EMBLEN
v.
LINCOLN LAND COMPANY.
No. 147.
Supreme Court of United States.
Submitted January 29, 1902. Decided March 24, 1902. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.*663 Mr. Edward R. Duffie and Mr. T.J. Mahoney for appellant.
Mr. J.W. Deweese and Mr. Frank E. Bishop for appellees.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
At October term, 1895, appellant filed his petition in this court for a writ of mandamus to the Secretary of the Interior to hear and decide the contest between himself and George F. Weed as to the quarter section of land in Colorado in question. The petition alleged in substance the same matters set up in the bill in this case. The writ of mandamus was denied, and Mr. Justice Gray, speaking for the court, said: "Such being the state of the case, it is quite clear that (even if the act of Congress was unconstitutional, which we do not intimate) the writ of mandamus prayed for should not be granted. The determination of the contest between the claimants of conflicting rights of preemption, as well as the issue of a patent to either, was within the general jurisdiction and authority of the land department, and cannot be controlled or restrained by mandamus or *664 injunction. After the patent has once been issued, the original contest is no longer within the jurisdiction of the land department. The patent conveys the legal title to the patentee; and cannot be revoked or set aside, except upon judicial proceedings instituted on behalf of the United States. The only remedy of Emblen is by bill in equity to charge Weed with a trust in his favor." In re Emblen, Petitioner, 161 U.S. 52.
The bill before us is such a bill, and the question arises whether it was within the power of Congress to exercise control over the land, and direct, as it did, the issue of the patent to Weed; and that depends on whether Emblen had obtained a vested right in the land before the passage of the act of December 29, 1894, as otherwise the power of Congress over its disposition as public land was plenary. Frisbie v. Whitney, 9 Wall. 187; Shepley v. Cowan, 91 U.S. 330; Buxton v. Traver, 130 U.S. 232; Gonzales v. French, 164 U.S. 345.
The Weed entry had not been cancelled when the act of 1894 took effect, so that Emblen had no right to make entry under the act of May 14, 1880. The jurisdiction of the land department ceased with the issue of the patent, and the power of Congress to direct the patent to issue was unaffected by the possibility that Emblen, if he had been permitted to prosecute his contest, might have succeeded. As Mr. Justice Miller said in Frisbie v. Whitney, supra, the rights of a claimant are to be measured by the acts of Congress, and if they show "that he acquired no vested interest in the land, then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or lenient."
As Emblen never made an entry on the land, nor perfected a right to do so, it results that he had no vested right or interest which could defeat the operation of the act of 1894.
Decree affirmed.