(dissenting). — As I indicated at the time of the filing of the majority opinion, I will now give some of my reasons for dissenting thereto. It is a common remark by practitioners before the land department that the land laws “do not amount to anything, but that everything depends upon the instructions.” But, in the investigation of rights under the land laws, I prefer to look first at the law and see if any provisions are made by the law, or direct authority given by the law, for the action of the commissioner; or whether the authority is conferred upon the commissioner, under his supervising powers, to set aside the findings of the register and receiver on the questions of residence and cultivation in case of á pre-emption proof; which is the point involved in this case. An examination of the pre-emption law shows that preceding sections state what lands shall be subject to pre-emption entry, who are qualified pre-emptors, etc.; while section 12 of the act of 1841, corresponding with section 2263 of the Devised Statutes, provides that, “prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the secretary of the treasury,” now by subsequent enactment changed to secretary of the interior. It seems to me that there is no room for a construction of this section. Here is a judicial authority conferred upon a tribunal in language plain and unmistakable. The power is conferred as plainly as words can state a proposition. It is the judgment of the register and receiver that is to be satisfied; not the judgment of the commissioner or the secretary of the interior. This is a judicial investigation on their part; not merely a clerical or administrative duty to be performed; a fact is to be judicially determined from evidence adduced under certain *100rules and regulations of law. The rules and regulations governing the admission of this testimony, or the mode of procedure, are prescribed by the secretary of the interior, and it is the duty of the commissioner to see that these rules and regulations are observed, and that the investigation is conducted in accordance with them; but the judicial inquiry and determination of the facts, under those prescribed rules, are matters exclusively within the jurisdiction of the register and receiver, so far as settlement and improvement are concerned. I repeat, that if this investigation has not been carried on agreeably to, or in conformity with, such rules as the secretary is authorized to make, then, for that reason only, should the commissioner reject the proof, or send it back for a rehearing; for when those officers have obtained jurisdiction by reason of all the other requirements of the law having been met, and when their discretion and judgment have been legally exercised and a decision reached on the question of settlement and improvement, questions especially submitted to their discretion by the law, that decision is not subject to the supervising power of superior officers. There is a vast difference between prescribing rules and regulations and usurping judicial functions. Supervisory powers may be exercised over acts which are purely administrative or executive; but the distinction must be constantly kept in view between acts which are- administrative or executive, and those which are judicial in their character. Under this section the register and receiver are authorized by law to exercise their discretion judicially. As was well said by the court in Butterworth v. Hoe, 112 U. S. 50: “It is not consistent with the idea of judicial action that it should be subject to the discretion of a supervisor, in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates. Such a subjection takes from it the quality of a judicial act.”
*101But it is asserted by counsel for defendant in error that the commissioner, at the time of ordering a rehearing in this case, acted with authority, because the following circular instructions were then in force, viz:
“ Failure to inhabit and improve the land in good faith, as required by law, renders the claim subject to contest, and the entry to investigation.
“Final proof in pre-emption cases must be made to the satisfaction of the register and receiver, whose decision, as in any other case, is subject to examination and review by this office.”
I answer that, if he had no authority before the publication or issuance of these instructions, he manifestly had none afterwards. Courts must confine the enactment of laws to law-making powers. The congress of the United States is the only body that can make laws regulating the sale or disposition of the public lands. The secretary of the interior is authorized to prescribe rules and regulations to make the laws effective, and to exercise supervisory powers in certain instances j but he is not authorized to make new laws, to increase his own powers, or to take away any judicial authority that has been especially, or even generally, conferred upon another tribunal. If the secretary or commissioner are allowed arbitrarily, without any appeal, to substitute their discretion for that of the register and receiver on subjects especially submitted to them, they might logically go further, and dispense with their judgment altogether. If fraud is alleged in obtaining the final receipt, says Judge Beady in Smith v. Ewing, 11 Sawy. 56 (23 Fed. Pep. 741), “the government must seek redress in the courts, where the matter may be heard and determined according to the law applicable to the rights of individuals under like circumstances. The right of a party holding a certificate of purchase of public land and that of his grantee, is a right in and to property of which neither of them can or ought to be deprived without due process of law.” I think the case of *102Wilcox v. Jackson, 13 Pet. 498, fairly sustains the theory of the plaintiff in error; also Lytle v. State of Arkansas, 9 How. 314. It must be borne in mind that it is not contended by appellant that the action of the register and receiver cannot be reviewed; but the contention simply is that their decision on these two questions, of residence and improvement only, cannot be reviewed in a pre-emption case, and such I believe to be the distinction made by the cases generally; and those cases cited wherein their decisions have been reversed or set aside on some other ground do not involve the pertinent question in this case, and should not be considered. This distinction I think was plainly maintained in the late case of Cornelius v. Kessel, 128 U. S. 456. Said Mr. Justice Field, in a well considered opinion: “The power of supervision possessed by the commissioner of the general land office over the acts of the register and receiver of the local land offices, in the disposition of the public lands, undoubtedly authorizes him to correct and annul entries of land allowed by them, where the lands are not subject to entry, or the parties do not possess the qualifications required, or have previously entered all that the law permits; ” fairly implying that the entry could not be annulled on the ground of want of proof of settlement or cultivation.
But it is contended that the earlier cases are not in point, because they were decided on controversies which arose prior to the passage of the act of 1836, which enlarged the supervisory powers of the commissioner, the first section of which act is as follows: “ That, from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed, by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the *103authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land office, under the direction of the president of the United States.” I am of the opinion that the act of 1841 was intended for a full, complete and independent pre-emption law, and, if it be conceded that the act of 1836 modified the act of 1830 with reference to the powers of the register and receiver, the re-enactment of the same section in 1841 must be conceded to be a restoration of that authority, and their decision would again be final on that point; and this view of the law is in harmony with Johnson v. Towsley, 13 Wall. 72, wherein Justice Miller says that “the act of 1841 so enlarged the right of pre-emption as to have been ever since considered the main source of pre-emption rights.” And it may be observed in this connection, that in all the cases relied upon by the majority, while the decisions were rendered subsequent to 1841, yet all the controverted facts had transpired prior to the passage of the act of 1841.
However, conceding that the law of 1836 is still in full force, I cannot conceive how it can in any manner conflict with § 12 of the law of 1841; for it will be observed that the law of 1836 refers exclusively to the executive duties appertaining to the survey and sale of the public lands. Certainly an executive act spoken of in general terms in the act of 1836 has no reference to a judicial duty especially imposed upon a certain tribunal. But, if there could possibly be any doubt on this question, it has been squarely met and settled in the case of Butterworth v. Hoe, 112 U. S. 50. There it was announced that the executive supervision and direction which the head of a department may exercise over his subordinates in matters administrative and executive, do not extend to matters in which the subordinate is directed by statute to act judicially. This was a case growing out of the patent office *104department; but the subject of supervisory powers in general, including the supervisory powers in the land department, was reviewed with care and ability by Mr. Justice Matthews, and the doctrine announced therein, it seems to me, is squarely decisive in this case. So far as the case of Harkness v. Underhill, 1 Black, 316, is concerned, I cannot see its application to the case at bar. That was not a contest under the pre-emption laws, but simply under a special law passed April 5, 1832, which allowed parties a pre-emptive right to purchase not to exceed 160 acres of land which they had already settled and improved prior to the passage of the act, and the parties in that case had made settlement and improvement in anticipation of the passage of the act. The act specially provided that all the entries should be made under regulations prescribed by the secretary of the interior. There was no provision in the act for proof of residence or improvement to the satisfaction of the register and receiver, and the main question involved in this case was not and could not have been involved in that. Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, seems to be more in point, so far as some of the expressions in the opinion of the court are concerned, though the material facts in that case were essentially different from the facts in this case. There one of the main questions involved was whether or not the lands were subject to pre-emption at the time of Barnard’s attempted entry. It is not contended here that that would not be a proper question for review by the commissioner.
I do not think that it is the province of the court to nullify a plain provision of the law by an argument based upon the bad policy of the law; that is purely a legislative prerogative; though, in my judgment, the view of the law, as contended for by the appellant, can be maintained upon the highest grounds of public policy, and in strict accordance with a just and equitable administration of the laws. *105It is and should be the policy of the law that rights should be speedily adjusted, and that litigation should be terminated as soon as is possibly consistent with a rightful determination of the matters in controversy. Especially is this true with reference to rights under the land laws, where the home of the citizen is involved. Every consideration of public policy and of private right then calls for a speedy adjustment. The law recognizes the necessity, and, while leaving the more general questions to be reviewed and determined by the higher officers of the department, especially clothes a local tribunal with the power of determining the local fact of residence and improvement, under such rules and regulations as may be prescribed by the department. These officers are on the ground. They are acquainted with the character and reputation of the people making the proof. In many instances they meet the witnesses face to face] in fact, this was the universal practice at the time the law was enacted. They are acquainted with the country, its topography, its soil, and its climate. ' They know the peculiar circumstances surrounding the settler, in his sometimes successful and sometimes unsuccessful efforts to cultivate the soil] and they are better calculated to pass intelligently on the settler’s rights in those particulars than is the commissioner or secretary, albeit “they are lower officers in the department, and are more remote from the seat of government.” As one member of this court, I cannot indulge in the presumption that an officer’s tendency to a careless or corrupt administration of a trust reposed in him is in proportion to his rank or the distance of his habitation from the seat of government. I prefer to believe that —
“ The rank is but the guinea-stamp ¡
The man’s the gowd for a’ that.”
But, that all possible safeguards might be thrown around this investigation, the act of 1879 provides that notice of *106proof shall be given by publication in a newspaper nearest to the land in question for thirty days before the day of proof, and that the names of the witnesses by which claimant intends to establish his claim shall be given in such publication. Opportunity is thus given, to any one who has knowledge of bad faith on the part of the claimant, to appear and resist the claim. Up to this time the settler understands that he must look out for, and have on hand the necessary witnesses, and he makes arrangements accordingly. He makes his proof as the law requires, and to the satisfaction of the tribunal empowered by the law to pass upon the sufficiency of proof. No one appears to contest his right. No appeal is taken from the decision rendered. He pays the money demanded by the government, and so far as he knows, and is able to ascertain, the case is closed. His final certificate issues. He takes possession of the land, and pays taxes on it. His witnesses are allowed to depart and leave the country, as they are very liable to do in all new countries. He makes valuable improvements on the land, and all the results of his years of labor between the time that he makes his proof and the long time which frequently elapses before patent issues is absorbed by the land; and I agree with the attorneys for the appellant that to subject him during all this time to the uncertainties of an arbitrary proceeding or hearing before the officers of the executive or political branches of the government, at a time when he may be helpless to secure the evidence which he needs, and where he may be overwhelmed with so-called “testimony,” which does not have the sanction even of an oath upon which perjury can be prosecuted, is so obviously unjust and unfair that the courts ought not to sanction it.
In the case at bar, Pierce made his final proof to the satisfaction of the register and receiver on the 13th day of February, 1883, paid to those officers the sum of $400, and *107received his “ patent certificate.” No appeal was taken from this decision; but six months afterwards, Frace, a stranger, filed with the commissioner an affidavit alleging that Pierce had not established a residence upon said land. No action was taken by the commissioner upon this notice until May 16,1885. Thus it will be seen that after the expiration of two years and three months from the adjudication of this case Pierce’s right to this land was called in question in this summary manner. The judgment was re-opened and set aside. The land was awarded to the informer, the government retaining the purchase price paid by Pierce, presumably upon the ground that perjury had been committed in making the proof, without giving him an opportunity to answer that charge in a court of competent jurisdiction, where a judicial determination could be had on that question. There is no claim that the land was not properly subject to pre-emption entry, or that Pierce was not a qualified pre-emptor, or that the register and receiver had not complete jurisdiction of the case when it was first tried, but the sole question involved was one of residence. This question having been once decided by the proper tribunal, and certificate of patent having issued, I think that the commissioner acted without authority of law in disturbing that decision.