missioner of Indian Affairs that decision was reversed, and a further appeal carried the contest before the Secretary of the Interior. Knight's contest was held in abeyance, before the Commissioner to the Five Civilized Tribes, awaiting the outcome of Twist's. In this situa tion negotiations were had between representatives of Twist and Knight and the parents of Eva Waters, acting in her behalf, looking to a withdrawal of her selec. tion, subject to the approval of the Secretary of the Interior, in order that there might be no obstacle to the allowance of the later selections of Twist and Knight The negotiations resulted in an application to the Secretary for permission to effect such an adjustment of the two contests on the payment, for the use of the minor, of an adequate consideration for her potential interest in the land. After a hearing on this application the Secretary, on May 10, 1909, rendered a decision approving the proposed adjustment on condition that there be paid, for the use of the minor, $10,000 for her claim to the 20 acres in Twist's contest and $15,000 for her claim to the 30 acres in Knight's. The Secretary then sent to the Commissioner of the Five Civilized Tribes the following telegram: "Lands in Twist and Knight cases agains Waters will be awarded to Twist and Knight respectively upon payment of twenty-five thousand dollars for use of minor Water's, contestants including fifteenth to make payment. Prepare deeds to respective contestants and have them executed and forwarded here for approval report promised by wire." Within the time named the $25,000 was paid to the Commissioner, for the use of the minor, and thereupon patents to Twist and Knight were executed by the principal chief of the Cherokee Nation and were forwarded by the commissioner to the Secre tary for his approval.

Under the regulations governing the institution and disposition of contests over allotments a party was accorded thirty days after a decision by the Secretary within which to apply for a rehearing. Within this period the parents of Eva Waters, acting in her behalf, applied

to the Secretary for a rehearing of the matter covered by his decision of May 10, 1909, it being asserted in that connection that her potential interest was worth much more than the sum named in the decision, and that her parents consent to the adjustment had been grounded on inaccurate and misleading information. The application was entertained, and, after a hearing thereon in which Twist and Knight participated, the Secretary rendered a further decision vacating the former one and disapproving the proposed adjustment, on the ground that the consideration which the minor was to receive was not at all adequate. The Secretary also ruled that both contests should be considered and disposed of on their merits and that the $25,000 should be returned. The money was not actually repaid, but this may have been because those who paid it were as yet unwilling to take it back. In consequence of his later decision the Seoretary declined to approve the patents executed by the principal chief, or to permit them to be recorded or de livered.

On July 16, 1909, Knight's contest was called for hearing before the Commissioner to the Five Civilized Tribes in pursuance of the Secretary's direction that it be con. sidered and disposed of on its merits, and Knight then appeared and protested against any further steps therein, insisting that in virtue of the matters here recited he had acquired a fixed and absolute right to the patent and that the administrative officers were without authority to proceed with the contest. The protest was disregarded, and on the same day he applied to the Supreme Court of the District of Columbia for a writ of mandamus, as before indicated, to compel the Secretary of the Interior to deliver to him the patent for the 30 acres and to perform any other acts necessary to clothe him with the full legal title.

The question for decision is, whether in the circumstances the Secretary was without authority to reconsider and vacate his decision of May 10, 1909, approving the proposed adjustment of the relator's contest, whereby the minor, Eva Waters, was to withdraw her selec

tion in consideration of the payment by the relator of $15. 000 for her use. It is frankly conceded by counsel for the relator and rightly so, that the adjustment could not have been made without the Secretary's approval, which means that he possessed a power of decision in the matter. The act of July 1, 1902, 32 Stat. 725, c. 1375, under which the Cherokee lands were being allotted in severalty, shows that Congress was solicitous not only that every member of the tribe should receive an allotment (§ 11, 16), but that the rights of minors should be specially asserted and conserved (§ 70). And that it was intended to clothe the Secretary with comprehensive powers is shown in the provisions that all matters relating to allotments should be determined under his direc. tion (§ 22) and that all things necessary to carry into effect the provisions of the act, not otherwise therein specifically provided for, should be done under his authority and direction (§ 65). The question therefore is reduced to this: Was his power of decision exhausted when on May 10, 1909, he approved the proposed adjustment? To this there can be only a negative answer. That decision was not final, but interlocutory. In terms it showe that the patent was not to be effective or delivered until he approved it, and the act 1902 declared that it must have his approval, (sec. 59). Not only so but no statutory provision opposing, effect was to be to the reglation providing for rehearings and allowing thirty days within which to apply therefor. Thus it was as if the decision itself had made provision for a rehearing. Proper regard must also be had for the fact that the act of April 26, 1906, 34 Stats 137, ch. 1876, sec. 5, expressly contemplated that the title should not pass until the patent was secorded in the office of the commissioner to the Five Civilized Tribes. In such a case we perceive no reason for departing from the rule applicable to kindred proceedings in the Land Department which is well stated in the following excerpts from the opinion in Brown vs. Hitchcock, 173 U. S. 473-478:

"Until the legal title to public land passes from the Government, inqury as to all equitable rights comes

within the cognizance of the land department. In U. S. Schurz, 102 U. S. 378, 396, which was an application for a mandamus to compel the delivery of a patent, it was said: "Congress has also enacted a system of laws by which rights to these lands may be acquired, and title of the government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

"We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the district to assert his rights as against a procceding in the land department or when the department refuses to act at all. United States vs. Schurz, supra, and Noble vs. Union River Logging Railroad Co., 147 U. S. 105, are illustrative cases of these exceptional ones.

"Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to parties interested, any more than the power of a court to determine legal and equitable rights permits action without notice to parties interested.

"But what we do affirm and reiterate is that power is vested in the departments to determine all questions of equitable right or title, upon proper notice to the parties interested, and that the courts must, as a general rule be resorted to only when the legal title has passed from the Government."

As entirely apposite, we repeat the statement in New Orleans vs. Paine, 147 U. S. 261, 266: "Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal by himself, or his successor. as are the interlocutory decrees of a court open to review upon the final hearing.

Inasmuch as the decision of the Secretary revoking

his prior approval of the proposed adjustment was not arbitrary or capricious, but was given after a hearing and in the exercise of a judgment and discretion confided to him by law, it cannot be reviewed, or he be compelled to retract it by mandamus. Ness vs. Fisher, 223 U. S. 683.

The decisions in Garfield v. Goldsby,211 U. S. 249, and Balinger v. Frost, 216 U. S. 240, are not in conflict with the views here expressed. In the former the writ was awarded to compel the respondent to erase and disregard an entry which he arbitrarily and without notice had caused to be made upon a public record, thereby beclouding the relators right to an Indian allotment. In the latter the writ was awarded to compel the delivery of a patent which was withheld solely through the unauthorized action of the Secretary in entertaining and sustaining a proceeding in the nature of a contest after the expiration of the time limited by statute for instituting such a proceeding. Judgment affirmed

FIRST NATIONAL BANK OF CLAREMORE vs. KEYS, Consolidated with three other Appellants Error to the Supreme Court of Oklahoma.

27 Okla., 704, Affirmed

1. Registration laws are of statutory origin, and, in each case, the applicable statute determines what instruments are to be recorded and where and what the effect is of failure to record.

2. An act of Congress creating a new district in the Indian Territory and establishing a clerk's office therein and which does not expressly so provide, does not require a chattel mortgage to re-record his instrument in the new clerk's office.

3. Where the duty of transferring records of instruments from one clerk's office to another newly established is placed upon the clerk, rights of persons under such instruments are not lost on account of the failure of the clerk to comply with the statute.