Petition for Writ of Certiorari — United States Ex Rel. McLennan v. Wilbur

Supreme Court brief1931

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' Petition for Certiorari.._...... Laotacauwanits ee

* Statement of the Case... 2.2... Na iF

Questions Involved and’Reasons. for the ‘Allowance so

_ of the Writ. of Certiorari. ran he S

- Brief in roi Petition for Certiorari. i wi

The ‘Majority Opinion of the D. C. Court of Appeals... .

The Dissenting Opinion of Mr. Justice Van Orsdel of i

_ the D. C. Court of Appeals hina , ee

mstruction and Definition: of the Word Shall”,

35 Cyc. 1451 17

astruction and Definition of the Word “Authorize”, . HEE:

66 Corpus Juris 866. acne 18

nd Decisions ee

6L. D. 16 teins 45

47 L. D. 143 e. 43

L. D. 362 ne - Ad

48 L. D. 865... ae 43

8, L. D. 98, 99...... \8, 19

‘8 L. D. 279..., 43

'S\L. D. 283... . 43

49 1. D. 592.

49 L. D, 597 5 :

a bets? @

ular No. 672 (47°L. D. 487)...:..-.. i ye Ae

ll ‘ INDEX

60 L..D. 231...:. NBO SAB POON “ate 1 2 é

. 62 L. D. 481, 482... Ms jiieaedss igh bh ae ot Sta Ma oo DAA OD 20 .-

_ When Permissive Words Are Mandatory WE RIE Ra -:

|" Withdrawals Under Act of June 25, 1910 (36 Stat. 24

_ 8478) iciwiieieeaeiiae 24

: Statutes

Oil and .Gas Leasing Act of February 25, 1920 (41

5 py Geo Ate Santa ado fp SLO eNO 1, 3, 8, 17, 40

Vy Sections 1 and 13, Act of February 25, (ke eee 134

Section 32, Act of February 25, 1920.00: 14.

.. Section 35, Act of February 25, 1920........02:.... 2) ital 3°

H. R. 3232, 65th Congress, Second Session.......:...... Aaa - 49°

. §. 2812, 65th Congress, Second Session...2..0.000000........: 40

Act of June 25, 1910 (36 Stat. 847-8) ..000002000... 8, 10, 49 -

Act of June 25, 1910, Requires. Report of Respondent to

~ Congress of Withdrawal with Description of Lands |

and Purpose of Withdrawal... Va hed 4, 29, 49

Order 337.............. wn Nac AS RN Re id es Re EVR DAME 3,4 °

Ch BARE RAR ADRAC IT HES TSS tt soto ea er Me 3, 4, 47

Respondent’s Telegram to Subordinates in Effect Sus- |

A Leegng Ast coe CTR 25

| Authorities . Pe

‘aldeas oe Woods, 2 Cranch (U. S.). 336; 2 L. ed. 297....

' Baender vs. Barnett, 225 U. 8. 224.0000. Aialalewtinn 3 bis

Burfenning vs. Chicago, etc., R. Co., 163 U. 8. 821.2... 45°

Butteefield-vs. Stranahan, 192 U- 8. 470.000... SO

Cat Creek Oil Structure Cases, 48 Li. D. 98.20.0201... 18

_- Catron vs. any ee ingienge y= : | 23

Chase vs. U. 8. 261 F 883, (8 C. 6. A), Affirmed 261 ae

U. 8:1, 65 L. ed. . 22

things MCE. By ws. U8. 24 U. 8 861;

61 L. ed. 1184.02... 41

Chotard vs. Pope, 12 Wheat (U. 8) 586: 6 L. ed. 737... 30. —

- Churchill’ vs. Crease, 5 Bing. N.C. 180)....¢.:.c:c000ccloo-n 9

: Church of the Holy Trinity vs. U. 8. 143 U: 8. 457;

36 L, ed: 227... ‘ 40 &

—

INDEX

Crilly ys. Burrows, 17 Wall. (U. 8). 307 eR fe

Dahl vs. Raunheim, 132. 'U. 8. 260... ‘ es

Ex Parte Brown, 116 U. 8. 401. re

“Cortelyou vs; Thorpe, 32. App. D, ©. 90.2 ge or |

Field: vs. Clark, 143 U..S. 649... ios rll) . 38"

~" Gird vs. California Oil Co., 60 Fed. 532............., yf. 30.

Grisar vs. McDowell, 6 W: . (U. 8.) 868..... 4.144, 45 +.

‘Harriman oe. I. C. C., 211 U. 8: 407 Secchi 1 OT

" *Hoglund vs. Lane, 244 U. 8 17420} ? Wary. Ver

Hudson vs. Parker, 156 U. 8. 277 et BAP 40

James vs. Germania Iron Co. ce. vg Ei Fed. 597....20, 21

Johnson vs. Keating (C. GA. I) 17 F. (2b)-50.. 2 89 -

‘Joy vs. St. Louis, 138 U. 8. 1 , Bs 39

Kendall vs. U. S., 12 Pet. (U. §.) 624.0... Sie BB

La: Coste vs. Department of Conservation, 263 U. s. 545 © 37

Lane vs. Hoglund, 244 U. 8. 174; 61 L. eb. 1066............ , 42:

Lockhart vs. Johnson, 181 U. 8. 516..2..... 1 SRL 34, 37

‘Lucas vs. Ensign, 4 N.Y. Leg. Obs. 142; Editor’siMote.—

tie SE iw MPa 23

Martin vs, Hunter’s:Lessee, 1 Wheat. (U. 8) 304, 320... 17.

Mason vs. Fearsén, 9 How. (U. 6.) 208) £8 Thee 130... 23

. McLennan vs. Wilbur, No. 76,795.......... bp saasktaite 3

"Miner vs. Mechanics Bank, 1 Pet. (U. §.). 472.2... “93

Missouri Pacific Ry. Co. vs. Boone, 270-U. §. 466....... 37.

New York Indian Case, 170 U. 8. LL... huseads 86

‘Noble vs. Union: River Logging R. Coz, 147 U. 8. 165;

~~ 37 L, ed. 123 : 42

_ Northern Pacific R. Co. vs. Musser-Sauntry Land, etc., ~.

Co,, 168-U. 8. 604; 42 L: ed. 596 a li8 8 Seyi Die

Noyes vs. Mantle, 127 U. S. 348, 3612. -:------neeneneiss--- B5

‘Paris: vs: Wilbur, No. 77, 213, A-13784, Las Cruces — :

.”, 039906... ae 8, 27

Payne we. U. S;, 50 App. D. ©. 119 36 .

Payne vs. Central-Ry. Co., 255.U. 8. 228; 65 L. ed. 598 42

Primos Co,’ vs. Fulton Steel Co., 254 Feb. 4540000. site ey

Pyron vs. Wilbur, No. 77,631 Oe OY

~ Rex vs. tne Atte sansa 5B. & Ald. 601 40.

| Ge a = INDEX,

Richmond Mining: Co. vs. Rose, 114 v. S. 5163 29 L.

ed. 273. ee 30

_- Roberts vs. U. S. ex rel. Valentine, 176°U. S. 221.......94, 36

Spalding vs. ‘Chandler, 160 U. S. 394...0.--.--.e-coocleeseons---- -.-

‘Springfield Milling Co. vs. Lane County, 5 Ore. 271....... 3

Stockley vs..U.8., 260.U. S., 53%, 67 L. ed. 390:............. 41,42 3=

State of Utah vs. ‘Work, 55. ‘App. D. C. 372; 6 Fed. (2d), .

675... , 4 S65

_ Supervisors vs. United States, 4 Wall. (U. 8.) 435. See 22

Swiss Nat. Ins. Co. vs. Miller, 53 App. D. C. ve 939 ee

F, 571, Affirmed 267 U- 8. 42.2... ree ie

U. S. vs. Tichenor, 12 Fed. 415, Se ae 45

Truitt vs..U. S., 38 Court of Claims. 6 44-

Mee ex rel. Atty. Gen. vs. Deleware,’ etc., .C

Soe tingle aaa

"TBs 0 ORR athiciicatnietietinnc

S. vs. Benner, Baldwin, 24 Fed, Cas. No. 14508... 744

S. ex rel. Kreh vs. Ingham, 38 App. 379................... 23

S.-vs. Dickson, 15 Pet. (U. 8.) 141.002... i: ae

S. vs..Fisher, 2 Cranch 202; 2 Dy ere :. 40

. S. vs. Fitzgerald, 15 Pet. (U. S.) 407; 10 L. ed. 785.. ial it, 22

S. on. lone, S80 WY. By 26. hin ssc. 38

8. vs, Gratiot;.14 Pet. -(U. 8.) 526; 10 J. ed. 578........ Ves

§: vs. Grimaud, 220 U. 8. 506............... iechiseni 37

'S. vs. Lane, 249 U. 8.'367 EEE DE PES 36

. 8. vs, MacDaniel, 7 Pet. 1-14; 8 L. ed. 587 stich iabccrnn “20: .

S. ve. . Midwest Oil Co., 236 U: 's. 459

8. vs. Morrison, 240 U, 8. 192; 60 L. ed,599 ,

. 8. @@ Schurz, 102 U. 8. 378; 26 L. ed. 167.......:..... 'B0; 35

Van seakiie oe: Anderson, 117 U.S. 151; 29 L. ed. 845._.11, 12

West vs. Alling, 58 App. D. C. 820; 30 Fed. (4) 700. =

~~ 18, 21, 30

"West vs. U. S. ex rel. Mosier, 261 U. 8. 351; 67 L. ed: 693 41.

_ Wilbar vs. U.S. ex rel. Krushnic, 280.U. 8. 306... 35°

. “Wilcox ve. Jackson, 13 Pet. (U. 8.) 498. , ‘37

Winslow vs. Fleischner, 112 Ore. 23; 228. P. 101; re

ALL. Ry 826. 3B

_ INDEX _

« Page

Wolsey v8. Chapman, 101 U. S. 755 Saas sess

Wood vs. Beach, 156 U. S:, 548.. | 36

Work vs. U. S. ex rel. MeAlester-Edwards Coal Co, 262

_ - U.S. 200; 67 L. ed. 949. 41

Work 08. U. 8. ex reh Rives, 267 U. S. 175; 69 L. ed. Saal

‘Miscellaneous — —— . —

21 Corpus’ Suite 196. d ees : 39

- “7 Op. Att. Gen. 453; 475..... , at 44

17 Op. Att. Gen. 160 45

‘Constitution of the United States, Article 4, Sec. 3. (2) 10

Constitution of the United States, Fifth Amendment... 11

- Endlich Interpretation of Statutes; Swiss vs. Miller,

53. App.” D. C. 173.2. eae

- Issuance of Oil and Gas Permits wy Ranendei Since -

Alleged Withdrawal, Orders Nos, 337 and 338........ 28

Lewis’ Sutherland Statutory Construction, 2nd Edition,

Sec. 636. 23

Public Interest of the States of Colorado, - Santana,

New Mexico, Utah; and Wyoming and other Public

Land States in Oil Beplaceticn Within Respective

State Boundaries 3

Senate Report, 171, 6ist- ‘Congres: 3, Second Session... 33

: . , 27

Jozeph C: Sampson, 52 L. D. 637.

Sedwick on Statutory and Constitutional Law, 423...... |

Willoughby, Constitutional Law, Sec. 1077, page 1637... 37

‘Construction by Courts and by Interior Department that

7 Depastment Instructions are not Retroactive

James vs. Germania Iron Co. (C. C.'A.) 107 Fed. 597....20, 21

Lewis’ Sutherland Statutory Construction, 2nd Edition,

Sec. 422 : 42

U.S. vs. MacDaniel, 7 Pet. (U. 8.) 1-14 20, 21

West ve. Alling, 58 App. D. C. 329__. ...13, 21, 30

‘Westminister vs. Kline, 52 L. D. 481, en aa sabes 20

Se. Aes

| : 7 “INTHE - ; oe

Supreme Court of the Bnited States, ae

_ OcrosEr Tomy, 1930.

No.

THE UNITED STATES OF AMERICA EX RELATIONE :

ROY G. BARTON, PETITIONER, Gas ;

vs.

RAY LYMAN WILBUR, SECRETARY OF THE ;

isl leit ie RESPONDENT. oe kg

‘Petition for Writ of Cacthocast' to the Tinie of Ap- ey

peals ” the District of Columbia. : ro

To the Honorable the Chief J Justice of the United States »

wid the . Associate. Justices, hess the beter Cart of the

“United States:

May It PLEASE Your. Honors: .

| . The Petition of the United States of America Ex Rtlatione

. Roy G. Barton respectfully shows to this Honorable Court

‘that the Writ of Certiorari should issue - for the following :

reasons: Easy : 5

é .: ~

oe Questions Jediied and: .

Reasons for Allowance of Writ of Certiorari..

‘That this action was originally brought i in the Supreme

_ Court of the District of Columbia on November 14, 1929, -

Law No. 77,386;- to compel the Secretary of the Interior, by

writ. of mandamus, ‘to issue an oil and gas prospecting permit; —

under the Act of February 25, 1920 (41 Stat. 437 ‘et seq), .

’ to Roy G. Barton, who filed application for oil and gas re-

-- Specting permit. on’ June .10, 1928 (R. pp, 18-15).- |

The lands covered by Roy G. Barton’s application had —

Previously been included i in an oil and gas seaanee- permit,

ra .

hich.» was <cancuel by. the aly of the ere effective -

June 6, 1928 (R. pp. 6-7). At a drawing heid on that date, in

aégordance with instructions from. the Secretary of the In: “

: terior, said Roy G. Barton was found to be the successful

applicant (R. pp. 4-5). Said application was duly trans-

'. mitted to the Commissioner of the General Land Office for

consideration and issuance of permit, but by letter of March

26, 1929, addressed. to the Register, District, Land Office,

- Las Cruces, New Mexico, which letter was approved by: the 4 .

respondenk, the. Commissioner of the. General .Land Office,

rejected said ap plication for permit on the ground that, the

respondent. had ordered that ‘‘no oil and gas prospecting

F permits will be issued after March 12, 1929, and ‘in accord-

ance with the policy announced in Departmental Order. No,

337 of March 16, 1929 (R. pp. 7-9).- Thereafter said Roy

G. Barton appealed to respondent, and thereafter on

September 4, 1929, decision was signed by the Assistant Sec-

retary. of the Interior, affirming the prior aetion of the re-

‘spondent and denying said Roy G. Barton’ 8 right to the per- |

mit, on the ground that the rejection was in aceordance with’

respondent's: licy announced in Departmental Order No.

__” 337 of March 16, 1929 (R. pp. 7-9). Ee

_ (7). From the decisions of Mr. Justice Bailey and Mr. jeg

tice Siddons of the Supreme Court of the District of Columbia, ~

_ ordering writs of — to issue against respondent, said *

respondent appeal :

Petitioner brought the action above. relerreid to ed the i

Supreme Cvurt of the District of Columbia, on the 14th day

- * of November, 1929,-in which case Mr. Justive Jennings Bailey ~

.. of the Supreme Court of the District: of Columbia, in an

opinion dated April’8, 1930, directed that a writ of man-

damus issue against the respondent to reinstate the applica-

tions for: permit and proceed therewith according to law:

Said opinion held that respondent could. not defeat the will

of Congress by suspending the operations of the Leasing Act

and the action of respondent did. not constitute a withdrawal

_of public lands from the filing of applications for oil and gas

prospecting. _— under. the Act = rt. sas) 1920

- ek. pp. 20-22).

——~,

In the cases of W. B,: ron and Ethel M. McLennan, 3

- and R.L. Paris vs. Ray Lyman Wilbur, the same tespondent, |

Mr. Justice Siddons rendered an. opinion in which he directed’

- that the writ of mandamus issue against the respondent, to

-“eompel. respond snt among other things to reinstate applica- °

tion for permit: and proceed therewith according to law,

holding that respondent had. no authority to’ suspend the:

execution, enforcement and administration, of a constitutional

~ Act of Congress, to wit, the Act of February ’ 25, 1920

(41 Stat. 437). = ge ys ge ines

Under Section 35 of. the Leasing Act, the public land

‘states are entitled to receive 37} per centuin of.the royalties |

' accruing to the Government from production of oil and gas -

in those states. Such money is to be used for the construc-

tion and maintenance of public roads, the support of public

schools cr public educational institutions as the various state:

legislatures may direct.. They are also interested in taxes

accruing from property used in the states in oil and gas oper-

ations and the relief from unemployment as a: result of such

operations; and in the development of the oil resources within -

the respective states, , rg ae eb ae -

The accion of the Secretary in promulgating Orders No. -

_ 887 (R. pp. 7-9) and 338-(Exhibit 1”), in refusing to issue

further oil and gas ptospesting permits which may develop

"into leases, very vitally affects said public lands states by the —

elimination of royaliies, taxes and employment, and delay in

the development of the mineral resources of the particular

states involved. ee fie siete

_ On such showing of a great. public interest, the Court of

Appeals allowed the States of New Mexico, Montana, Wy-

_ oming, Utah d Colorado to file briefs as amicus curiae and

take part-in thé-oral argument of these cases (R. pp. 24-25).

The above mentioned zases and severa! like cases were con-'

_ Sidered jointly in the Court. of Appeals of the District of

.. Columbia and on December 1, 1930, the Court rendered its

" decision reversing the decisions of Mr, Justice Bailey and °

_ Mf. Justice Siddons, and remanding the cause’for further

" Proveedings (R. p. 25), Mr. Justice Yan Orsdel of said Court

filed ‘a dissenting opinion (He BBA) SS

= —{j eee tee "od

; &

the District Court of Appeal

oa | 3

Thei importance of the questions involved § in this c case can

- not be overstated. : They relate to questions of substance re-

lating to the construction and application of Article 4, section

3, clause 2, of the Constitution of the United States of Amer-

ica, and of. the Fifth Amendment of the Constitution, and

_ to. petitioner’s right .to property in the oil and gas pros-

~ pecting permit, applied for which is the subject matter of this.

suit, and to a suspension of the Act of Congress, of February

25, 1920 (41 Stat. 437), by Orders Nos. 337 and 338, made by .

the Secretary of the Interior on ‘March 16th and 20th, 1929. |

By said orders all pending applications for prospegting per-

mits were rejected and all future applications were refused. 4

They involve the -authoriiy of the Secretary of’ the: Interior

’ to override the Constitution of the United States and also.

to suspend an Act of Congress. Petitioner contends that he

has no such authority either by the Constitution of the United

- States or the act involved or the regulations made under -it. |

The District Court of Appeals by its decision reversing the

_ lower court held that the Secretary of the Interior‘could by —

_ promulgating Orders Nos. 337 and 328 suspend the operation

of the aforesaid act of: Congress of | February. 25, 1920; and.

refuse to receive, file and consider on their merits applications

for oil and gas prospecting permits under said act, and in

effect that such-Orders could have a retroactive effect on pre- -

: pane ‘acquired rights of the petitioner (R. » ~ |

Tif.

‘Andie claim ‘adwiinna ab ‘the argument of thee case befoes 3

s was that the Orders of the

“Secretary were in fact a withdrawal of the public lands in-

" volved, under the Act of June 25, 1910, U. 8. ©. A. Title 43;

36 Stat. 847-8. Petitioner contends that it was not the pur-

nee pose of the Secretary to withdraw said. lands under that Act,

. as the requirements of. se Act were not complied with in any Ee

particular. ak

The Court of ‘Acad by | its decision, held that. i Secre-

oa it of the Interior did withdraw ‘the ope lands of Sy

United States from the filing of applications for oil and gas _

permits under the Act of February 25, 1920; by virtue of the -

power vested in the President of the United States to-with- —

draw public lands from “settlement, location, sale’ or entry.’ 45

(1) despite the fact that no report of such withdrawal: undef

eee the Act of June 25, 1910, has been made to Congress under |

- the terms of said.act, and (2) that no proclamation, formal

Proper.

- or otherwise, was ever issued by the. President and no notice

of any proclamation was given Congress by the Secretary. as

_ required by the Act of June 25, 1910 (R. p. 33).

- WHEREFORE, your petitioner respectfully prays that a writ

of certiorari be. issued out of this Honorable Court directed

to the Court of Appeals of the District of Columbia:command-

‘ing that court to certify and to send to this court for its re-

view and determination on a day certain to be therein named,

full and complete transcript-of the record and all proceedings

in the case numbered and éntitled on-its docket No. 5241,

Ray Lyman Wilbur, Secretary of the Interior, Appellant, vs. -

United Statés'of ~America Ex Relatione Roy G. Barton,

Appellee, and that said judgment, of the Court of Appeals of

the District. of Columbia may be reversed by this Honorable ’

Court, and that your petitioner may have such other and — A

| further relief in the premises as the nature of the case “may.

os admit and to this Honorable Court may seem meet and

. ROY G. BARTON, Se

- By James Conton, = -

Of Counsel for Petitioner. z

James Conton,

: 600 F St. N. W.,

‘Washington, D. C.,

“|. /and-

CHARLES ge Breen, Le

res —— Illinois,

*" Counsel for Petitioner.-

Poosbaiaive. or cronies: 8S: ele

_... James Conlon, being first sworn, eon an says, that ra |

is Counsel for the petitioner and in the foregoing petition,

that he has read same and knows the contents thereof, and.

that the same is true of his own knowledge, except as to the

. matters therein stated on information; and belief, and-as to

those matters he verily believes them to be true.

Re et gee | Tans Conton, ;

« or = sworn + to é betore me this. 21st day of Ji an-

-uary, 1931... «|

aes ak eto os ‘Jou R. Furcuer, .

a SEAL.}| = * N otary Public in and for the.

ae District of Columbia. -

- My Commission expires, February 23, 1932.

he hereby nits that I ‘ani examined the Seesietvn pelle a

- tion for certiorari, and that in my opinion it is Well founded

in point of law and ‘should ‘be granted by this Honorable ~

Court, and that the petition is not filed for purposes of delay.

. 3 } _ . . JAMES CONLON, -*.

Of Counsel for Petitioner.

IN THE,

+ Gupeeme Court of the United States.

‘OctonEr Tara, 1930 7 Ne

\ :

| \

se hetcineree oN

UNITED STATES OF: AMERICA EX RELA ‘IONE

i ROY G. BARTON, PETITIONER,

| | wig: ; \

RAY LYMAN WILBUR, SECRETARY OF THE ne

_ INTERIOR, RESPONDENT. \

: Brief in Supyort of Petition for Certiorari-

1, The Opinions of the wail Rie oy ee

The opinion in the Court of Appeals of the District. of

- . Columbia was rendered December 1, 1930 (R. p. 24). ‘The opin- _

- jon of the Supreme Court of the ‘District of Columbia. was

— on April 8, 1930 (R. p. 20)... |

2. Jurisdiction. Le :

a /The date of the deh e058 to be reviewed i is Devtinkier i

1990 (R. pp. 25-40). :

/., This court has jurisdiction under section 240 (a); Judicial.

aleas amended by the act of February 13, 1925, U. 8. C.

7 Title 28, Sec. 347, 43 Stat. 938... :

SB ‘Statement of the Case and hhenone Why. the: Writ. of ;

gerae - Certiorari Should Issue.

‘The statement of the case and reasons why the Writ of —

Certiorari should issue have been set out in the annexed _

petition and in the intergst of brevity is not repeated here. |

eta: "4. Quéstions Presented. .

The questions involved in this caseis whether theSecretary —

of the Interior can under the Constitution of the United -

States make _ — a Constitutional urs of oo bic :

‘Congress, and whether he can make his policies have retro.

active effect so as to deprive a person of property. in an oil

permit application without due process of law, and without

compensation, contrary to the Fifth. Amendment to the Con- -

stitution of the United States, and’ whether he can make —

retroactive regulations, and whether under Section 13 of the

. Oil Leasing Act he can refuse an application for prospecting

’ permit filed under that.act; without cause, not because of any,

disqualification of the;applicant; 1 not because the lands

not subject to issuance of prospecting permit; but because of

a policy adopted by him and not by Congress; or can the “4

‘Secretary of the Interior suspend an act of boca se without

legislative authority.

Another question has been discussed in the briefs and -

opinions, to wit:' That the’ lands were withdrawn under the’

act of June 25, 1910, U. S. C. Title 43, Secs. 141-3 (36 Stat..

847-8). The answer to the ‘petition in; this case does not -

set up the. question of withdrawals. The answer was based

‘ upon the exercise of discretion by the Secretary of the Interior _

which he claims to possess under Section 13 of the Oil Leasing

. Act of February 25, 1920 (41 Stat. 437 et seq).

‘As to the said Act of June 25, 1910. (36 Stat. 847-8), whieh:

$ held by. the majority opinion of the Court of Appeals of.

the District of Columbia to be in force in this case (Rec. p. 25)

- was'a general statute relating mostly to the settlement of

the public lands for other than oil purposes. (Exhibit “2”),

_ and Congress in its wisdom recognized this when it passed the”

Oil. Leasing Act of February 25, 1920 (41 Stat. 437), other-

wise the aforesaid 1920 Act was not needed at all. It is a.

~ well “recognized rule -of statutory construction that a‘ later _

statute on a specific subject. like prospezting for oil takes

precedence over a general statute on the same subject (if it is

the same subject) it might be the same subject i in a general.

. way, but the 1920 Act on the oil leasing subject is controlling

- / as far as it applies dnd comes in ahead of and takes prece-

~ dence of the 1910 Act so’that the 1910 Act if in conflict, with

. the new later ene oil mang statute of sirpeiaesP 25, 19

Sts: fg a

(41 Stat. 437), is: by implication repealed. This is funda-

* mental doctrine of statutory construction. ‘-

‘In Swiss Nat. Ins. Co, vs, Miller-et al., 53 App. D. C.

173; 289 Fed. 571, affirmed in 267 U. S. 42, the Court held

at 53 App. D.C. 176: r

“It is elementary that,. where there is in an act a

specific ‘provision relating to a particular subject, that <.

provision must; govern in ‘respect ‘to the subject as ~ a

‘against general provisions in other parts of the act, -

- although the latter standing alone, would be -broad -

enough t6 include thesubject to which the more particu-

lar provision relates. Endlich Interpretation, of

__- Statutes” Swiss Nat. Ins. Co. vs. Miller, 53 App. D. C.,

: . supra at page 176. “Affirmed 267 Gti Moe

* “Tn Adams 08. Woods, 2 Cranch-(U. 8.) 336, 2 L. Ed. 297,

’ Chief J ustice Marshall speaking for this Court on the ques-

tion of ‘specific statutes restraining general statutes said: . --

. ... “It .is true that general expressions may ‘be re- _

Ne strained by subsequent particular words, which show —

. that in the intention of the legislature those general ~

expressions’ are. used in a particular sense: and the

argument, is a strong one, which contends that the —

~ latter words describing the remedy, imply a restriction

on those which precede them,” : Adands vs. Woods, 2:

_ Cranch (U- S.) 336;°2 L.Ed. 297. Leet Oy

In Sedgwick on Statutory and Constitutional Law at page |

423 it is-said? “‘General“words how qualified by particular

} -~ “Tt'is'a rule of. right reason shat general -words :

~ thay\ be qualified by particular clauses of a statute,

but that on the other hand a thing. which is given in,

partigular shall not be. taken away by general words.”

: Citing Churzhill vs. Crease, 5 Bing’ N.C. 180.)

. 5, Assignment of Errors.

"The Court of Appeals of the District of Columbia erred: -

> 1. In reyersing the decision of the Supreme Court of the

Dintclaok Colima os Se es siaeaee et

accra ae Oi refusing to ¢ompel the respondent Secretaryof the _

A .

j 10 \

aes to reinstate petitioner’ . applicadiin for permit ang

"- proceed therewith according. to law, ond issue a ee

. thereon. :

3. In holding that the responde: t Sineetady of the Inteslis

has authority to suspend or disperise with the execution, .

administration and enforcement of ‘the - act of. Congréss of

February 25, 1920 (41 Stat.’ 437). KO: ——

4. In holding that the act of the respondent Secretary of

the Interior was the act of the President, ‘even though the

Secretary: acted without the scope of his authority. ‘

; *5. In holding that the action of the respondent Secretary of

- the Interior was a withdrawal of public lands under the acts

of Congress of Jun¢25, 1910 (36 Stat. 847-848), ‘even though

| the terms of said act were not complied with in that the

President issued no formal proclamation and the Secretary

of thé Interior has raheem epee! to. Congress a report as

to said withdrawals.

‘ 6. In holding that the Secretary of the Interior had siathor |

ity to make rules and regulations hiving a retroactive effect on

prior vested rights of 5 ee for Oil and- Gas Prospecting

Permit. 7

CONSTITUTIONAL QUESTION S INVOLVED.

. The Constitution of the United States, Article 4, Section

3 (2) provides that: ~

“The Congress shall aor | power to dispose ofand |

make all needful rules and regulations respecting the

, States.” or other property” belonging” to the United

' Sta

Petitioner contends that the eve of the Interior is .

arbitrarily usurping the function of Congress by suspending.

‘the Leasing Act of February 25, 1920, 41 Stat. 437, thus

denying him the Oil and Gas Prospecting Permit which is.

the subject matter of this suit. In support of petitioner's -

contention that only Congress has the right to make the kind =

of rules and -regulations suspending an Act of Congress and -

. in support of petitioner’s claim wherein the above provision _

“

: ae

te,

* of the Constitution jf the United States has been construed,

petitioner cites the/cas: of United States vs. Gratiot, 14 Pet.

~- 596, 536, 537; United States ss. Fitzgerald, 15 Pet. 407; Van

- Brocklin vs. Anderson, 117° U.-S.\ 151, 158. oe |

Under the above provision. of the Constitution of the -

United States the public land ‘policies are controlled’ by’-

- Congress and at no time in the administration of the public

* lands, either in the Constitution of the United States or in

any of the laws passed by Congress was it left to the Depart-

ment of the Interior to create policies or to ascertain dispo-

sition of lands other than by direct authority of Congress. .

Petitioner further contends that the action of the respond-

ent; Secretary of the Interior, is also in violation of petition-

er’s right under the Fifth Amendment to the Constitution of °

the United States which provides: si es :

“No person shall be Sorte deprived of

property without due p of law; nor shall private

property be taken for public use without just compen-

sation.’ Wl

‘In view of the above Constitutional mandates it is clear

that it-is the duty of the respondent Sécretary-of the Interior -

to faithfully. execute the policy of Congress pertaining to the

issuance of Oil and Gas Prospecting Permits under Section -

13 of the Leasing Act of February 25,4920 (41 Stat. 437),

“as has been done for a period of over nine years. . The refusal -

of the respondent to issue the Oil and Gas Prospecting Permit ae

to petitioner is a taking of petitioner’s property in the permit _

lands without due process of law; that it was a taking of his

property without compensation contrary to the due process

‘clause of the United States Constitution (Rec. pp. 10-11). _

That:“the denial of the permit to him on his permit applica~

tion 038059 is a taking of his property . . . and is con-

fiseatory and is in violation of his rights under the Constitu- -

tion of the United States of America.” (Rec. pp. 10-11). «

- In United States vs. Gratiot, 14 Pet., supra, at page 537,

10 L. Ed. 578, supra,.the Court said: | ,

. = :

— 3 : ov

12.

“the Constitution of. the United States (Article four, Section ” =

three) provides:

‘That Congress shall have power to dispose of

and make all needful rules and regulations respecting ©

the territory and other property belonging ‘to the

United States.’ The term ‘territory’ as here usad, is

merely descriptive of one kind of property, and is -

’ equivalent to the word ‘lands.’ And Congress has the

Same power over it as over all other property belonging. |

- = tothe United States; and this power is vested in.

~ Congress without limitation, and has been considered.

the foundation upon which the territorial governments —

Sh... = -0:-01- 400 atgieead must be st to. the dis-

cretion of Congress.. :

; In the’ case of United States vs. Fitagerald, 15 Pet. 407,

10 L. Ed. 785,-supra, the Court construed Article 4, Section _ :

3 of the Constitution of the United States and affirmed the.

judgment of the lower Court in favor of the preemption’

Reomestead entryman Ftagerald, and said at 15 Pet. 421; 10L. ;

Ed. 790:

“No appropriation ‘of public land ean be made

- for any purpose but by authority of Congress. .

This Hoaorable Court in Van Brocklin vs.

Anderson, supra, at 2% L. Ed. 848, held shat “The

Constitution creating a more perfect union and in-

"\ereasing powers of National Government, :x- |

‘pressly authorized the Congress ‘of the United StAtes _

to” “dispose of and make needful rules and

+ emek respecting the territory and other property

the United States. . +?” Van Brock- °

lin ws. " Anderson, 117 U. 8. 151; 29 L. Ed. 845.”

ARGUMENT.

- THE DISCRETION OF THE SECRETARY OF THE IN-.

" - ‘TERIOR IS A QUASI-JUDICIAL DISCRETION AND

IS LIMITED TO THE QUESTION OF. CITIZENSHIP

OF APPLICANT AND FORM OF APPLICATION.

- Petitioner contends first that the Secretary has no ae |

tion under the Constitution of the United States of America, —

or under the Oil Leasing Act to suspend said Oil Leasixig-Act;

. second, he ‘possesses no such discretion ' under Circular 672

‘which is the regulation under said Act. The title of the Act -

is “An Act to promote the mining of coal, phosphate, oil, oil -

shale,;. gas and sodium-on the public domain. ” From the «—

title-of the Act the policy. is to promote tham ig of minerals,

‘above named, and not to discourage au mining of these

_ minerals by suspending the operation of Section 13 of the Act.

By Section 1, deposits of oil and gas on the public do- .

main, shall be sabject to. disposition in the form and manner

provided by this Act to citizens of the United Stat2s. The

lands shall be disposed of, a very mandatory expression, and

there is no discretion left as to whether or not the Secretary .

desires to dispose of these lands, but it imposes on him a

positive duty to dispose of them as provided in the Act.

'. Seetion .13 of the Act is as follows (R. pp. 2-11).

- , “That the Seerstary of the Interior is hereby

authorized, under such nec2ssary and proper rules and

regulations ‘ as he may prescribe, to grant to any. appli-_

t qualified under this Act a a pone. gee:

West oe . Alling, 58 App. D. C. 329.. we

It is: apparent that the ‘ileepicatal: of S:ction 13,

oe whetiier it is permissive or mandatory, hinges on the word.

' “authorized.” Ia interpreting Section 13 the entire act must —

be read in order to ascertain whether Congress intended the —

word “authorized” to mean merely permissive or —— |

-- upon the sia i to issue = —

Section 32 of the Act is as follows (R. p. 6):

“Thai the Secretary of the Interior i is authorized _

to prescribe necessary and proper rules and regulations.

_ and to do any-and all ththgs necessary to carry out qgnd

accomplish the purposes phe this Act,” ete. Seah ours.)

It will be re that the same word ‘a uthorised” ‘which

is used in Section 13 is also used in Section 32. -If the word

' “authorized” is permissive and not mandatory in Section 13,

then itis fair to assume that. “authorized” in Section 32 is -

also permi ssive and not mandatory. 1s it reasonable to

‘suppose in construing . Section 32, that Congress. intended ..

tha‘ the Secretary ‘of the Interior may or. may not prescribe

the necessary rics and regulations, to do any and all things

necessary to carry out and accomplish the purposes of tis

Act? Is it reasonable to assume that if the Secretary did

. not desire to prescribe any regulations to carry out. the Act,

lie need not prescribe such regulations because the word

“authorized”, is interpreted by him to mean merely permis-

sive and not mandatory? Is it reasonable to construe the ,

word “authorized” as used in Section.32 as merely permis-

sive and that in the place of the Secretary drawing up regula- eo

_tions in order to accomplish the purposes of the Act he may.

not do so because the word “authorized” as used in Section 32

- is permissive and not mandatoty?. This is preposterous on.

-. the face of it. Therefore, it is fair to-conclude that the word

“suthorized’ as used in Section 32 is ‘mandatory and’ not

- permissive. In other words, that the Secretary shall and

“ must préscribe the necessary rules and regulations in order

‘to carry out the purpases of the Agt, and if the word “au-

thorized’’ in Section 32 is. mandatory, by‘no stretch of the

- imagination can we const#ue the word “authorized” in Sec-’

* tion 13 to be permissive.

_ Considering the title of the Act which says its purpose

is to “promote” the mining of oil and gas, Section 1, which. . ¥

-states that. the lands shall be subject to disposition in the

-- form and .manner. provided by this. Act, Section 13 which ~ ot

_ awthorizes the Secretary of the Interior to issue prospecting ©

porn

permite to qualified pliant and Section 32 wich author-

izes the Secretary of the Interior to draw up the necessary

-tules and regulations i in order to carry out the purposes of —

the Act as stated in its title and in its enacting clause, the

inevitable conclusion is that the word “authorized” is man-.

datory and not permissive.. It is true that the Secretary

has a quasi-judicial, not an arbitrary, discretion to ascertain

“the qualifications of -the applicant. These qualifications are

set out-in the Act. The applicant must. be a, citizen of the.

United States or an association of such persons, -or a corpora-

tion organized under the laws of the United States or of any

State or Territory thereof, or a municipality. The lands

must not be in a producing structure of an oil or gas field.

_In-ascertaining these qualifications, both as to persons and ~ :

~ to the lands, the Secretary exercises a legal quasi-judicial and

_ not an arbitrary diseretion, but when this quasi-judicial dis-

sretion. is exercised and he finds that the lands are not within -

a proflucing structure and that the applicant is qualified uiider

the Act to receive a permit, his discretion ceases and a permit

“must issue on such: application to carry -qut the- purposes of

-the Act and the intent of Congress in passingit. Weconclude

therfore, from a study of all the pertinent clauses and sec--

tions of the Oil Leasing Act relating to these cases, that the

_ Secretary of the Interior is compelled by law to issue permits

to qualified applicants for lands not within a producing

s = structure, and that the word “authorized” as used in Section

13 of the Act, is for all-intents and purposes, mandatory and

not permissive ; and that such was the intent. of. Congres in -

its wisdom in passing said Leasing Act.

CIRCULAR NO. 672 (47 L. D. 437).

Circular No. 672 reporged in (47 L. D, 437) is the Sec-

retary of the Interior’s regilation under the Oil Leasing Act, -

and the promulgation ‘of which. was authorized by Section 32 ~

of the Act.

This circular “contains among ‘other instructions, the

following paragraph: ;

“Tt should be understood that vailes the Act. the» =

granting of a prospecting — for oil and gas is- dis- -

whether or not an, applicant for a permit is qualifiéd un

Fone

2 a 16 =

: cretionary with the Seceebans: of the Interior,. anid a any ae

s application may be granted or denied,*.either in par coe

_ or in its sane, as: oh ages co may be deemed to warrant,”

ar over nine years the Department of the Jatesian had Bee x

"issued permits on applications without ever interpreting this

pasagraph as now interpreted. For ‘over nine years it has

been understood, and by its own action in refusing certain

applications, the Department itself has invoked this para-

_ graph by citing facts which prompted such rejection, as .

failure to show evidence .of citizenship or because the.lands

. +. were.in @ producing structure, or because the applicant ap-

- plied for more Acreage than he was allowed by laws Not — -

“until the present respondent Secretary of the Interior came.

‘into office has any other interpretation been given’ to this ~ _

‘paragraph. Assuming,. however, that the interpretation of .

_.. this paragraph in circular No. 672 is a proper’ one, then Orders’ )

Nos. 337 and 338 are-null and void because nowhere within =~

_ the Act itself is the Secretary given the power \to reject in ;

whole or in part, an application for prospecting ermit as he |

. sees fit, and'no regulation can amend or suspend ‘or repeal’

- an Act of Congress. His authority to draw up an regulation ok

‘governing this Act is circumscribed: by. the language in’ Sec-.

_ tion 32, and it is inconceivable that Congress which spent nine.

years’ in considering legislation governing mining on the -—

public domain before passing this Act, will permit) anyone a

to destroy that legislation at will, which the ‘Secretary has

done by his Orders Nos. 337 and 338. ; :

It is true, that he exercises a judicial or qu dlda

discretion, as: this paragraph in Circular No. 672 states, to

_ reject in whole or in part an application for permit in indi-.

vidual cases ‘“‘as the facts may be deemed to warrant.”

_ is the official in whom authority is vested to determi

. ship -of an applicant, and whether the applicant has made

- g sufficient application as to form for permit under the Act.

of nein of ere: 25, 1920 (44 _ gia -

‘the law, in‘such matters as to determination of the oe

DEFINITION OF THE WORD “SHALL.”

It is clear that. the word “shall” as used in Paragraph -

1 of the Oil and Gas Leasing Act of February/25, 1920 (41

Stat. 437), 1s mandatory and that Congress in its tedom. so

‘intended that it should be mandatory and that it should be -

the duty of the Appellant, Secretary of the Interior, to issue

. gil and gas prospecting permits to qualified persons applying

for same. aS, " Co aN Call uaa

"In Vol..35 Cyc., page 1451, the word “shall” is defined -

as follows: Teoe sae eee

it is said, has always a compulsory meaning, and in its

common and ordinary usage, unless accompanied by | -

qualifying words which show a contrary intent, always,

refers to the future; but it may be used in the. preterit

. »present sense of ‘must,’ of which it is a synonym.

“used in statutes, the word is generally mandatory;

| “SHALL. In conimon parlance, a. term which - ms

‘although it is not always imperative but may be con-. 7

‘sistent with .an exercise of. discretion. _Thus it may

be construed to mean ‘may’ when no right or benefit °.

to any one depends on its imperative use; when no

advantage is lost, when no right is destroyed, when. ~ =

no benefit is sacrificéd, either to the public or to any ~

individual by giving it. that construction; or when it

is absolutely necéssary to prevent irreparable mischief, -

or to construe a direction so that it shall not interfere —

with vested rights, or conflict with the propér exercise .

of power, by either of the fundamental branches of

- government; and it also means ‘may’ when used by @ -

legislature in.a grant of authority. to a court. ii

‘often used in a remedial statute in a general sense

including both past and future, and should be so con- |

sidered when a more restricted interpretation is- not

. °. Fequired.” eae ASTRON BE Rey ee

| ‘In Martin vs. Hunter’s Lessee, 1 Wheat. (U.,8:) 304,

329, Mr. Justice Story in delivering the opinion of the,Court: .

which gave'the word shall a mandatory construction said: —

* That it was the opinion of the whole Court that the <

“word shall as used in the third article of thé Constitution of |

; the United States is mandatory.

ess

‘a.

ily Gotintnliee with Section 13 of the oi and Gas Leasing .

Act of February 25,. 1920, it is clear that the word “author. 2

ize” when taken in ipastien Ein with Section 1 and Section 32

of said Act, is mandatory and re ee sap the Secretary of the ~

_. Interior to consider Applications for oil and gas prospecting

‘permits and that it does: not allow him to reject applications .

without cause or on the strength of the policy adopted by ©

~ him and not by ‘Congress’ nor does Section 13 or Section’ 1

: or Section 32 or any section of the Act of February 25, 1920, °

eo) give the Secretary of the Interior the right to annul the

provisions of the Act of February 25, 1920, by rejecting

pending oil and gas applications for permits and thus sus-

pending the operations of said Act of Congress.

In Volume 6, Corpus Juris, page 865, the word “author-. .

7 ize” is defined as follows:

te. “A UTHORIZE. To empower; to. give a right

‘ to’act; to clothe with authority; to give jegal power |

to; to approve - and. formally . sanction.”

LAND DECISIONS. .— 2.

‘ > i > ‘

Wisse land d sisions maintain the. contention af

petitioner, that, the Sec tary does not have the discretion - -

he claims and: that these decisions -recognize the right, not x

- the privilege of an applicant who is: qualified to take a permit |

for lands which are not in a, producing structure. |

In 48 Land Decisions, 98, are Instructions dated April S

23, 1921, by the Secretary of the Interior..

Several. applications for oil and gas permits were filed on ae

*e the very. first day or shortly after -the passage of the said —

Act of February. 25, 1920 (41 Stat. 437), in the State’ of

: Montana under Section 13 of the Oil Leasing Act. Because

-_ of the large number of applications involved, it took consider- __

able time for the officials of the Land Office to consider these _

= applications. When they finally were ‘ considered: by. the

officials of the Land Office, it was found that the lands em=_. oe :

braced in those applications -were, since the filing of same,

classified by the. officials of the U. S. Geological Survey as~

ae _being in what i is — as the Cat Creek oil and gas s produc.

‘© ‘

49°

jng structure. Accordingly,. these applications were held for _

“rejection because the lands were in a producing structure, -

- dnd on appeal to the Secretary of the Interior, the rejection:

of these applications was sustained. On a Motion for Re- \

hearing, however, the Secretary reviewed these decisions and»

- in-his instructions to the General Land Office stated as |

follows: Seis: an Leet ie \

|... “Applying the principle so announced, it

is clear that not only equitably but legally, qualified

persons who’ filed proper applications for oil or gas.

prospecting permits under the Act of February 25,

1920, can and should not be. } ir rights, f, .

- because of delay.in-action upon the application so _

filed, there intervenes a designation by-this Department

of ‘the lands as being within the geological structure

_ of a producing oil or gas field occasioned by a discovery

of oil or gas subsequent to the filing of the application |

_ in the local land office.” (48 L..D.99))°° ©

3 \ This is a typical case which brings aut-several important =

. points: 1. That the Secretary of the Interior recognized the -

* gight to a permit by a qualified applicant-upon the filing of/an

application. 2. “That such right is ‘initiated at the time the .

- application was filed:and not at the time the application is

considered by the officials of the General Land -Office. .°3.

‘That: this right is not affected by changes’ in the status of

--lands"between the time the application was. filed: and the

time that it may. be considered by the officials of the General

- Land Office. -4. This decision clearly shows, coming as it

., + does from the-Secretary of the Interior, the.kind of discretion —

". granted him under Section 13 of the Oil Leasing Act, a dis-

cretion which he properly and judiciously used in the above.

quoted case: By this decision we see that the Department oe

of the Initerior has gfeadfastly recognized. the right to-an oi

_ ‘progpecting permit by a qualified applicant, and that the

_ discretion given him by the Leasing Act refers only in so far

* as the qualifications of the applicant are concerned, and the

. nature of the lands involved. ne peers 4

‘\ «

Judges Caldwell and Thayer, is a full‘and complete announceé-

Petitioner or denies te authority to the > sini to. ee °

retroactive regulations, on the authority of 48. L. D. 99; supra, |

_ and of Westminster vs. Kline, 52 L. D. 481, wherein the De

partment held, at page 482, that its “instructions are

retroactive,” Westminster vs. Kline, 52 L. D. 482. ~ .

As it-is conceded: by the pleadings. that the petiti

filed his application for Oil and Gas Prospecting Pe

_which is the subject matter of this suit on June 6, 1928,

(Rec. p. 13), which was more than nine months prior to the .

issuance of the respondent’s Orders. Nos. 337 and 338; it is

_ respectfully submitted that petitioner is entitled +o the perinit

applied for under the ‘holding of ‘the Interior ‘Department in |

48 L. D. 99, supra; and 52 L. D. 481, 482, supra. Other cases

__in support. of this.contention. that respondent ean, not make.

retroactive rules are United States 0s. MacDaniel, 7 Peter .-

(U. 8.) 1-14; James vs. Germania Ing Co. (C. C. A.) 107 F.

597; and West vs. Alling, 58 App..D. . 329, 30 Fed. (2d) 739.

+ Tn the case of United States 8. MacDaniel, 7: Pet. 1,

. 8 L. Ed. 587, ‘the court, considering the broad powers ofa = —

department of the government to establish rules and ar

tions for the conduct of. its business, when not 1 in confijes< *

with: express provisions of law, sai :

ages shave bean elas

lished in every departmen the government}. which

- have become a kind of confinon law, and regulate the

° |. “tights and duties of those ‘who act within their kespec~

_ “tive limits. Andno change of such usages can ‘ave 4

| retrospective effect, but must be limited to the favls

' Usage cannot alter the law, but it is. evidence of the -

construction given to it, and must be considered bind- .

- ing on past - transactions.” (Italics ours.) United

States vs. MacDatiel, 7 Pet: 1-14, 8 L. &d. 587.

“Hence, of necessity

seed ti the « case of James vs. ; Germania Tron Co. C.. C.| ee |

«107 F. 597, supra, decided by Judge Sarféorn; and by Ci uit

_menit of the law as to the power of the Secretary of the Interior

_ to-ignore existing regulations. Quotirig from the syllabus

which epitomizes the law as announced. { in the ee the

Ne ig at

21.

court held that: “rules of practice of the Land Department

formally established and promulgated by authority of the _

oe ’ Secretary. of the Interior, can be repealed’ or abrogated by

like formal action and publication onty. Decisions or opin- ©

" jons.of the Secretary and’the Commissioner.in contests be-

- tween claimants for specific tracts of land ignorin oy violat-_

ing-rules nvither repeal nor modify them:”. James vs. Ger-

mania Iron Co. (C. C. A,) HY BOE ca cig eee

‘The case of West vs. U. 8. ex rel. Alling, 58 App. D.C. _

329, 30 Fed. (2d) 739, pertaining to the questions involved. :

“The Gourt of Appeals of the District of Columbia held:, |

“Tt will be observed that the Act in Section 1.

_ &xpressly provides for the disposition of ‘oil and gas _

. {land through prospecting permits and subsequent leas-

‘ing ‘to citizens of. the United States’; and the power —

" vested in the Secretary to establish rules and regula-

‘tions for the ‘carrying out of the Act does not imply

* the power to establish a rule or regulation that will .

- eonflict ‘with an -expressed provision of the Act. It.

follows, we think, that if the applicant sufficiently -

qualifies as’a citizen of the United States, the Secretary

is powerless to refuse such applicant a permit or to

make any rule or regulation that interferes with the...

. right of. such applicant.” . . . And in this case

of West vs. Alling, the Court added: ‘Unquestionably, —

the Recesteny ote no power to repeal and abrogate ©

- “yules and regulation? of his department, but such ac-

‘ * tion must have the same’ fount sanction that brought

‘the rule into existence, and can not be retroactive and

apply to rights acquired under the’ preexisting. rules.’’

slog v8. Mine ;

“

From the ‘above language of this Honorable Court in

U. &: vs. MacDaniel, 7 Pet. 1-14, and of the decision of the

U.. 8. Cireuit Court of Appeals, Eighth judicial circuit, in

James’ vs. Germania Iron Co. (C. C. A.) 107 F. 597, and of

the Court of Appeals of. the District of Columbia, it willbe

. noted that.the Secretary -is powerless to establish any regu-

lation which conflicts with the expressed provision of the |

58 App. D. C., 329, 382; 30 Fed. (2d) |

Act or which are retroactive and that he has no diocese

to issue or not to issue a permit to a or applicant, .

West vs. U.S. ex rel. eee supra.

. WHEN PERMISSIVE WORDS ARE MANDATORY.

It has bedi nds is well settled that even where permissive

words are-used, such as ‘‘may’’ in statutes conferring power —

_ upon public officers, without other language showing that: it

was intended to vest discretion, such werds are to be con-

' . strued as equivalent’ to “must” or “shall” where the statute .

‘imposes a: public duty to be performed, or makes provisions

for the benefit of individuals whose rights can not be ‘effec-

- tuated without the exercise and performance of the power.

- Minor vs. ‘Mechanics Bank, 1 Peters (U. 8.) 47; Supervisors

vs. United States, 4 Wallace (U. 8.) 435. -

In Supervisors vs. United States, supra, the language ;

‘used in the Statute conferrizig authority hed levy a tax to

satisfy the indebtedness of the ‘county was “may if deemed |

-advisable.”? Notwithstanding . the: accompanying, language, |

i. e., “if deemed advisable,” it was held that the statute gave

the bank the right’ to demand that the supervisors should

exercise their powers to make a satisfaction of the indebted-

ness, the Court saying: ;

“The conclusions to be deduced from ‘the author-

’ ities is, that where power is given to public. officers in

_the language of the Act before us, or in equivalent

_’ language—whenever the public interests or-individual .

‘ rights: nts. call for its exercise—the language used, though

permissive in form is in fact peremptory. What they

are empowered to.do for a third person the law re-

quires be done.”

“Tn all such cases it it is held that the thiteait of the —

legislature, which is the ‘test, was not. to devolve a -

re discretion but to impose a positive and absolute

~ Supervisors vs. United States, 4 Wallace 435.

. In Chase vs. United States; 261 Fed. 833 (8 C. C. A.)

‘ affirmed (256 U.-S. 1), an Act providing for allotments to’ ~

enc |

: : the children of Ochiaite Tribe. was in. question. - The Act

stated: f RS ERE

“That the sicleas of the Interior: be and he is

hereky authorized to cause to be surveyed

*and after such survey and appraisements. to sell and

convey... ..- all the unallotted Omaha ° Indian

‘ Reservation . . ,”

“

The odntention of the Siesaey of the Interior i in ‘that '

case was that the word authorized allowed him to. exercise

discretion in determining whether or not the land. should be

‘surveyed and sold: the Court held:

“An examination. of_ the legislation of ‘Gongress

shows that in many of the Acts of Congress the word.

‘authorized’ is frequently used . where the duty =

imposed ‘upon a public executive officer,)and in no

‘case are the duties imposed’ discretionary nless,. after. -

the word ‘authorized’ the other words, ‘ in n his a Ginomerine)

are added.” mn

In Lucas vs. Brsigh, 4N. Y. Leg. Obs. 142, it was held -

that the word “may” in a statute means ‘“‘must” whenever .

third persons or the public have an interest in having the

act done which is authorized by the use of such permissive

language. Lucas vs. Ensign, 4 N. Y. Leg. Obs. 142. See

- also. Editor’s Note, 7 L. Ed. 47. —

In the language of the Court in the Chats case, supra. at

page 837, it was held that a statute authorizing a public

officer to do a, thing imposed upon him a positive duty -ta do

_ such thing which might be enforced by those for whose bene-

fit it was to be done in the absence of words. in the statute

giving him discretion.. Reference is there made. to the case -

of Mason vs. Fearson, 9 How. 248, 258, 13 L, ‘Ed. 130, and

cases cited therein. ty dak

To the same effect are the following authorities: ;

Catron vs. Marron, 19 N. M. 200; and Springfield

Milling Oompany vs. Lane County, 5 Ore. 271; and 2 Lewis

Sutherland Statutory Construction, Section, 636; and U. S.. ~

ex rel. Kreh vs. Ingham, 38. App. D..C. 379; and Soran

vs. FRotpe, 32 App. D. C. 20.

, atid

In Roberts s: U. S. ex rel. Valentine, 176, U. 8. 221, ey

this Seige fee: held:: =~: oe ae

uless the writ of mandamus is to become } prace:

tially valueless and ,is' to be refused even where a

public officer is commanded. to do a particular act by

virtue of a particular statute, the writ should 8

granted. “Roberts vs.'.U. 8, ex rel. Valenting, 1%6 *

U;\8. 221." 5; :

‘From an ios rekation of Article.4, Section 3 (2) of the SH

Constitution of the.United States and of the Fifth Amend-. .

_-ment of the United States Constitution, and from an inter.

pretation of the Oil Leasing ‘Act of. February 25, 1920 (4) .

Stat. 437); and from an interpretation of Circular No. 672° _

which embodies the regulations of the Interior Department _

under this Leasing Act; from the Land Decisions promul-

gated in the Interior Department and from Court decisions,

he Oil Leasing Act, and particularly Section 13 does not give —

- the Secretary of the Interior the right to reject permit appli-

cations without cause or on the strength of a policy adopted

by respondent and contrary to a policy adopted by Congress.

* The opinions of Justices Bailey and Siddons of the Supreme

~ Court of the District of Columbia on ‘the Het authority —

of the Secretary. to suspend the Act of Februa , 1920.

(R. p: 20), are well founded and based on good sound reason: |

ing and law as is also the dissenting opinion of Mr. Justice

Van Orsdel.of the Court of Appeals of the District of Co- -

lumbia, in the case of Wilbur vs. Barton on the alleged author-

- ity of the respondent to suspend said Act of ‘February 25,

‘ 1920 (41 Stat. 437), supra, (R. pp. 34-39). i

, pegs togett UNDER THE ACT OF ‘JONE 25, 1910

Be * (36 Stat. 847-848),

If the: Becretary : does not possess the power he asi

from the Oil Leasing Act itself, does he derive that power —

_ from other sources? As stated ‘in the beginning, the question _ .

__ of. withdrawal. has ‘no place in the consideration of this case;

' the question of withdrawal was not. raised by respondent i in

his answer to the Petition in this case, but as thé decision .

£ ; Ri

” 2

}

herein complained of is based on an alleged withdrawal, itis

deemed necessary to give it consideration here. . |

In the first place, no proclamatign or withdraw, of any

lands was issued by the President of the United — on

March .12, 1929, or at any time since. The President: did

issue & statement through the press in which he stated,

among other things that there will be éomplete’ consérvation

- of.Government oil in this administration. .This ¢ertainly

was not..a legal withdrawal of lands for any p arid it,

was not a ‘proclamation bearing the signature of the Sina ae

dent. If the President had issued a formal proclamation |

withdrawing all public lands from further filing for oil ‘pros-

_ pecting purposes, such action would. not have va valid... .

‘ he Constitution, Article 4, Section 3 (2), specie

The, lly pro-

vides that. Congress is. vested with the power to make. rules

respecting. the public domain. However, no proclamation —__

iiss was_ever-issued—withdrawing: such lands. No proclamation

having been issued, the Secretary is now relying on.an alleged

‘ withdrawal under. the Act of June 25, 1910, U.S. C. Title

43, Sections 141, 142 and 143, (36 Stat. 847-848), for con-

" . venience see copy of. said Act attached ‘hereto, marked Ex- .

hibit “2,” and as evidence of such withdrawals he submits

. a telegram of March 13, 1929, and Departmental. Orders

Nos. 337 and .338. This telegram ‘was signed by Spry,.the

then Commissioner of the General Lana © 83 2@; and appre rec

by respondent. It-is as follows: dh

“No oil and ‘gas proapectling permits will be -

welfth nineteen Twenty-. |

ud, issued on and after March

- nine Stop Reject all applications for oil and.gas per-

mits now pending in your office and receive no more.

_ Stop All-orders for drawings hereby revoked”

- - . USppy : ina ‘ :

: s&s Commissioner” ‘

“Approved: be cm uti se :

- Ray Lyman WILBUR

/ Secretary.” Une

It is clear that this telegram is merely an instruction to the

26 s

receive any farther applications for sili It does not”

describe. any “particular lands and does not cite any particular

- withdrawal. This telegram, therefore, in itself, could not

‘be corisidered a withdrawal of lands. Now, if this telegram

referred to is nota withdrawal, let us consider Orders Nos,

337 and 338 (R. }. 7). (Exhibit “1”).°These Orders are,

instructions to the Commissioner of the General Land Office E

and ‘to the. Registers of all local Land Offices to. reject all ,

applications then, pending: for oil‘ and gas permits, and to.

‘ refuse to receive any further permit applitations: No-with-

drawal of *lands made since the establishment of the Land

Department was ever termed in the language of this telegram

. and these Orders. If a withdrawal of lands was. contém-

‘plated, there is no valid reason-why-these Orders should not

have stated that the lands were withdrawn, and give a de-

scription of the lands so withdrawn. The gist of these

Orders shows clearly that. the Secretary efroneously Sonne

. that he had authority despite the United States Constitution ©

. and che leasing Act of Congress to issue directions to his —

subordinate officers to suspend Section 13 of said Oil Leasing _

Act. The word “withdrawal” is not used in any of the

three ‘papers _ referred to,.and neither are any words used

-fromr which we can infer a withdrawal of; lands. “These

memoranda to the press which were later called Orders Nos. :

337 and 338, were not withdrawals of public lands but was_

an arbitrary. and capricious withdrawal by the’ Secretary

from his subordinates | of .théir power to carry into effect a s

Constitutional Statute enacted ‘by Congress in its wisdom.

Even an intimation. of the possession of such authority by -

. an administrative officer of the Government is unthinkable,

and is diametrically opposed to American system of Govern-

ment by law and not by men. Had certain described lands.

~’ been withdrawn and had the lands here inyolved been in-.

‘eluded in such a withdrawal, then. the effect of such with-

drawal on the issuance of permits t form a subject of

proper discussion, but a withdrawal which was never made —

and which as a matter of fact never had \existence, ental

; N se

eo»

. S\e 4

\ae

That. the respondent Secretary of the Interior .did not,

~ gely on any ‘withdrawal having been made in order to sustain

his action, is palpable from’ the decisions and published state-

ments of the Department itself. In the decision quoted in

full below in the R. Li. Paris case, dated August 2, 1929, and

identified in the Department as A-13784, the Secretary states:

August 2, 1920. bs Be

“ny”? 7 ; of se on

—

Ae 8784.

oh a Aa TS as Cruces 039906.

- “R, L, PARIS. - Perm a0 TRE AS TS RS

43 : . - )Permit application rejected. -

e Le } sffirmed ‘i Rss a

_. .“R. L. Paris has appealed from a ‘decision by: ee NU.

Commissioner of the General Land Office rejecting his ANGE

oil and gas prospecting permit application, ed March |

7, 1929, in-accordance with the policy announced in

_ Departmental Order: No. 337 of March 16, 1929. :

‘Phe issuance of prospecting-permits for\oil and =|

gas is, under Sections 13-and 32-of the Leasing Act, .

_° diseretionary with the Secretary of the Interior, and .

the regulations approved March 11, 1920, expressly

so adyise applicants. See Joseph C. Sampson (52 L. |

D). | ge i

“The or of the Spplication will not be

disturbed and is hereby declared final.” .

- ts

_ “Appeal From The General Land Office. . = \

‘

It ‘will be seen from this decision in the R. L. Paris case as

well as in this Barton case at bar (R. pp. 6-7), that the reason:

respondent. gives for.the rejection of the application is not — f

based on any withdrawal, but. specifically states that under. ©

the Leasing Act and the regulations thereunder, the granting

of a prospecting permit is discretionary with the Secretary

of the Interior. Rp RAC TOS reat eae j ..

Tn anothér decision which’ was taken on appeal and

-identified in the Interior Department as A-13133 of Siegfried

~ James Iverson, respondent used the exact words used in the —

_R, L, Paris ease quoted above. . Not a word is mentioned

‘about withdrawals. In the same decision the Secretary very

_ Clearly states, “the precent case involves only the Leasing —

_, _ Act of February 25, 1920.”. Cuice iy 4 a

“It is an established principle of “construction that the

intention of the parties creating a document such as.a with.

. drawal, will govern the interpretation of the nature of that

document, we find that by his own acts after the promulga- ;

"tion of Orders Nos. 337 and 338 which the majority opinion

- of the Court of Appeals now clairhs are: withdrawals, the

_ Secretary thought otherwise of them in his decisions on pend-

ing cases in the Department, for he cites the authority for

'... issuing Orders Nos. 337 and 338 not a vithdfawal of lands —

-*, but, the granting of discretion to him by the Act itself. Re”

spondent has even gone further than his décision i in showing —

/his ‘intention not to interpret these orders as withdrawals,

In the Land Service’ Bulletins which are published thonthly™. d

by the direction of the Secretary of the Interior, we find |

that among other things published in these Bulletins and

official réports of respondent which are official, that pros-

pecting permits have aciually issued, and an additional 150

canceled oil and gas permits were reinstated, and 199 n

new oil and gas prospecting permits issued; and 13 Plica-.

tions for oil and gas permits reinsiated, making a total of

482 oil permits issued by the respoadent since the issuance of:

Orders Nos. 337 and ‘338, according to respondent’s report

for 1930. . Now; if these orders can. be interpreted: as with- ©

drawals, as now claimed by appellant; how could ‘he issue

permits to some, and deny a permit to petitioner? True, he ©

_ glaims these cases to be exceptions inasmuch as the issuance’

of these ‘permits was based on equities established by the

applicants because they had submitted a geological report —

N ‘of, the lands embraced in such sppltosti ms which he claims

are of benefit to the Government... But! withdrawals do not

recognize any exceptions except, valid subsisting rights at the 4 :

time.the withdrawal is. made, and counsel for respondent

claims that, the filing of an application is not a valid gub- )=

_ sisting right, and therefore; no matter what geological reports.

- have been filed by thosé who are fortunate enough to be

- favored by the Secretary with the issuance of permits ever

. since these alleged withdrawals were ‘made, they have no

greater a than ere and the Sotmary'® was wholly 3 |

29 ‘

” yrong in rejecting the application of petitioner or he was ~- .

’ ‘wholly wrong in issuing 482-oil prospecting permits to others —

- gince the issuance of Orders 337 and 338. If by these Orders.

the entire public domain. which is believed to possess poten-

fal peiroleum value, has been withdrawa, -as must be the

‘ease if any of said ands have been so withdrawn, then none

of said lands have been’ open to issuance of oil prospecting

* permits. because withdrawn lands are not subject to acqui- —

- gijion. By the fact that the Department kas issued at least °

‘432 such permits since Orders Nos, 337 and 338 were issued |

proves conclusively thai: its action denying a permit to peti-

“ tioner was not based on a question of withdrawal but on the -

‘wrongful. exercise of a discretion which the Secretary erro-

- neougly thought he possessed under the Oil Leasing Act

igelf. Therefore, the inevitable conclusion is that. no with

drawals exist of public lands as held by the majority opinion

of ihe District Court of Appeals and the_case must stand or.

fall on the discretion granted ‘to him under the Act itself. —,

“Assuming that: the telegram of March 13, 1929, ae

‘Orders Nos. 337 and 338 could possibly be interpreted as -

withdrawals, then we must consider whether or not they

~ eoniply with the requirements of the withdrawal act of June —

“95, 1910, U. 8. C, Title 43, Sections 141-3, 36 Stat. 847-8,

set out in full as Exhibit “2” annexed hereto, which act °

makes it imperativ? that a withdrawal, under this -Act of

June-25, 1910, must contain five elements, as follows:

1. The.withdrawal must-be of a temporary nature. =

2. ‘The lands withdrawn must be froni settlement, loca-

3. The lands/ withdrawn must be for “water power

”. gites, irrigation, classification of lands, or other pub-

lie purposes.” , shee ASSURE TCR

4. The lands to be withdrawn must be described with —

- gertainty’and the purpose for which’ the lands are . .

withdrawn must be specified in the order:ofwith- —

drawal. —. 3 Ol a std a esl i.

-§. Such withdrawals must be reported to Congress by.”

the Se of the Interior, “at the of

its next session after the date of withdrawal.” . :

‘ " “s

e ; . » ;

¥ - . . f 5 ‘ & '

«! J (A

a ;

Nos. 337 and 338 could not be inferred as being of a tempo- ©

* ig used it means.a man settling on the lands for the purpose

These orders did not contain any one sid these five stein

and consequently, if called withdrawals, they are void as they.

do not comply with the Act’of June 25, 1910. They are not —

temporary in nature because the language used in Orders’.

rary nature. The word “temporary” or any other words -

which we can infer as being of a temporary nature, are not

used in the entire Orders Nos. 337 and 338 or in the telegram

to the Registers of the local Land. Offices. In fact the tele

gram says. that no permits will issue after March 12, 1

It does not use the words “until further notice.”’ The ‘orders.

Nos. 337 and 338 use similar language.

Sécond, these orders do not withdraw lands from settle-

ment, location, sale or entry. When the word “settlement”

of acquiring the right to patent under the homestead or

desert land law. , Chotard vs. Pope, 12 Wheat. 586, 6 L. Ed.

737. Also U. S. vs. Schurz, 102 U. 8. 378, 26 L, Ed. 167.

When the word “location” is used, it means the locating of

lands for mineral,purposes, for instance, and later acquiring |

patent under-the placer and lode claim ‘mining laws, ‘Rich-

mond Mining Co. vs. Rose, 114 U. 8. 576, 29 L. Ed. 273.

Gird. vs. California Oil Co.,°60 Fed. 532. When the word

“sale” is used, it means that the lands are bought from the

Government at so much per acre under the Isolated Tract |

laws, for instance. When the word “entry” is used, it means

.. @ hotnestead entry under the various homestead laws or a

desert land entry or a ‘mining entry under the old mining law.

Hoglund vs. Lane, 244.U. 8. 174. The issuance of permits

does not contain any of these elements ‘because settlement,

‘location, sale or entry, suggests the parting of title. by the —

Government to the lands settled, lopated, sold or entered,’ .

and ‘in issuing a prospecting permit the Government not only

constantly maintains title to the land but during the life of.

the permit and the life of the lease when issued, if a commer-

- ial discovery is made, it, exercises a complete control of the |

operation of these lands and shares in the: minerals mined.|

uncie Boetion’ 14 of the Act, West vs. Alling, 58 App. D. C. \:

+ 2 | .

. J .

- 4 » ¢

. »

. ¢ J a : ’

. .

- j e

; <A ai3

. ‘

"Bi

329..: Fourth, the purpose is not stated: nor is any land

described in these withdrawals. The Act of June 25, 1910,

ontemplated a legal purpose and the creation of a policy by

he Serr of of the United States, Article 4, Section 3.

(2), vested Congress with the power to create such policies

by duly enacted legislation which it did in the passage of

this specific Oil Leasing Act of February 25, 1920 (41 Stat.

437 ‘ ' . - : * “ . , ~ ,

j Me oes not comply with the fifth element. because these

Orders ‘which are now’ submitted as withdrawals were: not

_ reported to Congress by the Secretary of the Interior at its

next regular session, - Pe med:

Although the Court of Appeals in its majority decision

(R. p. 25), holds that the ects of the Secretary of the Interior

constituted a withdtawal of the public lands of the United

States from. the filing of applications for oil and gas perinits

ander the Act of February 25, 1920, the’ terms of the Act of

June 25, 1910, have not been complied with in that no report

of’such withdrawal has been submitted to Congress.

The land applied for by petitioner is situated in Eddy

e Secretary of the Interior is not a legal purpose because .

County; in the State of New Mexico. The report of the respon- |

dent Secretary of the Interior to Congress for the years1929 and °

1980 do not show any withdrawals of oil lands in the State

of ‘New Mexico under the Act of June 25, 1910. (26 Stat.

847-8), or otherwise. No withdrawals were reported in the

years 1929 and 1930 eae ninth aaa al PoP aa

In other words, during 1929 when Orders Nos. 337 and

. 338 were promulgated which the majority : opinion. of : the

Court of Appeals of. the District of: Columbia ‘construes to be

a withdrawal,no additional acresof petroleum public lands were

included in the reports to Congress as withdrawn under the

Act of June 25, 1910. The same is-true insofar as the States

ef Galifornia, Colorado, Montana and Utah are concerned.

The above conclusively shows that the Secretary of the

Intérior did. not construe his acts and. Orders Nos. 337 and...”

338. as withdrawals under the Act of Congress of June 25,

1910 (86 Stat. 847-8). a; ae fone

‘|

; Pam gg :

” These 1929 and. 1930 reports which do bt: include voli

| " ence’ to the discontinuance of the granting of Prospecting °

| permits for oil, and gas constitute a construction placed by

the Department on the Act of June 25; 1910, which ‘is per-

suasive upon the courts. These orders do not. comply with ~

- any of the requirements under the withdrawal Act. See -

dissenting Opinion: by Justice. Van Orsdel, of thé Court G2...

. Appeals of the District. of Columbia -(R. p. 34), and the -

' Opinion of Justice Bailey on the question as to whether the

: Orders Nos. 337 and 338 of the Secretary of the Interior

constituted a withdrawal of the public lands from prospecting’

for oil and gas (R. pp. 20-22), and | Opinion « n of J ustice Siddons.

UNITED ‘STATES v. MIDWEST OIL CO., 236 U. S. 459,

AND OTHER CASES: .— 6)

Claim i is made that if the Secretary did not possess the

kind of discretion which he has exercised in these cases -by .

_- virtue of the Oil Leasing Act, that the President’s statement -

_ to the press, the telegram of March 13, 1929, to. the local — ’

‘Land Offices and: the Secretary’s Orders ‘Nos. 337° and 338,

are not withdrawals, under the withdrawal Act of June 25,

1910, then he has a right to consider them as withdrawals ma

virtue of the case of United States » vs. Midwest Oil Co., cd

U. S. 459. -

Copsideration of the ‘Midwest Case shows that in 1909,

President Taft was urged by the then Secretary of the Interior .

to make withdrawals of two tracts of lands in Wyoming and

Califopaia in order to prevent the. alienation of these lands, -

which Were considered as having potential petroleum value, -

from being located under the old placer mining laws. Presi--

dent Taft withdrew these lands but:he doubted his legal

_ tight to do so and in a message to Congress recommended .

~ legislation giving the Presidéit authority +o make such _

withdrawals and validating these withdrawals of 1909. Con-—

gress refused to validate these withdrawals but instead,

passed the withdrawal Act of June 25, 1910, actually limiting

and circumscribing the authority of the President: to make -

' withdrawals. See an “2.” cit Midwest Go. entered

upon lands wees in the srith drawal of 1909. after un

- - Jands were withdrawn. When the case reached? this Honor-:

able Court it had the question before it merely as to the 1909

withdrawals made prior to the -passage of the withdrawal

Act of: June 25, -1910. This Court held that. these with- -,

"-drawals were valid in. the absence of legislation, that it estab-

lished ‘a law by acquiescence in th® absence. ,of a specific ©.

Statute. But since the withdrawals considered in the Mid-

"west case were made, Congress; had spoken by the passage:

of the Act of June 25, 1910, and limited. the power of the.

President to make such withdi als, something which Con-

gress had not done .in 1909 n the withdrawals referred

to in the Midwest case were made; therefore, any. withdrawals

made after June 25,1910, ; conform to. that. Act. - °°. _

_ °This has been the interpretation placed on the Act of

June 25, 1909, by this Honorable Court in the majority.

opinion in the Midwest case, wherein. ‘this Court: after review- 3

ing the legislative history of the “Act states :’ Sete |

“The majority, after a ‘review of the practice of

_ the Department, the quiescence of Congress in the

-~practice and the ‘decisifths of of the Courts, reported ‘that |

_ the President already hada general. power of with-

_ © drawal, and recommended the passage of the pending

; dill, inasmuch as it operated to restrict the. greater power

already possessed. Sen. Rep. 17 1. Sisal oct sheen 2nd

‘ Session.) (Italics ours).

Soe tad ies Noe opinion in the Midwest case states that:

tb . only restricted authority for the future

was. granted i in the Aét of-June 25, 1910.”

: .. Similarly, Departmental devixions: hold that the act was

intended as a, limit: tion of the authority of the President

. and was not a enh of greater power.. Thus, in Utah, vs.

poe excel al., 50 Land Decisions, 231, after discussing the

‘Act, held:

ie oe of - fice 25, 1910 (36 Stat. 847), pur--

ee : : ~guant; to which the land now involved was withdrawn,

was: formal bs pace repigaition: of this ‘power

ee fF

: B4

-and was intended as a limitation thereof. rather than”

-@ grant of greater authority.” Citing U. §. vs. a

west Oil Co., supra. (Italics ours).

: Your honors’ attention is called to the fact that in the,

very lands embraced in the 1909 withdrawals, permits. under

Section 13.of the Oil Leasing Act have been issued both in. -

2 Wyoming and California and some of these permits have

ripened into leases.. When the Oil Leasing Act was passed the

_ question arose as to whether or not the existence of these 1909.

-withdrawals'in the States of Wyomirig. and California, inter-

fered with the issuance ‘of prospecting permits and if they

did, as to whether or not the Secretary of the Interior should:

- not recommend. to the President the revocation of these with- -

drawals in order to give full operation of the Oil Leasing Act. 2

os This question was then ‘considered, and it was decided bythe

' Solicitor’s office of the Interior. Department that: :the existencé

of these withdrawals:made by President Taftiin 1909.and

any other withdrawals made subsequent thereto, did not in

any way interfere with the issuance of prospecting permits.

under the Oil Leasing Act because these withdrawals only —

_ affected such entries on public lands wherein thé Government ~

+. would part with the title to those lands, and did not affect

prospecting permits ‘wherein the Government constantly

. maintains the complete ownership and control of such lands.

. Permits have issued and have continued to issue to this very

day on lands embraced in valid. withdrawals. Therefore,

even if these Orders 337 and 338, are Oil withdrawals, they

would not interfere with the issuance of prospecting permits

because withdrawn oil lands do not bar the issuance of pros-

| pecting permits and. do not interfere rae the full Daren

of the Oil Leasing Act.: : |

' -. In Lockhart vs. Johnson, 181 U. S. 516, it was sianendil x

that the fact, that Government lands were the subject of .

“Titigation beforethe Court of private land claims operated to —

_ withdraw these lands generally from the operation of the |

_ mining laws. In holding that the lands were. not so >

. drawn, this Honorable Court said:

“Public lands belonging to the. United States for ,

whose sale or * disposition a has made provision =

+ ‘

by -its peneral laws, are-to be regarded as ‘Tegally- open

for entry and sale under such laws, unless some par-

ticular lands have been withdrawn from sale by .Con-

gressiorig] authority or by an Bxecutive withdrawal

under -such authority. expressed*or implied.” Loek-

4 As was ‘said by this Court in Crilly vs. Buitows, ° 17 |

Wallace (U. S.) 167, even where. there is:a casus omissus on, B

the part of. Congress, the Executive cannot supply the omis- |

sion. 3

The p visions of the. Withdrawal Act, requiring the)

Secretary of the Interior to report withdrawals to Conigress

bear out the contention that valid withdrawals can be made

only of particular lands, and that Congress contemplated that

futtite withdrawals should be accomplished as in the past,

to-wit, by specic Executive order describing the- — pub-

lic lands to be withdrawn. Ee

In Noyes vs. ‘Mantle, 127 U. Ss. 348-51, the Court held.

| “The statute gives locators of mining locations

| ¢he exclusive right of possession and enjoyment of all

~ the surface included within the lines of their locations

so long ‘as'they comply with the law.” Noyes. vs.

. Mantle, 127 U. 8. 348-51.

As. was said by this Court in prior cases, shanties

_ weuld become valueless as a remedial writ against defaulting’

Public servants if it’ is to be denied ‘iin every. 0 case where _ :

ery “pro bono publico”’ is raised.

Roberts vs. United States, 176 U. S, wan. 3555

- Wilbur vs. United States ex rel. Krushnic, 280 U.S. 306.

_ writ of mandamus, and it has been held an abuse of discretion |

to refuse to issue the: writ where -a statute regulating the

tatter is thereby abrogated and relator has no other adé-

quate remedy.

U. S. ex rel: ‘McBride v8. ‘ghars, 102 v. 8. 378.

- Suffident answer to the’ contentions of the. repens nt

. Secretary of the: Interior arises upon the mere statement

! respondent’s pciidaiebhatin: and if anything further were 6 needed,

it might be pointed out that the obligation imposed upon

executive officers to see that the laws. are faithfully executed .

does not imply any power to forbid their execution. '

Kendall vs. United Staies, 12 Pet. (U. 8.) 524, 612,

While mandamus is classed as a legal remedy, in debies t

mining whether the writ ‘should issue, “Courts exercise a

jtidicial discretion on equitable principles and i in - aecordance

_ with well‘ settled rules of law. S

United States vs. Lane, 249 U. S. 367; and

i vs. United States, 50 App. D. GC. 119.

Peg GA SE are 3

a nay ju icially notice rules and ce

of the Executive Departments.

_ New York Indiait Case, 170 U. 8. 1.

- Phin Const fae held in Dial we! Raunheim, 132 U: §. i

260, that where a person has complied with all the proceedings 3

essential for: the issue of a patent for Placer mining ground, —

he is the equitable owner of the mining ground and the.

ao Government holds the premises in trust for him to be de-. .

_livered upon the payments. poreiaie I quote from =

wegen: ee : REP

| “Being suitithend toa patent, he has a sia to ask

a determination of any claim asserted ‘against his

possession which: may. throw doubt upon. hisy bse

| = Dahl vs. Raunheim, 132'U. 8. 260.

. Prior to the Act. of ‘Tons 25, . 1910 (36 Stat. 247,

Cabinet offiters sometimes made withdrawals, but in most —

of those cases there was prior ‘statutory authority therefor as ~

‘in Wood vs. Beach, 156.U. S. 548, or else subsequent statu. —

tory ratification of the Withdrawal as in Wolsey vs. Chapman,

101 U. 8. 755, or else the President of the United States acting —

under statutes expressly granting such power withdrew the —

certain specific tract of land by. jp.vclamation after the Sec:

: retary of the Interior had purported to make 7) withdraa .

as in the ‘case “of. United States vs. Morrison, 240 U. S. 192,

or else possession ¢ of the land was-taken over and continually

used by a Government department for purposes authorized |

by statute, so that it might be presumed that there was an

appropriation of the land as where the land is used partly /°

for a military post and partly for lighthouse purposes for a / |

period of approximately thirty years as in the case of Wileoy

ee Jackson, 13 Pet. (U. 8.) 498. :

| Ken prior td. the Act of as 25, 1910 (36 Stat. 347-8),

7 supra, the Courts held that.a eithdrawal could be made only —

“of particularly described lands and that failure to describe

the land-invalidated the withdrawal. —

* Lockhart vs. Johnson, 181 U. 8. B16, supra;

United States vs. McGraw, 12 Fed. 449. —

In the McGraw case it was held that the attempted

reservation of lands for military: purposes was void on the

ground that “it did not describe its’ boundaries or. limit. the

amount.”

Statutes should be construed so as to. sustain t con-

stitutionality and a construction which raises | - con-

‘ stitutional questions must be avoided where’ me at or con- ea

‘construction is open...

Missouri Pacific Ry. Co. vs. Boone 270 U. ‘s. 466;

- Baender vs., Barnett, 255,U. 8. 224)" - Ff

- Harriman ve. I. C. C., 211 U. 8. 407; en

' U. S. ex rel. Atty. Gen. vs. Delaware, ete, Co., 213

‘U.S. 366.

It i is conceded, that dnaniicomey Gatheaiiey ‘may’ “ dele-

~ gated by Congress to an executive officer to the extent that

‘how. the powers legislatively conferred are to be exercised,

_ and may establish rules and regulations not contrary to the . .

- act, fixing the manner in which the requirements of ee

are to be-met.

ene vs. ‘Department of Conservation, 263 U. S.-

ag 5: ‘.

_U. 8. 08, Grimaud, 220 U. 8. 506;

won

Willoughby, Constitutional Law, See. 1077, P. 1637. A

Congress may also authorize an executive officer to sus. me

‘pend the provisions ofan “act under given circumstances 80

long as the-facts which are to determine the suspension are * ;

isely staved. by the legislature and certainly ascertained

oy the executive, and there is nothing involving the expe-

_diency or the just operation of such eens left to. the

determination of the executive officer:

Field vs. Clark, 143 U.-S. 649; . ,

Butterfield vs. Stranahan, 192'U. 8. 470.

‘ , » “Phe suspension of a statute is a legislative act, ;

unless based upon some condition; contingency, exig-

ency, or state of facts, declared by the. legislative en-

actment to be sufficient to warrant the suspension by *

an executive or administrative body whose duty it is

. _ to execute or administer the law suspended.”

Winslow vs. Fleischner, 112 Ore. 23, 228, Pp, 101, 34°

A. L. R. =

is It j is , submitted: that if respondent's. cleat of the_

Leasing Act is to be upheld, Congress has attempted thereby

to delegate to an administrative official the power to deter-

mine the policy of the law, to determine whether the policy

“shall be to develop and promote mining, or. whether it shall

be oné of absolute inactivity. If the Leasing Act allows the

_ Secretary to suspend it, the conditions, contingencies or exigen-

cies under which this action may be taken are not defined in

. the statute, and it must therefore be held unconstitutional in

80 far as it. attempts to confer any such authority. oe

» Nor can the power of legislation be exercised by an

executive officer - under the guise of regulation. Congress

'~ cannot delegate to-an ‘administrative official ‘the power to

s make regulations which cut down the rights ; given by atatute,

poe Py. * v8. poner, Ss. 14.

Ls “Congress never: delegated to .°. . officials,

_ authority to make a regulation which cuts down sub-

’ stantially the rights given by the ‘act itself. It is

3 sores pene rage that —— could “not

| dalogste such substantive legislative power. See Field:

vs. Clark, 143 U, 8. 649, 694.”

Johnson vs. Keating, (C. C. A. 1) 17 F. (24) 50, 52.

Petitioner reiterates that. the Leasing Act cannot prop-

erly be construed tj authorize the Secretary to refuse to

consider . applications for permits or to refuse by. blanket

- order to issue any permits. | Such construetion would be

~ directly contrary to the purposes of the Act in throwing public’

‘lands open: to exploration and leasing in order to premote -

mining of the specified minerals; it would violate the express.

provisions of the Act by which Congress imposed upon the

Secretary the.duty of receiving and considering applications A

and issuing permits to qualified applicants; it would raise

substantial doubt as to. the constitutionality of the a, i

if not render it repugnant to the. constitufion:

As stated by Mr. J ustice Bailey in his opinion (R. p. 20):

“The Secretary cannot add to his powers by any -

_ rule or regulation made by him.” ieee

4 |

-gions of law. before it is binding on the courts.

: “A construction given by the . . . Depatt-

ment to any law affecting its arrangements and con-

cerns is certainly entitled to.great respect. Still, how-

ever, if it is not in conformity to the true intendment

‘and provisions of the law, it cannot be permitted to—

conclude the judgment of a court of justice. |

It is not to be forgotten that. ours is a Government of’

laws and not of men, and that the judicial department

has imposed upon it by the Constitution, the mau

duty to interpret the laws in the last resort. .

_ United States vs. Dickson, 15 Pet. (U. 8.) 141.

i ‘ equitable principles apply to a proceeding - of this :

kind and as equity will contrive remedy to enforce_a statute -

_- creating rights which cannot be adequately: enforced at law

“(Joy vs. St. Louis, 138 U. S. 1; 21 Corpus Juris 198),. so in i

ble principles dictate the issuance. of.

_-the present case

__ the writ in order to to pre nt an irremediable wrong.

Respondent’s construction “must conform to the ‘provi: .

- The title. of the Leasing Act in nm qatelicl is: “An Act we

Promote/the Mining of Coal, Phosphate, Oil, Oil Shale, Gas, -

and ium on the Public D n,” and not an Act to

Auth Exploratior. for Mi erals. And while the title of

the Act is not a part of thé statute it may properly be referted -

os, must be given its due share of consideration in constru-

| g a statute where there is men ti as to dies —,

__/ intent.

; “United States tes v8. Fisher, 2 Cranch 202; ee Ed. 304,

Church of the Holy Trinity vs. United Beate; 143

U. 8. 457, 36 L. Ed. 227.

~ Teall your Honors’ attention to the fact that bitoni a

_ Leasing Act was passed the House of Representatives entitled.

‘ the bill which later became the Leasing statute, as follows:

“<A bill to authorize exploration for the disposition -

of coal,. phosphate, oil, gas, potassium ‘or sodium.”

-(H. R. 3232, 65th Congress, Rascmst Renmin).

‘And the Senate bill on this leasing statute was:

- “An Act to encourage and promote the: ‘mining of.

~ coal, phosphite, oil, gas ~ sodium on the public

- domain,”

. 2812).65th Congress, Secorid Seseion).

“Respondent camot under. the guise of ‘quasi-judicial

. discretion lawfully

rt the authority to refuse to entertain

any applications for oil permits any more ck

- competent jurisdiction which is: given authority to exercise.

its oar may refuse to ertertain suits. 7

Rex vs. Habering: -Atte Bower, 5 B. and Ald. 691.

Hudson vs. Parker, 156.U. S. 277; | as

_ Primos cee v8. Fulton Steel | Company, 254 Fed,

states the pte Act was see to promote the explores =

of the A peseed domain for, oil and ales and the respondent —

See tse ana | Y. e

ne Yh

° Secretary of the Interior may riot refuse a permit to'a qual- i

ified applicaut even though he concluded that the Leasing

Actwas “nWwise. A asad is “

. West vs, United States ex rel. Mosier, 261 U. S. 351,

: 67 L. Ed. 693. : 3

Mandamus is the proper remedy in such a case.

* Work vs. United 'States.ex rel. Rives; 267 U. 8. 175,

» ° 69 L. Ed. 561; aires ae Sat

‘Stockley vs. United States, 260 U. 8. 582, 67 L. Ed.

ae ia ' prof eacesneaien os

A withdrawal of lands from ‘the operation of the land —

Jaws, and the withholding of a land law from public lands, -.

- are two widely different things. A withdrawal made as pre-~

__-geribed by law and for purposes authorized by Congress is an ie

execution of the law and a performance of the duties of the v

President and his subordinates. ane i ee

United States vs. Midwest Oil Co., 236 U: 8. 459, 59. ~

Eads 0787 A aR ear eee

+ ga a IS

. Northern. . Pacific Railroad Co. s.. Musser-Sauntry -

- Land, ete., Co., 168 U.S. 604, 42 L.Ed. 596; ;

United States vs. Morrison, 240 U: S. 192,60 L. Ed.

3 BR9; 3 was :

State of Utah vs. Work, 55 App. D. C. 372, 6 F.-(2d) ..

Ry ene en :

On the other hand, ‘a determination by an. executive

_ officer that a certaiti law. ought not longer to be executed is a .

breach of official duty, and an attempted executive repeal of

an Act of Congress. Executive officers hiave no such powers. ar

They must not only execute the law as they find it, but must.

construe the law reasonably, and so as to give effect thereto.

“Work vs. United States ex rel. Mosier, 261 U.S. 352,"

MS se

‘Work vs, United | States ex tel. McAlester-Edwards” NE

‘Coal Co,,/262 U. 8. 200, 67 L.\Ed. 949; : He

aH,

Sintidier 6, United States, 260 U. 8. 532, 67 L. Ed.

390;

Payne vs. Central Pacific R. Co., 255 U. S. 228, 6

“Edi 598; 2

Lane vs. Hoglund, 244 U.S: 174, 61 L. Ed. 1066:

Noble vs. Union River’ Logging, R. Co., Ep U.S. 165,

37 L. Ed.123. ’

The Act of June 25, 1910 (36 Stat. 847-8), siecivides that

the President may withdraw arid reserve lands:

“For water-power sites, irrigation, classification i

of lands, or other ecngge purposes to ified in the - 4

orders of withdrawals“ ;: °.” (Exhibi

It is submitted that withdrawals for “public purposes!

under the Withdrawal Act may be niade only for putposes

of the kind specifically enamerated in the statute; that the

authority to withdraw lands for these purposes refers-to gov-

_ ernmental uses necessary for the proper discharge of executive

_ funetjons and does not authorize any broad exercise of power

independent of an immediately intended governmental use; -

and that an attempted withdrawal for the general purpose of |

~ . oil conservation” therefore does not constitute a withdrawal

for a public purpose within the meaning of the act. .

. Applying the familiar rule of statutory construction that:

fe “ . . where words partioiilary designating ~

: specific acts or things are followed by and associated —

a words .of cine import comprehensively desig- |

| acts or things, the latter are generally to be—

as comprehending only matters of the same

_ kind or class as those particularly stated.” —

_ > (Lewis’ Sutherland,’ Peay, Construetion, tad. Ed;

~ "Bee. 422),- j |

it must be coneludéd that the’ ea (or other public pur-

Pescsgel in the Withdrawal Act embraces only purposes x sexs

“are ‘hao aloo : ,

tmniformly, withdrawals under the: Withdrawal i

Ast: a have! been ‘made: ‘for specific purposes contemplating #

‘| ;

. and for other p

i tos

governmental use of the land. Other withdrawals have been

made for the purpose of providing military reservations (47. .

" Land Decisions 143), Indian reservations (49 Land Degisions -

592), water-power sites, reclamation projects (48 Land De-

cisions 85), for the purpose of permitting a resurvey of the

lands (49 Land Decisions 597), in aid of proposed legislation -

té extend the- boundaries‘of a national park (48 Land Deci-.

_” gong 279), in order to determine whether lands should. be °

~. ¢lassified-as mineral in character and therefore not subject,

to entry urider > homestead laws (48 Land Decisions 283)

pses.. pan mi

That the Withdrawal Act did not authorize withdrawals.

‘except for immediately iritended governinental use is sup-.

ported ‘by Spalding vs. Chandler,’160 U. 8. 394. The statute

under construction in that case authorized the President to

make such reservations of lands within a certain land district -

in Michigan as he should “deem necessary for public uses” . ,

(Act of March 1, 1847, 9 Stat. 146).. The Supreme Court

- held that this Act did not empower the President to interfere

opinion’ of the court stating: |

'' . “Ty the absence of express authority to set apart |

. ‘for public uses lands already reserved and appropriated -

with Indian: reservations existing by: force of a- treaty, the

-for a particular use, we cannot infer-an intention in. °

the grant.of power’ contained in the Act of 1847: to

authorize interference with the Indian Reservation, ,

particularly when such apprepriation, as the record

shows, was not made for then existing public negessi- : E

. ties but, as the letter of Geheral Brady set out in the

. statement of facts shows, was‘ merely a provision

contemplated for the possibilities of the future, ‘both

with reference to a canal‘ and the enlargements of

‘ military works, neither of which projects had then

been sanctioned by Congress... ~ a

Spalding vs..Chandler, 160 U. 8. 304.”" \

. The Departmhent of the Interior has recognized that with-

_ drawals must be made for governmental uses necessary to the:

44 4

proper exercise of executive tanetiotie. Thus, i in 47 Land

Decisions 362, it is stated that:

_ “From an early period in the ilatoey of the gov-

* - ernment it has been -the practice of the President -

_ .+ .« «_.,to make withdrawals and reservations of the. -

public land for military uses and for Indian purposes

: or for governmental uses rendered necessary for the

‘proper discharge of the functions committed to thos

executive branGh of the Government i in \ its various -

‘ departments. ;

is (Grisar vs. McDowell, 6 Wall, 363, 881).”

withdrawal oe lands in ‘pursuance of an _gllaned oil |

conservation . policy, it is submitted, is not a purpose of the

kind enumerated in the Withdrawal Act since it does not

contemplate an immediate use of the land for ee .

purposes. In the words of the Chandler case, supra, it “was

merely a provision contemplated for the possibilities of ‘the

- future” ‘and since not sanctioned by Congres:, is invalid.

The construction of the Withdrawal Act must be strained -

if a. withdrawal for the purp f preventing exploration of

public lands pt the. present time and reserving them for explo-.

ration in the future is held to be a. “public purpose” with

the meaning | of the act. e

‘Where the President is exercising a power not cpeead ;

pr impliedly conferred upon. iim by: the Constitution, but ;

which has been. delegated to him by Congress, the power’.

«must be. personally exercised. United States vs. Benner, -

Baldwin, 24 Fed. Cas. No. 14568; 7 Op. Att. Gen: 453, 475.

_. Where the. President is required by statute to exercise A

_ discretion, “or to act judicially, he cannot. delegate. such

- authority to another, not even a cabinet officer. ‘Truitt yw.

United States, 38 Court of Claims 398; Mechem, Publis e

_ Officers, Sec. 567, 39 Cyc. 703. Pea | as

-... Any authority for any executive withdrawal ‘or withhold- a

- ing from disposal of lands which Congress has made subject

"+ $0 — must be derived from — expressly cons 4

45 :

; fering aad authority, or grote ‘Cobpenddnal acquiescence.

U.S. vs. Midwest Oil Co., 236 U. 8. 459;

Burfenning vs. Chicago, etc., R. Co.,.163 U: 8. 321;

U. 8. oe: Tichenor, 12 Fed. 415, 422: * .

- Grisar vs. MeDowell, 6 Wall: 368;

- Re Fort Boise Hay Reservation, 6 Land Decisions 16; 2

17 Opinions Attorney General 160. :

As ta the question of withdviwsls in. this case ai bar: |

- 1, No legal withdrawals were ever made by proclamation or —

- otherwise. 2. If these so-called orders could. possibly be .

interpreted as withdrawals, they are invalid because they: do

_ got comply with the withdrawal Act of June 25, 1910 (36.

Stat. 847-8). 3. The Midwest decision does not apply: to

‘these cases because the withdrawals referred to in that de-

cision were made prior to the Act of June 25, 1910. 4. Even

if we admit for the’ purpose of this case that these Orders are.

- withdrawals ‘under the Midwest devision, 2nd also under the

Act of June 25, 1910, they : do not affect the issuance of pros-

pecting permits,. as withdrawals of any-kind do not interfere .

with the full operation of the Oil Leasing Act. Therefore,

the inévitable conclusion is that the Opinions of Justices

= Bailey. and Siddons, respectively, of the trial court in the .

Supreme Court of the District of” ‘Columbia, in granting a ~

.: Writ of Mandamus on the Petition filed by petitioner an

other petitioners. and the. dissenting opinion of Justice Van

Orsdel 6f the Court of Appeals, is sound in-law and in prin-

~ giple and should stand,. and that the majgrity Mecision of the

Z . District Court of Appeals in this case at bar - should be re- .

versed, for the various reasons given and. the- ‘various author-

ities submitted i in support thereof. ° 7 a

“coNcLUSION.

fe oe conclusion it is, therefore, respectfully esecitand i that ;

_ this tase is one calling for the exercise by this Honorable Court

of its supervisory powers, in the construction of the U. 8.

Constitution, Article 4, Section 3 (2) and the Fifth Amend-

~ ment and the a Act - — of ——— 25, 1920, . -

_in otdec that ‘itil 8 application for oil eit gas Tee a

-pecting permit under the said Leasing Act. of February 25,

1920 (41 Stat. 437), may be considered on its merits and

‘permit issued thereon according to law, and that-to such an

0 aah ak all ol certiorari should be granted and this Honorable

Court should review the majority decision of two to one of -

*the Court of Appeals ofthe District of Columbia, and ‘finally

reverse it, and order ultimate final judgment to be entered in ~

this case in accordance. with the decisions of J ustices Van

. Orsdel, Bailey and Siddons, of the District of Columbia a]

: judiciary on the matter involved. =

Respectfully submitted :

‘ _. JAMES CONLON,

. 600 F St: N. W.,

Washington, D. G..

aicewee &

-CHARLES F. BREEN,

.-.. . Lawrenceville, Illinois,

ees _- Counsel for Petitioner.

. EXHIBIT “1”

Orper No. 338.

UNITED STares, |

DEPARTMENT OF THE INTERIOR, .

ee Washington, March 20, 1929, |

The following outlines the gerieral- procedure in the

_ Department .of the Interior for executing the President’s .

public-land oil-conservation policy:

1. All oil and gas applications and permits pending in

_ the office. of the: First: Assistant Secretary of the Interior, .

under the general leasing act, will be returned to the Coe

ep Office.

2. All oil and gas cases wondine | in the office of the Solip- <

itor will be reviewed to determine their present status. Those

coming within -the new policy should be seo to the, ;

. General Land Office.

3. The preparation of letters i in the General Land Office -

calling upon delinquent permittees to show cause why. thet

_ permits should not be canceled will be expedited.

4. Oil and.gas permits now-in good. standing will not: ‘be

- ’ proceeded : against so long as. the terms ‘of the permits are

being timely complied with.

. 5. Where a permittee is entitled ‘to a ia because of

- discovery, it -is mandatory to lease only one-fourth. of the .

area, under strict interpretation of the President’s oil policy, _—

except that when the permit covers 160 acres or less, the per-.

mittee would be entitled -to lease the. full acreage. The re-

mainder will not be leased unless such actions3s: exjuined:4 ee

the public inteest.

- 6: The diietiinecais committee; consisting of the So-

he Jicitor, the Commissioner of the General’ Land Office, and the

Director of the Geological: Survey, will consider the extent of

~ operations which have been prosecuted under. existing oil and

gas permits, to determine whether permittees have acquired

equities which ‘should be recognized and make appropriate’ .

recommendations to the Secretary. In reviewing permits, —

‘Tepresentative cases may be Toccmimenied se pale hearing :

oe ‘tials the Secretary of the Interi

, cations for oil and gas permits. -after March 12, 1929, and

be disposed of promptly. Those not involving expenditure is

- ing the facts disclosed by the record, and of, the: Geological _

‘there is no prima facie. evidence that expenditure of money

- be referred to the special committee by memoranda of the

- and of the pene Survey as to status of development —

| ‘pending report to the General Land Office wili be promptly _

’ eonsidered under the new policy.. Where \these cases involve:

‘Office with appropriate report when such ‘is required under

'* the new Policy, otherwise without report.

‘Survey must deny approval to notices of intention to. drill”

on permits that are not shown to be in good standing by the ~

_on the likelihood of oil and gas drainage of Government lands _

in various. producing and wildcatting. fields where a claim of.

‘ drainage ‘is made. /The — committee will consider the

- 48

0 ibasasee lines of

policy.

e Registers of local land ollions will not receive apple a

will reject: all. pending applications for permits. -They will. —

forward to the General Land Office all applications for ex-

tensions of time/‘etc., relative to outstanding permits. . * .

8. Applications for extension of permits on hand should —

of money in development work will be denied by the General q

Land Office.’ All other cases/will be referred to’ the special.

committee by memoranda of the Genéral Land Office show-

Survey as to the status of development work.

9. The General Land Office will ‘hold for cancellation, 4

ailowind 15 days i in which to show cause, all permits on which °

in. development work has been made. ll other cases should

work.

10. All e and: gas ‘patinite: in the Geological Survey. -

conflict. of agricultural and mineral rights ‘or question of

similar character, they should be completed by the Geological

Survey. All others should be returned to the General. Land’ .

11. Supervisors of oil and gas operations in the Geological * “7

terms of the permit itself or an approved extension of time. ”

12. The Geological Survey will ‘report to the Secreta

mt tat mann bce **

49°

question of ‘denen sae when incidentally involved i oe

’ individual permits before it for consideration. - ae

13..Permits issued and outstanding in Executive Order. =

‘Indian Reservations under the Act of March 3, 1927, will be

considered and disposed of in the same manner as provided ss

_ in the — eitinidici 7 8

- Ray LyMAN Witsvr, a

Secretary of the Interior. -

| EXHIBIT «“g»

Said Act of June’ 25, 1940, 36 Stat. 847, U. 8. Code

. Title ~ Section 141, provides:

8. Section’ -141. Withdrawal pee reservation of

) lands for water-power. other purposes.—The _

- President: may, at any time in his scretion, *t¢mpo-—-

_. rarily withdraw from settlement, location, sale, or —

_-entry any of the public’ lands of the United States,

including* Alaska, and reserve. the same for water- - -

power sites, irrigation, classification of lands, or- Sowell

public. purposes to be specified. in the orders of with- *

drawals, and such withdrawals or reservations. shall _ /.

remain: in force until revoked by him or by an Act of ”

Congress.” (Act of June 25, HONG, C. 421, sec. y

‘Stat. 847.) oe 7

While Bection 142, U. 8. Code, formerly Section 2 of the

» Act of June 25, 1910, provides:

_ “That -all lands withdrawn nie the pr eee

of this Act and the preceding Section’shall at all times

be open to exploration, discovery, occupation. and

_ purchase under the mining laws o the ‘United ‘States :

so far as the same applies ‘to metalliferous minerals:'

~~-Provided, That the rights of any~ “person; ‘who at the

_ date of any order of withdrawal, is 4 bona fide occt-. .

_ pant or claimant of oil-or gas bearing lands and who, —

at such date, is in the diligent prosecution of work

leading to the discovery of oil or gas, shall not be~

- affected or impaired by. such order so long as the”

‘occupant or claimant shall continue’ in diligent prose-._

-cution of said work. Provided further, That this Act

Shall not be construed as & daa oo eee

—

”-

or cilargement of any asserted rights or - claims i initiated

upon any oil or gas bearing lands after any with. —

drawal of. such lands made prior to June 25, 1919;

And provided further, That there shall be excepted —

- from the force..and effect of any withdrawals made

_. under the provisions of this Act’ all lands which are,

on the date of such withdrawal; embraced in. any law.

ful homestead or desert-land entry theretofore made,

or upon ‘which any valid settlement has been made

and is at said date being maintained and perfected

pursuant to law; but the terms of this proviso shall _

not continue to apply to any. particular tract of land -

\° unless the entryman or settler shall continue to com- _

—\ ply with: the law under which the entry or settlement —

— was made: And’ provided further, That hereafter no

- forest reserve shall be created, nor shall any additions

- be made to one. heretofore created within the limits —

of the States of California, Oregon, | “Washington, -

Idaho, Montana, Colorado,. or Wyoming, except by

Act of Congress.’ (As amended ‘by Act of ong :

approved August 24, 1912 (37 Stat. "497). ys ae

While Section 3 of said Act. of June 25, 1910, now Sec-

tion 148, U.S, Code, provides: .

_ “The Secretary of the Interior shall report all

- such withdrawals to Congress at the beginning of its

next regular session after the date of the withdrawals.”

{Act of June'25, 1910, o. 421, Sec. 3, 36 Stat. 848.) .

ro)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.