We have no doubt the principle of these decisions applies to a
case wherein it is contended that the act of the head of a
department, under any view that could be taken of the facts that
were laid before him, was
ultra vires and beyond the
Page 147 U. S. 172
scope of his authority. If he has no power at all to do the act
complained of, he is as much subject to an injunction as he would
be to a mandamus if he refused to do an act which the law plainly
required him to do. As observed by Mr. Justice Bradley in
Board
of Liquidation v. McComb, 92 U. S. 531,
92 U. S.
541:
"But it has been well settled that when a plain official duty,
requiring no exercise of discretion, is to be performed and
performance is refused, any person who will sustain personal injury
by such refusal may have a mandamus to compel its performance, and
when such duty is threatened to be violated by some positive
official act, any person who will sustain personal injury thereby,
for which adequate compensation cannot be had at law, may have an
injunction to prevent it. In such cases, the writs of mandamus and
injunction are somewhat correlative to each other."
2. At the time the documents required by the act of 1875 were
laid before Mr. Vilas, then Secretary of the Interior, it became
his duty to examine them and to determine, among other things,
whether the railroad authorized by the articles of incorporation
was such a one as was contemplated by the act of Congress. Upon
being satisfied of this fact, and that all the other requirements
of the act had been observed, he was authorized to approve the
profile of the road and to cause such approval to be noted upon the
plats in the land office for the district where such land was
located. When this was done, the granting section of the act became
operative, and vested in the railroad company a right of way
through the public lands to the extent of 100 feet on each side of
the central line of the road.
Frasher v. O'Connor,
115 U. S. 102.
The position of the defendants in this connection is that the
existence of a railroad, with the duties and liabilities of a
common carrier of freight and passengers, was a jurisdictional fact
without which the Secretary had no power to act, and that in this
case he was imposed upon by the fraudulent representations of the
plaintiff, and that it was competent for his successor to revoke
the approval thus obtained -- in other words, that the proceedings
were a nullity, and that his want of jurisdiction to approve the
map may be set up as a defense to this suit.
Page 147 U. S. 173
It is true that in every proceeding of a judicial nature, there
are one or more facts which are strictly jurisdictional, the
existence of which is necessary to the validity of the proceedings
and without which the act of the court is a mere nullity -- such,
for example, as the service of process within the state upon the
defendant in a common law action,
D'Arcy v.
Ketchum, 11 How. 165;
Webster v.
Reid, 11 How. 437;
Harris v.
Hardeman, 14 How. 334;
Pennoyer v. Neff,
95 U. S. 714;
Borden v. Fitch, 15 Johns. 141; the seizure and possession
of the res within the bailiwick in a proceeding
in rem,
8 U. S. Himely,
4 Cranch 241;
Thompson v.
Whitman, 18 Wall. 457; a publication in strict
accordance with the statute, where the property of an absent
defendant is sought to be charged,
Galpin v.
Page, 18 Wall. 350;
Guaranty Trust Co. v. Green
Cove Railroad, 139 U. S. 137. So
if the court appoint an administrator of the estate of a living
person, or, in a case where there is an executor capable of acting,
Griffith v.
Frazier, 8 Cranch 9, or condemns as lawful prize a
vessel that was never captured,
Rose v.
Himely, 4 Cranch 241,
8 U. S. 269, or
a court-martial proceeds and sentences a person not in the military
or naval service,
Wise v.
Withers, 3 Cranch 331, or the Land Department
issues a patent for land which has already been reserved or granted
to another person, the act is not voidable merely, but void. In
these and similar cases, the action of the court or officer fails
for want of jurisdiction over the person or subject matter. The
proceeding is a nullity, and its invalidity may be shown in a
collateral proceeding.
There is, however, another class of facts which are termed
"
quasi-jurisdictional," which are necessary to be alleged
and proved in order to set the machinery of the law in motion, but
which, when properly alleged, and established to the satisfaction
of the court, cannot be attacked collaterally. With respect to
these facts, the finding of the court is as conclusively presumed
to be correct as its finding with respect to any other matter in
issue between the parties. Examples of these are the allegations
and proof of the requisite diversity of citizenship, or the amount
in controversy in a federal court, which, when found by such court,
cannot be questioned collaterally,
Des
Page 147 U. S. 174
Moines Nav. Co. v. Iowa Homestead Co., 123 U.
S. 552;
In re Sawyer, 124 U.
S. 200,
124 U. S. 220;
the existence and amount of the debt of a petitioning debtor in an
involuntary bankruptcy,
Michaels v.
Post 21 Wall. 398;
Betts v. Bagley, 12
Pick, 572; the fact that there is insufficient personal property to
pay the debts of a decedent when application is made to sell his
real estate,
Comstock v.
Crawford, 3 Wall. 396;
Grignon's
Lessee v. Astor, 2 How. 319;
Florentine
v. Barton, 2 Wall. 210; the fact that one of the
heirs of an estate had reached his majority, when the act provided
that the estate should not be sold if all the heirs were minors,
Thompson v.
Tolmie, 2 Pet. 157, and others of a kindred nature,
where the want of jurisdiction does not go to the subject matter or
the parties, but to a preliminary fact necessary to be proven to
authorize the court to act. Other cases of this description are:
Hudson v.
Guestier, 6 Cranch 281;
Ex Parte
Watkins, 3 Pet. 193;
United
States v. Arredondo, 6 Pet. 691,
31 U. S. 709;
Dyckman v. New York, 5 N.Y. 434;
Jackson v.
Crawfords, 12 Wend. 533;
Jackson v. Robinson, 4 Wend.
436;
Fisher v. Bassett, 9 Leigh 119, 131;
Wright v.
Douglass, 10 Barb. 97, 111. In this class of cases, if the
allegation be properly made and the jurisdiction be found by the
court, such finding is conclusive and binding in every collateral
proceeding, and even if the court be imposed upon by false
testimony, its finding can only be impeached in a proceeding
instituted directly for that purpose.
Simms v.
Slacum, 3 Cranch 300.
This distinction has been taken in a large number of cases in
this Court in which the validity of land patents has been attacked
collaterally, and it has always been held that the existence of
lands subject to be patented was the only necessary prerequisite to
a valid patent. In the one class of cases, it is held that if the
land attempted to be patented had been reserved, or was at the time
no part of the public domain, the Land Department had no
jurisdiction over it and no power or authority to dispose of it. In
such cases, its action in certifying the lands under a railroad
grant or in issuing a patent is not merely irregular, but
absolutely void, and may be shown to be so in any collateral
proceeding.
Polk's Lessee v.
Wendell,
Page 147 U. S. 175
9 Cranch 87;
Patterson v.
Winn, 11 Wheat. 380;
Jackson v. Lawton, 10
Johns. 23;
Minter v
Crommelin, 18 How. 87;
Reichart
v. Felps, 6 Wall. 160;
Kansas Pacific Railway
v. Dunmeyer, 113 U. S. 629;
United States v. Southern Pacific Railroad, 146 U.
S. 570.
Upon the other hand, if the patent be for lands which the Land
Department had authority to convey, but it was imposed upon, or was
induced by false representations to issue a patent, the finding of
the department upon such facts cannot be collaterally impeached,
and the patent can only be avoided by proceedings taken for that
purpose. As was said in
Smelting Co. v. Kemp, 104 U.
S. 636,
104 U. S.
640:
"In that respect they [the officers of the Land Department]
exercise a judicial function, and therefore it has been held in
various instances by this Court that their judgment as to matters
of fact, properly determinable by them, is conclusive when brought
to notice in a collateral proceeding. Their judgment in such cases
is, like that of other special tribunals upon matters within their
exclusive jurisdiction, unassailable except by a direct proceeding
for its correction or annulment."
In
French v. Fyan, 93 U. S. 169, it
was held that the action of the Secretary of the Interior
identifying swamplands, making lists thereof, and issuing patents
therefor, could not be impeached in an action at law by showing
that the lands which the patent conveyed were not in fact swamp and
overflowed lands, although his jurisdiction extended only to lands
of that class. Other illustrations of this principle are found in
Johnson v.
Towsley, 13 Wall. 72;
Moore v. Robbins,
96 U. S. 530;
Steel v. Smelting Co., 106 U. S. 447;
Quinby v. Conlan, 104 U. S. 420;
Vance v. Burbank, 101 U. S. 514;
Hoofnagle v.
Anderson, 7 Wheat. 212;
Ehrhardt v.
Hogaboom, 115 U. S. 67. In
Moore v. Robbins, 96 U. S. 530, it
was said directly that it is a part of the daily business of
officers of the Land Department to decide when a party has by
purchase, by preemption, or by any other recognized mode,
established a right to receive from the government a title to any
part of the public domain. This decision is subject to an appeal to
the Secretary of the Interior, if taken in time,
"but if no such appeal be taken and the patent, issued under
the
Page 147 U. S. 176
seal of the United States and signed by the President, is
delivered to and accepted by the party, the title of the government
passes with this delivery. With the title passes away all the
authority of control of the executive department over the land and
over the title which it has conveyed. . . . The functions of that
department necessarily cease when the title has passed from the
government."
We think the case under consideration falls within this latter
class. The lands over which the right of way was granted were
public lands, subject to the operation of the statute, and the
question whether the plaintiff was entitled to the benefit of the
grant was one which it was competent for the Secretary of the
Interior to decide, and, when decided, and his approval was noted
upon the plats, the first section of the act vested the right of
way in the railroad company. The language of that section is
"that the right of way through the public lands of the United
States is hereby granted to any railroad company duly organized
under the laws of any state or territory,"
etc. The uniform rule of this Court has been that such an act
was a grant
in praesenti of lands to be thereafter
identified.
Railway Company v. Alling, 99 U. S.
463. The railroad company became at once vested with a
right of property in these lands, of which they can only be
deprived by a proceeding taken directly for that purpose. If it
were made to appear that the right of way had been obtained by
fraud, a bill would doubtless lie by the United States for the
cancellation and annulment of an approval thus obtained.
Moffat
v. United States, 112 U. S. 24;
United States v. Minor, 114 U. S. 233. A
revocation of the approval of the Secretary of the Interior,
however, by his successor in office was an attempt to deprive the
plaintiff of its property without due process of law, and was
therefore void. As was said by Mr. Justice Grier in
United States v.
Stone, 2 Wall. 525,
69 U. S. 535:
"One officer of the land office is not competent to cancel or annul
the act of his predecessor. That is a judicial act, and requires
the judgment of a court."
Moore v. Robbins, 96 U. S.
530. The case of
United States v. Schurz,
102 U. S. 378, is
full authority for the position assumed by the plaintiff in the
case at bar.
Page 147 U. S. 177
In this case, the relator had been adjudged to be entitled to
160 acres of the public lands, the patent had been regularly
signed, sealed, countersigned, and recorded, and it was held that a
mandamus to the Secretary of the Interior to deliver the patent to
the relator should be granted. It was said in this case by Mr.
Justice Miller:
"Whenever this takes place [that is, when a patent is duly
executed], the land has ceased to be the land of the government,
or, to speak in technical language, title has passed from the
government, and the power of these officers to deal with it has
also passed away."
It was not competent for the Secretary of the Interior thus to
revoke the action of his predecessor, and the decree of the court
below must therefore be
Affirmed.
