Gordon v. Terrell
Martin Gordon v. J. J. Terrell, Commissioner of the General Land Office; E. C. Whitmyer v. Same; C. N. Childress v. Same; William Nelson v. Same; W. M. Odom v. Same; W. A. Little v. Same; John Yeakel v. Same; R. Milligan v. Same; W. N. Pence v. Same
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Opinion of the Court
GAINES, Chief Justice.
These nine cases involve the same questions and have been submitted by the respective relators upon one brief. The respondent has likewise filed a single brief as applicable to each case.
Each of the relators seeks to obtain a writ of mandamus by which to compel the respondent, the Commissioner of the General Land Office, to award him certain sections of school lands which he had made application to purchase—which application had been rejected by the Commissioner. The respondent filed a separate answer in each case in each of which, among other things, he alleges, under oath, in substance, that the relator was not at the time of making his application, nor has ever since been an actual settler upon the section sought to be purchased by him as a home section, nor upon any other section of land for which he made application. The allegation directly traverses the averment in the petition that the relator was an actual settler upon the section applied for as a home section, and raises a question of fact, which this court has no power to determine. The general rule of the statute in regard to the sale of the school lands as expressly declared is, that they “shall be subject to sale, but to actual settlers only.” This is a condition precedent to the right to purchase, and hence as we think where a claimant of such lands seeks to establish his right as a purchaser, especially as against the Commissioner of the General Land Office who has rejected his application, he must allege and, if controverted, must prove that at the time he made his application he was an actual resident upon the land for the purpose of making it his home. If the action be brought in this court and the fact of actual settlement be denied under oath, it takes away the jurisdiction of this court, because we have no power to pass upon a question of fact. The applications involved in each *405 of • these cases were made in November, 1904, and what we have said is in reference to the laws in force at that time.
Each of the petitions is therefore dismissed for want of jurisdiction.
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