THE fourth section of an act of Congress of July 1, 1864,*fn1 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.
The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.
Mr. Assistant Attorney-General Ashton and Mr. Black, for the relators and in support of the motion; Mr. W. W. Cope, contra.
The question raised by the present application is a nice one in practice, and is not without its difficulties.
The section itself does not provide for an appeal, and, unless the case is governed by some general law, or established practice of the court derived from acts of Congress, the right of appeal cannot be maintained.
By the 22d section of the Judiciary Act, in connection with the act of March 3, 1803, all judgments and decrees in civil actions, and in suits in equity in a Circuit Court, brought there by original process, or removed there from courts of the several States, or removed there by appeal from a District Court, may be re-examined and reversed or affirmed in the Supreme Court. It is said that the present case was not brought into the Circuit by an appeal from the District Court, and hence is not within the provision. The case, as we have seen, comes into the Circuit under the 4th section of the act of 1864, not by appeal, but by an order of the District Court transferring it to the Circuit.
This 4th section was taken from, or part of it, at least, is but a transcript of the 11th section of an act of Congress, passed May 8, 1792. The act provided that in all suits and actions in any District Court of the United States in which it shall appear that the judge is in any way interested, or has been counsel for either party, it shall be his duty to cause the fact to be entered in the minutes of his court, and order an authenticated copy thereof, with all the proceedings in the suit, to the next Circuit Court, which court shall thereupon take cognizance of the case, and hear and determine the same. And a similar provision will be found in the act of March 2, 1809,*fn2 4
in case of the disability of the district judge to perform the duties of his office during such disability. The cases are transferred by the clerk on the order of the circuit judge. And a like provision is found in the act of March 3, 1821,*fn3 5
in case of the relationship of the judge to either of the parties to the suit.
Now, these acts, as will be seen from their date, have been in force from an early period, and it has never been doubted but that the judgments and decrees rendered in the Circuit Court were subject to be re-examined, reversed, or affirmed by the Supreme Court, as in any other case under the 22d section of the Judiciary Act. A case was before us at the present term that had been transferred to the Circuit under the act of 1792.
The law providing for the transfer of the case from the District Court to the Circuit, was regarded as enlarging the cases provided for in the 22d section; and virtually incorporated therein a removal by transfer, when thus authorized, to the Circuit, in addition to the cases of removal by appeal as provided for in that section.
It will be observed that this 4th section of the act of 1864 provides for a compulsory transfer only in the case of an interest of the judge in the land in controversy. But suppose he has been counsel in the cause, or disabled by sickness, or by reason of relationship to either of the parties, this 4th section does not provide for the disability. The cases were, however, already provided for by the acts of 1792, 1809, and 1821, and they are peremptory, that on application of the counsel of either party, the case shall be transferred to the Circuit Court. The construction, therefore, contended for, would present the singular inconsistency of a denial of an appeal, in case of the interest of the judge in the subject-matter of the controversy; but its allowance in case of a transfer, when he had been counsel in the cause, or general disability to discharge his duties, or in case of relationship to either of the parties.
The remaining clause of this section makes it optional with the judge to transfer other causes arising under the act of 1851, affecting the title to lands within the corporate limits of a city or town, and then both judges may sit.
But whether the transfer is optional or compulsory, cannot vary its legal effect. If made at all, it must be by the authority of the 4th section–by the authority of law–the same as in the case of interest of counsel, or general disability of the judge, or from relationship, and falls within the practice applicable to these cases.
This clause is subject to an additional objection; for, as the transfer is optional, and may be granted or not, if the decree of judgment of the Circuit Court is not matter of appeal, or writ of error, whether any appeal be permitted or not in the case, is within the power of the district judge. If he retains the case and determines it, an appeal, it is admitted, lies; if he transfers the case, and the decree or judgment is in the Circuit, it must be denied. We think Congress could hardly have intended this result. It places the right of an appeal not on the judgment of the circuit judge who rendered it, but in the discretion of the judge of the District Court.
It is urged that the proceedings under the act of 1851, concerning California land titles, are special, and are not to be regarded as cases either in law or equity. The law is general, and concerns the title to the whole of the real property of the State. Many of the provisions of this law are taken from the act of May 26, 1824, which provided for the trial of claims under imperfect Spanish and French grants within the State of Missouri before the district judge of that district. These were grants under the protection of the treaty of San Ildefonzo. The proceedings were informal, like those under the act of 1851. The claims were to be determined according to the law of nations, the stipulations of the treaty, the several acts of Congress in relation thereto, the laws and ordinances of the government from which the titles were derived. The proceedings were regarded as in the nature of a proceeding in equity, though the analogy was not very close, the decision on the claim being in the form of a decree.
The proceedings under the act of 1851, we think, should be regarded in the same light–in the nature of a proceeding in equity. The form of the decision has always been in conformity thereto. An appeal is the appropriate mode of bringing the case up to the appellate ...