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Dissenting Opinion
Johnson Field

United States Supreme Court

70 U.S. 673

United States  v.  Circuit Judges

THE fourth section of an act of Congress of July 1, 1864, [3] 'To expedite the settlement of titles to lands in the State of California,' provides as follows:

'That whenever the district judge of any one of the District Courts of the United States for California is interested in any land the claim to which, under the said act of March 3, 1851, is pending before him on appeal from the Board of Commissioners created by said act, the said District Court shall order the case to be transferred to the Circuit Court of the United States for California, which court shall thereupon take jurisdiction and determine the same. The said District Courts may also order a transfer, to the said Circuit Court, of any other cases arising under said act pending before them affecting the title to lands within the corporate limits of any city or town; and in such cases both the district and circuit judges may sit.'

An appeal pending in the District Court for the Northern District of California from a decree of the Board of Commissioners,-the United States being a party on one side and the City of San Francisco party on the other-was transferred from the District Court to the Circuit under the above section. It was there heard and decided in favor of the city; and the United States, represented by the attorney-general, considering itself aggrieved by the decree, applied in due form to the Circuit Court for an appeal to this court. The application, after full consideration, was denied, on the ground that upon a true construction of the section above quoted no appeal had been provided for.

The section itself, it will be seen, provides for no appeal.

On a petition by the United States for a mandamus to the judges of the Circuit Court to allow one, the question accordingly was whether under the Constitution and different statutes of the United States any appeal lay.

Mr. Assistant Attorney-General Ashton and Mr. Black, for the relators and in support of the motion; Mr. W. W. Cope, contra.

Mr. Justice NELSON delivered the opinion of the court.


^3  13 Id. 333.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).