United States Levey v. Stockslager

• Decision Date: 05 March 1889
• Citation: 129 U.S. 470,9 S.Ct. 382,32 L.Ed. 785
• Parties: UNITED STATES ex rel . LEVEY v. STOCKSLAGER, Commissioner of the General Land-Office
• Court: U.S. Supreme Court

9 S.Ct. 382

129 U.S. 470

32 L.Ed. 785

UNITED STATES ex rel. LEVEY v. STOCKSLAGER, Commissioner of the General Land-Office.

March 5, 1889.

Walter H. Smith, S. W. Johnston, A. T. Britton, and A. B. Brown, for plaintiff in error.

Atty. Gen. Garland and H. J. May, for defendant in error.

BLATCHFORD, J.

This is a writ of error to review a judgment of the supreme court of the District of Columbia, in general term. The writ is brought by the United States, on the relation of Mary Elizabeth Levey, intermarried with George Collins Levey, against Strother M. Stockslager, commissioner of the general land-office. Mary Elizabeth Levey filed a petition in the supreme court of the District of Columbia, praying for a writ of mandamus. The petition set forth that the petitioner was formerly Mary Elizabeth Bouligny, the widow of John E. Bouligny, deceased, and the person named in the act of congress of March 2, 1867, hereinafter set forth; and that she is now the wife of George Collins Levey, and was such on the 29th of March, 1888. The act of congress referred to (chapter 208, 14 St. 635) was set forth in the petition, and is in these words 'An act for the relief of the heirs of John E. Bouligny. Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there be, and hereby is, confirmed to Mary Elizabeth Bouligny, Corrinne Bouligny, and Felice Bouligny, widow and children of John E. Bouligny, deceased, the one-sixth part of the land claim of Jean Antoine Bernard D'Autrive, in the state of Louisiana, said one-sixth part amounting to seventy-five thousand eight hundred and forty acres; and that, inasmuch as the said land embraced in said claim have [has] been already appropriated by the United States to other purposes, certificates of new location, in eighty-acre lots, be issued to the said Mary Elizabeth Bouligny, for her own benefit and that of her said minor children, in lien of said lands, to be located at any land-office in the United States, upon any public lands subject to private entry at a price not exceeding one dollar and twenty-five cents per acre. The commissioner of the general land-office is hereby directed to issue said certificates of new location, in accordance with existing regulations in such cases. Approved March 2, 1867.' The petition set forth that on the 6th of March, 1867, the petitioner's attorney filed with the commissioner of the general land-office a certified copy of said act, and requested that the certificates of new location named in the act be issued. That the act was passed by the thirty-ninth congress, which adjourned on the 3d of March, 1867. That at the next session of congress, being the fortieth congress, the latter congress, on the 30th of March, 1867, passed the following joint resolution, (No. 35, 15 St. 353:) 'Joint resolution directing the secretary of the interior to suspend the execution of a law passed by the thirty-ninth congress for the relief of the heirs of John E. Bouligny. Be it resolved by the senate and house of representatives of the United States of America, in congress assembled, that the secretary of the interior be directed to suspend the execution of the act entitled 'An act for the relief of the heirs of John E. Bouligny, approved March second, eighteen hundred and sixty-seven, until the further order of congress. Approved March 30, 1867.' That congress had made no 'further order' in the matter. That the defendant was, on the 29th of March, 1888, and since had been, and now is, commissioner of the general land-office of the United States. That the petitioner, on that day, demanded of him, as such commissioner, that he issue to her, for her own benefit and that of her minor children named in the act, certificates of new location for 75,840 acres, in 80-acre lots, locatable at any land-office in the United States, upon any public lands subject to private entry, at a price not exceeding $1.25 per acre. That such demand was made in writing, at the office of the said commissioner, in Washington. That he, on the 12th of April, 1888, refused to grant that request. That on the 13th of April, 1888, she duly appealed from the decision and refusal of the commissioner to the secretary of the interior. That the said secretary, on the 3d of May, 1888, approved the decision of the commissioner; and that she had theretofore repeatedly made application to the commissioners of the general land-office to issue said certificates of new location, and always met with a refusal to issue them. The petition prayed that a writ of mandamus might issue to the said commissioner, directing him to execute and deliver such certificates to her.

On an order to show cause, returnable in the general term of the court, the respondent put in an answer, setting forth that no action had been taken by the general land-office, for the purpose of carrying out and giving effect to the provisions of the act of March 2, 1867, prior to the passage of the joint resolution of March 30, 1867; that, by the passage of such joint resolution, the power of the respondent to issue the certificates was suspended until the further order of congress; that congress had made no further order; that the act of March 2, 1867, did not give to the relator or to the heirs of Jonh E. Bouligny a vested right to the certificates; that, as the act of March 2, 1867, directed the commissioner to issue the certificates 'in accordance with existing regulations in such cases,' it would have imposed upon the respondent the exercise of an official duty, within his discretion, and not reviewable by the court; that such official duty is not a ministerial duty; that, if the relator had acquired a vested right to the certificates under the act, a remedy was afforded in the court of claims, under section 1059, to recover their value, provided the petition setting forth the claim had been presented to the court within six years after the claim first accrued; and that the petition ought to be dismissed. The relator put in a demurrer to the answer, on the ground that it did not set up any legal defense; that the remedy in the court of claims, suggested by the answer, did not exist in law; that the right in the certificates, given by the act of congress, was a vested right, which could not be and was not taken away by the joint resolution; and that the joint resolution was unconstitutional and void. The court, in general term, overruled the demurrer, and, the relator electing to stand upon it, a judgment was entered, discharging the rule to show cause, and dismissing the petition.

An opinion was delivered by the court in general term. It held that the act of March 2, 1867, was not a grant, and nothing passed by it; that the Louisiana lands named in it were never possessed by the confirmees, and were not to be possessed by them; that under such circumstances there could be no confirmation in regard to them; that the provision for certificates in lieu of them was not a grant, and nothing passed by it, because it was wholly executory; that, the certificates never having been prepared or come into existence, the effect of the joint...