Land grants purchased of Mexican grantees or their assigns, in good faith and for a valuable consideration, where such grants have subsequently been rejected or where the lands so purchased have been excluded from the final survey of the grant, may be purchased of the United States by such prior purchasers, after the same are surveyed under existing laws, at the minimum price established by law, in cases where there is no valid adverse private right or title; and where such prior purchasers have used, improved, and continued in the actual possession of the premises according to the tenor of their original purchase, they first making proof of those facts as required in the seventh section of the act to quiet the title to such grants, under regulations to be prescribed by the Commissioner of the General Land Office, as provided in the same section of that act.
Annexed to that right, however, are three other conditions, one of which it becomes important to notice. They are in the form of provisos, and the one to be noticed is that the right to purchase, as given in the body of the section, 'shall not extend to lands containing mines of gold, silver, copper, or cinnabar.'
By the record it appears that the relator, on the fifth of October, 1858, addressed a communication to O. H. Browning, Secretary of the Interior, in which he represented that he, the relator, on the twenty-second of December, 1857, purchased of Vincente P. Gomez the rancho situated in California and known as Panoche Grande, and that the claim to the same had since been rejected by the decree of the supreme Court reversing the decree of the District Court confirming the claim, and prayed that he, by virtue of the provision contained in the seventh section of that act, might be allowed to purchase the same of the United States, supporting his alleged right to do so by the following representations:
The the land embraced in the claim was a Mexican grant; that he purchased it of the original donee in good faith and for a valuable consideration; that the land, since the claim was rejected, has been regularly surveyed under existing laws; that there is no valid adverse private right or title to the same, and that he has continued in the actual possession of the tract since the claim was rejected, as required by law; but he did not allege that the land did not contain mines of gold, silver, copper, or cinnabar, nor did he offer any other proof of the facts set forth than what is contained in the exhibits annexed to the communication.
Prior to the date of that paper, to wit, on the fourteenth of August preceding, the Secretary of the Interior addressed an official letter upon the subject to the Commissioner of the General Land Office, in which he adverted to the fact that a bill was pending in the Senate relating to the claim, and stated that in his judgment it would be highly improper for the department to do anything to affect the title to the land until Congress should dispose of the claim. Pursuant to that view he, at the same time, directed the commissioner to instruct the local officers to suspend action in all such cases until they should receive further orders. Correspondence ensued between the secretary and the counsel of the relator, but the secretary, on the twenty-eighth of November following, informed the counsel that he adhered to the views expressed in the directions which he gave to the Commissioner of the General Land Office.
Dissatisfied with the decision of the secretary, the relator, on the third of December, of the same year, presented a petition to the Supreme Court of this district, in which he prayed that a mandamus might issue directing 'O. H. Browning, Secretary of the Interior,' to issue or cause to be issued a patent for the land described in the petition, and for such other or further relief as may seem meet and proper. Service was duly made, and on the eighth of the same month a rule was issued commanding the secretary to show cause, on the third Monday of January following, why the writ of mandamus should not be issued as prayed in the petition. He appeared, as commanded, and pleaded that the court had no jurisdiction to grant the writ, for the following reasons: (1.) Because the subject-matter of the petition is purely of executive cognizance, resting in the judgment and discretion of executive officers in the ordinary discharge of their official duties. (2.) Because the subject-matter is one in which judgment and discretion are to be exercised. (3.) Because the issuing of patents for lands is, by the act of Congress, the duty of the President.