# Wilbur v. United States ex rel. Barton > Court of Appeals for the D.C. Circuit · December 1, 1930 · 46 F.2d 217 URL: https://www.frixlaw.com/law-library/cases/6844433 ## Case - **Full name:** WILBUR, Secretary of the Interior v. UNITED STATES ex rel. BARTON - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** December 1, 1930 - **Citations:** 46 F.2d 217; 60 App. D.C. 11; 1930 U.S. App. LEXIS 3536 - **Precedential status:** Published - **Opinion:** Dissent by Orsdel - **Judges:** Orsdel, Robb - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6844433 ## Opinion text VAN ORSDEL, Associate Justice (dissenting). I am compelled to dissent from the opinion and judgment of my associates. It is. conceded that the applicant Barton possessed all the . qualifications necessary under the Leasing Act to entitle him to a permit. In other words, but for the order of the Secretary suspending the operation of the Leasing Act, he would have been compelled to grant Barton’s application. We start, therefore, with an applicant entitled to a permit at the time the order was made suspending the provisions of the Leasing Act. The act of 1910, vesting authority in the President to withdraw publie lands from “settlement, location, sale, or entry,” specifically provides the terms upon which this Executive authority may be exercised. It must be done by a formal proclamation, which the Secretary of the Interior is required, by the terms of the act, to report to Congress at the next regular session after the date of withdrawal.' Prior to the enactment of this statute, lands had been withdrawn by proclamation of the President without any particular authority of statute. Congress, therefore, in the 1910 act, manifested a clear intention to keep control of the withdrawals of publie lands to the extent of specifying the manner and terms under which they could be withdrawn by the President, and in addition requiring notice to be given it of such withdrawals by the Secretary of the Interior in order that the action of the President, if deemed advisable, might be promptly revoked. This brings us to what was done in this case. No proclamation, formal or otherwise, its own land, amounting to a withdrawal of the land from entry and settlement; and, was ever issued by the President, and no notice of any proclamation was given Congress by the Secretary, as required by the 1910 act. The order of the Secretary, telegraphed ■ the local land officers, was based upon the following newspaper report under date of Mareh 12, 1929, purporting to express the views of the President: “There will be no leases or disposal of government oil lands, no matter what category they may lie in, of government holdings or government controls, except those which may be mandatory by Congress. In other words, there will be complete conservation of government oil in this administration.” It will be observed that this merely purports to state a future policy which the President might or might not adopt in respect to government oil lands. It was not transmitted by the President to the Secretary of the Interior. The information upon which he based his order was obtained exclusively through the press. The press report merely referred to a declaration said to have been made by the President, which he could only make effective by a formal proclamation. There was. therefore no proclamation whatever under the terms of the 1910 act which would justify in the remotest degree the action taken by the Secretary of the Interior. Neither can the action of the Secretary be upheld under the doctrine of acquiescence. It is undoubtedly true that “the acts of the heads of departments, within the scope of their powers, are in law the acts of the President.” The President is the head of the Executive Department of the government, and the lawful acts of his subordinates will be presumed to be his acts, but this presumption does not extend to unlawful acts of subordinates. The difficulty here is that the Secretary acted without the scope of his power in the suspension of the Oil Leasing Act. He was totally without power to act until certain statutory conditions had been complied with, namely, the issue of a proclamation by the President. The cases relied upon in the majority opinion are not in point. In Wilcox v. Jackson, 13 Pet. 498 , 10 L. Ed. 264 , a pre-emption entry had been made upon land set aside and occupied for more than twenty years as a military reservation, on which the government had expended large sums of money un *223 der the direction of the Secretary of War. Of course, a long-continued use of publie land by the government itself for military purposes, or for other purposes, would constitute an occupancy by the government on whether done by direct authority of the President or by the lawful act of the Secretary of War, the President, after this long lapse of time, would be assumed to have acquiesced in the withdrawal and occupation of the land. The case of Wolsey v. Chapman, 101 U. S. 755 , 25 L. Ed. 915 , has even less application to the present case than does the Wilcox Case. Hero, a large tract of land had been granted to the territory of Iowa for the development of navigation on the Des Moines river. The execution of the act was delegated to the Secretary of the Interior, and was accordingly within the lawful scope of the authority vested in him. A controversy arose as to the limits of the land granted — whether it extended beyond a, point in the river known as Raccoon fork. The matter required determination from many angles by the Department of the Interior, and, to protect the interests of all concerned, the Secretary suspended settlement on the lands in question until the matter could be legally determined. It was said, and properly so, that the act of the Department, being within the scope of its powers, would be regarded in law as the act of the President. The difference between that case and the one at bar is that here there is only one law under which a withdrawal such as we are hero considering can be made, namely, through the proclamation act of 1910. This act is a specific grant of power by Congress to the President by Which he may in his discretion withdraw public lands from entry, sale, or settlement. Being a grant of power belonging to Congress, it should strictly be complied with, and the courts will not imply compliance from circumstances such as those involved in this case. The ease of United States v. Midwest Oil Co., 236 U. S. 459 , 35 S. Ct. 309 , 59 L. Ed. 673 , has little or no analogy to this case. There, the proclamation of the President, issued before the enactment of the 1910 statute, hence without specific statutory authority, described accurately the territory withdrawn, the character of the land, and the object of withdrawal. The President, doubtful of his authority in the premises, submitted the whole matter to Congress for its approval, It resulted in the prompt enactment of the 1910 statute. The proclamation was prepared with all the formalities and dignity of a document promulgated by the President with a view to affecting great publie and private interests. In that case the oil company entered upon the lands after the proclamation was issued. The court, in its opinion, strongly implied that if the entry upon the lands had been made prior to the issuance of the proclamation by the President, it would have had a different ease. Here the application was filed prior to the order of the Secretary, and here there was no proclamation whatever as required by statute. It is not true that the applicant was required to do nothing on the land before filing his application for a permit. He was required by the Leasing Act to seek out the location, to post notices, giving a description of the land for .which application would be made — if surveyed land, by the lines of survey; if unsurveyed, by descriptive metes and bounds. This constituted an entry upon the land, which developed into a right with the filing of the application of which the applicant cannot be divested by any act of the Executive Department. This is settled' law by numerous decisions of the Supreme Court as to entry upon public lands, such as homestead, pre-emption, etc. Entry upon oil lands is in every respect entitled to the samo legal significance as entry upon lands for the purpose of acquiring title. In Mason v. United States, 260 U. S. 545 , 43 S. Ct. 200, 202 , 67 L. Ed. 396 ; it was contended that the words “settlement and entry” applied only to the act of settling upon the soil and making entry in the Land Office, and that it did not apply to mining lands which it was contended were not acquired by settlement and entry but by location and development; but the court said: “If the appropriation of mineral lands by location and development be not akin to settlement and entry, what other form of appropriation can be so characterized? Hone has been suggested and we can think of none.” This is not an action to' mandamus the President. The writ runs against the Secretary of the Interior and the Commissioner o£ the General Land Office. The President, so far as I am able to observe, has had nothing to do with this ease. The case grew out of orders originated in the Land Department, based upon newspaper rumor; and the action here is to compel the Secretary oE the Interior and the Commissioner of the General Land Office to perform purely administrative duties imposed upon them by law. That mandamus will lie for this pur *224 pose is too elementary to require citation of authority. While the judgment is to require a departmental officer to perform a purely administrative duty imposed by Congress, the court has no power under the sanction of “judicial discretion” to withhold its mandate, ■even though, in its judgment, to compel the enforcement might not be in the public interest. The policy of the law belongs to the legislative and not the judicial department of the government. The court is called upon here to determine purely questions of law, and it is immaterial whether one, or five thousapd, or ten thousand applicants would be affected by the court’s decision. Neither, in the agitated state of the public mind, should the fact that this is an “oil ease” entitle it to any particular sanctity in the eyes of the law, or furnish adequate ground for the wholesale slaughter of private property rights by judicial decree. The present inquiry is limited to determining the important- questions of law here involved. It would seem, therefore, unnecessary to consider the facts stressed in the majority opinion-“that the purpose of such withdrawal was to meet conditions due to great overproduction and to conserve oil and gas in the public interest”; or that, if the judgment lie affirmed in this case, “it would probably result in the reinstatement of ‘more than five-thousand applications for oil and gas permits on the public lands pending in the Land Office in Washington, and an unknown number in the field offices.’ ” These might furnish commendable reasons for a proper and lawful withdrawal of the lands either by formal proclamation of the President or by act of Congress, but we have hardly reached the period where the laws of the land can be suspended or repealed by the arbitrary methods here employed. For the reasons stated, the judgment should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6844433. Public record. Not legal advice.