# Petition for Writ of Certiorari — United States Ex Rel. McLennan v. Wilbur > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0034%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1931 - **Citation:** 283 U.S. 414 ## Text i bad et foe % AS a be ae het “* oe 5 - i a 2 f « INDEX. Se eemtanieinmmmmmeemeet ' 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 | 36 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 a &. 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. 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 = — > 14 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 vw 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 * 5 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 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 . drawn, this Honorable Court said: “Public lands belonging to the. United States for , whose sale or * disposition a has made provision = + ‘ +. 35 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- hart ve. Johnson, 181 U.S. 516. © | 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. 3 A judieial or legal discretion governs the issuance of the © _ 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 86 ! 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 . 37 % 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 he may be allowed ta determine in a specific case when and © | ‘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 39 | 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: “ (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 o- 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. -- ! ee . 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 : ao 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 General Land Office showing thie facts disclosed by the record © 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0034%3A20. Public record. Not legal advice.