the failure to appeal from the decision of the local officers, an application for writ of certiorari will not lie (Blake v. Rasp, 4 L. D., 277).

The application might very properly have been denied because not made under oath (Rule 84 of Practice); also because no copy of the Commissioner's decision, complained of, is furnished (Smith v. Howe, 9 L. D., 648; Lyman C. Dayton, 10 L. D., 159); but it has been deemed preferable to consider the question upon its merits. Moreover, "applica tion for certiorari will not be grauted if substantial justice has been done" (Reed v. Casner, 9 L. D., 170; Lyman C. Dayton, 10 L. D., 159; Stiles v. Newman, 10 L. D., 491; Reuben Spencer, 3 L. D., 503; Dobbs Placer Mine, 1 L. D., 565; Tomay v. Stewart, 1 L. D., 570); and there is no showing-indeed, no allegation-in the case at bar that substantial justice has not been done.

The application is denied.

CONTESTANT-PREFERENCE RIGHT-NOTICE OF CANCELLATION.

KIBBE v. BATES ET AL.

The successful contestant is entitled to thirty days from the receipt of notice of cancellation within which to exercise the preference right of entry.

The entry of an intervening claimant must be canceled if, after due notice, he fails to show sufficient cause why the right of the successful contestant should not be recognized.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 21, 1890.

I have considered the case of Everett W. Kibbe v. Franklin H. Bates and John J. Caldwell on the appeal of Caldwell from the ruling an. nounced in your office letter "H" of April 6, 1889, to the effect that Kibbe would be allowed to make entry for the N.SE. and SW. SE. and SE. SW. of Sec. 10 T. 17 S., R. 36 W., Wa-Keeney, Kansas land district, and that the entry of Caldwell for said land would be canceled.

Your said letter sets forth substantially the record and history of the

case.

It was held in case of Robertson v. Ball et al., (10 L. D., 41), that the successful contestant is entitled to thirty days from the receipt of notice of cancellation within which to exercise the preference right of entry. It was also held in that case that notice should be given the intervening entryman to show cause, if any, why his entry should not be canceled, where the contestant applies to make entry within the time fixed by law, and as this notice has been given and no sufficient cause shown, your action is approved and your instructions to the local officers as per said letter will be complied with.

CONGRESSIONAL GRANT-CERTIFICATION-JURISDICTION.

SMITH ET AL. v. PORTAGE LAKE AND LAKE SUPERIOR SHIP CANAL CO.

Under a grant that does not require the issuance of patent, the certification of lands is equivalent to patent, and divests the Department of all jurisdiction over the lands, or the title thereto.

Such a certification is in effect a decision of the Department that the lands thus certified are in fact subject to the grant, and the validity of such action can only be questioned in the courts.

Secretary Noble to the Commissioner of the General Land Office, November 21, 1890.

This case comes before the Department upon the appeal of Angus Smith and others from the decision of your office, rejecting their applications, presented at the local office in January 1887, to locate Porterfield scrip upon certain tracts of land which had been selected by the Portage Lake and Lake Superior Ship Canal Company, under the grant of March 3, 1865 (13 Stat., 519), and which were approved by the Department October 30, 1868.

The material ground of error alleged is in holding that the certificate of these lands to the State for the benefit of the Canal Company vested the title in the State for the benefit of the company and deprived the Department of all jurisdiction over them. The reasons assigned in support of said allegations of error are―(1) that said selections were not nearest to the location of the canal, and had been designated as "mineral" before the passage of the act, and not being the lands granted, the certification of the Secretary was absolutely null and void, and (2) because the certification of these lands is not equivalent to a patent.

The act of March 3, 1865, supra, granted to the State of Michigan, for the purpose of aiding in the construction of said canal, two hundred thousand acres of land in the upper peninsula of said State. The sec ond section of said act is as follows:

That there be, and hereby is, granted to the said State of Michigan, for the purpose of aiding said State in constructing and completing a harbor and ship-canal to connect the waters of Lake Superior with the waters of Portage Lake, two hundred thousand acres of public lands, to be selected in subdivisions agreeable to the United States survey, by an agent or agents appointed by the governor of said state, subject to the approval of the Secretary of the Interior, from any lands in the upper peninsula of said State, subject to private entry: Provided, That said selections shall be made from alternate and odd-numbered sections of land nearest the location of said canal in said upper peninsula, not otherwise appropriated, and not from lands designated by the United States as 'mineral' before the passage of this act, nor from lands to which the rights of pre-emption or homestead have attached.

The approval of these selections by the Secretary of the Interior was to all intents and purposes a decision by that official that the lands so selected were the odd numbered sections nearest the location of said

canal, not otherwise appropriated, and that said lands were subject to selection under the terms of the grant. Although this certification might have been erroneous, and although it might now appear that there were at the date of selection lands nearer to the location of the canal than those selected which had not been appropriated, yet the ap proval and certification having been made in the exercise of the jurisdiction of the Secretary to determine whether said selections were uuappropriated lands nearest the location of the canal, removed from the Department all further jurisdiction over those lands, and the validity of said certification could thereafter only be questioned in the courts. Whether the lands selected were of "lands nearest the location of said canal not otherwise appropriated," was a question of fact, to be determined by the Secretary, and that determination was made by his approval of the list of selections and the certification thereof to the State.

.

The act excepted from the grant all lands "designated by the United States as mineral' prior to the passage of this act." It is therefore contended that, as these lands had been so designated, it is immaterial whether they actually contained mineral or not; that if they had been designated as mineral prior to the passage of the act, they were expressly excepted from the operation of the grant, and the certification of such lands was an absolute nullity. The language of the act will reasonably bear a different construction. The lands may at one time prior to the passage of the act have been designated as mineral, and yet that designation may also have been changed prior to the passage of the act, and may have been designated and known to be non-mineral. I do not think, the mere fact that the lands had once been designated as mineral prior to the passage of the act would except them from the operation of the grant, if that designation had been afterwards changed and they were known to be non-mineral prior to that date. Without determining this question, it is sufficient to say that it may have been presented to the mind of the Secretary when the lands were certified, and in the exercise of his jurisdiction to determine whether the lands had been properly selected the statute may have been so construed.

It appears that these lands had at one time been designated, in common with a large tract of country in the upper peninsula of Michigan, as mineral lands, but in 1851 they were offered at public sale under the proclamation of the President. No information is contained in the letter of your office, or in the appeal and argument of the appellants, as to whether these lands are actually mineral in character, but it may be assumed that they are not, otherwise they would not be subject to these locations, even if they were public lands. Whether the true character of these lands had been ascertained prior to the date of the grant, I am unable to determine, but from all the facts before me I am satisfied that the approval of these selections removed from the Department all further jurisdiction over them, and there was no error in the decis ion of your office rejecting said applications.

The granting act contains no provision requiring the issuance of patents for the lands selected, but simply that said selections shall be made by an agent or agents appointed by the State, subject to the approval of the Secretary of the Interior. This approval is the only act required to divest the government of the title to the land selected, and to invest that title in the State, and it is therefore the equivalent of patent. Garriques v. Atchison, Topeka and Santa Fe Railroad Company, 6 L. D., 543; Frasher v. O'Connor, 115 U. S., 102.

I do not deem it necessary to take any action in this decision upon the question as to whether any steps should be taken looking to the cancellation of this certification by the courts, in the absence of direct action thereon by your office. If such action should be deemed advisable, it may be presented hereafter.

Your decision is affirmed.

MOTION FOR REVIEW.

CRAWFORD v. FERGUSON.

Motion for the review of the departmental decision rendered March 7, 1890, 10 L. D., 274, denied by Secretary Noble, November 22, 1890.

PRE-EMPTION-SETTLEMENT RIGHTS-SECTION 2269 R. S.
ORVIS v. BIRTCH ET AL.

A settlement on land that is under reservation confers no right of pre-emption, and if the settler dies, while the land is in such condition, his heirs have no right thereto that can be perfected, under section 2269 of the Revised Statutes, after th› land is restored to the public domain.

The right to amend a declaratory statement can not be exercised in the presence of a valid intervening adverse claim.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 22, 1890.

These cases involve the rights of the several parties under their conflicting claims to the S. SW. 1, NW. SW. and SW. NW. † of Sec. 22, T. 45 N., R. 8 W., N. M. P. M., Lake City, Colorado, embraced in the declaratory statement of Lewis F. Orvis, as administrator of the estate of A. H. Jarvis, deceased.

The first case arose upon the application of Martin Birtch to make final proof under his declaratory statement, covering the S. of the SW. of said Sec. 22, and other land in Sec. 27, which was offered November 27, 1856, when Orvis. administrator, appeared and protested against the allowance of said proof, on the ground of prior settlement as to the S. of the SW. of Sec. 22.

The second case arose upon the application of Orvis, administrator, to make final proof in support of the claim of the heirs of A. H. Jarvis, deceased, for the land covered by the declaratory statement of Orvis, adm'r, aforesaid, which was offered March 14, 1887, when Birtch, William Rothwell, and James W. Austin, each protested against the allowance of the entry for said heirs, denying their right to make entry of said tract. The claims of the several protestants under their respective filings conflicted with the claim of Orvis, administrator, as follows:

The conflict between-Orvis, administrator, and Birtch is as to the S. of the SW. of Sec. 22, and between Orvis, administrator, and Rothwell and Austin it is as to the NW. of the SW. and the SW. of the NW. of said section.

On March 16, 1887, the local officers rendered a decision in favor of Birtch, and on April 4, thereafter, Orvis filed a motion for review thereof and at the same time asked to amend his declaratory statement so as to claim the land in his own right instead of as administrator. On April 18, 1887, the local officers overruled both motions, and on April 20, they passed upon the final proof submitted by Orvis, and rendered judgment denying his right to make entry of the land, either as administrator of the estate of Jarvis, or in his own right, and the entire record was transmitted to your office. From the action of the local officers Orvis appealed, both as administrator of the estate of Jarvis and in his individual right.

On May 4, 1889, you affirmed the action of the register and receiver rejecting the proof of Orvis in the case of Orvis, administrator, v. Birtch, and in rejecting the application of Orvis to amend so as to claim in his own right, and held his filing for cancellation, also upholding their decision allowing the proof of Birtch in the case of Birtch et al. v. Orvis. From this judgment Orvis, administrator, appealed, assigning the fol lowing grounds of error:

First. In holding that on May 24th, 1886, there was no right of pre-emption existing in Orvis as administrator of the estate of Jarvis, deceased.

Second. In holding that on May 24, 1886, there were no rights existing in the heirs of Jarvis, deceased, by reason of their long and continued residence, which could antedate the claimed rights of Birtch.

Third. In denying Orvis' application to amend his declaratory statement to read in his own right, as such privilege is clearly due him by reason of his prior settlement and claim to the land in conflict, and

Fourth. In holding either as a matter of fact or of law that Birtch, Rothwell or Austin, or either of them, had any rights which could defeat Orvis, either in his own right, or in his administrative capacity. The contrary is shown by the facts in the testimony and law cited in our brief.

The controlling issue in this case, so far as it affects the claim of the heirs of Jarvis, is, whether a settlement made on land not subject to settlement and entry by one who dies while the land is so reserved, will entitle the heirs of such settler to the right to make pre-emption entry of said land after its restoration to the public domain, by virtue