MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
Under the Swamp Land Act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, "at the request of said Governor [the Governor of the State,] cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State." Rogers Locomotive Works v. American Emigrant Company, 164 U.S. 559, 574; Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 592.
In this case the record discloses no patent, and therefore no passing of the legal title. Whatever equitable rights or title may have vested in the State, the legal title remained in the United States.
Until the legal title to public land passes from the Government, inquiry as to all equitable rights comes within the cognizance of the land department. In United States v. Schurz, 102 U.S. 378, 396, which was an application for a mandamus to compel the delivery of a patent, it was said:
"Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the Government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."
While a delivery of the patent was ordered, yet that was so
We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the District to
Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to parties interested, any more than the power of a court to determine legal and equitable rights permits action without notice to parties interested.
"The power of supervision and correction is not an unlimited or an arbitrary power. It can be exerted only when the entry was made upon false testimony or without authority of law. It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the Commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it." Cornelius v. Kessel, 128 U.S. 456, 461. "The Government holds the legal title in trust for him, and he may not be dispossessed of his equitable rights without due process of law. Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the land department." Orchard v. Alexander, 157 U.S. 372, 383.
But what we do affirm and reiterate is that power is vested in the Departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as a general rule, be resorted to only when the legal title has passed from the Government. When it has so passed the litigation will proceed, as it generally ought to proceed, in the locality where the property is situate, and not here, where the administrative functions of the Government are carried on.
In the case before us there is nothing to show that proper
MR. JUSTICE McKENNA took no part in the consideration and decision of this case.