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decided: March 19, 1888.



Author: Miller

[ 125 U.S. Page 274]

 MR. JUSTICE MILLER delivered the opinion of the court.

The suit in this case, which was a bill in chancery filed April 10, 1883, in the Circuit Court for the District of California, purports to be brought by the Attorney General on behalf of the United States against the San Jacinto Tin Company, the Rivershide Canal Company, and the Rivershid Land and Irrigating Company. These corporations are alleged to be in possession of a large body of land, nearly eleven square leagues in extent, for which a patent was issued by the United States on the 26th day of October, 1867, to Maria del Rosario Estudillo de Aguirre, and her heirs and assigns. The object of the bill is to set aside this patent, and have it declared void,

[ 125 U.S. Page 275]

     upon the ground that the land described in the survey, which description is a part of the patent, is not the land granted by the Mexican government to said Maria, nor that which was confirmed to her under the proceedings before the land commission, and by the judgment of the District Court of the United States, and by this court also on appeal. The essential feature of the grievance relied on by the complainant is, that this survey was thus located by fraud to include different and more valuable land than that granted by Mexico and confirmed by the courts, and on account of this fraud it is prayed that the survey and patent be set aside and annulled.

Perhaps the nature of this proceeding cannot be better stated than in the language that heads the brief or printed argument of the appellant, who was plaintiff below. It is as follows:

"This brief is intended to establish the following general proposition, viz. That the lands hereinafter described as patented to Maria del Rosario de Aguirre, and her heirs and assigns, on the 26th day of October, 1867, were obtained from the United States by a fraudulent survey of the lands described therein in violation of the decree of the court; and that the persons engaged in said fraudulent survey were the beneficiaries thereof; and that, by reason thereof, said patent to the same is void, and should be set aside, vacated, and annulled."

The case was heard in the Circuit Court on the bill, answer, replication, and voluminous testimony, by the Circuit and District Judges sitting together, who concurred in the decree dismissing the bill.

The bill sets out a grant to one Maria del Rosario Estudillo de Aguirre of the surplus or "sobrante" of the Ranchos of San Jacinto Viejo y Nuevo, or the overplus which remains in the Ranchos of Old and New San Jacinto, the survey thereof to commence from the boundaries of Don Jose Antonio Estudillo and Don Miguel Pedrorena. It alleges that this grant was afterwards confirmed by the District Court of California on appeal from the land commission. Upon an appeal taken from that court to the Supreme Court of the United States its judgment was affirmed. The decision of the land commission

[ 125 U.S. Page 276]

     was to the effect that the claimant was entitled to five square legagues of land within this sobrante or surplus. The District Court, however, held that the claimant was entitled to eleven square leagues, if so much should be found within the sobrante, and to all that was found therein if it were less than that amount.

The language of this decree, as set forth in the body of the bill, and affirmed by the Supreme Court of the United States at its December Term, 1863, United States v. D'Aguirre, 1 Wall. 311, describes the land confirmed as "the sobrante or surplus lands remaining within the boundaries of the tract of land called San Jacinto, as the same are represented and described in the map of said tract contained in the expedient of Miguel Pedrorena filed in this case and referred to in the grant, over and above certain lands granted to Jose Antonio Estudillo, and certain other lands granted to Miguel Pedrorena, within the aforesaid boundaries, to the extent of eleven square leagues of land; and if sobrante or surplus within said boundaries should be less than eleven square leagues, then such less quantity." The bill alleges that the location by survey of the lands confirmed by this decree was not at all within the sobrante of the San Jacinto grant, but that it was located upon other lands than those on which it should have been, because those which were embraced by the survey were valuable as containing ores of tin; and that nearly all the officers engaged in making or establishing it, from and including the Commissioner of the General Land Office down to the deputy surveyors, were interested in the claim at the time.

It is alleged that throughout the whole transaction, from the beginning of the effort to have this survey made until its final completion and the issue of the patent, all the proceedings were dictated by fraud, and all the officers of the government below the Secretary of the Interior who had anything to do with it were parties to that fraud, and to be benefited by it.

The principal points upon which this fraud is said to rest are, that the land surveyed was not within the larger exterior boundaries out of which the sobrante of San Jacinto Viejo y Neuvo was to be taken, but that said survey described a tract

[ 125 U.S. Page 277]

     of land of about the same extent, to wit, of about eleven square leagues, situated more than six miles at the nearest point, and more than twenty miles at the farthest point, away from the land in fact granted and conceded by Pio Pico, governor, to the grantee; that the survey of said land was never made in the field, nor from any actual measurements of distances or observation or determination of courses in the field, as the law of the land department required, nor according to the directions of the decree confirming said grant; that the plat and survey were made arbitrarily and without any actual data in the office of the Surveyor General of the United States for California, under the direction and dictation of that officer and one Edward Conway, then chief clerk in charge of that office, and performing the duties of Surveyor General, and by one George H. Thompson, a deputy surveyor acting under the Surveyor General and the chief clerk; that it was so made up without any reference to the expedient that accompanied the grant or juridical possession given at the time of the grant, or to the decree, but that it was made solely with reference to securing, surreptitiously and fraudulently, letters-patent for the land included and described within the said survey and plat, although the same lies outside of the boundaries of the tract called San Jacinto; that the land so surveyed and platted was at that time supposed by said Surveyor General and Edward Conway to contain, and did in fact contain, valuable lodes of tin and other mineral ores, and that all this was well known to the defendant, or to persons composing its stockholders, at the time the patent was issued.

It is further alleged that Upson the Surveyor General, Conway, the chief clerk in his office, and Thompson, the deputy who was directed to make the survey and did make the plat, and Joseph H. Wilson, the Commissioner of the General Land Office at Washington, were all interested in and part owners of the claim at the time this survey was made, and at the very time they acted in reference to its final confirmation. Other persons are also said to be inculpated in this fraudulent proceeding whose names it is not necessary at present to mention.

[ 125 U.S. Page 278]

     It will thus be seen that the entire foundation for the relief sought in this case rests upon a fraud alleged to have been committed upon the government by its own officers, they being interested in the claim to be surveyed and patented. There is no pretence of any mere mistake in the matter, but on the contrary it is asserted that the parties knew exactly what they were doing, and that it was intended to cheat the United States out of valuable mineral ores for the benefit and advantage of those parties and their confederates. The issue is thus narrowed exclusively to the question of fraud.

Another question, however, is raised by counsel for the defendant, which is earnestly insisted upon by them, and which received the serious consideration of the judges in the Circuit Court, namely, the right of the Attorney General of the United States to institute this suit.

The question as presented is one surrounded by some embarrassment. But as it is in some form or other of frequent recurrence recently, and if decided in favor of the appellees will require the dismissal of the case without a judgment by this court upon its merits, we feel called upon to give the matter our attention. It is denied that the Attorney General has any general authority under the Constitution and laws of the United States to commence a suit in the name of the United States to set aside a patent, or other solemn instrument issued by proper authority.

It is quite true that the Revised Statutes, in the title which establishes and regulates the Department of Justice, simply declares, in § 346, that "there shall be at the seat of government an Executive Department to be known as the Department of Justice, and an Attorney General, who shall be the head thereof." There is no very specific statement of the general duties of the Attorney General, but it is seen from the whole chapter referred to that he has the authority, and it is made his duty, to supervise the conduct of all suits brought by or against the United States, and to give advice to the President and the heads of the other departments of the government. There is no express authority vested in him to authorize suits to be brought against the debtors of the government,

[ 125 U.S. Page 279]

     or upon bonds, or to begin criminal prosecutions, or to institute proceedings in any of the numerous cases in which the United States is plaintiff; and yet he is invested with the general superintendence of all such suits, and all the district attorneys who do bring them in the various courts in the country are placed under his immediate direction and control. And notwithstanding the want of any specific authority to bring an action in the name of the United States to set aside and declare void an instrument issued under its apparent authority, we cannot believe that where a case exists in which this ought to be done it is not within the authority of that officer to cause such action to be instituted and prosecuted. He is undoubtedly the office who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the government.

If the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obligations, or its most solemn instruments, the question of the appeal to the judicial tribunals of the country must primarily be decided by the Attorney Geeral of the United States. That such a power should exist somewhere, and that the United States should not more helpless in relieving itself from frauds, impostures, and deceptions than the private individual, is hardly open to argument. The Constitution itself declares that the judicial power shall extend to all cases to which the United States shall be a party, and that this means mainly where it is party plaintiff is necessary result of the well-established proposition that it cannot be sued in any court without its consent. There must, then, be an officer or officers of the government to determine when the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision and control of the Attorney General. How, then, can it be argued that if the United States has been deceived, entrapped,

[ 125 U.S. Page 280]

     or defrauded into the making, under the forms of law, of an instrument which injuriously affects its rights property, or other rights, it cannot bring a suit to avoid the effect of such instrument, thus fraudulently obtained, without a special act of Congress in each case, or without some special authority applicable to this class of cases, while all other just grounds of suing in a court of justice concededly belong to the Department of Justice, and are in use every day? The judiciary act of 1789, in its third section, which first created the office of Attorney General, without any very accurate definition of his powers, in using the words that "there shall also be appointed a meet person, learned in the law, to act as Attorney General for the United States," 1 Stat. 93, c. 21, § 35, must have had reference to the similar office with the same designation existing under the English law. And though it has been said that there is no common law of the United States, it is still quite true that when acts of Congress use words which are familiar in the law of England, they supposed to be used with reference to their meaning in that law. In all this, however, the Attorney General acts as the head of one of the Executive departments, representing the authority of the President in the class of subjects within the domain of that department and under his control.

In the case of the United States v. Hughes, 11 How. 552, one Godbee had entered and paid for land at the United States land office in New Orleans, but had not taken out his patent. Hughes, well knowing this fact, entered, paid for, and received a patent for the same land, the prior entry of Godbee being overlooked by the land officers. The United States having tendered Hughes his purchase money, the Attorney General filed an information on behalf of the United States to repeal the patent. The defendant, Hughes, demurred on the ground that no authority existed for bringing such a suit; but this court, saying that it cannot "be conceived why the government should stand on a different footing from any other proprietor," p. 568, overruled the demurrer. When the case afterwards came into this court on appeal from the decree on the final hearing, it said: "It was the plain duty of the United

[ 125 U.S. Page 281]

     States to seek to vacate and annul the instrument, to the end that their previous engagement might be fulfilled by the transfer of a clear title, the only one intended for the purchaser by the act of Congress." Hughes v. United States, 4 Wall. 232.

In United States v. Stone, 2 Wall. 525, Mr. Justice Grier, delivering the opinion of the court, said: "A patent is the highest evidence of title, and is conclusive as against the government, and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England this was originally done by scire facias, but a bill in Chancery is found a more convenient remedy," p. 535.

In the case of Mowry v. Whitney, 14 Wall. 434, 439, 440, which was an attempt by a private party to set aside by a bill in chancery a patent for an invention, the court considered the subject rather fully, and said that "the ancient method of doing this in the English courts was by scire facias, and three classes of cases are laid down in which this may be done." The court held that in England "the scire facias to repeal a patent was brought in chancery where the patent was of record. And though in this country the writ of scire facias is not in use as a chancery proceeding, the nature of the chancery jurisdiction and its mode of proceeding have established it as the appropriate tribunal for the annulling of a grant or patent from the government," referring to United States v. Stone, above cited. The court denied the right of the private party to sustain a suit to annul the patent, and said: "The general public is left to the protection of the government and its officers. . . . The reasons for requiring official authority for such a proceeding are obvious. The fraud, it one exists, has been practised on the government, and as the party injured it is the appropriate party to assert the remedy or seek relief." p. 441.

In United States v. Throckmorton, 98 U.S. 61, 70, the court said: "In the class of cases to which this belongs, however, the practice of the English and the American courts has been to require the name of the Attorney General as indorsing the suit before it will be entertained. The reason of this is obvious, namely, that in so important a matter as impeaching the

[ 125 U.S. Page 282]

     grants of the government under its seal, its highest law officer should be consulted, and should give the support of his name and authority to the suit. He should also have control of it in every stage, so that if at any time during its progress he should become convinced that the proceeding is not well founded, or is oppressive, he may dismiss the bill."

In Moore v. Robbins, 96 U.S. 530, 533, the court, speaking of the issuing of patents for land by the government, said: "If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course."

While the cases last cited did not involve directly the power of the Attorney General to institute a suit to set aside a patent of the United States, we have had before us quite recently three cases which did involve that power, brought by the United States for the express purpose of setting aside patents for land issued by the government on the ground of frauds or mistakes in their issue. In the first of these, Moffat v. United States, 112 U.S. 24, which was prosecuted by the Attorney General, who appeared in this court by the Assistant Attorney General to argue the case, the decree of the Circuit Court setting aside the patent as having been obtained by the fraud of the officers of the land department was affirmed. No question was made of the right of the Attorney General to institute the suit and conduct it to a successful termination.

In the second case United States v. Minor, 114 U.S. 233, 241, a suit was brought in the Circuit Court for the District of California to set aside a patent for land issued by the government to Minor. The bill alleged that the patent was obtained by the fraud of Minor in making false affidavits and procuring others to be made before the officers of the land department, by which he obtained the patent for the land in question. Although the case was certified here by the judges sitting in that court on a division of opinion upon several points, one of which was whether a demurrer to the amended bill should be sustained, no question seems to have been made of the right

[ 125 U.S. Page 283]

     of the government by its Attorney General to institute this suit; the appeal on behalf of the United States being argued by the Solicitor General, an officer under the control of the Attorney General.

Some question was, however, made in the opinion in that case in regard to the right of the Attorney General to bring such a suit, where the only result would have been to take the land from Minor and give it to one Spence, who had a claim upon part of it, the court saying that "the government in that case would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question, in some future case of this character, how far the officers of the government can be permitted, when it has no interest in the property or in the subject of the litigation, to use its name to set aside its own patent, for which it has received full compensation, for the benefit of a rival claimant." The court said, however, that the question did not arise in that case, because Spence only had a claim to one-half of the land covered by the patent. It will be seen that the only question thus suggested did not affect the right of the Attorney General in a proper case to institute and carry on such a suit; and the decree of the Circuit Court was reversed on the ground that the case presented was one which justified relief.

In the still later case of The Colorado Coal & Iron Company v. United States, 123 U.S. 307, the bill was filed in the name of the United States by the Attorney General to declare void and cancel sixty-one patents for as many distinct pieces of land, situated at different places in Las Animas County, in the State of Colorado, amounting in the Aggregate to over nine thousand acres. The allegation in that case was, that the patent had been obtained by the fraudulent use of fictitious names as grantees of the land, and the case was fought through with great vigor on both sides. It was thoroughly and elaborately considered, and the court said, in regard to these transactions, that they "undoubtedly constituted a fraud upon the United States sufficient in equity as against the parties perpetrating it, or those claiming under them with notice of

[ 125 U.S. Page 284]

     it, to justify the cancellation of the patents issued to them," quoting the following language from United States v. Minor, above cited: "Where the patent is the result of nothing but fraud and perjury, it is enough to hold that it conveys the legal title, and it would be going quite too far to say that it cannot be assailed by a proceeding in equity and set aside as void, if the fraud is proved and there are no innocent holders for value."

If the court had entertained the opinion in these cases, that there existed in the Attorney General no right to institute these suits to set aside patents for lands obtained by fraud, it would have been saved the labor of a protracted investigation in each of them into the facts which were supposed to constitute the fraud; and in the two cases first mentioned the court violated its duty in sustaining the government and setting ...

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