Smith's Lessee v. Devecmon

GbasoN, J., delivered the opinion of the Court. The question presented for the consideration of this Court, arises upon the prayer of the appellant, which was rejected by the Court below. That question is, whether the title to the land in dispute in this cause, was vested in the appellant under the patent granted to him on the first day of March, 1866, under the authority and direction of the Act of 1866, ch. 93, or in Thomas Devecmon under the patent issued to him on the 25th day of September, 1863. It was contended, on behalf of the appellees, that the Act of 1866, ch. 93, was void and of no effect, because it was an encroachment upon the powers of the judicial department of the government; because it interfered with the vested rights of Thomas Devecmon under his patent; because, there being an appeal allowed from the decision of the Commissioner of the Land Office by the Act- of 1853, ch. 415, the Legislature had no power to enact it, but that- the appellant’s only remedy was by appeal from the decision of the Commissioner of the Land Office, and because that Act was repealed by the Act of 1867, ch. 120, which declared the patent of the appellant void.

It is true that the 1st section of the 54th Article of the Code makes the Commissioner of the Land Office a Court of ⁴⁷⁹ Eecord, but the 7th Article of the Constitution of 1864, section 3, in providing for the election of that officer, leaves his powers and duties completely under the control of the Legislature, so that they may be changed or abrogated, and new duties imposed at its will and in its discretion. That officer does not form part of the judiciary under the Constitution of 1864, to which we must look in the examination of this question, and, therefore, the authorities cited by the appellant’s counsel in support of this branch of his argument, do not apply. After the revolution, the Legislature of this State succeeded to the rights of the Lord Proprietary over the public lands, to be exercised for the public good, and can dispose of them upon such terms, and under such regulations as it may deem proper and expedient, and can change, modify, or dispense with such rules and regulations, in particular cases, according to its own notions of justice or expediency. Baltimore vs. McKim, 3 Bland, 460 ; Cunningham vs. Brown, 1 Bland, 320 ; Howard vs. Moale, 2 H. & J., 260 .

The Legislature, therefore, had power to suspend or dispense with the rules of the Land Office, and to authorize and direct a patent to be issued to the appellant. The Act of 1866, ch. 93, did not attempt, or profess to annul, or, in any manner, interfere with the patent of Thomas Deveemon, or to impair any rights he may have acquired thereunder, but left them, if his patent gave him any, unimpaired and enforcible in the Courts. All that was effected, or intended to be effected, by the Act of 1866, ch. 93, was to authorize a patent to be issued to the appellant so as to enable him to enter the Courts for the purpose of having the rights of himself and of the appellees, under the respective patents, considered and determined. It was the well established practice of the Chancellor, as Judge of the Land Office, where there were two applicants for patents, to issue patents to both, in cases of doubt, so as to place them in a position to have their rights determined by the Courts, Baltimore vs. McKim, 3 Bland, 465 , and the Act of 1866 does no more.

It is true ⁴⁸⁰ that, when the Commissioner of the Land Office sustained the caveat filed by Thomas Devecmon, and decided against the claim of the appellant for a patent, an appeal from that decision could have been prosecuted under the Act of 1853, ch. 415. But it does not follow that, because that right of appeal existed, the Legislature was, therefore, deprived of its control over the public lands, or its power and authority to change, suspend, or modify the rules and regulations for their disposition, or to change the remedy of the appellant by directing a patent to be issued to him, instead of requiring him to prosecute his appeal from the decision of the Commissioner of the Land Office. The contrary principle was fully recognized and enforced by this Court in the case of Wright vs. Wright, 2 Md., 448, 449 . By the Acts of 1841, ch. 362, and 1844, ch. 306, jurisdiction was given to the Courts in all cases of applications for divorces, and in the case of Wright vs. Wright, it was contended that the Act of 1849, by which the parties had been divorced, was an exercise of judicial power by the Legislature, and, consequently, void.

In that case also, as in this, it was urged that the Act was of no force and validity, because it had been passed without notice to the parties to be affected by it. -But it was held that the grant of jurisdiction to the Courts in