United States Ex Rel. Turner v. Fisher

Memorandum opinion by direction of the court.

1. Where, under the provisions of acts of Congress, and after a hearing, the names of relators were duly entered as Creek Freedmen by blood on the rolls made and ap-' proved by the Secretary of the interior, rights were acquired of which the freedmen could not be deprived without that character of notice arid opportunity to be heard essential to due process of law. Garfield v. Goldsby, 211 U. S. 249.

2. Notice to the attorney'"of such freedmen, given a few hours before the hearing of a motion" to strike their names, on the ground that their enrollment had been secured by perjury, was not such notice as afforded due process. *209 Roller v. Holly, 176 U. S. 399, 409; Hagar v. Reclamation Dist., 111 U. S. 701, 708; Iowa Central Railway Co. v. Iowa, 160 U. S. 389, 393; Hovey v. Elliott, 167 U. S. 409, 414.

3. In the absence of other controlling facts, the Secretary of the Inferior could have been required by mandamus to restore the names of those thus arbitrarily stricken off without notice. Garfield v. Goldsby, 211 U. S. 249.

4. But mandamus is not a writ of right; It issues to remedy a wrong, not to 'promote one, and will not be granted in aid of those who do not come into court with clean hands.

5. Although the petition for the writ alleged that relators were freedmen duly enrolled and denied the truth of the testimony, on which their names were stricken off, yet where the answer of the Secretary referred’to that testimony and alleged, “on information and belief, that the relators were not freedmen members or members by blood or marriage of the Creek Nation, and that their en.rollment had been procured by fraud,” a defense Was stated, proof of which would have defeated the right to a restoration of relators’ names, even though they had been improperly stricken from the rolls without due process. United States ex rel. Redfield v. Windom, 137 U. S. 636, 646; In re Sanford Fork & Tool Co., 160 U. S. 247, 257.

'6.. Where a general demurrer to an answer containing such defense was overruled, and the relators, instead of replying, elected to stand on their demurrer, the writ of mandamus was properly refused. In re Sanford Fork & Tool Co., 160 U. S. 247, 257.

7. To have issued the writ would have involved the useless thing of requiring relators’ names to be reentered, and in other proceedings having their names stricken because the original enrollment had been procured- by fraud, thus admitted by the demurrer.

Affirmed