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NESS V. FISHER, 223 U. S. 683 (1912)

U.S. Supreme Court

Ness v. Fisher, 223 U.S. 683 (1912)

Ness v. Fisher

No. 66

Argued November 15, 1911

Decided March 11, 1912

223 U.S. 683


Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with quasi-judicial functions, to which is confided the execution of the laws regulating the disposal of the public lands.

A decision of an executive officer, made in the discharge of a duty imposed by such a law and involving the exercise of judgment and discretion, may not be reviewed by mandamus, nor can he be compelled by that means to retract his decision so made and to give effect to another not his own and having his approval.

The Secretary of the Interior made a decision that, under § 2 of the Timber and Stone Act of June 3, 1878, 20 Stat., 89, c. 151, the statement that the land is unfit for cultivation, valuable chiefly for its timber, uninhabited, and contains no mining or other improvements must be made upon the personal knowledge of the applicant, and not upon information and belief, and the court of appeals held that this decision was right, and on that ground refused mandamus to review it; this Court affirms the judgment, but without examining the merits of the question and solely on the ground that the decision of the Secretary is one involving the exercise of judgment and discretion of an executive officer which cannot be reviewed by mandamus.

That no writ of error or appeal lies in such a case by which the decision of the Secretary of the Interior can be reviewed furnishes no ground for awarding mandamus.

33 App.D.C. 302 affirmed.

The facts, which involve a claim under the Timber and Stone Act of 1878, and the power of the court to control the decision of the Secretary of the Interior in regard thereto by mandamus, are stated in the opinion.

Page 223 U. S. 688

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