Plested v. Abbey, 228 U.S. 42 (1913)

228 U.S.
42
33 S.Ct. 503
57 L.Ed. 724
WILLIAM G. PLESTED and Charles Beuchat, Appts.,

v.
SAMUEL A. ABBEY and John J. Lambert.
No. 156.
Argued January 31, 1913.
Decided April 7, 1913.
Messrs. Jesse G. Northcutt, William C. Prentiss, Robert H. Widdicombe,

and A. Watson McHendrie for appellants.
Assistant Attorney General Cobb and Solicitor General Bullitt for
appellees.
[Argument of Counsel from pages 43-47 intentionally omitted]
Mr. Chief Justice White delivered the opinion of the court:
The appellants prosecute this direct appeal from a decree sustaining a demurrer
to a bill by them filed, and dismissing the cause for want of jurisdiction. The
suit concerned the right of the complainants under the laws of the United States
to purchase certain coal lands belonging to the United States, and the
defendants were the local land officers of the United States at Pueblo,
Colorado.
The theory that the decree dismissing the bill is susceptible of being directly
reviewed rests upon the assumption that the controversy, because of its nature
and because of the official character of the defendants, was one of exclusive
Federal cognizance, and therefore the refusal to exercise jurisdiction
necessarily involved a ruling concerning the authority of the court below as a
Federal court.
To decide the issue it is essential to consider the averments of the bill and the
reasons which led the court below to sustain the demurrer. The bill alleged that
in the spring of 1897 the complainants took possession of and commenced the
improvement of 240 acres of coal land, the property of the United States,
situated within 15 miles of a completed railroad, in Las Animas county,
Colorado. In due time, it was averred, they filed in the local land office at
Pueblo the declaratory statement authorized by 2349, Revised Statutes (U. S.
Comp. Stat. 1901, p. 1440), and on July 1, 1907, tendered $20 per acre for the
land, and applied to enter the same under 2350, Revised Statutes. It was
alleged that on January 11, 1908, both the declaratory statement and the
application were rejected by the local land office upon the ground that the land
had been withdrawn from sale under the coal land laws by a departmental order
dated July 26, 1906, and that on appeal the Commissioner of the General Land
Office affirmed the action of the local officials, and on a further appeal such
decision was approved on January 30, 1909, by the Secretary of the Interior.
4
The following facts were then averred: In June, 1910, the land in question, with
other land, was restored to entry, and on June 28, 1910, the register notified the
complainants in writing that they would be allowed sixty days from the receipt
of the communication in which to make a formal claim to the land as to which
they had previously filed a notice of claim, and that the price fixed by the
United States Geological Survey for certain of the land was $125 per acre, and
for the remainder $115 per acre, aggregating $30,000 for the entire tract. It was
alleged that soon afterwards the complainants filed in the local land office a
written application for the purchase of the land, and by direction of the register
a notice of the application was published, and copies thereof were posted as
required by statute, and due proof of the performance of such acts was filed in
the land office. In September following, in response to communications from
the complainants, the local land office notified complainants that payment for
the land must be made within thirty days or the application to purchase would
be rejected. Within the time fixed a tender of $4,800 was made to the receiver,
as being the price fixed by 2347, Revised Statutes. The receiver refused to
accept the money or to give any receipt therefor. The bill then averred that it
was the intention of the land officers to refuse to permit the complainants to
purchase the land unless they were willing to pay, not the alleged suatutory
price, but the sum of $30,000 arbitrarily fixed by the Secretary of the Interior as
the price of the lands. The prayer of the bill was for both a restraining and a
mandatory injunction, the one forbidding the defendant land officers from
carrying out the orders of the Secretary of the Interior and the Commissioner of
the General Land Office, and the other commanding the defendant land
officers to accept the application of the complainants, and allow them to
purchase the lands upon the payment of the sum of $20 per acre. It was,
moreover, prayed that defendants he restrained from receiving or accepting the
application of any other person for the entry of the lands.
As at the outset stated, a demurrer was sustained and the cause was dismissed
for want of jurisdiction, the court in its certificate stating that this was done
'upon the ground that a ruling or decision by the officers of a local land office
of the United States, made in the usual course of proceedings for the
acquisition of the title to public lands, is not subject to review or correction in
the courts while the title to the lands remains in the United States, and also
upon the further ground that while the title to public lands remains in the
United States, and the proceedings for acquiring that title are still in fieri, the
courts are without power, by injunction or otherwise, to control the judgment
and discretion of the officers of the Land Department in respect of the disposal
of such lands under the public land laws.'
In testing the correctness of the ruling, we treat as negligible the averments of

the bill assailing the validity of the rejection on January 30, 1909, of the
application then pending to enter the land. We do this because if complainants
had a remedy in the courts growing out of such rejection it was their duty to
invoke and pursue that remedy; and not having done so, but, on the contrary,
having for more than a year and a half acquiesced in the judgment of the Land
Department, and having made subsequently an entirely new application, we
think their rights must be measured by the later application. Considering the
issue in that aspect, we are of opinion that the principle which caused the
circuit court to hold that it had no jurisdiction to award the relief prayed, and
hence to dismiss the bill, was a correct one. The United States had not parted
with the legal title to the land. The defendants were subordinate officials of the
Land Department, and the acts and omissions complained of were done
pursuant to instructions from the head of the Land Department, vested by law
with the power to control the conduct of his subordinates in matters of this
character.
As officers administering the land laws, the defendants therefore were, in the
nature of things, under the control and their acts were subject to the review of
their official superiors, the Commissioner of the General Land Office, and,
ultimately, of the Secretary of the Interior. As said in Litchfield v. The Register
(Litchfield v. Richards), 9 Wall. 575, 578, 19 L. ed. 681, 682, subordinate
officials of the Land Department should not be called upon 'to put the court in
possession of their views and defend their instructions from the Commissioner,
and convert the contest before the Land Department into one before the court.'
Indeed, the doctrine upon which the court below based its action has been
frequently announced and enforced. It was thus epitomized in Brown v.
Hitchcock, 137 U. S. 473, 476-478, 43 L. ed. 772-774, 19 Sup. Ct. Rep. 485,
that 'until the legal title to public land passes from the government, inquiry as to
all equitable rights comes within the cognizance of the Land Department.' In
United States v. Schurz, 102 U. S. 378, 396, 26 L. ed. 167, 171, the doctrine is
thus stated:
8
'Congress has also enacted a system of laws by which rights to these lands may
be acquired, and the title of the government conveyed to the citizen. This court
has, with a strong hand, upheld the doctrine that so long as the legal title to
these lands remained in the United States, and the proceedings for acquiring it
were as yet in feri, the courts would not interfere to control the exercise of the
power thus vested in that tribunal. To that doctrine we still adhere.'
See also United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47
L. ed. 1074, 23 Sup. Ct. Rep. 698; Knight v. United Land Asso. 142 U. S. 161,
35 L. ed. 974, 12 Sup. Ct. Rep. 258; Oregon v. Hitchcock, 202 U. S. 60, 50 L.
ed. 935, 26 Sup. Ct. Rep. 568; Naganab v. Hitchcock, 202 U. S. 473, 50 L. ed.
1113, 26 Sup. Ct. Rep. 667; and the very recent decision in United States ex rel.
Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356. In the lastnamed decision the Litchfield Case was cited with approval, and it was again
reiterated the Congress has placed the Land Department under the supervision
and control of the Secretary of the Interior, a special tribunal with large
administrative and quasi judicial functions, to be exerted for the purpose of the
execution of the laws regulating the disposal of the public lands.
10
Without, therefore, expressing any opinion upon the merits, we hold that under
the facts stated in the bill this resort to the courts was premature, and the
judgment below must therefore be affirmed.

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228 U.S.

WILLIAM G. PLESTED and Charles Beuchat, Appts.,

Messrs. Jesse G. Northcutt, William C. Prentiss, Robert H. Widdicombe,

In testing the correctness of the ruling, we treat as negligible the averments of

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