of a claimant, shall have the same effect as an allotment allowed and approved by the Secretary of the Interior is a consent upon the part of the United States to be bound by such decree; and where the suit involves simply a question of priority of right between two claimants, the United States is not a necessary party.4

The Act of June 25, 1910, provides that when an Indian to whom an allotment of land has been made dies without a will before the expiration of the trust period the Secretary of the Interior upon notice and hearing under such rules as the Secretary may prescribe shall ascertain the Indian's legal heirs and that the decision of the Secretary thereon shall be final and conclusive. This statute is constitutional and such decision cannot be reviewed by the courts.

§ 99a. Suits to establish the rights of bona fide purchasers of lands erroneously patented or certified. The Act of March 2nd, 1896, provides:

"Suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon road grant shall only be brought within five years from the passage of this Act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-first Congress and amendments thereto is extended accordingly as to the patents herein referred to. But no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed; Provided, That no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the Government or its officers to withdraw the same from sale or entry."1

"If any person claiming to be a bona fide purchaser of any

4 Ibid.

536 St. at L. 855; Hallowell v. Commons, C. C. A., 210 Fed. 793. 6 Hallowell v. Commons, C. C. A., 210 Fed. 793.

$ 99a. 129 St. at L. 42, Comp. St. § 4901.

lands erroneously patented or certified shall present his claim to the Secretary of the Interior prior to the institution of a suit to cancel a patent or certification, and if it shall appear that he is a bona fide purchaser, the Secretary of the Interior shall request that suit be brought in such case against the patentee, or the corporation, company, person or association of persons for whose benefit the certification was made, for the value of said. land, which in no case shall be more than the minimum Government price thereof, and the title of such claimant shall stand confirmed. An adverse decision by the Secretary of the Interior on the bona fides of such claimant shall not be conclusive of his rights, and if such claimant, or one claiming to be a bona fide purchaser, but who has not submitted his claim to the Secretary of the Interior, is made a party to such suit, and if found by the court to be a bona fide purchaser, the court shall decree a confirmation of the title, and shall render a decree in behalf of the United States against the patentee, corporation, company, person, or association of persons for whose benefit the certification was made for the value of the land as hereinbefore provided. Any bona fide purchaser of lands patented or certified to a railroad company, and who is not made a party to such suit, and who has not submitted his claim to the Secretary of the Interior, may establish his rights as such bona fide purchaser in any United States court having jurisdiction of the subject-matter, or at his option, as prescribed in sections three and four of chapter three hundred and seventy-six of the Acts of the second session of the Forty-ninth Congress."' 2

"If at any time prior to the institution of suit by the AttorneyGeneral to cancel any patent or certification of lands erroneously patented or certified a claim or statement is presented to the Secretary of the Interior by or on behalf of any person or persons, corporation or corporations, claiming that such person or persons, corporation or corporations, is a bona fide purchaser or are bona fide purchasers of any patented or certified land by deed or contract or otherwise, from or through "the original patentee or corporation to which patent or certification was issued, no suit or action shall be brought to cancel or annul the patent or certification for said land until such claim is investi

2 29 St. at L. 43, Comp. St. § 4902.

gated in said Department of the Interior; and if it shall appear that such person or corporation is a bona fide purchaser as aforesaid, or that such persons or corporations are such bona fide purchasers, then no such suit shall be instituted and the title of such claimant or claimants shall stand confirmed; but the Secretary of the Interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the patent was issued or certification was made for the value of the land as hereinbefore specified." 3

It has been held that this statute is broad enough to include all patents erroneously or fraudulently issued under any of the Acts of Congress.*

§ 100. Injunctions against officers of the United States. An officer of the United States,' even a cabinet officer,2 may be enjoined from an act in violation of the complainant's rights, which is not discretionary and which is beyond the scope of his authority. An injunction may be granted when the officer transcends the limits of his authority under a constitutional statute.3

Such injunctions have been granted: to restrain the Secretary of the Interior from revoking the approval by his predecessor of the maps of a right of way over public lands to enjoin subordinates of that Secretary from collecting unlawful charges for the use of water under the Reclamation Act of June 17, 1902.5 To restrain subordinates of the Secretary of Agriculture, the Chief and Chief Inspector of the Bureau of Animal Industry from enforcing illegal rulings of the Secretary of Agriculture. To restrain the Board of Tea Appeals from excluding tea upon

3 29 St. at L. 43, Comp. St. § 4903.

4 United States v. Pitan, 224 Fed. 604.

$ 100. 1 Caldwell v. Robinson, 59 Fed. 653, 660.

2 Noble v. Union R. L. R. Co., 147 I. S. 165, 171, 37 L. ed. 123, 125. 3 Philadelphia Co. v. Stimson, 223 I. S. 605, 56 L. ed. 570.

4 Noble v. Union R. L. R. Co., 147 U. S. 165, 37 L. ed. 123.

5 Magruder v. Belle Fourche Valley Water Users' Ass'n, 219 Fed. 72; Masses Pub. Co. v. Patton, 245 Fed. 102; s. c. 11.

6 Hall v. Willcox, 225 Fed. 333; St. Louis Independent Packing Co. v. Houston, C. C. A., 242 Fed. 337; Brougham v. Blanton Mfg. Co., C. C. A., 243 Fed. 503. In both these cases the injunctions were reversed but the jurisdiction sustained.

8

an unlawful test prescribed by the Secretary of the Treasury.7 To restrain the collector of a port from refusing to enter and release imports when there is no dispute as regards the amount of duty; or the unlawful removal of goods from his district, although he acts under an order of the Secretary of the Treasury. To restrain an acting collector of Internal Revenue from refusing to issue liquor licenses.10 To enjoin an Indian agent from interfering with the right to land which he claims belonged to an Indian tribe.11 An injunction may be granted: to restrain the Secretary of War from unlawfully changing harbor lines and from instituting criminal proceedings to enforce the same.12

To restrain the withholding of mail by a postmaster under an order of the Postmaster General, when the plaintiff's rights are clear. 13 But an injunction to prevent the withholding of mail will rarely be granted, in a case where the Postmaster General has made a decision against the complainant upon a disputed question of fact or a mixed question of fact and law, which is committed by Congress to his judgment; 14 nor when his decision

7 Waite v. Macy, 246 U. S. 606. 8 Gretsch Mfg. Co. v. Scheening & Malone, 231 Fed. 57.

9 Waite v. Maey, 246 U. S. 606. 10 Jacob Hoffman v. McElligot, C. C. A., 259 Fed. 525, modifying 259 Fed. 321.

11 Caldwell v. Robinson, 59 Fed. 653; Wadsworth v. Boysen, C. C. A., 148 Fed. 71. It has been held that an Indian agent is a proper, although not an indispensable party to a suit to determine rights under leases of Indian lands. Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1. See infra, § 119.

12 Philadelphia Co. V. Stimson, 223 U. S. 605, 620, 32 Sup. Ct. 340, 56 L. ed. 570.

13 Am. School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 47 L. ed. 90; New Orleans Nat. Bank v. Merchant, 18 Fed. 841; Hoover v. McChesney, 81 Fed. 472; Fairfield Floral Co. v. Bradbury, 87 Fed. 415; Davis v. Brown, 103 Fed. 909; Fed. Prae. Vol. I-41

Rosenberger v. Harris, 139 Fed. 1001; Donnell Mfg. Co. v. Wyman, 156 Fed. 415; Lewis Pub. Co. v. Wyman, 152 Fed. 787, where the complainant had been denied a full hearing before an order, excluding his publication from second class matter in the mails, was made. But see s. c., 168 Fed. 752; aff'd C. C. A., 182 Fed. 13, Lewis Pub. Co. v. Wyman, 168 Fed. 756; Brooklyn Daily Eagle v. Voorhies, 181 Fed. 579. See a note to Timmons v. U. S., 30 C. C. A. 74.

14 Bates & Gould Co. v. Payne, 194 U. S. 106, 48 L. ed. 894; Central Trust Co. v. Central Trust Co. of Illinois, 216 U. S. 251, 54 L. ed. 469; Enterprise Sav. Ann's v. Zumstein, C. C. A., 67 Fed. 1000; People's United States Bank v. Gilson, 140 Fed. 1, holding that upon the hearing, the person affected may be required to assume the burden of proof and to show affirmatively that his business is legitimate and hon

depends upon a doubtful question of law.15 Where there has been a dispute as to the right to send publications through the mails as second-class matter, preliminary injunctions have been granted in return for a bond, given by the complainant, to pay the excess postage in case the controversy should ultimately be decided against him.16 In such a case, where payments of postage had been made under protest, it was held that the complainant's right to recover the same was enforceable at common law and that, upon a determination that it was not entitled to an injunction, the bill should be dismissed without prejudice.17

When the United States is willing to pay money which it owes into court to have the rights of the respective claimants thereto judicially determined, the court may take jurisdiction of a suit for that purpose.18 The Supreme Court took jurisdiction of a suit by a State, to enjoin the Secretary of the Interior from selling certain land upon the ground that the United States was a party and had given statutory consent to suits aaginst it in respect to the subject matter; 19 but where no such statutory consent had been given, that court refused to entertain jurisdiction of a similar case.20

In the absence of the statutory consent of the United States, a suit cannot be brought to enjoin the Secretary of the Interior from executing an act of Congress, authorizing the sale of certain lands, the title to which is still in the government, in which the complainant claims an interest, and for an accounting of the proceeds of the same.21 The Supreme Court has no jurisdiction of an action brought by a State against the Secretary of the Interior to establish title to lands and to prevent other disposition of the same, where there is a disputed question of law and fact

est; Appleby v. Cluss, 160 Fed. 984, People's United States Bank v. Gilson, C. C. A., 161 Fed. 286; Putnam v. Morgan, 172 Fed. 450; Branaman v. Harris, 189 Fed. 461.

15 Smith v. Hitchcock, 226 U. S. 53, 57 L. ed.

-.

16 Lewis Pub. Co. v. Wyman, C. C. A., 182 Fed. 13.

17 Ibid.

18 McGowan v. Parish, 237 U. S. 285.

19 Minnesota v. Hitchcock, 185 U. S. 373, 46 L. ed. 954.

20 Oregon v. Hitchcock, 202 U. S. 60, 50 L. ed. 935; Masses Pub. Co. v. Patten, 245 Fed. 102.

21 Naganab v. Hitchcock, 202 U. S. 473, 50 L. ed. 1113.