West Coast Exploration Co. v. Mckay, Secretary of Interior, 213 F.2d 582 (D.C. Cir. 1954)

Chief Judge STEPHENS announced the judgment and division of the court as follows:

The court is agreed that the appellant West Coast Exploration Co. is not entitled to the relief prayed for in its complaint, and is agreed that the case should be remanded to the District Court with directions to dismiss for lack of jurisdiction.

Chief Judge STEPHENS is of the view, expressed in his opinion printed below, in which Circuit Judge CLARK, Circuit Judge MILLER, Circuit Judge PRETTYMAN and Circuit Judge BAZELON concur, that the District Court had jurisdiction to consider the case but that after hearing the case that court should have dismissed and should now, on remand, be directed to dismiss the action for lack of jurisdiction. Circuit Judge PRETTYMAN has filed an additional opinion, printed below, in which Circuit Judge BAZELON joins.

Circuit Judge WASHINGTON has stated his views in his opinion, printed below, in which Circuit Judge EDGERTON concurs.

Circuit Judge FAHY concurs in the result for reasons stated in his opinion printed below.

STEPHENS, C. J., with whom concur Circuit Judge CLARK, Circuit Judge MILLER, Circuit Judge PRETTYMAN, and Circuit Judge BAZELON:

The judgment under review in this case was entered in an action commenced in the United States District Court for the District of Columbia by the filing by the appellant, West Coast Exploration Company, in this opinion referred to as West Coast, of a petition seeking relief in the nature of a mandatory injunction to compel Oscar L. Chapman, the predecessor in office of the present appellee, Douglas McKay, Secretary of the Interior, to approve the selection of, and to issue a patent to, a ten acre tract of land in California. The tract was denominated "Little Placer" and will hereafter, for convenience, sometimes be so referred to. The action was commenced as the result of the following: By the Act of February 10, 1855, 10 Stat. 849 (hereafter sometimes referred to as the Gerard Act), the Congress provided as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Reese A. P. Gerard, William Gerard, and Rachel Blue, (formerly Rachel Gerard,) the only children and heirs of Joseph Gerard, a messenger of the United States to the Indians, who was killed in seventeen hundred and ninety-two, be, and they or their heirs are hereby permitted to enter, each one of them severally, or his or their heirs, one section of the public lands, without the payment of any consideration for said three sections, being in full payment for the patriotic services of said Joseph Gerard, and in accordance with the spirit of the inducements authorized by President Washington to be held out to such persons as would consent to carry a message from Fort Washington, now Cincinnati, in seventeen hundred and ninety-two, to the hostile Indians of the then Northwest Territory."

Pursuant to that Act the Department of the Interior issued to one William Gerard, one of the heirs referred to in the Act, a "special certificate" certifying the right of William to enter one section of the public lands without the payment of any consideration. Such certificates are commonly referred to in land law parlance as "scrip" and will, in this opinion, sometimes be so referred to. Thereafter William exchanged the special certificate for sixteen special certificates, each certifying the right of William to enter one-sixteenth of a section of the public lands without the payment of any consideration. By mesne conveyances West Coast acquired the ownership of one of the sixteen special certificates and thereunder, on March 14, 1947, selected Little Placer. The tract contained minerals, to wit, deposits of sodium borates and calcium borates. The selection was regularly filed with the Bureau of Land Management of the Department of the Interior at Los Angeles and was "accepted" by that Bureau. But the selection was later rejected by the Director of the Bureau at Washington in a decision of June 2, 1947. The rejection was upon — stating them in summary form — the following grounds:

While the Gerard Act is silent with respect to the character of the land that may be located thereunder, it was the uniform policy of the Congress, at and prior to the date of the Act, to exclude mineral lands from disposal under all non-mineral land laws, Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L. Ed. 126 (1880),¹  and administrative practice has accorded with that policy.²  Therefore, location under the Gerard Act prior to the Act of July 17, 1914, 38 Stat. 509, 30 U.S.C.A. § 121 et seq., was limited to surveyed public lands, non-mineral in character.³  Little Placer, the tract applied for, was withdrawn from settlement, location — including scrip location — sale or entry, and reserved for classification by Executive Order No. 6910 of November 26, 1934,⁴  and is therefore subject to location only if classified by the Secretary of the Interior under Section 7 of the Taylor Grazing Act, as amended, 43 U.S.C.A. § 315f, as being proper for acquisition and satisfaction of outstanding scrip rights.⁵  While the Act of July 17, 1914, as supplemented by the Act of March 4, 1933, 47 Stat. 1570, 30 U.S.C.A. § 124,⁶  authorized the disposal under the non-mineral public land laws of lands withdrawn or classified as valuable for phosphate, nitrate, potash, oil, gas, asphaltic or sodium minerals, the supplementing Act of March 4, 1933 provides that lands withdrawn, classified or reported as valuable for any of the minerals named shall not be subject to such disposal unless the Secretary of the Interior shall determine that it will not unreasonably interfere with operations under the federal mineral leasing laws. The Geological Survey had reported that information available to it indicated that unreasonable interference with operations under the sodium provisions of the Mineral Leasing Act⁷  would result from the disposal of the surface of the land under the non-mineral application. Therefore, the 1914 and 1933 Acts would not avail to remove the bar imposed by the construction and administration of the Gerard Act against the location of Gerard scrip on mineral land. Since the scrip application would have to be rejected on that ground, for that reason alone the tract sought, Little Placer, may not be classified as proper for scrip location.

After this rejection by the Director of the Bureau of Land Management, West Coast filed a motion for rehearing. On November 18, 1947, the Secretary of the Interior denied the motion — thereby affirming the Director's rejection of the selection of Little Placer — in a decision the pertinent parts of which are the following:

"West Coast contends that its Gerard scrip may be located on mineral lands and consequently that the act of March 4, 1933, is inapplicable to this situation.

"Under the act of February 10, 1855, supra, Gerard scrip may be located on `the public lands.' But as used in that act, the term `public lands' does not include mineral lands in California. . . . The Supreme Court has held that an act granting sections 16 and 36 of the public lands to the State of California without specific exclusion therefrom of mineral lands, passed only 2 years prior to the Gerard scrip act, was nevertheless intended to exclude from its operation mineral lands. Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L. Ed. 126 (1880). The Court discussed extensively the act there under consideration as well as other statutes enacted during the same period, reviewed the history of the settlement of California, the discovery of mineral wealth in that area, and the statutes and practices relating to the survey of these lands. It was concluded that

"`* * *, Congress, after keeping this matter in abeyance about sixteen years, enacted, in 1866, 14 Stat. at L., 251, a complete system for the sale and other regulation of its mineral lands, so totally different from that which governs other public lands as to show that it could never have been intended to submit them to the ordinary laws for disposing of tho territory of the United States.' (102 U.S. 167, 174, 26 L. Ed. 126).

"The Court's reasoning and conclusions with respect to the statute there under consideration is equally applicable with respect to the question of whether Gerard scrip may be located upon mineral lands in California. And the administrative practice has conformed to this conclusion, as illustrated by the various precedents cited in the decision approved on June 2, 1947.

"In its motion West Coast does not controvert the finding that the land it seeks is mineral. It does contend, however, that the act of March 4, 1933, is inapplicable because Gerard scrip may be located upon mineral land. It continues by assuming, arguendo, that even if the act does apply, the location of this scrip upon this particular tract would not interfere with operations under the Federal leasing laws. The act of March 4, 1933, permits selection of mineral lands with a reservation to the United States of the minerals which are subject, as are those on this tract, to the Mineral Leasing Act, provided that no land shall be subject to such selection `unless it shall be determined by the Secretary of the Interior that such disposal will not unreasonably interfere with operations' under the Mineral Leasing Act.

"In Caswell S. Neal (A-24147, April 9, 1946), scrip was filed on land already under mineral lease to a corporation which sought surface ownership, it appeared, to enable it to protect its mining operations and the necessary structures it had erected in connection with the mining activities. The Department there said

"`While it may be advantageous to the corporation to secure a fee title to these lands, this advantage cannot hold sway over the interest of the public in assuring that future mining operations on this tract will not be impeded by adverse holders of the surface title. It is true that the buildings and structures of the corporation used in its mining operations at present occupy a substantial part of the lands sought * * *, but it must be remembered that the corporation pursues its business upon these lands only by reason of a lease. The granting of the application * * * would enable the passing to the corporation of a permanent interest in the lands which, so long as the corporation might hold the lease, would not be adverse to such rights as it may possess to the minerals on the land or interfere with its operations thereon. Should a situation arise, however, whereby the lease of the minerals on these lands were granted to others than this particular corporation or its successor in interest, the adverse situation referred to by the Geological Survey would be readily apparent. In the interest of protecting future mining operations on this land from interference by possible adverse holders of the surface title, the application * * * should be denied.'

"The same reasons are applicable to the present situation, especially since West Coast at the present time has no rights whatever in the minerals here involved and the probability of its being the successful bidder at a future offering of a lease of the land is purely speculative. Utah Magnesium Corporation, A-24349, September 11, 1946.

"West Coast also contends that the land is not subject to classification under section 7 of the Taylor Grazing Act (48 Stat. 1272, 49 Stat. 1976, 43 U.S.C. [§ 315f]) because this 10 acres was under a mineral lease at the time of the issuance of the general withdrawal order No. 6910 of November 26, 1934, and the withdrawal order by its own terms was `subject to existing valid rights.'

"Among other matters, section 7 provides that the lands withdrawn by Executive Order 6910 of November 26, 1934, may be classified by the Secretary as suitable for disposition under outstanding scrip rights and be opened, pursuant to such classification, to acquisition under the appropriate land laws. Because the withdrawal order was `subject to existing valid rights' and because at the time of the issuance of the withdrawal order this 10 acres was under a mineral lease which has since been terminated, West Coast contends that the land was never withdrawn by order 6910 and consequently is not subject to classification under section 7. In the first place, the mineral lease then outstanding was not held by West Coast so that the rights, if any, to be protected were not those of West Coast. In the second place, the Department has consistently held that the order does `cover all lands which might become vacant, unreserved, and unappropriated during the life of the order.' Op.Sol., 55 I.D. 205, 207, 208 (1935). Consequently, upon the termination of the outstanding mineral lease, the order attached fully to this 10 acres and brought them into the orbit of section 7.

"Since the land is rich in minerals subject to leasing under the Mineral Leasing Act, supra, and since the Mineral Leasing Act provides an orderly scheme for the extraction of minerals under procedures which safeguard the public interest in the fruitful exploitation of this natural wealth, it is not appropriate to classify this tract for disposal under any land law which would enable one not the mineral lessee to interfere with or impede the extraction of the minerals.

"West Coast also states that it was entitled to a hearing before the Bureau of Land Management. But no statute or regulation requires that it have an oral hearing in connection with its application. Moreover, there is no substantial material issue of fact, for the assumption of the decision is that the surface owner would have the power to interfere with and impede the extraction of minerals and any lease issued hereafter. And this fact cannot reasonably be controverted. Moreover, on this motion, West Coast has fully exercised its privilege to present in writing all facts and arguments favorable to its position."

On March 18, 1948, West Coast filed its petition in the District Court. The petition referred to and summarized the Gerard Act. It alleged the selection of Little Placer, the filing of the selection with the Bureau of Land Management at Los Angeles, the acceptance of the selection by that Bureau and the rejection of the selection by the Director of the Bureau at Washington and the affirmance by the Secretary of the Interior of the Director's rejection. The petition then asserted that the decision of the Secretary was contrary to, and in violation of, the Gerard Act, was a substitution of the judgment of the Secretary for the will of Congress, and a refusal to discharge a mandatory and purely ministerial duty imposed upon the Secretary by law, West Coast having — according to the assertions of the petition — a clear right to approval by the Secretary of the selection of Little Placer and a clear right to the issuance of a patent thereto, and having exhausted all of its administrative remedies. The petition asserted, in effect, that the Secretary, in rejecting the application of West Coast for a patent to Little Placer, was acting beyond or in want of statutory power. The petition prayed relief by an order of the court commanding the Secretary to approve the selection of the land in question and to issue a patent thereto. An answer was filed by the Secretary raising issue as to the right of West Coast to Little Placer. The answer in the large, so far as here pertinent, made the assertions of fact and took the legal positions set forth in the decisions of the Director of the Bureau of Land Management and of the Secretary of the Interior.

In the District Court the case was submitted for decision upon the pleadings and upon a stipulated statement of facts. The statement left no dispute as to the terms of the Gerard Act, as to the location of Little Placer, as to its being mineral land containing sodium borate, or as to the Secretary's having found it to be such mineral land. It was not alleged in the petition of West Coast nor stated in the stipulated statement of facts that the tract of land covered by the West Coast selection had been offered at public auction and remained available for purchase at private sale, and it is not contended by West Coast on this appeal that such was the fact. The District Court dismissed the petition upon, inter alia, the theories raised by the answer. It rested its decision in part, as did the Secretary, upon Ivanhoe Mining Company v. Keystone Consolidated Mining Company, the ruling in which is stated in footnote 1, supra. But the court rested its decision also upon Chotard v. Pope, 12 Wheat. 586, 6 L. Ed. 737 (U.S. 1827);⁸  Stockley v. United States, 260 U.S. 532, 43 S. Ct. 186, 67 L. Ed. 390 (1923);⁹  and Deffeback v. Hawke, 115 U.S. 392, 404, 6 S. Ct. 95, 29 L. Ed. 423 (1885).¹⁰  Upon entry of the judgment dismissing the petition, appeal to this court was taken by West Coast.

The appeal presents two questions, one as to the jurisdiction of the District Court, the other as to whether or not West Coast is entitled to the relief sought in its complaint, if the District Court had jurisdiction.

* No question as to the jurisdiction of the District Court to entertain the action was raised in that court. But on the appeal, at a hearing first held by a division of this Court of Appeals, this court sua sponte raised a question as to the jurisdiction of the District Court to entertain the action and required briefs to be presented upon that question; and upon such briefs, and upon the briefs theretofore presented upon the merits, and after oral argument, the case was submitted for decision upon the jurisdictional question and, if it should be decided that the District Court had jurisdiction, upon the question whether or not West Coast was entitled to the relief sought in its petition. Thereafter, because of the importance of the jurisdictional question, an in banc rehearing was ordered by a majority of the active judges of this court.¹¹  At such rehearing the case was reargued and again submitted for decision upon briefs and supplemental briefs discussing both the jurisdictional question and the issues of law presented by the petition, the answer, and the stipulated statement of facts.

The jurisdictional question has two aspects: one, whether or not the District Court had jurisdiction of the proceeding or, as it is sometimes stated, of the subject matter of the action; the other, whether or not it had jurisdiction of the necessary parties. A court is said to have jurisdiction, in the sense that its erroneous action is voidable only, not void, when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth in the paper writing invoking the court's action is not obviously frivolous. United States v. Williams, 341 U.S. 58, 71 S. Ct. 595, 95 L. Ed. 747 (1951); Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); Binderup v. Pathe Exchange, 263 U.S. 291, 44 S. Ct. 96, 68 L. Ed. 308 (1923); Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931 (U.S.1870); DeBenque v. United States, 66 App.D.C. 36, 85 F.2d 202, 106 A.L.R. 839 (D.C. Cir., 1936); Brougham v. Oceanic Steam Navigation Company, 205 F. 857 (2d Cir. 1913); Hughes v. Cuming, 165 N.Y. 91, 58 N.E. 794 (1900). Cf. United States v. United Mine Workers, 330 U.S. 258 (1947) and cases therein cited at page 293 in footnote 58, 67 S. Ct. 677, 91 L. Ed. 884. In view of the confusion which seems to have arisen in the case with reference to the first aspect of the jurisdictional question, there are set forth below statements, in leading cases on the subject, which we think adequately describe the criteria for determination of the question whether a court has jurisdiction of a given proceeding:

"Jurisdiction is the power to decide a justiciable controversy, and includes questions of law as well as of fact. A complaint setting forth a substantial claim under a federal statute presents a case within the jurisdiction of the court as a federal court; and this jurisdiction cannot be made to stand or fall upon the way the court may chance to decide an issue as to the legal sufficiency of the facts alleged any more than upon the way it may decide as to the legal sufficiency of the facts proven. * * * Jurisdiction, as distinguished from merits, is wanting only where the claim set forth in the complaint is so unsubstantial as to be frivolous or, in other words, is plainly without color of merit." (Binderup v. Pathe Exchange, supra, 263 U.S. at 305-306, 44 S. Ct. at 98.)

"By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the soverign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred." (Cooper v. Reynolds, supra, 10 Wall. at 316, 19 L. Ed. 931.)

"* * * [J]urisdiction of the subject-matter . . . `is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising or which is claimed to have arisen, under that general question. * * * It is the power to act upon the general, and, so to speak, the abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power.'" (Hughes v. Cuming, supra, 165 N.Y. at 95, 58 N.E. at 795.)

"The jurisdiction with which we are concerned is the power to hear and determine a cause. It is not limited to making correct decisions but includes power to decide wrong as well as right. As applied to a particular controversy it is the power to hear and determine the subject-matter of that controversy. And by this is meant the power to hear and determine causes of the class to which the particular controversy belongs. It is the power to act upon the general question in its relation to the facts presented; to adjudge whether such facts call for the exercise of the abstract power." (Emphasis supplied.) (Brougham v. Oceanic Steam Navigation Company, supra, 205 F. at 859.)

"Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. Swafford v. Templeton, 185 U.S. 487, 493, 494, 22 S. Ct. 783, 46 L. Ed. 1005; Binderup v. Pathe Exchange, 263 U.S. 291, 305-308, 44 S. Ct. 96, 68 L. Ed. 308. . . .. The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous. The accuracy of calling these dismissals jurisdictional has been questioned. The Fair v. Kohler Die & Specialty Co., supra, 228 U.S. 22, at 25, 33 S. Ct. 410, 57 L. Ed. 716. But cf. Swafford v. Templeton, supra." (Bell v. Hood, supra, 327 U.S. at 682-683, 66 S. Ct. at 776.)

Those decisions and the reasoning therein dispose of the question whether or not the District Court in the instant case had jurisdiction over the proceeding or the subject matter of the action. As appears above, the petition sought relief in the nature of a mandatory injunction. And as stated above the United States District Court for the District of Columbia has long exercised jurisdiction in cases in which mandatory relief compelling the performance by a federal officer of a clear legal duty is sought. Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 50 S. Ct. 103, 74 L. Ed. 445 (1930); Roberts v. United States, 176 U.S. 221, 20 S. Ct. 376, 44 L. Ed. 443 (1900); United States ex rel. United States Borax Co. v. Ickes, supra, footnote 11, and cases arising in this jurisdiction referred to therein.¹² 

The second aspect of the jurisdictional question, whether or not the District Court had the necessary parties before it — in the absence of such parties a court of course cannot validly enter a judgment — arises by virtue of a contention that since the suit is filed against the Secretary of the Interior and involves the disposition of public lands the District Court could not consider the case, but should have dismissed it forthwith as a suit against the United States which had not consented to be sued. In our opinion that contention is not supportable in view of the method recognized by the Supreme Court in the following cases for determination of similar preliminary jurisdictional questions. Payne v. Central Pac. Ry. Co., 255 U.S. 228, 41 S. Ct. 314, 65 L. Ed. 598 (1921); Northern Pac. Ry. Co. v. State of North Dakota ex rel. Langer, 250 U.S. 135, 39 S. Ct. 502, 63 L. Ed. 897 (1919); Wells v. Roper, 246 U.S. 335, 38 S. Ct. 317, 62 L. Ed. 755 (1918); Lane v. Watts, 234 U.S. 525, 34 S. Ct. 965, 58 L. Ed. 1440 (1914); United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171 (1882); Transcontinental & Western Air v. Farley, 71 F.2d 288 (2d Cir.), certiorari denied, 293 U.S. 603, 55 S. Ct. 119, 79 L. Ed. 695 (1934). The rulings in those cases, each commenced upon the theory that Government officers were acting without power, and holding in the Northern Pacific, the Lee, the Payne, and the Lane cases, the United States not a necessary party, and in the Farley and Roper cases, a necessary party, are explainable as follows: Where a plaintiff asserts in his complaint that an officer of the Government is acting without power and that therefore his acts are invalid, the court, in determining the preliminary jurisdictional question whether or not the United States is a necessary party, is confronted with a problem arising out of the fact that the determination of that question involves passing upon the very question involved in the merits. For example, in the Northern Pacific case, brought to restrain the Director General of Railroads, who had imposed a schedule of intrastate rates, from enforcing the same, upon the ground that he had no power except respecting interstate rates, the question arose at the threshold whether or not the United States was a necessary party. Necessary parties are those "affected by the judgment and against which in fact it will operate . . .." Minnesota v. Hitchcock, 185 U.S. 373, 387, 22 S. Ct. 650, 655, 46 L. Ed. 954 (1902). If the Director General had no power over intrastate rates, then the United States was not a necessary party because it had nothing to do with the imposition and enforcement thereof, and a judgment restraining the effectiveness of the schedule would operate only against the Director General individually. If, on the contrary, the Director General had power over intrastate rates, then the United States was responsible for his imposing and enforcing the schedule and the judgment would operate against it. Thus the ultimate question was also the jurisdictional question. A similar problem was presented in each of the cases just cited. Since a court must determine at the outset its jurisdiction to consider a case presented, it is compelled to make a preliminary decision, for jurisdictional purposes, on the ultimate question in the suit, and this notwithstanding the fact that if jurisdiction to consider the case is recognized, and the merits of the claim for relief therefore heard, the court may, on the merits, be compelled to reach an opposite conclusion.

The courts solve this problem by accepting at their face value, for jurisdictional purpose, the assertions of the complainant of want of power in the officer — unless such assertions are "so unsubstantial and frivolous as to afford no basis for jurisdiction . . ."¹³  — and by giving the assertions thus accepted their natural jurisdictional consequences in respect of who are necessary parties.^13a Thus in the Northern Pacific case the Court, to determine whether the United States was a necessary party, accepted as true the assertion of want of power in the Director General, and therefore held that the United States was not a necessary party, and this although when the merits were passed on, the Court reached the conclusion that the Director General did have power to impose and enforce the local rates. Again in the Lee case the Court accepted, for jurisdictional purpose, the assertions of the plaintiff that the officers holding the Lee property for the Government were without power so to do, and therefore held the Government not a necessary party. In that instance the jurisdictional holding coincided with the ultimate holding. A similar result for the same reason was reached in the Payne and Lane cases. In the Farley case the same jurisdictional method resulted in holding the Government a necessary party. The assertion was that Farley was without power to cancel air mail contracts which had been entered into between the United States and the complainant. Accepting that assertion at face value for jurisdictional purpose, the consequence was that if Farley was without power to cancel the contracts the Government was bound to perform them; therefore it was a necessary party; and it was so held. Again in the Roper case the same result was reached on similar facts and for the same reason.

It is to be noted that the foregoing method of solving the preliminary jurisdictional question in such cases as the instant case and those just discussed was approved by the Supreme Court in Land v. Dollar, 330 U.S. 731, 738-739, 67 S. Ct. 1009, 1012, 91 L. Ed. 1209 (1946) where the Court said:

"* * * But public officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity, he is not relegated to the Court of Claims to recover a money judgment. The dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld.

"It is in the latter category that the pleadings have cast this case. That is to say, if the allegations of the petition are true, the shares of stock never were property of the United States and are being wrongfully withheld by petitioners who acted in excess of their authority as public officers. If ownership of the shares is in the United States, suit to recover them would of course be a suit against the United States. But if it is decided on the merits either that the contract was illegal or that respondents are pledgors, they are entitled to possession of the shares as against petitioners, though, as we have said, the judgment would not be res judicata as against the United States. See United States v. Lee, supra, 106 U.S. 196, p. 222, 1 S. Ct. 240." (Emphasis supplied.)

See also Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S. Ct. 219, 90 L. Ed. 140 (1945), wherein the Court recognized, in the words quoted below, the foregoing method of solving such a jurisdictional question as is presented in the instant case, although the Court's ultimate decision was that the United States was a necessary party:

"* * * Appellant contends that the action seeks to prevent a tort by the Secretary, acting as an individual and not as an officer of the government, consisting of a trespass against appellant's property, and that equitable relief is necessary because appellant has no adequate remedy at law and since it would otherwise suffer irreparable loss. Under our former decisions, had the factual allegations supported these contentions, the complaint as filed would, in the absence of any further preceedings, have provided a basis for the equitable relief sought. See e. g., Philadelphia Company v. Stimson, 223 U.S. 605, 619-620, 32 S. Ct. 340, 56 L. Ed. 570. For according to these cases, if we assume, as we must for the purpose of disposing of the jurisdictional issue, that appellant's allegations including the one that the Renegotiation Act is unconstitutional are true, the fact that the Secretary had acted pursuant to the command of that statute would have made no difference. These cases hold that a public officer can not justify a trespass against a person's property by invoking the command of an unconstitutional statute. Under such circumstances, the tort becomes the officer's individual responsibility, and the government is not held to have sufficient interest in the controversy to be considered an indispensable party." (326 U.S. at 373-374, 66 S. Ct. at 221.) (Emphasis supplied.)

If in the instant case the foregoing method of solving the preliminary jurisdictional question as to the need vel non of the presence before the District Court of the United States as a party defendant can be applied, the result will be as follows: As pointed out at the outset of this opinion, the petition of West Coast in effect asserted that in rejecting the West Coast selection of Little Placer, and application for a patent thereto, the Secretary was acting beyond or in want of statutory power. It can not be said that that assertion is "so unsubstantial and frivolous as to afford no basis for jurisdiction . . .." Accepting the assertion for the preliminary jurisdictional purpose only, as true, the action is not one against the United States but one to compel the Secretary of the Interior, himself, to perform a clear legal duty. Therefore, the Secretary, not the United States, is the necessary party defendant; his presence before the District Court was not in dispute; and West Coast was of course before the court by virtue of its own petition. Therefore the District Court had before it the necessary parties and in that aspect of the jurisdictional question was empowered to proceed and consider the case.

It is however contended that the decision of the Supreme Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949), stands in the way of reaching such a conclusion and of the method of reaching it above outlined. We think that that contention is not valid. The charge in the complaint filed in the United States District Court for the District of Columbia in the Larson case was, in effect, that the War Assets Administration was refusing to perform a contract for the sale of surplus coal, which contract had been consummated with resultant title in the plaintiff, Domestic and Foreign Corporation. But it also appeared from the allegations of the complaint that there was a dispute between War Assets and the plaintiff as to whether or not the conditions required by War Assets for purchase of the coal had been fulfilled. In brief, the action or inaction questioned in the Larson case was that of War Assets in the exercise of its authority in disposing of surplus property of the Government and in negotiating and performing contracts for such disposal. It was not charged in the complaint that War Assets had acted beyond that authority or unconstitutionally. The relief prayed for was a declaration by the District Court that the contract of sale by War Assets to the plaintiff was valid and that a purported sale to a third party was invalid; and an injunction was sought preventing disposition of the coal to the third party. The District Court held that the relief sought in the complaint was against the United States and therefore dismissed the suit for lack of a necessary party, the Government not having consented to be sued. This Court of Appeals reversed. The Supreme Court on certiorari affirmed the decision of the District Court. It did so, as we read the case, because the allegations of the complaint, looked at for the purpose of determining whether or not the District Court had the necessary parties before it, charged erroneous action on the part of War Assets within its authority and not conduct beyond the power of War Assets or of unconstitutional character. In respect of such conduct (i. e., conduct beyond the power of a Government official or of unconstitutional character) alleged in a complaint against a Government official, the Supreme Court in the Larson case definitely recognized exceptions. On this subject it said:

"There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. If the War Assets Administrator had completed a sale of his personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, [Here the Court, in footnote, cited Land v. Dollar from which we quote supra.] upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.

"A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign's name is claimed to be unconstitutional. Actions for habeas corpus against a warden and injunctions against the threatened enforcement of unconstitutional statutes are familiar examples of this type. Here, too, the conduct against which specific relief is sought is beyond the officer's powers and is, therefore, not the conduct of the sovereign. The only difference is that in this case the power has been conferred in form but the grant is lacking in substance because of its constitutional invalidity.

"These two types have frequently been recognized by this Court as the only ones in which a restraint may be obtained against the conduct of Government officials." (337 U.S. at 689-690, 69 S. Ct. at 1461.)

The Court said also:

"* * * Since we must therefore resolve the conflict in doctrine . . . we adhere to the rule applied in the Goldberg case [Goldberg v. Daniels, 231 U.S. 218, 34 S. Ct. 84, 58 L. Ed. 191 (1913)] and to the principle which has been frequently repeated by this Court, both before and after the Goltra case [Goltra v. Weeks, 271 U.S. 536, 46 S. Ct. 613, 70 L. Ed. 1074 (1926)]: the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so `illegal' as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void. . . ." (337 U.S. at 701-702, 69 S. Ct. at 1467.)

It is to be noted that the allegations of the petition filed in the instant case place the case, for the jurisdictional purpose, so far as the questioned need of the United States as a party is concerned, clearly within the first of the two exceptions noted by the Supreme Court. That Court in the Larson case did not refer to, but can not, we think, be said to have overruled its decisions in Payne v. Central Pac. Ry. Co.; Northern Pac. Ry. Co. v. State of North Dakota ex rel. Langer; Wells v. Roper; Lane v. Watts; United States v. Lee; Transcontinental & Western Air v. Farley; and Mine Safety Appliances Co. v. Forrestal, supra.

It is true that there is a statement by this Court of Appeals in Seiden v. Larson, 88 U.S.App.D.C. 258, 188 F.2d 661 (D.C. Cir. 1951) at page 665, under topic III, which purports to construe the Larson case as decided by the Supreme Court as holding that the jurisdictional exceptions above described are not applicable in cases in which Government property is involved. The statement is to the effect that "The Court did not hold that where Government property was concerned a showing of lack of statutory authority would suffice." That statement in Seiden v. Larson is based upon footnote 11 appearing at page 691 of 337 U.S., at page 1462 of 69 S. Ct. ¹⁴  But we think that the holding of the Larson case is as above described in this opinion and that its ruling recognizing the two jurisdictional exceptions is not modified or lessened in force by the footnote referred to, and that it does not preclude the application of the exceptions to cases in which Government property is involved. Accordingly, to the extent that the decision in Seiden v. Larson construes the decision of the Supreme Court in the Larson case in a manner in conflict with our understanding of that decision, it is, in our view, erroneous, and is overruled. It is to be noted further that Seiden v. Larson does not discuss either aspect of the preliminary jurisdictional question which is the subject of the present discussion in the instant case — it deals only with the merits — and it does not take into account the authorities relating to that question which are relied upon supra. It is to be still further noted that the allegations of the complaint filed in the District Court in Seiden v. Larson do not charge action by a Government officer beyond statutory authority or without constitutional basis.

Since it is elementary that action or inaction of a public officer beyond or in want of statutory (or constitutional) authority may be corrected by suit against the officer individually and that the Government is not, under such circumstances, a necessary party, the contention that the Larson case rules that even though a public officer is charged with action, or inaction, beyond or without lawful authority this may not be corrected by a suit against the officer alone, if the case involves the disposition of public lands, is an extreme contention indeed. Under such a ruling a person who had, under the homestead laws, fully satisfied the requirements for residence and cultivation and who had paid the required fees could be denied a patent to the land by the Secretary of the Interior acting wholly arbitrarily and the homesteader would be without recourse in the courts. The courts would be obliged under such a construction of the Larson case as is contended for to refuse to consider the case. Under such a ruling the locator of a mining claim who had made the required discovery of ore, performed the required assessment work and paid the necessary fees, could be arbitrarily denied a patent and there would be no recourse in the courts. Such a denial of recourse to the courts would be abhorrent to the justice according to law contemplated by the Constitution. The due process clause of the Fifth Amendment endows the United States courts with power, even though there is no statutory provision for direct review of the action of a public officer, to protect against arbitrary action by such an officer. No such meaning of the Larson case as is contended for can, in our view, be attributed to the Supreme Court.

We think, therefore, that the decision in the Larson case does not stand in the way of reaching such a conclusion on the second aspect of the jurisdictional question as is above stated.

It must next be determined whether or not the District Court, considering the case upon the pleadings and the stipulated statement of facts, correctly decided — as it did in adjudging that West Coast is entitled to no relief against the Secretary and that its petition should be dismissed — that the Secretary, in rejecting the application of West Coast for a patent to Little Placer, was acting pursuant to law and not, as is asserted in the petition of West Coast, beyond or in want of statutory power.

In the instant case there were no material questions of fact before the District Court. As appears above, it was without dispute that the land embraced in the tract called Little Placer was mineral land in California, and it was not contended that the land had been offered at public auction and remained available for purchase at private sale. It was without dispute that by mesne conveyances West Coast had acquired the ownership of one of the sixteen special certificates certifying the right of William Gerard, one of the heirs referred to in the Gerard Act, to enter one sixteenth of a section of the public lands without the payment of any consideration. It was without dispute that West Coast had selected Little Placer. The terms of the Gerard Act were of course not in dispute. The issues before the District Court were issues of law. They arose because the court could not properly read the Gerard Act as an isolated statutory fragment but must look at it as a part of the general system of land laws as such and as judicially applied; because the court must read it in the light of such technical meaning as the terms used therein had acquired in land law and practice; and because the extreme breadth of the phrase "public lands" in the Act compelled a decision as to whether all, or only a part, of the many existing types of public lands were subject to entry under the Act.

The legal materials, statutory and judicial, relevant to the determination of the issues of law may best be understood by a summary of the principal contentions made, and by reference to the authorities, statutory and judicial, principally relied upon, by West Coast and by the Secretary, respectively, upon this appeal. Whether or not all of those authorities were actually submitted to the District Court in the course of the proceeding before it they were existing authorities of which the court was bound to know and which it was bound to consider.

The principal contentions made and the authorities principally relied upon by West Coast are the following:

(1) The Gerard Act is clear and is therefore not subject to construction. United States v. Missouri Pac. R. Co., 278 U.S. 269, 277, 49 S. Ct. 133, 136, 73 L. Ed. 322 (1929).¹⁵ 

(2) The Gerard Act constituted a grant in praesenti, creating an immediate vested right in the grantees, which became fixed as to the particular lands at the time of their selection by West Coast as the present owner of a Gerard certificate. Rutherford v. Greene's Heirs, 2 Wheat. 196, 4 L. Ed. 218 (U.S.1817);¹⁶  Leavenworth, etc., R. R. Co. v. United States, 92 U.S. 733, 23 L. Ed. 634 (1875).¹⁷ 

(3) The Gerard Act recognized an obligation arising out of a contract of April 7, 1792, made by the Government with Joseph Gerard pursuant to inducements held out by General Washington. The issuance of scrip under the Gerard Act constituted another binding contract. McGee v. Mathis, 4 Wall. 143, 18 L. Ed. 314 (U.S.1866);¹⁸  Payne v. Central Pac. Ry. Co., 255 U.S. 228, 41 S. Ct. 314, 65 L. Ed. 598 (1921).¹⁹ 

(4) Acquisition of lands by virtue of Gerard scrip is not limited to lands subject to private entry after first having been offered at public sale. Chotard v. Pope, 12 Wheat. 586, 6 L. Ed. 737 (U.S. 1827), is not controlling because the Willis Act therein considered refers to a "quantity" of land and the inquiry was as to what kind of land could be entered. The Gerard Act refers to "public lands". The term "entry" as used in the Chotard case can not restrict the rights of a congressional grantee. United States v. Northern Pac. Ry. Co., 204 F. 485, 487 (C.C.D. Mont. 1911); Northern Pac. Ry. Co. v. Sanders, 47 F. 604, 607 (C.C.D. Mont. 1891).²⁰  With the passage of the Preemption Act of 1841, 5 Stat. 453, as amended by the Act of March 3, 1843, 5 Stat. 619, the method of disposing of the public domain had so changed that the ruling in the Chotard case in 1827 could no longer be applied; and by 1855, the year of the passage of the Gerard Act, public lands subject to entry included unoffered as well as offered lands. The ruling in the Chotard case was in effect modified by Northern Pacific Railway v. De Lacey, 174 U.S. 622, 19 S. Ct. 791, 43 L. Ed. 1111 (1899).²¹  Private bills enacted during 1854 and 1855 demonstrate that Congress did not regard general grants of public lands as restricted to lands "open to private entry" for Congress, when it desired such a restriction, expressly used restrictive terms; this shows that Congress in 1855 regarded the Chotard case as not reflecting the law. The legislative history of the Gerard Act shows that Congress expressly declined to include therein the limitation "subject to private entry".²² 

(5) The Gerard Act is not to be taken as excluding mineral lands in California. Such lands can be selected there and in other states under Gerard scrip. In 1850 there was no settled policy of Congress requiring a mineral reservation or exclusion to be read into a general land grant. Work v. Louisiana, 269 U.S. 250, 46 S. Ct. 92, 70 L. Ed. 259 (1925).²³  There was no such policy in 1853, since Ivanhoe Mining Company v. Keystone Consolidated Mining Company, 102 U.S. 167, 26 L. Ed. 126 (1880), which read a mineral land exclusion into the Act of March 3, 1853, 10 Stat. 244, recognized that there was no such policy until the Act of July 26, 1866, 14 Stat. 251, the ruling in the Ivanhoe Mining Company case being based upon the special terms of the 1853 statute.²⁴  No settled policy requiring a mineral reservation or exclusion to be read into a general land grant was established by Congress between 1850 and the date of the Gerard Act, 1855. In thirty-two private land grant acts of Congress, between 1845 when the Gerard Act was introduced and 1855 when it became law, Congress expressly excluded mineral lands in one and not in the others, thus demonstrating that it intended to deal with each land grant separately, i.e. without a settled policy. Therefore, if Congress had intended to exclude mineral lands in the Gerard Act it would have done so expressly. The Act of July 26, 1866 did not establish a settled policy to reserve mineral lands to the United States but on the contrary made them free and open to exploration. And whether or not the Act of 1866 established a general policy for the disposal of mineral lands, the Gerard Act is an exception because the Act of 1866 applies to lode, not placer, claims. It is ruled in Oklahoma v. Texas, 258 U.S. 574, 42 S. Ct. 406, 66 L. Ed. 771 (1922), that Section 2319 of the Revised Statutes applies only where the United States has indicated that lands are held for disposal under the land laws, not where the United States directs disposition under "other laws". The Gerard Act is an "other law".²⁵  Neither the Act of March 3. 1853, involved in the Ivanhoe Mining Company case, nor the Act of July 26, 1866, established a policy to dispose of mineral lands only under statutes dealing expressly with them. Nothing in the Gerard Act or in its legislative history indicates an intention on the part of Congress to exclude mineral lands. The Committee on Claims of the 33d Congress recommended that the Gerard Act limit selection to four states (Ohio, Michigan, Indiana, Illinois). Congress, in enacting the bill which became the Gerard Act, struck out this proposed provision; hence selection was left open under the Gerard Act in all states.

(6) Land granted by way of reward for military service can not be said to have been sold. Five Per Cent. Cases (Iowa v. McFarland and Illinois v. McFarland), 110 U.S. 471, 4 S. Ct. 210, 28 L. Ed. 198 (1884).²⁶  Therefore selection under the Gerard Act can be made without reference to Section 2318 of the Revised Statutes, 30 U.S.C.A. § 21, providing that "in all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law."

(7) The Mineral Leasing Act of February 25, 1920, providing, inter alia, for the disposition by lease of deposits of sodium in lands belonging to the United States, does not foreclose the selection of Little Placer under the Gerard Act; the grant under the latter Act is sufficiently comprehensive to include mineral lands. Moreover, the rights of West Coast are not the general statutory rights of a member of the public; they are special rights under a special grant. The claim of West Coast is to a fee simple in a designated tract of public lands; statutory procedure prescribed for persons seeking to negotiate for a lease or permit relating solely to mineral rights in the public lands is not applicable. Also, the Leasing Act "does not declare that the minerals described therein, located in any particular State, cannot be selected in accordance with the terms and provisions of a previous grant of Congress i.e., the Gerard Act of 1855; nor that these minerals were reserved from previous grants." And the imposition of such a limitation in 1947 (the year of the West Coast selection of Little Placer) would violate the due process clause of the Constitution. Even if the Gerard Act conflicted with the Leasing Act the former would control under the rule that a general act is not to be construed as applying to cases covered by a prior special act on the same subject. Rodgers v. United States, 185 U.S. 83, 89, 22 S. Ct. 582, 46 L. Ed. 816 (1902). Since the Gerard Act "created a present vested right, that is a grant of public land `. . . in full payment for the patriotic services'", when the land was identified by selection the title related back to the date of the original grant with the same effect as if selection had been made in 1855. West v. Lyders, 59 App.D.C. 122, 36 F.2d 108 (D.C. Cir. 1929).²⁷  This relation back cuts off the application of subsequent general legislation such as the Mineral Leasing Act.

(8) The Act of March 2, 1899, 25 Stat. 854, 43 U.S.C.A. § 700, withdrawing from private entry all public lands except those in Missouri can not, because of the due process clause of the Constitution, cut down rights acquired under the Gerard Act.

(9) The saving clause of Executive Order No. 6910 of November 26, 1934, "the withdrawal hereby effected is subject to existing valid rights", preserves the rights of West Coast under the Gerard Act. Stockley v. United States, 260 U.S. 532, 43 S. Ct. 186, 67 L. Ed. 390 (1923), so rules with respect to an Executive Order of December 15, 1908, which saved "existing valid claims";²⁸  and the Secretary of the Interior (Chapman) so ruled in the Santa Fe Pacific Railroad Company decision, 56 I.D. 376 (1938).²⁹  Even in the absence of the saving clause in Executive Order No. 6910 the rights of West Coast under the Gerard Act could not be diminished by the withdrawal. To give the Executive Order the effect of diminishing rights under the Gerard Act would limit West Coast to a few acres of land in Missouri and would, in view of United States v. Northern Pac. Ry. Co., 256 U.S. 51, 66-67, 41 S. Ct. 439, 442, 65 L. Ed. 825 (1921), deprive it of a substantial property right contrary to the due process clause of the Constitution.³⁰  The rights of West Coast under the Gerard Act are co-extensive with the entire United States and embrace all types of land. All that was necessary to give precision to the title of the Gerard grantees, and their assignees, was selection, Rutherford v. Greene's Heirs, supra, and surrender of the certificate (scrip) that made West Coast the equitable owner of Little Placer. Hartmann v. Warren, 70 F. 946 (C.C.D. Minn. 1885).³¹ 

(10) The rejection by the Secretary of the Little Placer selection was contrary to the clear meaning of the Gerard Act. After West Coast had made its selection and surrendered its certificate there remained for the Secretary to perform nothing but the ministerial duty of approving the selection and issuing a patent. The Secretary may therefore not exercise discretion to limit or defeat the rights of West Coast. Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 50 S. Ct. 103, 74 L. Ed. 445 (1930).³²  Where the words of a statute are clear it must prevail notwithstanding an opposite opinion by an officer of a governmental department. The Secretary's decision is contrary to the mandate of Congress, the intent, purpose, and plain language of the Gerard Act, and the law as it existed in 1855 when the Gerard rights vested. It is the function of mandamus to correct the Secretary's obvious error.

The principal contentions made, and the authorities principally relied upon, by the Secretary of the Interior are:

(1) Little Placer was not, in 1947 when West Coast made its selection, nor has it ever been, subject to entry under Gerard Act scrip. The land in question has never been publicly offered for sale or open to private entry; and Chotard v. Pope, 12 Wheat. 586, 6 L. Ed. 737 (U. S.1827), construing the Willis Act of 1820, which allowed Willis to "enter" lands of the United States, rules that only lands remaining available for private sale after first having been offered at public auction can be entered. The Chotard case stands as present law, having been cited by the Supreme Court in Eldred v. Sexton, 19 Wall. 189, 195, 196, 22 L. Ed. 146 (U.S.1873),³³  and is not distinguishable from the instant case because the Willis Act refers to "land" and the Gerard Act to "public land". If there is a difference the Willis Act is the broader. The point to be decided in the Chotard case was not and in the instant case is not whether claimants under the parallel statutes involved in the two cases acquired a right to enter public land, or what acts would constitute an entry, but what class of land the right to enter could be exercised upon. The Pre-emption Acts of 1841 and 1843 as construed by Northern Pacific Railway v. De Lacey, 174 U.S. 622, 19 S. Ct. 791, 43 L. Ed. 1111 (1899), demonstrate that "private entry" had no meaning in 1855 (the date of the Gerard Act) different from that which it had at the time of the Chotard decision in 1827.³⁴  Contrary to the contention of West Coast, the legislative history of the Gerard Act affirmatively shows that Congress used the word "enter" in the Chotard case sense.³⁵ 

(2) Mineral land in California has never been subject to disposition except under laws expressly providing for disposal of such land. In the Act of March 3, 1853, 10 Stat. 244, considered in Ivanhoe Mining Company v. Keystone Consolidated Mining Company, Congress extended to California the public sale and pre-emption acts but excepted mineral land from disposal. The Ivanhoe Mining Company case rules that the 1853 Act fixed a definite policy in California of withholding mineral land from all grants until a definite mineral policy was decided upon, and that a grant of sections 16 and 36, in each township, of the public lands to the State of California for school purposes did not cover mineral lands.³⁶  United States v. Sweet, 245 U.S. 563, 38 S. Ct. 193, 62 L. Ed. 473 (1918), rules that the Utah Enabling Act of 1894 granting school sections to Utah, silent as to minerals, did not pass mineral lands because at that time there had been established a general policy initiated in 1866 of disposing of mineral lands only under laws especially providing for their disposal.³⁷  Under those authorities West Coast's permissive right to enter did not include the right to enter mineral lands in California. The decision in Work v. Louisiana that the Act of March 2, 1849, granting swamp and overflowed lands to Louisiana did not exclude mineral lands, does not undermine the decisions in the Ivanhoe Mining Company and Sweet cases.³⁸  The Supreme Court distinguished the Sweet case by pointing out that the Utah Enabling Act of 1894 was passed after the establishment long prior thereto of a settled policy in respect of mineral lands by which they were withheld from disposal save under laws expressly including them; and distinguished the Ivanhoe Mining Company case by pointing out that that decision, involving the 1853 Act, was not upon the ground that there was at that time any settled and general policy of reserving mineral lands, but, on the contrary, was upon the ground that the discovery in 1849 that California was rich in precious metals had led to the adoption by Congress, in reference to California, of a local policy "by which, unlike the ordinary laws for disposing of public lands in agricultural states, the mineral lands in that State were uniformly reserved from sale, preemption and grants for public purposes." It has long been recognized by the commentators that mineral lands are not subject to scrip selection. I Lindley, Mines, § 211 (3rd Ed.1914); Ricketts, American Mining Law, Bulletin No. 123, California State Division of Mines, Vol. 1, Page 39. The rejection of the West Coast entry by the Secretary and the trial court conforms to a long and uniform administrative practice dating from 1880 and to the views of such text writers.

(3) Even assuming that Little Placer was open to private entry, it was validly withdrawn from such entry both by Congress and Executive Order prior to 1947.

(a) By the Act of March 2, 1889, 25 Stat. 854, Congress withdrew from private entry all lands of the United States except those in Missouri; and by the Act of May 18, 1898, 30 Stat. 418, 43 U.S.C.A. § 675, declared all public lands in Missouri open to sale and private entry regardless of whether such lands had been previously offered at public auction. One thousand and eight acres of public land were available to entry in Missouri in 1947 when West Coast made application to enter its scrip on Little Placer. The Gerard Act did not guarantee that any specific land would be made or kept available, and did not guarantee to deliver valuable mineral land. It promised merely to make available land which was open to entry by others upon payment of $1.25 per acre, and clothed the Gerard heirs and their assignees with no greater rights than such others except that it relieved them from the payment of any consideration. Since acreage was open in Missouri in 1947 West Coast's right has not been breached. West Coast concedes that Congress could withdraw Little Placer "for public use"; the withdrawing of mineral lands from entry for the purpose of securing to the Government the benefit of minerals is a public use. United States v. Midwest Oil Company, 236 U.S. 459, 35 S. Ct. 309, 59 L. Ed. 673 (1915).³⁹  But apart from this concession by West Coast, it is established that Congress has power to withdraw public land from all forms of entry. United States v. Midwest Oil Company. This power of withdrawal was recognized in the opinion in Chotard v. Pope, where the Court referred to the previous (i.e. previous to the Willis Act) appropriation of lands, whether by public sale or by withdrawal from the mass of lands offered for sale. During the period 1850 to 1864 Congress made railroad construction grants of large acreages of public lands, Great Northern Ry. Co. v. United States, 315 U.S. 262, 273, 62 S. Ct. 529, 86 L. Ed. 836 (1942), and since 1855 (the year in which the Gerard Act was passed) has patented large acreages under the pre-emption and homestead laws. The cases relied upon by West Coast for the proposition that the Gerard Act made a grant in praesenti do not support West Coast's contention. In Rutherford v. Greene's Heirs no question as to whether or not the North Carolina Act for the relief of officers and soldiers made a grant in praesenti was before the Court. The sole question in the case was whether or not the provision "twenty-five thousand acres of lands shall be allotted . . . to Nathaniel Greene" required that "there shall be" another enactment. Since the lands had been allotted and title transferred the question as to when title vested was not involved. That case, so far as the question as to when title would vest is concerned, is a ruling against the position of West Coast. The railroad land grant cases, such as Leavenworth, etc., R. R. Co. v. United States, do not aid West Coast. Those cases involve place lands and indemnity lands. The grants of the former are grants in praesenti and the cases uniformly hold that, upon the filing of the map of definite location, title vests as of the date of the grant. But grants of place lands are true grants, as distinguished from mere rights to enter, and in the Leavenworth case, relied upon by West Coast, the language of the Act was "there be and is hereby granted". So far as indemnity lands are concerned, the railroad takes no title until the right of selection — to fill up place land losses — is exercised, except in instances in which there is a deficiency in indemnity lands. United States v. Southern Pac. R. R. Co., 223 U.S. 565, 570, 32 S. Ct. 326, 327, 56 L. Ed. 553 (1912);⁴⁰  Southern Pacific Railroad Co. v. Bell, 183 U.S. 675, 681-682, 22 S. Ct. 232, 46 L. Ed. 383 (1902);⁴¹  Krug v. Santa Fe Pac. R. Co., 81 U.S.App.D.C. 288, 158 F.2d 317 (D.C. Cir. 1946).⁴²  But that exception is not involved in the instant case because at the time (1947) of the attempted selection of Little Placer lands in Missouri were available for selection. The statement in West v. Lyders, 59 App.D.C. 122, 36 F.2d 108 (D.C. Cir. 1929) — that when the holder of Valentine scrip made a selection of unappropriated public lands "he was merely exercising the vested right which he had already acquired from the government, and the vested right acquired, when completed in a valid selection, relates, not merely to the date of selection, but back to the date of the issuance of the scrip" — is a dictum because the only question in the case was as to the effect of the withdrawal after selection. And in Lyders v. Ickes, 65 App.D.C. 379, 84 F.2d 232 (D.C. Cir. 1936), this court, upon the ground that the island in question had been withdrawn by the Government prior to selection under the Valentine scrip, sustained a rejection of the entry.⁴³ 

(b) Even if the Congressional withdrawal of March 2, 1889 had not been made, the lands included in the Little Placer selection were validly withdrawn by Executive Order No. 6910 of November 26, 1934.⁴⁴  That withdrawal was ratified by the Act of June 26, 1936 (The Taylor Grazing Act) which made specific reference to it and authorized the Secretary of the Interior to open to entry any of the withdrawn lands which he found to be suitable "for acquisition and satisfaction of any outstanding . . . scrip rights." Withdrawal for classification is valid under United States v. Midwest Oil Co. The effect of the Executive Order No. 6910 withdrawal for classification can not be avoided by West Coast on the basis of the clause saving "existing valid rights" because that clause refers to rights in specific property established as of the date of the order. The decision in Stockley v. United States, 260 U.S. 532, 43 S. Ct. 186, 67 L. Ed. 390 (1922), does not sustain the contention that West Coast had a right in Little Placer in 1934, the year of the withdrawal order, for the decision dealt with a homestead entry whereunder the entryman had prior to the withdrawal complied with all requirements and acquired a possessory right. West Coast is also not aided by United States v. Northern Pac. Ry. Co., 256 U.S. 51, 41 S. Ct. 439, 65 L. Ed. 825 (1921), or by Santa Fe Pacific Railroad Company, 56 I.D. 376 (1938). In the Northern Pacific case there was at the time of the withdrawal a deficiency in indemnity lands to fill up place land losses. The Secretary's decision in the Santa Fe Pacific case was rested upon the Northern Pacific decision. The ruling in the latter case was recognized in Krug v. Santa Fe Pac. R. Co. and in Chapman v. Santa Fe Pac. R. Co., 90 U.S.App.D.C. 34, 198 F.2d 498 (D.C. Cir. 1951). Since more than enough land was open to entry in 1947 — in Missouri — to satisfy West Coast's 40 acre certificate, those cases are not applicable. Even if an actual deficiency had resulted from the withdrawal by Executive Order No. 6910, Congress, in the Taylor Grazing Act, made provision for relieving against the defeat of outstanding scrip rights by authorizing the Secretary to classify withdrawn lands as suitable for scrip entry. If West Coast does not desire to enter lands in Missouri it can request the Secretary to classify additional land as suitable for scrip location. Thus the permanent frustration of selection rights which underlies the decision in the Northern Pacific case is not presented by the Executive withdrawal, Congress having provided — in the Taylor Grazing Act — a method of relief. The Secretary will, of course, not classify Little Placer as suitable for entry for the reason set out in his decision of November 18, 1947, i.e. because the land is mineral land in California. Even apart from the lack of power in the Secretary to dispose of mineral lands except by reservation of the minerals (Act of June 17, 1914, 38 Stat. 509) he would be justified in rejecting an entry of such valuable property as Little Placer. The United States has not contracted to deliver any specific land or to deliver mineral land of high value. West Coast's right under the Gerard Act is merely to enter without payment of any consideration land open to others at $1.25 per acre.

(4) The duty of the Secretary was not ministerial; it involved the exercise of discretion and judgment. Construction of the public land laws was necessary. Hence the Secretary's action may not be controlled by mandamus. As said in Hammond v. Hull, 76 U.S.App.D.C. 301, 131 F.2d 23, 25 (D.C. Cir. 1942): "When the performance of official duty requires an interpretation of the law which governs that performance, the interpretation placed by the officer will not be interfered with, certainly, unless it is clearly wrong and the official action arbitrary and capricious." The instant case is such a case; it can not be said that the Secretary's construction of the law was either arbitrary or capricious.

Consideration of the principal contentions made by West Coast and the Secretary, respectively, and of the authorities, statutory and judicial, principally relied upon by them, all as above set forth, makes clear, we think, that the decisions of the Supreme Court in Chotard v. Pope, Ivanhoe Mining Company v. Keystone Consolidated Mining Company, and United States v. Sweet, supra, and also the (withdrawal) Act of March 2, 1889 and the Executive Order (of withdrawal) No. 6910 of November 26, 1934, are, in view of the undisputed facts in this case, conclusive against the assertions of West Coast that the Secretary in rejecting the application of West Coast for a patent to Little Placer was acting beyond or in want of statutory power. It seems clear in view of the decisions referred to and of the Act and of the Executive Order of withdrawal that, contrary to acting beyond or in want of statutory power, the Secretary, in disapproving the selection of Little Placer and in rejecting the application for a patent, was acting according to law. Thus we reach, by examining "the essential nature and effect of the proceeding, as it appears from the entire record" (see Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 374, 66 S. Ct. 219, 221, 90 L. Ed. 140 (1945)), a conclusion contrary to that reached, on the preliminary jurisdictional question, by assuming, for the jurisdictional purpose only, the truth of the assertions of the complaint that the Secretary was acting beyond or in want of statutory authority. And this conclusion which we now reach is, in effect, the conclusion which the District Court reached in holding that the mandatory relief sought was not allowable — that is to say, the District Court decided that the Secretary was acting according to law in refusing the patent. It follows further not only that the mandatory relief sought by West Coast is not allowable but that the case, when "the essential nature and effect of the proceeding, as it appears from the entire record" is examined, is one against the United States — for, since the Secretary was acting in refusing the patent to Little Placer within his statutory power, the thrust of the suit is really against the United States to compel it to issue to West Coast a patent for Little Placer.

III

It remains only to determine what the final disposition of the case should be. In Northern Pacific Railway Co. v. State of North Dakota ex rel. Langer, 250 U.S. 135, 39 S. Ct. 502, 63 L. Ed. 897 (1919), wherein, as pointed out in the discussion of that case in Topic I of this opinion, the lower court (the Supreme Court of North Dakota) accepted as true the assertion of want of power in the Director General of Railroads to impose and enforce intrastate rates and considered the case and issued mandatory relief against the Director General but it was determined by the Supreme Court of the United States that the Director General did have power to impose and enforce the local rates and that therefore the United States was a necessary party and that the judgment below must be reversed, Chief Justice White, speaking for the Court, ruled as follows:

"It follows that the judgment below was erroneous. The relief afforded against the officer of the United States proceeded upon the basis that he was exerting a power not conferred by the statute, to the detriment of the rights and duties of the state authority, and was subject therefore to be restrained by state power within the limits of the statute. Upon the premise upon which it rests, that is, the unlawful acts of the officers, the proposition is undoubted, but in view of our conclusion that the acts of the officers complained of were authorized by the law of the United States, the question arises how far, that being established, it results that the suit was one against the United States over which there was no jurisdiction within the rulings in Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. Ed. 599; International Postal Supply Co. v. Bruce, 194 U.S. 601, 24 S. Ct. 820, 48 L. Ed. 1134; Louisiana v. McAdoo, 234 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506; Minnesota v. Hitchcock, 185 U.S. 373, 22 S. Ct. 650, 46 L. Ed. 954; Wells v. Roper, 246 U.S. 335, 38 S. Ct. 317, 62 L. Ed. 755.

"The principle of these cases, however, can only be applicable by giving effect to the conclusion we have reached as to the legality of the acts of the officers which were complained of, and to decide which question the United States was not a necessary party. This is undoubtedly true unless it can be said that the contentions concerning the want of power in the officers were so unsubstantial and frivolous as to afford no basis for jurisdiction and hence caused the suit to be from the beginning directly against the United States. As, however, we are of the opinion that there is no ground for that view, it follows that the case as made gave jurisdiction to dispose of the question of wrong committed by the officials, and that a decree giving effect to our conclusion on that subject will dispose of the entire case.

"Our decree therefore must be and it is "Reverse and remand for further proceedings not inconsistent with this opinion." (250 U.S. at 151-152, 39 S. Ct. at 506.) (Emphasis supplied.)

In the District Court in the instant case, as explained at the outset of Topic I of this opinion, no question as to jurisdiction to entertain the action was raised. Nevertheless, the decision of the District Court — that in rejecting the selection of Little Placer and refusing to issue a patent thereto the Secretary was acting according to law and that therefore the mandatory relief sought by West Coast was not allowable — is, in effect, a decision upon the very question as to the power or want of power in the Secretary upon which this Court of Appeals is ruling in determining whether or not the suit, in "the essential nature and effect of the proceeding," is one against the United States; and the decision of the District Court is, as pointed out above, in accord with the conclusion which this court reaches on that question. Therefore, in the light of the statement by Mr. Chief Justice White there would seem to be warrant for allowing the decision of the District Court in the instant case to stand. But, notwithstanding that the proposition stated by Mr. Chief Justice White has never, it appears, been expressly overruled by the Supreme Court,⁴⁵  the practice of that Court, in cases in which it has ultimately been determined by that Court that there was in the District Court or Circuit Court of Appeals a lack of jurisdiction over either the class of case involved or over a necessary party, has been to remand and direct a dismissal of the action for lack of jurisdiction, or, if the decision below was a dismissal for lack of jurisdiction, to affirm that dismissal. Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S. Ct. 219, 90 L. Ed. 140 (1945); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S. Ct. 873, 88 L. Ed. 1121 (1944); Piedmont & Nor. Ry. Co. v. United States, 280 U.S. 469, 50 S. Ct. 192, 74 L. Ed. 551 (1930); Gnerich v. Rutter, 265 U.S. 388, 44 S. Ct. 532, 68 L. Ed. 1068 (1924); Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co., 258 U.S. 377, 42 S. Ct. 349, 66 L. Ed. 671 (1922); see also a decision of the Supreme Court rendered prior to the decision in the Northern Pacific case, to wit, Wells v. Roper, 246 U.S. 335, 38 S. Ct. 317, 62 L. Ed. 755 (1918); the United States Court of Appeals for the Second Circuit has also followed the practice of the Supreme Court, Transcontinental & Western Air v. Farley, 2 Cir., 71 F.2d 288 (1934).⁴⁶ 

In view of the foregoing, we conclude that the case should be remanded to the District Court with directions to dismiss for lack of jurisdiction.

Remanded with directions to dismiss for lack of jurisdiction.

PRETTYMAN, Circuit Judge, with whom BAZELON, Circuit Judge, joins:

Judge BAZELON and I agree with the opinion by Chief Judge STEPHENS, but, since we reached by a somewhat different route the conclusion reached by our brethren, we state our views.

The averments which constituted the foundation for the prayer of the complaint were that the Secretary's rejection of petitioner's claim for a patent was an arbitrary act in that it curtailed the rights of "a Congressional donee", substituted his (the Secretary's) judgment "for the will of Congress", and "refused to discharge a mandatory and purely ministerial duty imposed by law." The prayer was that the court direct the Secretary to issue a patent to the parcel of land selected by petitioner and known in this litigation as Little Placer. Thus the theory of petitioner's case is that Congress had exercised the full power of the sovereign United States in respect to this land and left to the Secretary of the Interior only the ministerial act of preparing, executing and delivering the necessary documents constituting the legal formality essential to title transfer.

Until it appeared that the basic averments could not be maintained, the court had jurisdiction to entertain the action.¹  If petitioner were to establish its propositions, if it were indeed a Congressional donee, if Congress had exercised its will and directed the patent to issue, and if the Secretary had only a purely ministerial duty to execute the papers, mandamus would issue. Many cases, beginning with Marbury v. Madison²  and extending in a long, unbroken line down to Higginson v. Schoeneman³  in this court, establish that courts have power to compel an executive officer to perform a merely ministerial act which the Congress has directed him to perform.⁴  That rule has been applied in a great variety of cases, including some which involved land of the United States,⁵  payments out of the Treasury of the United States,⁶  and other similar matters in respect to which courts have no general power.

The averments of petitioner were premised squarely upon the terms of the Gerard Act. But the Gerard Act is not as petitioner views it. The right given by Congress to the Gerard heirs was to "enter" the land. The word "enter" in public land law is a technical word, describing the filing of proper papers, with descriptions, claims, etc., in the proper official office.⁷  The term is the key used in the homestead and preemption statutes.⁸ 

The right to "enter" public lands has always been subject to the provision that the lands be available for entry at the time the entry is attempted. So, if the land has already been appropriated⁹  or withdrawn¹⁰  it is no longer subject to entry.¹¹ 

In 1947, when West Coast attempted to enter the public land known as Little Placer, that land had been withdrawn from entry. It was mineral land in California. As such it was covered by the Mineral Leasing Act,¹²  by Executive Order No. 6910 of November 26, 1934,¹³  and by the rule in the Ivanhoe case.¹⁴ 

The sum of the situation therefore is that, no matter what the rights of the original Gerard heirs might have been in 1855, they stood by and watched the lands to which their right of entry would have applied dwindle away, and when in 1947 they finally attempted an entry they selected land no longer available. This land, Little Placer, was at that time part of the general public lands of the United States not open to entry.

Upon consideration of these matters it clearly appears that the Secretary had no ministerial duty to execute a patent to this piece of land; the averments which constitute the foundation for the prayer of the complaint cannot be maintained.

So it develops, when the complaint is considered, that the prayer of petitioner for a transfer of the ownership of Little Placer is a prayer that the court compel action by the owner of the land. But the owner is the United States, and a court has no jurisdiction to compel the United States to part with its property. A court can compel an agent of the United States to do his principal's bidding as that bidding is declared by the Congress on behalf of the United States. Under the Constitution¹⁵  the Congress possesses the sovereign power of the United States in respect to property of the United States. The courts cannot compel the United States as such to act. Absent a Congressional directive they cannot compel an agent of the United States to act in respect to its property.

Since the court has no power to make the owner of the property (the United States) a party to the action, the case should be dismissed for lack of a necessary party and, therefore, lack of jurisdiction to enter judgment. The correct course of action was clearly described by Mr. Justice Brandeis in Lambert Run Coal Co. v. Baltimore & Ohio R. R. Co.¹⁶  and was followed by this court in American Dredging Co. v. Cochrane.¹⁷ 

WASHINGTON, Circuit Judge, with whom EDGERTON, Circuit Judge, joins, concurring in the result:

We adhere to the views expressed in Seiden v. Larson, 88 U.S.App.D.C. 258, 188 F.2d 661, certiorari denied, 341 U.S. 950, 71 S. Ct. 1017, 95 L. Ed. 1373 (1951). Those views were based on a long series of Supreme Court cases, there cited, culminating in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). See also American Dredging Co. v. Cochrane, 89 U.S.App. D.C. 88, 190 F.2d 106 (1951); Young v. Anderson, 81 U.S.App.D.C. 379, 160 F.2d 225, certiorari denied, 331 U.S. 824, 67 S. Ct. 1316, 91 L. Ed. 1840 (1949); Ickes v. Underwood, 78 U.S.App.D.C. 396, 398-99, 141 F.2d 546, 548-49 (1944). Where the complaint, read favorably to the pleader, discloses that the suit is within the rule stated in the foregoing line of authority, in that it seeks to obtain possession of and title to "unquestionably sovereign property", Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at 691, note 11, 69 S. Ct. at 1462, and where Congress has not consented to the suit, dismissal for lack of jurisdiction must follow. This is such a case. There is thus no occasion to consider the merits, even to the extent normally required in a mandamus action. Goldberg v. Daniels, 231 U.S. 218, at 222, 34 S. Ct. 84, 58 L. Ed. 191 (1913).

FAHY, Circuit Judge, concurring in the result:

Plainly, it seems to me, the suit in reality is one against the United States to which it has not consented and, therefore, should be dismissed in the District Court for want of jurisdiction.

Since Seiden v. Larson, 88 U.S.App. D.C. 258, 188 F.2d 661, was also such a suit, and this court so held, there seems no reason to overrule any part of that decision.