Statement by Mr. Chief Justice FULLER:
This was a proceeding in mandamus brought in the district court of the first judicial district of Logan county, in the territory of Oklahoma, April 27, 1891, to compel Daniel J. [150 U.S. 209, 210] McDaid, William H. Merriweather, and John H. Shanklin, as trustees of the town site of Guthrie, Oklahoma territory, appointed by the secretary of the interior under the act of May 14, 1890, (26 Stat. 109, c. 207,) entitled 'An act to provide for town-site entries of lands in what is known as 'Oklahoma,' and for other purposes,' to execute deeds for certain lots in said town site. The relators, Smith and Bradley, claimed to have entered two lots on the site, and one John Galloway claimed a prior right thereto.
On September 23, 1890, the relators applied to the town-site trustees for a deed to the lots, and on the same day Galloway also made his application therefor. The trustees heard the controversy of the two claimants, and on April 6, 1891, rendered their decision in favor of the relators, finding that they were entitled to the lots in dispute, and to a conveyance from the trustees, and they ordered that a deed be executed accordingly. Galloway having died, his heirs were substituted for him, and they filed their appeal from the decision of the commissioner of the general land office. In consequence of the appeal the trustees refused to issue the deed, and thereupon the relators instituted this suit.
The complaint alleged that the sole ground of tefusal was the appeal; that there was no authority for such appeal, and that it furnished no excuse to the trustees for their refusal. The defendant's answered, setting up that Galloway's heirs 'duly filed their appeal from the decision of this board to the commissioner of the general land office, pursuant to the instructions under act of congress under which this board was appointed, such instructions having been made by the secretary of the interior authorizing appeals by claimants to lots in cases where such claimants feel themselves aggrieved by the decisions of this board.
Relators demurred to the answer, and their demurrer was sustained. Defendants then moved to dismiss the cause upon the ground that the territorial court had no jurisdiction over the subject-matter. This motion was overruled, and thereupon judgment was entered ordering the trustees to execute and deliver a deed to the relators of the lots in question. An appeal was thereupon prosecuted to the supreme court of the territory, by which the judgment was affirmed, July 6, 1892. The opinion of the court and of Clark, J., dissenting, will be found in 1 Okl. 92, 30 Pac. Rep. 438. The cause was then brought to this court by writ of error.
The act of congress of May 14, 1890, omitting the eighth section, is as follows:
Section 2387 of the Revised Statutes reads thus:
Sections 4, 5, 6, and 7 of the act of the legislature of the state of Kansas, entitled 'An act relating to town sites,' approved March 2, 1868, are as follows:
Sol. Gen. Maxwell, for plaintiffs in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
In Knight v. Association, 142 U.S. 161 , 12 Sup. Ct. Rep. 258, the supervisory power of the secretary of the interior over all matters relating to the sale and disposition of the public lands, the surveying of private land claims, and the issuing of [150 U.S. 209, 216] patents thereon, and the administration of the trusts devolving upon the government by reason of the laws of congress or under treaty stipulations, respecting the public domain, was fully considered, and numerous authorities cited. It was declared by Mr. Justice Lamar, speaking for the court, that the secretary was clothed with plenary authority as the supervising agent of the government to do justice to all claimants, and to preserve the rights of the people of the United States, and that he could exercise such supervision by direct orders or by review on appeal, and, in the absence of statutory direction, prescribe the mode in which it could be exercised by such rules and regulations as he might adopt.
In the execution of the trusts created by the act of May 14, 1890, the secretary of the interior, on June 18, 1890, issued a circular setting forth such regulations. 10 Dec. Dep. Int. 666. Of these, paragraph 12 provided for the hearing and determination by the town-site trustees of controversies between two or more claimants to the same lot, block, or parcel of land, and paragraph 13 for an appeal from their judgment to the commissioner of the general land office, and an appeal from the commissioner to the secretary. On May 8, 1891, this paragraph was amended by adding thereto the words: 'A failure to appeal as herein provided shall not be construed as a waiver of, or to prejudice the rights of either party, nor held to preclude suits in the courts in case the party entitled to appeal desires to proceed in that manner for the purpose of settling the title to the lot or lots in controversy.' 12 Dec. Dep. Int. 612. These regulations were referred to by the secretary under date of July 3, 1891, in certain instructions to the commissioner of the general land office, in which it was ruled that the secretary was authorized to allow appeals from the decisions of the town-site trustees under the act of May 14, 1890, to the commissioner, even though the act did not expressly provide for an appeal in such cases. 13 Dec. Dep. Int. 9. The question of the right of appeal is there discussed of length, and again on March 15, 1892, (14 Dec. Dep. Int. 295,) by the assistant secretary, who decided that the issue of the patent to town-site trustees under the act was not a disposition [150 U.S. 209, 217] of the government title, but a conveyance in trust to be held under the direction of the secretary of the interior.
This proposition is denied, and it is insisted that the authority of the secretary relates solely to public lands, the title to which is still in the United States, and that by the issue of the patent to town-site trustees the title passes, and all control over the lands embraced therein is lost; hence that in this case the title of the United States passed by the patent to the trustees, and that they held it thereafter in trust for the occupants, free from the control of the land department. Reference is made to Moore v. Robbins, 96 U.S. 530 , and like cases, to the point that when a patent has been awarded, issued, delivered, and accepted, all right to control the title or to decide on the right to the title has passed from the executive department of the government. But those cases refer to the legal title directly and finally conferred, and the principle invoked can only be applicable on the assumption that by the town-site conveyance title was granted to the Oklahoma trustees for the purpose of divesting the government of all authority and control over the final disposition of the property, and not for the purpose of putting title in the trustees as agents of the government for the execution of the trust devolving upon them as such. Whether this assumption is justified or not must depend upon the terms and true construction of the act of May 14, 1890.
By section 1 of that act the land that might be embraced in each town- site entry was limited, and it was prescribed that the entry should be made for the several use of the occupants thereof by three trustees to be appointed by the secretary of the interior for that purpose, and that when the entry should have been made the secretary should provide regulations for the proper execution of the trust by such trustees, including surveys when necessary, or the approval of such survey as might already have been made by the inhabitants, and for the assessment upon the lots of such sum as might be necessary to pay for the lands embraced in such town-site, costs of survey, conveyance of lots, and other necessary expenses, including compensation of trustees. [150 U.S. 209, 218] Section 2 provided that in the execution of such trust, and for the purpose of the conveyance of title by the trustees, any certificate or other paper evidence of writing duly issued by the authority recognized for such purpose by the people residing upon any town site, the subject of entry thereunder, should be taken as evidence of the occupancy by the holder thereof of the lot or lots therein described, except that where there might be an adverse claim to such property such certificate should only be prima facie evidence of the claim of occupancy.
Section 4 directed that all lots not disposed of as thereinbefore provided for should be sold under the direction of the secretary of the interior for the benefit of the municipal government of any such town, or the same or any part thereof might be reserved for public use as sites of public buildings or for the purpose of parks, if in the judgment of the secretary such reservation should be in the public interest, and the secretary was required to execute proper conveyances to carry out the provisions of this section.
Section 6 prescribed the manner of the adjudication of the entries, and directed 'that when final entry is made that title of the United States to the land covered by such entry shall be conveyed to said trustees for the uses and purposes herein provided.'
By section 7 power was given to the trustees to administer oaths and to hear and determine all controversies arising in the execution of the act, and they were directed to keep a record of their proceedings, which should, with all papers filed with them, and all evidence of their official acts, except conveyances, be filed in the general land office, and become part of the records of the same; and the trustees were to be allowed such compensation, within a specified limit, as the secretary of the interior might prescribe, and such traveling and other necessary expenses as he might authorize; and he was also to provide them with the necessary clerical force by detail or otherwise.
In the light of these provisions we perceive no reason for doubting that the trustees appointed by the secretary under the act, and whose compensation and expenses were fixed by [150 U.S. 209, 219] him, were agents of the government for the purpose of carrying out the trust thereby created to the extent and as specified, and this included the ascertainment of the beneficiaries in the first instance, and the transfer of the title to them. While on the final entry the title of the United States was to be conveyed to the trustees, such conveyance was explicitly declared as made 'for the uses and purposes in the act provided,' and among these uses and purposes was the determination of controversies between contesting claimants by the trustees, who were to administer oaths, pass on evidence, and keep a record of their proceedings, to be deposited in the land department. They unquestionably acted in that regard as the representatives of the government, and their decisions were properly subject to that appeal to the commissioner and the secretary, for which the secretary's regulations provided. As matter of convenience, the trustees were the instrumentality for the transmission of title in respect of lands disposed of to actual holders, while the secretary, notwithstanding the patent, was the medium as to surplus lands, which he could not be if the legal title had definitively passed to the trustees by the patent for the whole site. The result is the same if the fourth section be construed as directing the secretary to cause the trustees to execute the conveyances therein referred to. The trust upon which the title was held was to be discharged in accordance with the regulations, and was necessarily subject to the supervisory power of the department of the interior.
Section 2387 of the Revised Statutes confirms this view, for the town sites there referred to were to be entered by the corporate authorities of the town, if incorporated, or, if not, by the judge of the county court for the county in which the town was located, and the trust as to the disposal of the lots and the proceeds of the sales thereof was to be executed in accordance with such regulations as might be prescribed by the legislative authority of the state or territory in which the town, might be situated, while under this special act, in reference to Oklahoma, the entry was to be made by trustees appointed by the secretary, and the trust conducted under such regulations as might be established by him. In the one case [150 U.S. 209, 220] the government parted with its connection with the land when the patent issued to the local authority; in the other the government retains its connection by having the entry made by its own agents, and the trust executed in the manner it directs.
By the scheme of this act the title is held in trust for the occupying claimants, it is true, but also in trust sub modo for the government until the rightful claimants and the undisposed of or surplus lands are ascertained. The act did not contemplate that the allowance of the entry and the issue of the patent should operate to devolve the final determination of conflicting claims to lots upon these government appointees, and, until the trustees conveyed, the title did not pass beyond the control of the executive department in that regard.
The regulation of the execution of the trust by the secretary covered the regulation of the matter of controversies between claimants, and also included, in addition, and not by way of limitation, the regulation of the survey of the land into blocks, streets, alleys, and lots, and the assessment for purchase money, costs, compensation, and expenses. The supervisory power could no more be denied in respect of the decisions of the trustees upon adverse claims than in respect of the survey and assessment.
In our judgment it was entirely within the competency of the secretary to provide for an appeal in cases of contest, and, as he had done so by the regulations in question, and an appeal had been duly taken thereunder in the case before us, the trustees properly declined to issue the deed, and the mandamus was improvidently awarded, even assuming that the district court had jurisdiction in the premises, and that mandamus was the appropriate remedy.
The judgment is reversed, and the cause remanded to the supreme court of the territory of Oklahoma, with a direction to reverse the judgment of the district court, and remand the case to that court with directions to dismiss the petition.