trust the cestui que trust is intitled to institute proceedings against the trustees to compel a compensation from them personally for the loss which the trust estate has sustained. (3 Lewin on Trusts, 900; 6 W. S. 243;17 Ind. 291.)
If the townsite trustees are not mere agents of the government for the purpose of conveying to the occupants of certain lots the title of the same, by what rule of law does the title of any portion of the land deeded to the trustees revert to the United States? If the government has parted with its title, how does it get it back? Certainly not because of failure of beneficiaries.
Suppose for some cause, as malarial, or climatic, not apart of the occupants of lots, but all, should abandon *Page 115 the townsite after the patent had been issued and before any deeds were issued. It surely will not be claimed that the title would revert or escheat to the United States, the creator of the trust, after it has once parted with the title without reservation. In case of failure of beneficiaries, trusts never revert to the author of the trust when he has parted with the whole title. When he has parted with the whole title, he cannot afterwards revoke the trust nor interfere with the management or execution of the trust. (1 Lewin on Trusts, 402; 2 Wn. on R. Pr. 492.)
The legal title is in the trustee and there it remains.
Is this not the real touchstone and test of the construction of that act? By the act, the Secretary of the Interior was to prescribe rules and regulations governing the trustees. They report to him and to no other person. They file their plats, papers and the records of their proceedings with him. He fixes their pay.
Beyond question he can supervise their work in many particulars — set aside the surveys and plats and assessments. The act reserves to him the power to reserve certain tracts, even after patent to the trustees, for public use, and gave to him power to execute deeds to certain tracts. These reservations in case of failure of beneficiaries prevents the title vesting in the trustees and shows that they never had the entire title.
I submit that the most reasonable construction that can be put upon the act of May 14, 1890, is that the trustees held the title for the Government as a matter of convenience; and that the real title was in the United States, and that in case of failure of beneficiaries or occupants for any cause, that the Secretary of the Interior could revoke the patent. If he could revoke the patent he yet has the control of the whole matter and the appeal lies to him. Who, upon any other theory, would accept so great a responsibility for so small a compensation? *Page 116
Another objection equally fatal is the want of necessary parties defendant.
An issue of law has been joined in this action in which the appellants have as great an interest as they had in the issue of fact in that case before the townsite board. In this proceeding, collatteral to the action before the townsite board, it is sought to determine the rights of parties to an appeal without their presence. It appears on its face, that the townsite board has no real interest in the matter, but that persons, not made parties to this action, claim the title to the property, a transfer of which is herein sought to be commanded; and that such claim of title is adverse to the relators. If the writ of mandamus should be granted, as prayed for, then the right to appeal will be determined and they have no further remedy before the land department, and no method to review the findings of the town-site board except possibly by commencing an action in the district court. These officers do not represent the claimants. They are mere agents for the Government to transfer the title. They might let this action go by default, and thus a proceeding, ex parte, so far as the real party in interest is concerned, is made to determine the rights of the heirs of the appellant; or they really may be adverse to the interests of the heirs of said John M. Galloway as might naturally be inferred from their judgment adverse to said heirs, and from their correspondence with the department. They are not the proper persons to protect the interest of the appellants to the commissioner of the general land office.
For these reasons I am forced to conclude that the title does not pass from the government, until the trustees in obedience to the law and instructions of the Secretary, shall have conveyed by deed the lots to the occupants; and that until that shall have been done, the Secretary of the Interior has the entire supervision of the whole matter, and that the judgment of the district court should be reversed. *Page 117