Mr. Justice MILLER.
I concur in the judgment of the court, overruling the motion to set aside the agreement between the attorney-general and the counsel of the claimant, by which it is agreed that this appeal shall be dismissed. But I do not agree to the ground upon which the judgment of the court is based; and as the matter involves the construction of an important provision of the act of June 14, 1860, concerning surveys of Mexican grants in California, I think it of sufficient consequence to justify a statement of my views separately.
That act provides, in its third section, that any party whom the district judge 'shall deem to have sufficient interest in the survey and location of a land claim,' 'shall be allowed to intervene for his interest therein,' and that the court, or judge in vacation, shall proceed summarily to determine, in his discretion, whether the applicant has such an interest as entitles him to be heard in opposition to the survey which has been made and reported to the court. The statute then proceeds in the following language: 'Provided, however, that all parties claiming interests under pre-emption, settlement, or other right or title derived from the United States, shall not be permitted to intervene separately, but the rights and interests of said parties shall be represented by the District Attorney of the United States, intervening in the name of the United States, aided by counsel acting for said parties jointly, if they think proper to employ such counsel.'
The motion in this case is made in behalf of persons belonging to the class mentioned in this proviso, who allege that their rights have been sacrificed by the attorney-general in making the agreement to dismiss the appeal. It is overruled on the ground that their names do not appear in the record as having any interest in the case, or as having been represented by the district attorney in the name of the United States, in the proceedings in the District Court. The statute says that persons in their condition must appear by the district attorney, in the name of the United States. They can contest the matter in no other way, and through no other attorney. Yet because they did not appear in their own name, in violation of the statute, it is said they have lost a right, which they would have had, if they could in some way have procured their names to be placed on the record as contestants. When the act says that they can only appear in the name of the United States, I cannot conceive that this court, or the District Court, should hold them to have been guilty of laches, because they did not in some manner evade both the letter and spirit of the law, by procuring their own names to be inserted in the record.
The language of the statute is, that 'the rights and interests of said parties shall be represented by the district attorney.' It is true he may be aided by other counsel, if the parties choose to employ them, but they are represented by the district attorney. He is their attorney of record, and they cannot discharge him, or compel him to adopt any other mode of proceeding than what he deems best. He, adhering to the statute, makes his objections to the survey in the name of the United States, and when one of these parties requests him to insert his name in the proceedings, the attorney refuses. Has such party any remedy? The law says he must be represented by the district attorney, and he has no right to isplace him and substitute another. But because he cannot do this, he is deprived of the right to be heard here, or in the court below, according to the opinion of the court in this case.
For myself, if I believed the parties making this motion had any such right, and were really amount the persons represented by the district attorney in the court below, I would permit that fact to be shown here by affidavit, or in any other mode which would satisfy the court that it was so. And I think the contrary rule operates as a trap and delusion, by holding that they have an interest, which gives them a right of appeal, but affords them no means of rendering that right effectual.
But I do not believe that persons included in the proviso already quoted have any right of appeal, or any other right of contesting the survey, except as it may be exercised through the law officers of the government, subject to their judgment of what may be their official duty in the premises.