United States Ex Rel. Ness v. Fisher

of Columbia, for a writ of mandamus to compel the Secretary of the Interior to accept, as conforming to the Timber and Stone Act of June 3, 1878, 20 Stat. 89, c. 151, an application to purchase under that act 160 acres of public land in the Roseberg, Oregon, land district. The respondent answered, but the answer was held insufficient upon demurrer, and judgment was entered awarding the writ as prayed. An appeal to the Court of Appeals resulted in a reversal of the judgment, with a direction that the petition be dismissed, 33 App. D.C. 302, and that ruling is now here for review. Briefly stated, the material facts are these: Being desirous of purchasing the land under the Timber and Stone Act, the relator, Mary S. Ness, filed in the proper local land office a written application, which fully conformed to the statutory requirements, unless it was objectionable in that it disclosed that she had not personally examined the land and that her statement that it was unfit for cultivation, valuable chiefly for its timber, uninhabited and contained no mining or other improvements was made upon information and belief and not upon personal knowledge. The register and receiver ruled that the application was objectionable in that regard and therefore rejected it, subject to her right to appeal. Successive appeals by her to the Commissioner of the General Land Office and the Secretary of the Interior resulted in an affirmance of the ruling of the local officers, the decision of the Secretary being adhered to upon a motion for review. Soon after the act was passed it was construed by the Land Department as requiring that in applications thereunder the statement respecting the character and condition of the land be made upon the personal knowledge of the applicant, save in the particulars which the act declares may be stated upon belief, and it was because of this construction, disclosed in repeated decisions of the Secretary of the Interior and in the regulations issued under the act (see 6 Land Dec. 114; 11 Land