United States ex rel. Cox v. Hitchcock

Mr. Justice Morris

delivered the opinion of the Court:

While the substantial facts of this case are assumed by the appellant not to be different from those in the previous case of West, and it is conceded on behalf of the appellee that the same questions of law are presented in both, we find ourselves constrained by the condition of the record to take a different view of this case from that which we have expressed in the case of West.

In the case of West it is clearly stated that the relator had done everything necessary and proper to be done by him in the selection of his allotment under the law. The return to the rule to show cause in that case was a demurrer, which admitted the truth of this statement, and which relied merely upon the supposed discretionary power of the Secretary to give or withhold his approval, according to his own arbitrary will and pleasure. Here the return is omitted from the record, and we are not distinctly informed what it was, whether it was a demurrer on merely legal grounds, or whether it controverted to any extent the facts stated in the petition. The appellant in his brief says that it was a demurrer, and the appellee perhaps might be asanmp.fl to concede the truth of the statement, inasmuch as he says that the questions of law involved in both cases are the same. But the appellee, in his brief, seems to make a point of the fact that the transcript of record does not present the return made by the Secretary to the rule to show cause, and he nowhere admits that this return was by way of demurrer. And his admission that the questions of law in the two cases are the same would not be inconsistent with the assumption that the Secretary’s return may have raised some controversy as to facts.

We cannot supply this deficiency in the record. It may be true, as stated in the appellant’s brief, that the Secretary’s return to the rule was by way of demurrer; but in the silence of the record and in the absence of any admission to that effect by the appellee, it is very plain that we can not proceed upon the assumption of the truth of the appellant’s statement. We can not assume that the return admitted the truth of the statements of the petition. The inference rather would be that it denied them. We can not see, therefore, how we can properly review the decision of the court below in the premises, when we have not the facts before us upon which that court acted; and certainly upon this state of the record we can not hold that decision to be erroneous.

But even if we were to assume that this case also, like that of West, was heard upon demurrer by the Secretary to the relator’s petition, and so comes to us, it is not quite apparent to us that a case analogous in law to that of West would be made out here. In the case of West a simple issue was presented, whether, when the relator had done all that was required, of' him by law, the Secretary could arbitrarily and without cause refuse his approval of the relator’s selection. Here there is a complicated state of facts which can not properly be reviewed in a proceeding for the writ of mandamus. From the statements of his petition it would appear that the relator had been rather harshly treated, and buffeted from one allotment to another; but it does not appear that his selections were disapproved arbitrarily and without cause, and the right of making a selection does not seem to have been denied to him, as it was to West. The right of approval reserved to the Secretary by the act of Congress, and which, of course, involves the right of disapproval, is not a mere ministerial duty. Plainly it requires the exercise of judgment and discretion. It requires of tbe Secretary to determine whether tbe land selected is subject to selection, and whether all tbe pre-requisites required by tbe law to be performed in order to justify bis approval have in fact been performed. In tbe "West case it appeared definitely and positively that these prerequisites bad been performed, that tbe matter was no longer one of consideration by tbe Secretary, and that all that remained to be done was a mere ministerial thing. Here tbe relator has bis allotment assigned to him; and tbe substance of bis complaint is that be is dissatisfied with it and wishes to have another in its place. Now, it may be that be is equitably and justly entitled to tbe allotment which be seeks; but that is not a matter which can be determined under a writ of mandamus. Tbe writ of mandamus is not intended for any such purpose; and we think that tbe court below was right in refusing it in this case.

Tbe order appealed from will therefore be affirmed> with costs. And it is so ordered.