*

States have not thought proper to delegate that power to their own courts," "and no one will seriously contend, it is presumed, that it is among the reserved powers of the States, because not communicated by law to the courts of the United States. The question in this case is as to the power of the State courts over an officer of the general government employed in disposing of its land under the laws passed for that purpose. And here it is obvious that he is to be regarded either as an officer of that government or as its private agent. In the one capacity or the other his conduct can only be controlled by the power that created him, since whatever doubts have from time to time been suggested as to the supremacy of the United States in its legislative, judicial, or executive powers, no one has ever contested its supreme right to dispose of its own property in its own way. And when we find it withholding from its own courts the exercise of this controlling power over its ministerial officers employed in the appropriation of its own lands, the inference clearly is, that all violations of private right resulting from the acts of such officers should be the subject of actions for damages, or to recover the specific property, (according to circumstances,) in courts of competent jurisdiction." Here is an unequivocal denial of authority on the part of the State or national courts to control the officers of the Land Department employed in disposing of the public domain. It is true that the question before the court related to the power of issuing a mandamus, but the reasoning of Mr. Justice Johnson is broad enough to cover every species of control; and although it was claimed in this case, as in Marbury rs. Madison, 1 Cranch, 137, that the power of issuing a mandamus to a ministerial officer is within the scope of the judicial powers granted in the Constitution, yet it was distinctly asserted in both these cases, as also in McIntire vs. Wood, 7 Cranch, 504, that the power had not been delegated to the courts by the legislative department, and that without such delegation it could not be exercised. Now, if the policy of the law-making power has withheld from the United States judicial tribunals in the States authority to issue even a writ of mandamus, commanding the performance of merely ministerial duties, can it be supposed that the power to restrain such officers by injunction from the performance of ministerial acts pertaining to a subject-matter specially placed under their control has been granted? It will be no answer to say that the decision of the department that the lands in question constitute part of the public domain, and may be entered under the pre-emption or homestead laws by actual settlers, having the necessary qualifications, is contrary to law; for even if this were the case, until it is made to appear that the court is legally competent to revise the decision of the Secretary in reference to matters pending in his department in an unfinished state, the opinion of the court is coram non judice, and decides nothing. The remedy for such a violation of private right, according to the case of McClung vs. Silliman, would be an action for damages, or to recover the specific property; either an action on the case, or an action of ejectment to recover the title and possession of the land. As the United States claims to own it, and to have the power to control the same, a suit to recover the specific property would have to be brought against the United States; and as this could not be done, it follows that a suit for the specific property cannot be brought until the title has passed out of the United States by the delivery of a patent; and if the Des Moines River Navigation Company are entitled to the premises by virtue of grants made in the several acts of Congress referred to above, such remedy, according to the usual practice of the courts in canceling patents found by these tribunals to have been issued without legal authority, is amply sufficient, as no title can be made to innocent third parties without notice. Hence in this case a plain, adequate, and complete remedy may be had at law; and a resort to the equity side of the court is improper, according to the sixteenth section of the judiciary act and the general rulings of the courts.

4. Finally, the circuit court has no power to issue an injunction except in cases where it may be necessary for the exercise of its jurisdiction and agreeably to the principles and usages of law. See fourteenth section judiciary act, Statutes, vol. i, p. 82. The writ can only issue from a circuit court in a case necessary for the exercise of a jurisdiction already existing, and not in a case where the jurisdiction is to be courted or acquired by means of the writ sued out. See McClung vs. Silliman, where this view is taken of the power of the court to issue the writ of mandamus, provided for in the same section and clause of the judiciary act, furnishing the authority to issue the writ of injunction. Without the aid of the writ of injunction it is difficult to perceive what other jurisdictional act the court can exercise in reference to the local land officers. It cannot enter a decree against them as trustees of the legal title for the use of complainant. It cannot decree them to execute title to him, for they are in no way connected with the title, being simply agents or officers of the government through whose hands the muniments of title may pass, and through whom the transactions preliminary to the passing of the title may be conducted.

Nor is the writ issued agreeably to the principles and usages of law. No usage of law exists authorizing a writ of injunction to an officer in the exercise of duties enjoined upon him by law from an apprehension that the officer may improperly perform such duties. Such a proceeding is contrary to both the principles and usages of

law, and the court is without legal warrant in the attempt to exercise such jurisdiction.

In conclusion, it may be observed that the difficulty which has led to the commencement of these irregular proceedings in the district court is directly traceable to the interference of the courts in this case at a former period.

In 1858 or 1859 a suit was instituted in the same court by said Litchfield against the Dubuque and Pacific Railroad Company, to try the title to one of the tracts of lands lying within the lines made by the crossing of the railroad and river grants, and on its being decided by the district court in favor of the Des Moines River Improvement Company it was brought to the United States Supreme Court by writ of error, and came to a hearing at the December term, 1859, 23 Howard, 66. Mr. Justice Catron, in delivering the opinion of the court, said: "On mature consideration we are of opinion that the title of neither party has been affected by the proceedings in the Land Office, or by the opinions of the officers of the executive department, but that the claims of the parties under the two acts of Congress must be determined by the construction to be given to those acts. This we are required to do in deciding this cause." Again, the court say, "And although the case agreed was made up in a friendly spirit, nevertheless the object was to try the title, and this was done at the instance of some of the executive officers. If the judgment of the district court were affirmed, the defendant below would lose the land; and it being reversed, the plaintiff below loses it. We have, therefore, felt bound to hear and decide the cause on its merits, and finding that the plaintiff below has no title, we direct that the judgment of the district court be reversed and the cause remanded, and that the court is ordered to enter judgment for the defendant below."

The Supreme Court decided that the Des Moines River grant extended only to the Raccoon Fork, and in this they simply followed the opinion of the Attorney General of the United States, communicated to the Secretary of the Interior in November, 1858, agreeably to which the Secretary was then proceeding to execute the act of August 8, 1846. But the Supreme Court decided more than this. As the suit was between the river company and the railroad company, the court decided that the railroad company took the land in controversy under the act of May 15, 1856, and ordered judgment to be entered in favor of said railroad company.

As a matter of respect and courtesy toward that tribunal, this department accepted the decision as a rule of action for itself, and proceeded to certify and approve to the State of Iowa, to aid in the construction of railroads, the odd-numbered sections within the lines made at the crossings of said grants, and after the passage of the act of July 12, 1862, certified to the State other lands for the river company in lieu of those certified as above, to aid in constructing railroads. After the lands affected by these grants had been thus disposed of by the Land Department in pursuance of the above decision of the Supreme Court, another case, involving the title of the railroad companies to the odd-numbered sections at the crossing of said grants, came before the Supreme Court, when that tribunal, instead of adhering to its former decision, held that the said lands were reserved from the operation of the act of May 15, 1856, by the last proviso of the third section, and did not pass to the railroad companies. Hence these lands are now claimed by the river company under the confirmatory act of July 12, 1862, and the present controversy is therefore the direct result of this department having followed the ruling of the Supreme Court as reported in 23 Howard, from which it af terward receded in the case of Walcott vs. The Des Moines Company, reported in 5 Wallace, 681.

To avoid similar perplexity and confusion in the future, it is believed that the rule heretofore observed, of each department determining the nature and extent of its own duties according to its own judgment and upon its own responsibilities, should be inflexibly adhered to. All of which is respectfully submitted."

JOS. S. WILSON,
Commissioner.

WASHINGTON, D. C., August 22, 1868.

SUGGESTION OF THE ESTABLISHMENT IN THE GENERAL LAND OFFICE OF A CABINET EMBRACING SPECIMENS OF SANDS, CLAYS, ETC.

WASHINGTON, D. C., August 25, 1869.

SIR: I feel much interest in your mineral collection from the various States and Territories of the United States, and frequently visit it as a source of instruction. I have been engaged extensively for many years, in Europe and in this country, in manufacturing branches, chemical and mechanical. In the course of my studies I have frequently felt the want of a museum of reference, such as yours, as an assistant in chemical research.

Manufacturing chemists require a varied assortment of sands for glass-making and

for soluble silicates, for cement compounds, artificial stone, and for general building and plastering purposes.

There is also a great demand for every description of loam sand used in the founderies for molding, in the production of iron, brass, and bronze castings.

It is probable that in the United States of America every variety of sand for foundery purposes may be had, yet, strange to say, the molding sand used for the production of bronze doors of the Capitol, made at Chicopee, Massachusetts, had to be procured from Paris, and without which the doors could not have been made.

It is also very desirable to have specimens of every kind of clay, embracing the ochres. The clays vary as much in their properties as sand, each having a separate use in the arts and manufactures. Picture-frame gilders, for example, use a clay very rich in alumina, but which must be entirely free from grit. A clay suitable for burnish gold size, when combined with black lead and oil in certain proportions and ground to a pulp, sells for sixty cents per pound. Clay for this purpose is imported from England. The blue clay of the "London Basin" is much used for this purpose.

Clays of various qualities are employed in the manufacture of pottery ware, crucibles, &c. It also enters largely into the combinations of paint, and for cleansing cloth, and as a deodorizing agent. These are but a few of the uses of these two substances, sand and clay.

I believe, Mr. Commissioner, that the establishment in your department of a large museum, embracing specimens of every kind and quality of sand, earth, minerals, and vegetable substances, especially the gum, gum resins, and resin proper, together with the various coloring substances used in varnish-making, would greatly assist in the establishment of home manufactures, and might directly aid in the founding of chemical and other manufactories in this district. I doubt not Congress would give aid to any well-developed project promising such invaluable assistance to the industries of this country.

I am, sir, very respectfully, yours,

Hon. Jos. S. WILSON,

Commissioner of the General Land Office.

THOMAS TAYLOR

LIST OF PAPERS ACCOMPANYING COMMISSIONER'S ANNUAL REPORT.

No. 1. Tabular statement showing the number of acres of public lands surveyed in the States and Territories up to June 30, 1868, during the last fiscal year, and the total of the public lands surveyed up to June 30, 1869; also the total area of the public domain remaining unsurveyed within the same.

No. 2. Statement of public lands sold; of cash and bounty-land scrip received therefor; number of acres entered under the homestead law of May 20, 1862; of commissions received under the sixth section of said act; also land located with scrip under the agricultural college and mechanic act of July 2, 1862, and commissions received by registers and receivers on the value thereof; and statement of incidental expenses thereon in the first half of the fiscal year commencing July 1, 1868, and ending June 30, 1869.

No. 3. Statement showing like particulars for the second half of the fiscal year ending June 30, 1869.

No. 4. Summary for the fiscal year ending June 30, 1869; showing the number of acres disposed of for cash, with bounty-land scrip, by entry under the homestead laws of May 20, 1862, and March 21, 1864, with aggregate of $10 homestead payments, homestead commissions; also locations with agricultural college and mechanic scrip, under act of July 2, 1862.

No. 5. Statement showing the quantity of swamp lands selected for the several States under acts of Congress approved March 2, 1849, September 28, 1850, and March 12, 1860, up to and ending September 30, 1869.

No. 6. Statement exhibiting the quantity of swamp land approved to

the several States under acts of Congress approved March 2, 1849, September 28, 1850, and March 12, 1860, up to and ending September 30, 1869.

No. 7. Statement exhibiting the quantity of swamp land patented to the several States under acts of Congress approved September 28, 1850, and March 12, 1860; and also the quantity certified to the State of Louisiana under act approved March 2, 1849.

No. 8. Statement showing the State selections under the "internal improvement" grant of September 4, 1841, on the 30th of June, 1869. No. 9. Exhibit of bounty-land business under acts of 1847, 1850, 1852, and 1855, showing the issue and locations from the commencement of oper.ations under said acts to June 30, 1869.

No 10. Statement showing the selections made by certain States of lands within their own limits, under agricultural and mechanic act of July 2, 1862, and its supplemental acts of April 14, 1864, and July 23, 1866; also the locations made with scrip under said acts.

No. 11. Statement exhibiting land concessions by acts of Congress to States and corporations for railroad and military wagon-road purposes, from the year 1850 to June 30, 1869.

No. 12. Statement exhibiting land concessions by acts of Congress to States for canal purposes from the year 1827 to June 30, 1869.

No. 13. Estimate of appropriations required for the office of the Commissioner of the General Land Office for the fiscal year ending June 30, 1871.

No. 14. Estimates of appropriations required to meet expenses of collecting the revenue from sales of public lands in the several States and Territories for the fiscal year ending June 30, 1871.

No. 15. Estimates of appropriations for the surveying department for the fiscal year ending June 30, 1871.

No. 16. Estimates of appropriations required for surveying the public lands for the fiscal year ending June 30, 1871.

No. 17. Estimates of appropriations required for the surveying department to supply deficiency for the year ending June 30, 1870.

No. 18. Reports of surveyors general, A to O, inclusive.

No. 19. Statement of confirmed Indian pueblo grants and private land claims in New Mexico.

No. 20. General tabular statement, exhibiting the following: No. 1. States and Territories containing public land; No. 2. Areas of States and Territories containing public lands, in square miles and acres; No. 3. Quantity sold; No. 4. Entered under the homestead laws; No. 5. Granted for military services; No. 6. Granted for agricultural colleges; No. 7. Approved under grants in aid of railroads; No. 8. Approved swamp selections; No. 9. Quantity granted for internal improvements; No. 10. Donations and grants for schools and universities; No. 11. Locations with Indian scrip; No. 12. Locations with float scrip, under act of March 17, 1862; No. 13. Estimated quantity granted to wagon roads; No. 14. Quantity granted to ship canals; No. 15. Salines; No. 16. Seats of government and public buildings; No. 17. Granted to individuals and companies; No. 18. Granted for deaf and dumb asylums; No. 19. Reserved for benefit of Indians; No. 20. Reserved for companies, individuals, and corporations; No. 21. Confirmed private land claims; No. 22. Quantity remaining unsold and unappropriated June 30, 1869. No. 21. Historical and statistical table of the Untted States of North America.

No. 22. List of twenty-nine maps of all the public land States and Territories, to wit: Ohio, Indiana, Illinois, Michigan, Wisconsin, Minne

sota, Iowa, Dakota, Missouri, Arkansas, Louisiana, Mississippi, Alabama, Florida, Nebraska, Kansas, Indian Territory, Colorado, New Mexico, Montana, Wyoming, Idaho, Nevada, Utah, Arizona, California, Oregon, Washington Territory, and Alaska. Each map shows the extent of the public surveys where such have been extended; also the names of counties and resources, so far as furnished by the data on hand.

No. 23. Connected map of the United States from ocean to ocean, exhibiting the extent of the public surveys, localities, land districts, seats of surveyor generals' offices and district offices; also localities of railroads of general interest, and of mineral deposits.

No. 24. Map of the world on Mercator's projection.