This was a petition, in the supreme court of the District 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. at L. 89, chap. 151, U.S.C.omp. Stat. 1901, p. 1545, 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 its 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; Re Walker, 11 Land Dec. 599; Re Featherstone, 32 Land Dec. 631), that this application was rejected. After its final rejection, that is, after the decision of the Secretary on the motion for review, one William A. Taylor made application at the local land office to purchase the land under the same act, and his application, which appeared to be in conformity with the statutory requirements, was accepted by the local officers and was being carried to final entry when this petition and the answer were filed.
The answer concluded by alleging, in substance, that the respondent was the head of the Land Department, to which the law committed the administration of the timber and stone act and other public land laws; that the duty of determining whether the relator's application conformed to the statutory requirements was not merely ministerial, but involved the exercise of judgment and discretion; that to compel him to accept that application would be to control his judgment and discretion, and to require him to disregard his own decision, in a matter falling within his lawful authority, and that a writ of mandamus could not be used to that end.