1 and 2 placer mining claims, covering 320 acres within the Wallowa National Forest in Townships 5 and 6 S., R. 43 E., W. M., La Grande land district, Oregon.

In unreported Departmental decision of October 24, 1913 [Ex parte J. B. Nichols and Cy Smith], it was held, that, as between the Government and the claimants, the courts and not the land department had exclusive jurisdiction to inquire into and determine the validity of a mere mining location. The decision in the case of H. H. Yard (38 L. D., 59), and all others of like import were expressly overruled. The Government proceeding herein was ordered dismissed.

Because of the gravity of the matter and the pendency in the Federal courts of certain cases touching the jurisdictional question, it has not been deemed advisable heretofore to act upon the pending motion. The Department of Agriculture has lately pointed out that in two cases the Federal courts have declined to interfere with proceedings pending before the land department affecting mining locations, and has urged that public interest would seem to require that action be taken. The suggestion made is persuasive.

The Department has had its attention sharply directed to the importance of the question presented. It has again reviewed the fundamental basis for support of its jurisdiction. By specific statutory provisions contained in Sections 441, 453 and 2478, Revised Statutes, the Secretary of the Interior and the Commissioner of the General Land Office are vested with power and authority to execute and enforce all of the public land laws, including those relating to mines. When the administration of the national forests was transferred to the Department of Agriculture by the act of February 1, 1905 (33 Stat., 628), Congress provided that the Secretary of that Department should execute or cause to be executed all laws affecting the public lands within the national forests, "excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands." This was an explicit Congressional announcement that all those laws covering prospecting, locating and appropriating areas within the forests should continue to be executed as theretofore by the Interior Department.

In the case of Low et al. v. Katalla Company (40 L. D., 534), where the question was presented as to whether an issue as to the character of land was for the courts in Alaska or for the land department to determine, it was held (Syllabus):

The jurisdiction of the land department in all matters involving the disposition of the public domain is plenary and exclusive except where specific legislation has made the adjudication of local tribunals auxiliary to the proceedings before the land department connected with the acquisition of title.

This principle with respect to Alaska has been sustained by the courts in the cases of Nelson v. Brownell (193 Fed., 641) and Lassley v. Brownell (199 Fed., 772).

The United States Supreme Court has on numerous occasions commented upon the peculiar functions of the land department. The following excerpts from its opinions are apposite:

The Constitution of the United States declares 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. Under this provision the sale of the public lands was placed by statute under the control of the Secretary of the Interior. To aid him in the performance of this duty, a bureau was created, at the head of which is the Commissioner of the General Land Office, with many subordinates. To them, as a special tribunal, Congress confided the execution of the laws which regulate the surveying, the selling, and the general care of these lands.

Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere. [United States v. Schurz, 102 U. S., 378, 395.]

The public domain is held by the Government as part of its trust. The Government is charged with the duty and clothed with the power to protect it from trespass and unlawful appropriation, and under certain circumstances, to invest the individual citizen with the sole possession of the title which had till then been common to all the people as the beneficiaries of the trust. States v. Beebe, 127 U. S., 338, 342.]

[United

There can be, as we think, no doubt that the general administration of the forest reserve act, and also the determination of the various questions which may arise thereunder before the issuing of any patent for the selected lands, are vested in the Land Department. The statute of 1897 does not in terms refer any question that might arise under it to that department, but the subject matter of that act relates to the relinquishment of land in the various forest reservations to the United States, and to the selection of lands, in lieu thereof, from the public lands of the United States, and the administration of the act is to be governed by the general system adopted by the United States for the administration of the laws regarding its public lands. Unless taken away by some affirmative provision of law, the Land Department has jurisdiction over the subject. Catholic Bishop v. Gibbons, 158 U. S. 155, 166, 167. There is no such law. [Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 308.]

As is said in Knight v. United States Land Association, 142 U. S. 161: "The Secretary is the guardian of the people of the United States over, the public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the Government, which is a party in interest in every case involving the surveying and disposal of the public lands."

Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial func

tions, to which is confided the execution of the laws which regulate the purchase, selling and care and disposition of the public lands. [Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324.]

But what we do affirm and reiterate is that power is vested in the Departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as a general rule, be resorted to only when the legal title has passed from the Government. When it has so passed the litigation will proceed, as it generally ought to proceed, in the locality where the property is situate, and not here, where the administrative functions of the Government are carried on. [Brown v. Hitchcock, 173 U. S. 473, 478.]

In Knight v. United States Land Association, 142 U. S. 161, the supervisory power of the Secretary of the Interior over all matters relating to the sale and disposition of the public lands, the surveying of private land claims and the issuing of patents thereon, and the administration of the trusts devolving upon the government by reason of the laws of Congress or under treaty stipulations, respecting the public domain, was fully considered, and numerous authorities cited. It was declared by Mr. Justice Lamar, speaking for the court, that the Secretary was clothed with plenary authority as the supervising agent of the government to do justice to all claimants, and to preserve the rights of the people of the United States, and that he could exercise such supervision by direct orders or by review on appeal, and, in the absence of statutory direction, prescribe the mode in which it could be exercised by such rules and regulations as he might adopt. [McDaid v. Oklahoma, ex rel. Smith, 150 U. S. 209, 215.]

It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the Land Department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the Land Department, one way or the other, in reference to these questions is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined. [Burfenning v. Chicago, St. Paul &c. R'y, 163 U. S. 321, 323.]

The above authorities, while announcing the general jurisdiction of the land department, do not go to the precise question of its authority over a mere mining location. This point is referred to in the case of Clipper Mining Company v. Ely Mining and Land Co., 194 U. S., 220. That case involved an adverse suit by prior placer claimants, whose application for patent had been rejected, against junior lode applicants, and the court, in the course of its opinion, used the following language, pages 223-234:

Undoubtedly, when the Department rejected the application for a patent, it could have gone further and set aside the placer location and it can now, by direct proceedings upon notice, set it aside and restore the land to the public domain. But it has not done so, and therefore it is useless to consider what rights other parties might then have.

The land office may yet decide against the validity of the lode locations and deny all claims of the locators thereto. So also it may decide against

the placer location and set it aside and in that event all rights resting upon such location will fall with it.

The case of Cameron v. Weedin et al., 226 Fed., 44, was one in which a bill for injunction to restrain the local officers from proceeding against certain mining claims was filed by Cameron. District Judge Sawtelle, in his opinion, rendered September 4, 1915, makes the following statements:

The first question, therefore, to be considered, is whether this court has jurisdiction of the cause. It seems to me that this question must be answered in the negative. In the recent case of Plested v. Abbey, 228 U. S. 42, 33 Sup. Ct. 503, 57 L. Ed. 724, which was a suit against the register and receiver of the local land office of the United States at Pueblo, Colo., and in which plaintiffs sought injunctive relief against said land officers, restraining them from carrying out the orders of the Secretary of the Interior and the Commissioner of the General Land Office, as in the case at bar, it was strenuously insisted that the register and receiver were acting beyond and contrary to the law, and that, being outside of the pale of the law, they were not entitled to its protection, even though the rule exists that they should not be interfered with by the courts when exercising their official functions within the law. In that case the Circuit Court entered a decree sustaining a demurrer to the bill and dismissing the cause for want of jurisdiction.

The court then proceeds to quote from the decision of the Circuit Court and the opinion of the United States Supreme Court in the case cited, and continues:

It is claimed by plaintiff that the case just quoted involved the right under the laws of the United States to purchase coal lands belonging to the United States, and that therefore the decision in that case should not be followed in cases where rights are initiated and possession held under and by virtue of the laws of the United States relating to the location and possession of unpatented mining claims. I am of opinion that no such distinction can fairly be drawn, and that the principle announced in that case is equally controlling in cases arising under the mining laws. The language of the court is clear and positive, and is in terms which admit of no exceptions or qualifications, and it would seem a waste of time and labor to review or collate the decisions in which the questions here involved have been discussed, especially in view of the fact that they have been so carefully selected by the Chief Justice and are to be found in the opinion of the Supreme Court in the Plested Case, supra.

Counsel for plaintiff have called my attention to the case of Ex parte Nichols and Smith, recently decided by the Assistant Secretary of the Interior, now pending on rehearing. In that case the previous decision in the Yard Case, 38 Land Dec. Dept. Int. 59, was overruled, and it was there held that the Land Department was without jurisdiction in inquiries of the character now under consideration by the local officers, and that the courts have the exclusive jurisdiction to determine the right of possession to an unpatented mining claim. Entertaining, as I do, the opinion that this court has no jurisdiction to award the relief prayed, I deem it unnecessary in this opinion to enter into a discussion of that case, or to express any opinion with reference thereto. . . .

The motion to dismiss is hereby sustained, and the clerk is directed to enter a decree denying plaintiff's application for a temporary injunction, and dismissing the bill for want of jurisdiction.

In the recent case of Lane v. Cameron, decided by the Court of Appeals of the District of Columbia on November 14, 1916 (44 Wash. Law Rep., 743), this question of jurisdiction was the main issue presented. The court's opinion in that case concludes as follows:

It is apparent, therefore, that unless the Land Department of the Government, to which and to which alone has been entrusted the authority and duty of representing and protecting the public interests in these matters, is authorized to inquire into the good faith of these claims, the public interest may suffer. The jurisdiction of the Department to make such an inquiry should this appellee ask for a patent, is not denied. The question of jurisdiction, therefore, is dependent upon his will. If he conceives it to be to his interest to obtain a patent, jurisdiction will be conferred upon the Department to determine the character of the land embraced within these entries; but, if he elects not to apply for a patent, the Department, even if convinced that the character of the land is nonmineral, must permit him to occupy it to the exclusion of the public. This is a startling contention to press in a court of equity, and its fallacy is clearly apparent when we come to consider that the administration of the public land system was entrusted exclusively to the Land Department, that the public interest might be protected at all times.

But, says the appellee, it is open to the Land Department to institute a court proceeding to have determined his rights. The Department very naturally answers this contention by pointing out that under such a proceeding the court would be without jurisdiction to pass upon the fundamental question involved, namely, that of the character of the land. That question, as we have seen, has been held for the exclusive determination of the Department, and should the Department institute a court proceeding without first having determined it, there would be nothing upon which to pass a judgment. We are clearly of opinion that this contention of appellee is unsound.

Hardin v. Jordan, 140 U. S. 371, and Noble v. Union River Logging Co., 147 U. S. 165, are not in conflict with our conclusion that the Department has jurisdiction to inquire into the character of the land here involved, for in those cases there had been final action by the Department, and, hence, attempts to resume a jurisdiction wholly lost were abortive. In the present case, the legal title to the land embraced within these entries still is in the United States, and the question as to the character of that land still is undetermined. This, therefore, is an attempt not to prevent the Department from resuming a lost jurisdiction, but from exercising an existing jurisdiction and performing a statutory duty.

This attempt of appellee to interfere with the Department in the performance of its duty as the guardian of the public interest, must fail. If the character of this land really is mineral and the locations regular, such undoubtedly will be the finding of the Department, and appellee will be injured in no way. If, on the other hand, the character of this land is nonmineral and these locations irregular, these facts should be determined and appropriate action taken by the Department to restore the land to the public domain. The province of courts is to uphold, rather than stay, the hands of officials who, in good faith, are seeking to perform duties imposed by law.

It follows that the decree must be reversed, with costs, and the cause remanded with directions to dismiss the bill.

In passing it may be stated that at least three years prior to the rendition of the decision in the Yard case, supra, this Department, in