eral Land Office, or any persons, wherever located, employed under the supervision of the Commissioner of the General Land Office, are, during such employment, prohibited from entering, or becoming interested, directly or indirectly, in any of the public lands of the United States. Very respectfuly,

Approved:

GEO. CHANDLER,

Acting Secretary.

LEWIS A. GROFF,

Commissioner.

PRACTICE-PETITION FOR RE-REVIEW-APPLICATION FOR HEARING.

SPICER ET AL. . NORTHERN PACIFIC R. R. Co.

A petition for re-review should present facts or questions of law not previously considered or involved in the case.

An application for a bearing addressed to the Secretary of the Interior calls for the exercise of his discretionary authority, and it is therefore just and proper that he should, in such a case, be fully informed as to all facts connected with the subject matter, and determine, after a consideration of the whole subject, whether such facts demand action.

Secretary Noble to the Commissioner of the General Land Office, October 1, 1890.

The attorney for Spicer et al. has filed a motion for review of depart mental decision of July 17, 1890, in the case of R. E. Spicer et al. v. Northern Pacific R. R. Co. (11 L. D., 50) involving the NE. T. 25 N., R. 43 E., Spokane Falls, Washington.

of Sec. 19,

The decision thus complained of was rendered upon a motion for re. view of departmental decision of April 12, 1890 (10 L. D., 440), and hence the present motion is in the nature of a petition for a re review.

Service of notice of the filing of this motion was not properly shown in accordance with the rules of practice requiring such service to be made personally or by registered letter, but inasmuch as the attorneys for the opposing parties have seen fit to oppose the granting of said motion on the ground that it is not authorized by the rules of practice, and of its insufficiency, without objection to the service, they have placed themselves within the jurisdiction of this Department, and waived the question as to the sufficiency of the notice.

This motion does not come up to the requirements prescribed for petitions for re-review as laid down in the case of Neff v. Cowhick (8 L. D., 111) and re-affirmed in numerous decisions, among which are Creswell Mining Co. v. Johnson (8 L. D., 440), Dayton v. Dayton (9 L. D., 93); Wenie et al. v. Frost (9 L. D., 588).

While this is true, yet in view of the peculiar circumstances in this case I have thought best to waive those requirements and to consider upon its merits the motion thus presented.

In answer to the first and second reasons urged in support of this motion it is sufficient to say that the original petition was addressed to the Secretary of the Interior and appealed to his discretionary power. For this reason it was not only proper, but necessary to a right and just exercise of that power that he should fully inform himself upon all points and facts connected with or touching upon the subject matter. In matters of this character it is the duty of this Department to determine after a careful consideration of the whole subject whether the facts demand action.

Attention was necessarily called to the interest alleged by the intervenors in the land involved in this controversy. It was then decided that they had such interest in the land as entitled them to be heard in opposition to the petition then under consideration, and no sufficient reason for a different conclusion is presented in the argument in sup. port of the third reason in this motion. To set aside the title of those through whom these intervenors claim would be to render their title uncertain and depreciate their property. The action sought to be brought about by these petitioners would result in the divesting of these intervenors of the title now held by them and the substitution therefor of an equitable title, based upon occupation alone. They are certainly entitled to be heard in defense of the title now held by them.

The fourth reason alleged in support of this motion is based upon the theory that the statement of Enoch, the Indian, to the effect that he had not severed his tribal relations, was never properly executed inasmuch as the person before whom it purports to have been sworn to was not at that time qualified to administer oaths. It would be sufficient in reply to this to say that Enoch supposed he was making an affidavit before a proper officer, and that the effect of his statement thus made upon his credibility is the same as if such officer had been duly qualified. Besides this, however, the facts and circumstances presented show so conclusively that Enoch had not abandoned his tribal relations that his statements to the contrary would be successfully overcome had he made no contradictory statement.

In answer to the fifth allegation in this motion it is only necessary to say that the question to be determined was as to whether under all the facts the discretionary authority vested in the Secretary of the Interior should be exercised in ordering a hearing and that all facts relating to the matter in issue were properly to be considered. This answer applies also to the sixth and seventh allegations. All the papers mentioned in those allegations were necessarily considered in arriving at a conclusion in this matter.

It is true that the affidavits presented by the intervenors as to Enoch's tribal relations were not filed until on or about the day of the oral argument herein, but the petitioners had ample time between that date and the date of the decision to present any affidavits or other papers they desired and they did in fact on June 26th file with their

brief an affidavit by Enoch upon the very point mentioned in paragraph 8 of this motion. This paragraph then presents no good grounds for the action they now ask shall be had.

The oral argument was not restricted to the points mentioned in the ninth allegation, but included all the points presented by the petition of Spicer et al., as well as the right of Glover et al., to intervene. If the petitioners were taken by surprise by the matter presented in behalf of the intervenors, an application for further time to prepare to meet such matters should have been presented in due season. As a matter of fact though, as hereinbefore stated, ampie time elapsed between the date of the presentation of the motion to intervene and the date of the rendition of the decision now complained of, to allow of the filing of affidavits or other matter by the original petitioners and was in fact utilized by them to the extent of filing the affidavit of Enoch. This ninth allegation then presents no good reason for granting this motion. The tenth, eleventh, and twelfth allegations have been answered in effect in the discussion of the previous paragraphs. As herein before said, Glover et al., showed such interest in the question presented as clearly entitled them to be heard. In order to properly decide upon the original petition filed herein, it was necessary to take into consideration all the facts touching upon the matters in dispute.

After a careful consideration of the matters presented by this motion, each of which was fully presented by the papers and records in the case and the oral argument upon the motion for review and necessarily considered in arriving at a conclusion thereon, I perceive no good and sufficient reason for granting the prayer of this motion and the same is therefore denied.

On September 9th, the attorney for Spicer et al., filed in this office a letter offering, in the event the decision complained of is revoked, to amend their petition to make it applicable to the east half alone of the. tract in controversy thus relieving from all question the west half of said tract, upon which it is said all the improvements of the intervenors are situated. This action would not change the facts in the case or affect the conclusion heretofore reached, and the proposition can not be entertained.

COAL LAND DECLARATORY STATEMENT-SECOND FILING.

WALTER DEARDEN.

A second coal declaratory statement cannot be filed, in the absence of a valid reason for failure to perfect title under the first.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 1, 1890.

I have considered the appeal of Walter Dearden from your decision of July 18, 1889, rejecting his application to file coal declaratory statement for the NE. Sec. 35, T. 33 S., R. 66 W., Pueblo, Colorado, land district.

He made said application on January 22, 1889, and the same was rejected by the local officers for the reason that he had made a previous filing of like kind and had thereby exhausted his right of entry, from which action he appealed. Your office sustained the action of the local office, and he again appealed.

The record shows that on January 26, 1888, he filed a coal declaratory statement for the NE. of Sec. 25, same township and range, and that he relinquished the same January 14, 1889. He says he relinquished because unable to pay for the land.

This case is very similar to the case of Albert Eisemann (10 L. D., 539), and the claims of the attorneys are in substance identical, to wit: that a mere declaration of intention to purchase which is not consummated by actual entry should not, under the law of Congress, exhaust the right of entry.

In the case of Eisemann (supra), after discussing the question fully, it is said :

Eisemann does not present any excuse for not consummating his first filing, but base his claim to make a second filing solely upon the ground. . . . that a coal land filing unless completed and payment is made for the land embraced therein, does not exhaust the rights of the applicant . . . As we have seen, the regulations limit a party to one filing and this is not in conflict with the statute, but needful for carrying its provisions into effect.

Dearden gives no satisfactory excuse for not consummating his first filing, he held it almost a year, and relinquishing it, asks to make another filing, giving no assurance that he would not do the same with it, and then apply for a third, thus keeping a tract perpetually under a filing. As you say in your opinion it would be equivalent to giving an option to the entryman for one year for $3.00 and then allowing him to take another on another tract for a like sum, so on indefinitely. There can be no good reason for such a practice, it is certainly contrary to the intention of Congress when it enacted the law, and is in violation of the regulations relating to coal land entries.

Your decision is affirmed.

HOMESTEAD ENTRY- RELINQUISHMENT-PROTEST OF WIFE. .

DODGE v. LOHNES.

The protest of the entryman's wife against the relinquishment of a homestead entry cau not defeat the legal operation of such instrument.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 1, 1890.

James M. Dodge made homestead entry for the S of the NE‡ and S of the NW of Sec. 35, T. 5 S., R. 20 W., Kirwin, Kansas, on September 27, 1882. He filed his relinquishment of the same in the local office on July 16, 1885. The entry was canceled, and on that day John

S. Lohnes made homestead entry for the same tract, having purchased the improvements thereon from the entryman.

Prior to the filing of the relinquishment, and before Lohnes made his entry, Emily E. Dodge made application at the local office to restrain. her husband from relinquishing his homestead entry, and that she be allowed to retain the homestead in her own right and for the benefit of herself and children. It was urged in support of the motion, that the rights, equities and interests of the applicant in the homestead are fully recognized, guaranteed, and protected by section nine, Article fifteen, of the Constitution of the State of Kansas.

Corroborating witnesses to this petition, which was regarded in the nature of a contest, were not secured on that day. There is some controversy as to when the petition duly corroborated was filed; but the proof is clear that both Lohnes and the entryman, Dodge, knew that Emily E. Dodge opposed the sale of the improvements and the relinquishment of the entry before Lohnes made his entry of the land, and the latter made his entry with full knowledge of her disapproval.

Contestant's application was transmitted to your office on August 30, 1886, and you ordered a hearing to determine the matters alleged.

On February 26, 1887, the register and receiver dismissed the contest, and by your office decision of May 4, 1889, you affirmed that judgment, and contestant again appealed.

The evidence shows that contestant was married to James M. Dodge on November 12, 1875. She lived with him on the land from about the date of entry until he relinquished the same and sold the improvements. Both husband and wife expended means in improvements upon the land. The evidence, however, further shows that James M. Dodge was a drinking character, a gambler, profligate and given to raising disturb ances. He was killed by one Frank Sims, a few days after making his relinquishment.

The first section of the act of May 14, 1830 (21 Stats., 140), provides that:

When a pre-emption, homestead or timber culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office.

When a relinquishment is filed in the local office, the entry should at once be canceled, and the land thereafter held open to settlement. (Sears. Almy, 6 L. D., 1). An application to enter, accompanied by a relinquishment, is immediately effective on the filing of the relinquish

ment.

The constitutional provision invoked in behalf of contestant can have no relation whatever to the present case; it provides that:

a homestead to the extent of one hundred and sixty acres of farming land, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists. 2497-VOL. 11-23