This application was addressed to the Commissioner of the General Land Office, from which it appears that he considered it not so much in the nature of a review of Secretary Chandler's decision, as of an original application for the enforcement of their rights under the grant in view their then existing status which they proposed to show. The Commissioner therefore, in passing upon the question, said:

"After full and careful examination of the files and records of this office, and the proofs presented, I find no room for doubt that the line of route of the road in question was actually surveyed, and a map of such survey intended as evidence of the definite location of the line, filed in the General Land Office on December 14, 1860; and that it was prepared and presented in good faith. If said map was properly executed-sufficient in itself, needing no certificate by the governor-the action of this office in returning it to Captain Smith, resulting in its loss, should not be made to work a forfeiture of the company's right, it being admitted that the grant has not been forfeited by failure in other respects."

But in view of the decision of Secretary Chandler, holding that the act of definitely locating the road must be done in all cases before the expiration of the time fixed for completing the road, and as the entire question was apparently presented for a review or reconsideration of the former action of the Department, he declined to express an opinion as to the sufficiency of the map as originally filed, or of the reproduced copy of the same as then presented, and submitted the matter to the Secretary without recommendation.

Secretary Schurz, on January 28, 1881, considering this application as a motion for review of his predecessor's decision, entertained jurisdiction of the question, upon the ground that material facts that show the authority of the company to locate its line and file the map were not before his predecessor, and held that the approval or certificate of the governor was not essential to the validity of the survey; that the map fixing the definite location of the road in 1860 was filed in the General Land Office, which exactly corresponded with the duplicate now filed, and there remains now no doubt that the line exhibited was then surveyed and marked as the definite location of the road, and as such recognized by the company and State authorities. In accordance therewith he directed a withdrawal of the lands to protect the rights of the company and to secure a proper adjustment of the grant upon the line designated.

I am now asked to review this decision and to revoke the order of withdrawal made thereby, applicants urging in support of said motion that if Secretary Schurz had the authority to review the decision of Secretary Chandler, his decision may with equal authority be reviewed and revoked by any succeeding Secretary. In view of the facts of this case, I am unable to see the force of this argument. The question before Secretary Chandler, and which he alone decided, was, whether a map of definite location can be filed after the expiration of the time allowed for completing the road. It is clearly shown by the record of the

case then made, that the Secretary did not contemplate that any map of definite location had theretofore been filed, but that the map presented was an original filing, because, referring to this part of the road,

he says:

"No map showing the definite location of the road to Tampa Bay has ever been filed in the Department," and "The company now offers to file a map definitely fixing that portion of the road last mentioned,” etc. The question decided by Secretary Schurz was, whether a duplicate map of definite location of that part of the road may be received and filed after the expiration of the time allowed for the completion of the road, and a withdrawal made thereunder upon proof that the duplicate presented is a correct copy of the original which was filed in time, and that the original has been lost or destroyed.

If, in fact, a map of definite location had been filed in time, the title of the grantee by virtue of that act was completed by attaching it to specific lands, and the decision of Secretary Chandler, that a map of definite location could not be filed after the expiration of the time re quired for completion of the road could not affect such right, unless in such decision he had directly passed upon the sufficiency of the original filing. That he did not pass upon the question of the sufficiency of any map prior to the expiration of the time, and that no such question was before him, but on the contrary that he considered that the company was for the first time offering to file its map is evident.

Therefore whether we consider the question presented to Secretary Schurz in the light of an original application under a different claim of right, or as a motion for review upon the ground of newly discovered evidence, in either case Secretary Schurz, under the facts presented, had a right to entertain jurisdiction of the subject. This decision was concurred in by Secretary Teller by his action of January 30, 1884,* in directing the certification of the lists for his approval, holding, upon the authority of the decision of Secretary Schurz, that the map of 1860 was valid and sufficient to fix and locate definitely the line of the road.

I am therefore of the opinion that the decision of Secretary Schurz upon that issue is binding upon his successors, and should not be dis turbed.

But another question is presented for my consideration in this case, to wit: that the forfeiture of this grant is now pending before Congress, a committee of the House having made a report in favor of such forfeiture. It is urged by the counsel for the road that the Senate having failed to act upon the matter and the House having failed to take any action upon the report of the Committee, that the duty of the Depart ment is to proceed to enforce and execute the rights of the grantees under the law.

It is also represented to me by the governor of the State of Florida that the citizens of that State are greatly interested in the completion

*Atlantic, Gulf and West India Transit R. R. Co., 2 L. D., 561.

of this road, and that it is a matter of great importance to the State of Florida and her people, but in view of the fact that the road by failure to complete its line within the time required by law has rendered its grant liable to forfeiture, and Congress having indicated its intention to take action thereon, and this motion being presented and urged by a Senator from that State, is a sufficient reason why I should withhold all action thereon until the determination of Congress in the matter.

It is true that Congress may never take such action, but that furnishes no sufficient reason why this Department should proceed with the execution of the grant while Congress is considering the question of its forfeiture.

I refuse to revoke the order of withdrawal made by Secretary Schurz, because that withdrawal became effective by the filing of the map of definite location, which he decided had been properly filed in time, and no act of the Department can affect or impair the right of the company, but while the rights accruing by virtue of such filing and withdrawal cannot be impaired by any action of the Department, the execution of such rights may be suspended by the Department.

This was the course pursued by my predecessor Secretary Teller, who while recognizing all the rights of the Company acquired by virtue of the filing of map of definite location, as determined by Secretary Schurz, and the withdrawal thereunder, decided that:

"In view, however, of the fact that the time has expired within which the railroad in question was to have been completed, and that legislation is pending in the present session of Congress relating thereto, you will take no action in the matter until further direction."

I can see no material difference in the status of the company now from what it was then, and I therefore direct that you will take no action in this matter, as to the disposition of the lands covered by the line of definite location of this road and embraced within the terms of the grant, until further ordered.

PRACTICE-APPEAL-SPECIFICATION OF ERRORS.

STEVENS v. ROBINSON.

The supervisory and directory authority of the Secretary of the Interior will not be exercised in disregard of the rules of practice where they prescribe a plain and adequate course of action and are not in conflict with the law.

Rules 88 and 90 of Practice must be construed together and are mandatory in char

acter.

Under said rules the time within which the specification of errors should be filed is essential, and a failure to file within the prescribed period works a forfeiture of the right of appeal.

Acting Secretary Muldrow to Commissioner Sparks, August 31, 1886. In the case of Frank L. Stevens v. Alfred B. Robinson, involving the SE. of Sec. 2, T. 94 N., R. 60 W., Yankton, Dakota Territory, decided

by me June 5th last (4 L. D., 551), a motion for review and reconsideration has been filed on behalf of Stevens.

The material facts to be considered in the case, so far as is necessary for the purpose of this review, are as follows: The decision of your office from which an appeal was brought to this Department was rendered December 1, 1884, and notice thereof given to the resident attorneys the same day. The appeal was not filed in the local office until February 5, and the specification of errors was not filed until May 16, 1885. June 25, Robinson by his attorney filed a motion to dismiss the appeal because the specification of errors had not been filed within the time allowed for an appeal as required by Rules S8 and 90 of Prac tice. Upon this state of facts, I ruled that the motion to dismiss the appeal was well taken, and accordingly the appeal was dismissed. My decision stated that the appeal itself was not filed in time; and certainly the record, as before me then, showed such to be the case. That point, however, was not taken advantage of and the appeal itself was treated as having been filed in time, as it really was, as now appears, under the rule laid down by the Department in the case of King v. Leitensdorfer (2 L. D., 374).

The motion now before me sets up four grounds of error in my said decision of June 5th last, to wit:

"1st. Error in not holding that the omission to file a formal specification of errors in the decision of the Commissioner of the General Land Office had been supplied for at least forty days prior to the pres entation of the motion to dismiss the appeal.

"2d. Error in not holding that the said formal assignment of errors having been filed prior to the motion to dismiss the appeal, said motion came too late.

"3d. Error in holding that in the presence of a motion to dismiss, filed forty days after the assignment of errors had been filed, the Secretary of the Interior was precluded by the Rules of Practice from entertaining the appeal.

"4th. Error in granting the motion to dismiss the appeal, and in not deciding the case upon its merits as presented by the appeal."

That is to say, the real gist of the motion before me, and of the argument filed in support of it, is based upon the ground that Rules 88 and 90 are merely directory, and not imperative; and that, therefore, by vir tue of the supervisory power with which he is invested, the Secretary of the Interior may waive them at any time he may desire to do so.

The rules of practice were adopted to subserve the public interests and for the good of the practice in the transaction of business; and so long as they exist they have in effect the force of a statute. Parker v. Castle on review (4 L. D., 84). And although it is quite true that none of them "shall be construed to deprive the Secretary of the Inte rior of the exercise of the directory and supervisory powers conferred upon him by law," it is also equally true, that where they are not in conflict with the law, and have prescribed a plain and adequate course of action, they are to be followed, for there then is no occasion for invoking the Secretary's directory and supervisory powers.

Premising this much as to the object and nature of the rules of prac tice in general, I shall examine more particularly the two (88 and 90) that are brought directly under consideration by this motion for review. Rule 88 provides: "Within the time allowed for giving notice of ap peal, the appellant shall also file in the General Land Office a specifi. cation of errors, which specification shall clearly and concisely designate the errors of which he complains."

Rule 90: "A failure to file a specification of errors within the time required will be treated as a waiver of the right of appeal, and the case will be considered closed."

The distinction between statutes that are merely directory and those that are imperative or mandatory is not always clearly discernible. But a safe and general rule, which has the sanction of the courts of England and of this country, is: That whether a statute is mandatory or not, depends upon whether the thing directed to be done is the essence of the thing required. Another general rule is: A statute that prescribes a penalty for the failure to do a certain thing in a specified time is mandatory for therein time is of the essence of the thing required to be done. Upon this question, on page 334, Maxwell on "Interpretation of Statutes," it is said:

"In general then, it seems that where a statute confers a privilege or a power, the regulative provisions which it imposes on its acquisition or exercise are essential and imperative . . . So, if the liberty of appealing from a decision is given, subject to the fulfilment of certain conditions, such as giving notice of appeal and entering into recognizances, or transmitting documents within a certain time, a strict compliance with these provisions would be imperative, and non-compliance fatal to the right of appeal."

In the light of these well established rules of law, I am decidedly of the opinion that the two rules of practice now under consideration when construed in pari materia as must be done, are mandatory, and not merely directory. The time within which the specification of errors. is to be filed is of the essence of the thing to be done; and there is a penalty affixed by rule 90 for a failure to file within that specified time, to wit: That the right of appeal is waived and lost.

Counsel for Stevens refer to, and rely upon, the cases of School District of Ashley v. Hall (106 U. S., 428), and Gumbel v. Pitkin (113 id., 545), to sustain their position that these rules already referred to are to be considered as directory merely. But their position is untenable. In these two cases the court was construing Section 997 of the U. S. Revised Statutes, which provides that: "There shall be annexed to, and returned with any writ of error for the removal of a cause, at the day and place therein mentioned . . . . . an assignment of errors . . with a citation to the adverse party;" and the court in passing upon a motion to dismiss a writ of error because of non-compliance with the statute just quoted, in the first case (which is cited with approval in the second), say:

"A failure to annex to or return with the writ of error an assignment 2278 DEC

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