Until the title to lands within any townsite boundary has been
finally disposed of as provided in the Act of Oklahoma Townsite,
May 14, 1890, no suit can be maintained against the Townsite
Trustees as such to divest them of the title held by them in trust
for occupants under that act, although a townsite occupant, after
receiving title under the act, may be sued by anyone claiming that
he had acquired under the homestead laws a right as to the lands
prior and superior to that held by the Townsite Trustees for the
use and benefit of the townsite occupants.
The Townsite Trustees do not hold an indefeasible title as of
private right, with power to dispose of at will, but only as
trustees for such occupants as may be ascertained, in the mode
prescribed by the act of Congress, to be entitled to particular
lots within the townsite boundary.
The investiture of the Trustees with title is only a step
towards the transmission, finally, to the occupants of the full
interest of the United States in the land.
This case involves the construction of the Act of Congress
passed May 14th, 1890, entitled "An Act to Provide for Town Site
Entries of Land in What is Known as "Oklahoma," and for Other
Purposes." 26 Stat. 109, c. 207.
As the purpose and scope of the act can be ascertained only by
examining all of its provisions, it is here given in full:
Page 190 U. S. 117
"§ 1. That so much of the public lands situate in the
Territory of Oklahoma, now open to settlement, as may be necessary
to embrace all the legal subdivisions covered by actual occupancy
for purposes of trade and business, not exceeding twelve hundred
and eighty acres in each case, may be entered as town sites, for
the several use and benefit of the occupants thereof, by three
trustees, to be appointed by the Secretary of the Interior for that
purpose, such entry to be made under the provisions of section
twenty-three hundred and eighty-seven of the Revised Statutes, as
near as may be, and when such entry shall have been made, the
Secretary of the Interior shall provide regulations for the proper
execution of the trust by such trustees, including the survey of
the land into streets, alleys, squares, blocks, and lots when
necessary, or the approval of such survey as may already have been
made by the inhabitants thereof, the assessment upon the lots of
such sum as may 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:
Provided,
That the Secretary of the Interior may, when practicable, cause
more than one town site to be entered and the trust thereby created
executed in the manner herein provided by a single board of
trustees, but not more than seven boards of trustees in all shall
be appointed for said territory, and no more than two members of
any of said boards shall be appointed from one political
party."
"§ 2. That in the execution of such trust, and for the
purpose of the conveyance of title by said trustees, any
certificate or other paper evidence of claim duly issued by the
authority recognized for such purpose by the people residing upon
any town site the subject of entry hereunder, shall be taken as
evidence of the occupancy by the holder thereof of the lot or lots
therein described, except that, where there is an adverse claim to
said property, such certificate shall only be
prima facie
evidence of the claim of occupancy of the holder:
Provided, That nothing in this act contained shall be so
construed as to make valid any claim now invalid of those who
entered upon and occupied said lands in violation of the laws of
the United States
Page 190 U. S. 118
or the proclamation of the President thereunder:
Provided
further, That the certificates hereinbefore mentioned shall
not be taken as evidence in favor of any person claiming lots who
entered upon said lots in violation of law or the proclamation of
the President thereunder."
"§ 3. That lots of land occupied by any religious
organization, incorporated or otherwise, conforming to the approved
survey within the limits of such town site, shall be conveyed to or
in trust for the same."
"§ 4. That all lots not disposed of as hereinbefore
provided for shall 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 may be reserved for
public use as sites for public buildings, or for the purpose of
parks, if, in the judgment of the Secretary, such reservation would
be for the public interest, and the Secretary shall execute proper
conveyances to carry out the provisions of this section."
"§ 5. That the provisions of sections four, five, six, and
seven of an act of the Legislature of the State [of] Kansas,
entitled 'An Act Relating to Town Sites,' approved March second,
eighteen hundred and sixty-eight, shall, so far as applicable,
govern the trustees in the performance of their duties
hereunder."
"§ 6. That all entries of town sites now pending, on
application hereafter made under this act, shall have preference at
the local land office, of the ordinary business of the office, and
shall be determined as speedily as possible, and if an appeal shall
be taken from the decision of the local office in any such case to
the Commissioner of the General Land Office, the same shall be made
special, and disposed of by him as expeditiously as the duties of
his office will permit, and so if an appeal should be taken to the
Secretary of the Interior. And all applications heretofore filed in
the proper land office shall have the same force and effect as if
made under the provisions of this act, and upon the application of
the trustees herein provided for, such entries shall be prosecuted
to final issue in the names of such trustees, without other
formality, and when final entry is made, the 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. "
Page 190 U. S. 119
"§ 7. That the trustees appointed under this act shall have
the power to administer oaths, to hear and determine all
controversies arising in the execution of this act, shall keep a
record of their proceedings, which shall, 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 all conveyances executed by them
shall be acknowledged before an officer duly authorized for that
purpose. They shall be allowed such compensation as the Secretary
of the Interior may prescribe, not exceeding ten dollars per day
while actually employed, and such traveling and other necessary
expenses as the Secretary may authorize, and the Secretary of the
Interior shall also provide them with necessary clerical force, by
detail or otherwise."
"§ 8. That the sum of ten thousand dollars or so much
thereof as may be necessary is hereby appropriated to carry into
effect the provisions of this act, except that no portion of said
sum shall be used in making payment for land entered hereunder, and
the disbursements therefrom shall be refunded to the Treasury from
the sums which may be realized from the assessments made to defray
the expense of carrying out the provisions of this act."
26 Stat. 110, c. 207.
The complaint shows that the appellees are the trustees of town
site board number six, duly constituted and appointed by the
Secretary of the Interior, and assigned to the town site of West
Guthrie, Oklahoma Territory, and had acquired the legal title to
the western half of section eight, of township sixteen, north of
range two, in Logan County in that territory.
Bockfinger, claiming to have become entitled, under the
homestead laws of the United States, to the southwest quarter of
that land -- which was embraced within the town site boundary --
brought this suit in a territorial district court against the
appellees as town site trustees. The relief sought was a decree
that the trustees hold the title in trust for his use and benefit,
and be compelled to convey to him.
The defendants demurred to the complaint upon several grounds,
among others, upon the ground that the court had no jurisdiction of
the subject of the action nor of the defendants
Page 190 U. S. 120
in their capacity as town site trustees. The demurrer was
sustained, and, the plaintiff electing to stand on his complaint,
the suit was dismissed. Upon appeal to the supreme court of the
territory, the decree of the district court was affirmed.
MR. JUSTICE Harlan delivered the opinion of the Court.
The decisive question in the case is whether the plaintiff's
claim to the land can be made the subject of a suit against the
town site trustees as such. Upon a careful scrutiny of the
provisions of the act of 1890, we are of opinion that this question
must be answered in the negative. The plaintiff asked a decree
declaring that the title acquired by the trustees under the act of
Congress for the use of town site occupants be held in trust for
and conveyed to him. But no such relief could have been granted if
the title acquired by the trustees was held by them in trust for
the purposes of the act of Congress, and if, in every substantial
sense, so far as real ownership is concerned, the land still
belonged to the United States.
That the title was so held by the town site trustees is, we
think, clear. They did not hold an indefeasible title as of private
right, with power to dispose of the land at will, but only as
trustees for such occupants as should be ascertained, in the mode
prescribed by the act of Congress, to be entitled to particular
lots within the town site boundary. The trust was not in any sense
of a permanent character. Its creation by Congress was only a step
towards the ultimate transmission of the title of the United States
to occupants under the town site act. The United States retained
its hold on the land until the title by proper conveyances should
pass absolutely from it or
Page 190 U. S. 121
from its officers or agents, the town site trustees, to such
occupants. When an occupant thus acquired title, anyone who claimed
that he was entitled to the land could litigate the matter with the
occupant in some court of competent jurisdiction, for, as between
the United States and the occupant, the former had then parted with
its title.
It is suggested that under this view many years might elapse
before the person to whom, as occupant, the land was awarded could
be sued by the person claiming a superior right to that acquired by
the town site trustees for the use and benefit of occupants. This
is true, but it cannot alter the fact that, under the act of
Congress, the title remained in every essential sense in the United
States until conveyed to the occupant. T he United States, as the
primary owner of the land, could prescribe the terms upon which it
could be disposed of to occupants. A suit against the town site
trustees to compel them, without regard to the act of Congress, to
convey to one who was not an occupant within the meaning of that
act, was a suit to compel them to convey land which really belonged
to the United States. Such a suit, it is plain, might defeat the
execution of the act of Congress.
The general principle was fully stated in
Johnson v.
Towsley, 13 Wall. 72, in which this Court, after
observing that it had firmly refused to interfere with the Land
Department in its administration of the public lands so long as the
title was in the United States, said:
"On the other hand, it has constantly asserted the right of the
proper courts to inquire, after the title had passed from the
government, and the question became one of private right, whether,
according to the established rules of equity and the acts of
Congress concerning the public lands, the party holding that title
should hold absolutely as his own or as trustee for another."
This was the ground upon which the Court proceeded in
McDaid
v. Oklahoma, 150 U. S. 209, in
which case the question was as to the right of town site trustees
to withhold a deed pending an appeal to the Commissioner of the
General Land Office. In that case, it became necessary to declare
the scope and meaning of the act of 1890.
Page 190 U. S. 122
After referring to a decision of the Land Department, under the
act of 1890, to the effect that "the issue of the patent to town
site trustees under the act was not a disposition of the government
title, but a conveyance in trust, to be held under the direction of
the Secretary of the Interior," the Court in that case, speaking by
CHIEF JUSTICE FULLER, said:
"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."
The court then examined the several sections of the act of 1890,
and proceeded:
"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 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
Page 190 U. S. 123
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 conveyance 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 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, 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
Page 190 U. S. 124
sub modo for the government until the rightful
claimants and the undisposed of or surplus lands are
ascertained."
It is suggested that the question in the
McDaid case
was not the same as the one now under consideration. That is true,
but the decision in that case required the court to determine the
meaning of the act of Congress of 1890; consequently, what was said
in the
McDaid case as to the scope of the act is pertinent
here.
Several cases were cited in argument as sustaining such a
construction of the act of Congress as would authorize a suit like
this. We allude to
In re Emblen, 161 U. S.
52,
161 U. S. 56;
Germania Iron Co. v. United States, 165 U.
S. 379, and
Payne v. Robertson, 169 U.
S. 323.
In
Emblen's case, it appeared that, pending a contest
before the Secretary of the Interior between Emblen and Weed as to
whom a patent should be issued for a tract of land in Colorado,
Congress passed an act confirming Weed's entry and directing that a
patent issue to him, which was done. Then Emblen sought by mandamus
to compel the Secretary to rehear the case, and to decide the issue
between him and Weed independently of the act of Congress, which
was alleged to be unconstitutional. This Court, speaking by MR.
JUSTICE GRAY, said:
"Such being the state of the case, it is quite clear that (even
if the act of Congress was unconstitutional, which we do not
intimate) the writ of mandamus prayed for should not be granted.
The determination of the contest between the claimants of
conflicting rights of preemption, as well as the issue of a patent
to either, was within the general jurisdiction and authority of the
Land Department, and cannot be controlled or restrained by mandamus
or injunction. After the patent has once been issued, the original
contest is no longer within the jurisdiction of the Land
Department. The patent conveys the legal title to the patentees,
and cannot be revoked or set aside except upon judicial proceedings
instituted in behalf of the United States. The only remedy of
Emblen is by bill in equity to charge Weed with a trust in his
favor. All this is clearly settled by previous decisions of this
Court, including some of those on which the petitioner most
relies"
-- citing
Johnson v.
Towsley,
Page 190 U. S. 125
13 Wall. 72;
Moore v. Robbins, 96 U. S.
530;
Marquez v. Frisbie, 101 U.
S. 473;
Smelting Co. v. Kemp, 104 U.
S. 636;
Steel v. Smelting Co., 106 U.
S. 447;
Monroe Cattle Co. v. Becker,
147 U. S. 47;
Turner v. Sawyer, 150 U. S. 578,
150 U. S. 586.
So far from militating against the doctrine of the
McDaid
case, the above observations sustain the views there expressed. The
patent referred to in the
Emblen case was a formal,
regular patent, designed to pass the title of the United States and
to invest the patentee with all the rights of the United States in
the land.
In
Germania Iron Co. v. United States, 165 U.
S. 379,
165 U. S. 383,
the question was whether the Court could, by decree, in a writ
brought by the United States, cancel a patent that had been issued
by inadvertence and mistake, and thereby restore the jurisdiction
of the Land Department to determine such disputed questions of fact
as involved the title to the land patented. That suit was
maintained and the patent was cancelled. It is clear that the
decision has no bearing on the question now before us.
In
Payne v. Robertson, the question as to the right to
maintain a suit directly against the town site trustees for the
purpose of divesting them of the title to the land in dispute does
not appear to have been raised by the parties; it certainly was not
decided by the Court. The sole question, the Court took care to
say, was whether, by reason of his entry into the territory and his
presence there under the circumstances stated, the plaintiff, who
was a deputy marshal of the United States, was disqualified from
making a homestead entry immediately upon the lands being opened
for settlement. The Court held against the plaintiff on that point,
and, that being conclusive of the case, the judgment of this Court
was placed entirely upon that ground. It was not necessary to go
farther and decide the question here presented.
Nor is there anything in
Wilcox v.
Jackson, 13 Pet. 498, and
United States v.
Schurz, 102 U. S. 402,
at all in conflict with the decisions in the above cases. Both the
Wilcox and
Schurz cases recognize the principle
that, after the title to public lands
Page 190 U. S. 126
has passed from the United States -- that is, after the Land
Department has performed the last act in the series necessary to
pass the title of the government -- the courts will, as between
parties asserting conflicting rights in such lands, determine by
appropriate judicial proceedings which of the parties has the
better right. But those cases equally recognize the principle that
the courts will not interfere with the Land Department in its
control and disposal of the public lands under the legislation of
Congress so long as the title in any essential sense remains in the
United States.
Without further reference to authorities, we adjudge that, until
the title to lands within any town site boundary has been finally
disposed of as provided in the act of 1890, no suit can be
maintained against the town site trustees to divest them of the
title held by them in trust for occupants under that act, although
a town site occupant, after receiving title under the act, may be
sued by any one claiming to have acquired, under the homestead
laws, a right to the lands prior and superior to that held by the
town site trustees for the use and benefit of town site
occupants.
The decree of the Supreme Court of Oklahoma is
Affirmed.
MR. JUSTICE WHITE dissented.
MR. JUSTICE McKENNA did not hear the argument of this case nor
participate in the decision.
