Bowling v. United States

• Decision Date: 20 May 1924
• Docket Number: 6428.
• Citation: 299 F. 438
• Parties: BOWLING et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F. 438

BOWLING et al. v. UNITED STATES.

No. 6428.

United States Court of Appeals, Eighth Circuit.

May 20, 1924

Halbert H. McCluer, of Kansas City, Mo. (Vern E. Thompson, of Miami Okl., and Roland Hughes, of Kansas City, Mo., on the brief) for plaintiffs in error.

O. H Graves, Sp. Asst. U.S. Atty., of Muskogee, Okl. (Frank Lee U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before LEWIS, Circuit Judge, and BOOTH and SYMES, District Judges.

BOOTH District Judge.

This is an action of ejectment. A jury was duly waived and the case tried to the court, resulting in a judgment for possession in favor of the United States and for $2,875 damages for detention. A writ of possession was, however, withheld. Writ of error has brought the case here.

Litigation in regard to the land involved in this suit has extended over a period of more than 20 years. The main question in dispute has been: Who were the heirs of William Wea, Peoria allottee No. 103, who received the allotment by virtue of the Act of Congress of March 2, 1889 (25 Stat. 1013 (Comp. St. Sec. 4207)), and to whom patent was issued April 8, 1890, and who died intestate January 23, 1894? The patent contained the following:

'Provided, that the said lands shall not be alienated nor subject to levy, sale, taxation, or forfeiture for a period of twenty-five years from the date hereof, and any contract or agreement to sell or convey said land before the expiration of said period shall be absolutely null and void.'

After the death of Wea, persons claiming to be his heirs made a contract to sell the land, and in a suit brought by them to enforce the contract in the United States Court for the Northern District of the Indian Territory, judgment was entered sustaining the validity of the contract. The land was thereupon conveyed by the alleged heirs, and by mesne conveyances passed to Bowling and the Miami Investment Company. Thereafter the United States brought suit to cancel the conveyances and to set aside the judgment on the ground, among others, that the contract, the judgment, and the conveyances were all within the 25-year period of restraint on alienation contained in the patent. The government was successful in its suit. 181 F. 887; 191 F. 19, 111 C.C.A. 561; 233 U.S. 528, 34 Sup.Ct. 659, 58 L.Ed. 1080.

The decision of the Supreme Court was filed May 4, 1914. Thereafter and on October 19, 1914, the Secretary of the Interior, pursuant to the Act of June 25, 1910 (36 Stat. 855 (Comp. St. Sec. 4226)), made certain findings purporting to determine the heirs of William Wea. January 20, 1915, the United States, on behalf of itself and the heirs so determined, brought an action of ejectment against Bowling and others who were in possession of the land, demanding possession and damages for detention. At the trial, plaintiff offered in evidence a copy of a departmental record in the office of the Secretary of the Interior showing that the Secretary had determined the heirs of William Wea, naming them. On objection, this document was excluded by the trial court on the ground that the Secretary had no authority, under the statute, to make the findings. No further evidence was offered, and judgment went for the defendants. This ruling and judgment were affirmed by the Circuit Court of Appeals, but were reversed by the Supreme Court, and the case was sent back for a new trial. 261 F. 657; 256 U.S. 484, 41 Sup.Ct. 561, 65 L.Ed. 1054.

This last decision of the Supreme Court was filed June 1, 1921.

On the retrial in 1922, the defendants admitted possession, denied the allegations of heirship set up in the complaint, and claimed ownership of the land by virtue of deeds from alleged heirs of William Wea, dated and delivered after the date of expiration of the period of restrictions on alienation contained in the patent.

A certified copy of the findings of the Secretary of the Interior as to the heirs of William Wea was admitted in evidence over the objection of defendants, and, as above stated, judgment went for plaintiff.

The assignments of error in the instant case raise three main questions:

1. Were the findings of heirship, claimed to have been made by the Secretary of the Interior, admissible in evidence?

2. Were such findings, together with any other evidence in the record bearing on the matter, sufficient to sustain the judgment?

3. Was a judgment for damages authorized, and, if so, was the amount fixed excessive?

Questions 1 and 2 may be discussed together. The main grounds of attack upon the findings as to heirship (introduced in evidence as Exhibit A) were: (a) That the same were not signed by the Secretary of the Interior, but by the Assistant Secretary; (b) that there was no showing that the findings were made after notice and hearing.

The first section of the act under which the proceedings for determination of heirship were had (36 Stat. 855, c. 431, Act of June 25, 1910 (Comp. St. Sec. 4226)) reads, in part, as follows:

'That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive.'

That Congress may authorize the Secretary of the Interior to make such ascertainment and may make the determination final and conclusive, was decided by the Supreme Court in the case of U.S. v. Bowling, 256 U.S. 484, 41 Sup.Ct. 561, 65 L.Ed. 1054. See, also, Hallowell v. Commons, 239 U.S. 506, 36 Sup.Ct. 202, 60 L.Ed. 409; Lane v. Mickadiet, 241 U.S. 201, 36 Sup.Ct. 599, 60 L.Ed. 956; Egan v. McDonald, 246 U.S. 227, 38 Sup.Ct. 223, 62 L.Ed. 680.

In proceedings under this statute, the Secretary of the Interior acts in a quasi judicial capacity. Dixon v. Cox (C.C.A.) 268 F. 285.

The questions whether the signature of the Assistant Secretary to the findings was sufficient, and whether the findings were made after notice and hearing, might have been raised on the former trial which resulted in the decision in 256 U.S. Not having been so raised, they could not be properly raised upon the retrial. U.S. v. Camou, 184 U.S. 572, 574, 22 Sup.Ct. 505, 46 L.Ed. 694; Sun Co. v. Vinton Co., 248 F. 623, 160 C.C.A. 523; Clark v. Brown, 119 F. 130, 132, 57 C.C.A. 76; Smyth v. Neff, 123 Ill. 310, 17 N.E. 702; Walls v. Dimmitt, 141 Ky. 715, 133 S.W. 768; Smith v. Seattle, 20 Wash. 613, 56 P. 389; Estes v. Edgar Zinc Co., 97 Kan. 774, 156 P. 758; Joslin v. Cowee, 56 N.Y. 626; Dilworth v. Curts, 139 Ill. 508, 29 N.E. 861; Pac. Mut. Life v. Coley, 80 Okl. 1, 193 P. 735; Prince v. Gosnell, 47 Okl. 570, 149 P. 1162; State v. Huser, 76 Okl. 130, 184 P. 113.

But assuming that these questions were still open upon the retrial, nevertheless they must both be decided adversely to the plaintiffs in error. The Department of the Interior was established with the Secretary of the Interior as its head by section 437, R.S. (Act of March 3, 1849, 9 Stat 395 (Comp. St. Sec. 665)).

Section 161, R.S. (Comp. St. Sec. 235) provides:

'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.'

The office of Assistant Secretary of the Interior and the powers relating to that office were established by sections 438 and 439, R.S. (12 Stat. 369 (Comp. St. Secs. 666, 667)). It is provided that he shall 'perform such duties in the Department of the Interior as shall be prescribed by the Secretary, or may be required by law, and who shall act as the Secretary of the Interior in the absence of that officer.' Under these statutory enactments, the Assistant Secretary is authorized to act in place of the Secretary, under the conditions specified; and when he does act, the presumption exists, until the contrary is shown by evidence, that he is acting lawfully.

Cases are numerous construing the above statutes and similar ones. U.S. v. Peralta, 19 How. 343, 347, 15 L.Ed. 678; Parish v. U.S., 100 U.S. 500, 504, 25 L.Ed. 763; Marsh v. Nichols, 128 U.S. 605, 9 Sup.Ct. 168, 32 L.Ed. 538; Keyser v. Hitz, 133 U.S. 138, 146, 10 Sup.Ct. 290, 33 L.Ed. 531; Norris v. U.S., 257 U.S. 77, 42 Sup.Ct. 9, 66 L.Ed. 136; Shillito v. McClung, 51 F. 868, 2 C.C.A. 526; Chadwick v. U.S. (C.C.) 3 Fed. 750, 756; Turner v. Seep (C.C.) 167 F. 646, same case on appeal 179 F. 74.

In the case of Norris v. U.S., supra, the court in its opinion said (speaking of an Assistant Secretary of the Treasury):

'Moreover, the action of the Assistant Secretary in this case was reduced to writing and became a part of the archives of the Department. It does not appear to have been modified, nor in any way changed by the Secretary. There is nothing in the record to show that the action of the Assistant Secretary did not have the full sanction and approval of the Secretary. Under such circumstances the act of the Assistant Secretary must be presumed to be within the scope of the authority which the Secretary conferred upon his assistant. McCollum v. United States, 17 Ct.Clms. 92.'

In the instant case, the findings as to heirship identified as Exhibit A, consist of a certified copy of:

(1) A lengthy report by E. B. Meritt, Assistant Commissioner of Indian Affairs, addressed to the Secretary of the Interior and dated October 19, 1914. The report begins:

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