ment under the census of 1860. The act further provided: "Sec. 5— "Fifth. When lands shall be selected from those which have been "raised to double the minimum price, in consequence of railroad grants, "they shall be computed to the States at the maximum price and the "number of acres proportionally diminished." Under the provision of said act, on November 3, 1864, the State of Kansas selected the lands in controversy herein, embraced in "List 3."

7,682.92 acres, so selected, were within even numbered sections, and fell within the limits of a withdrawal for the benefit of the Leavenworth, Pawnee and Western Railroad, made July 17, 1862, were held to be double minimum lands, and were certified to the State on October 16, 1865, as in satisfaction of double their area.

In March, 1880, Hon. S. J. Crawford, as attorney for the State of Kansas, addressed a communication to the Secretary of the Interior, claiming that the lands certified to the State as double minimum were not legally double minimum, and that the State was entitled to select an additional amount of lands equal to the amount so certified. This claim of the State was denied by your office January 17, 1881, it being held that under the provisions of the act of March 3, 1853 (10 Stat., 244), the even sections within the limits of the withdrawal of July 17, 1862, were properly rated at the double minimum price. The case came before this Department, on appeal, and on May 13, 1881, the judgment of your office was affirmed. Motion for review was filed, the questions involved were submitted to the Attorney General, and that officer, on June 17, 1881, held that the State of Kansas "has now no further claim to lands under this act of July 2, 1862."

Thus the matter rested until June 1, 1885, when the attorney for the State filed in this Department an application for review of said decision of May 13, 1881, alleging certain errors in construction of the law gov erning the case. This application was referred to your office in the usual course of business for "examination and recommendation." By letter of June 26, 1886, your office reported all the facts in the case, and recommended that said State be allowed to select 7,686.47 additional acres under said act.

I am unable to concur in such recommendation. All the questions now arising in this case were fully presented to your office and to this Department in 1881, and received careful attention in both tribunals. In addition, the questions involved were submitted to the Attorney General, and that officer, in an elaborate opinion, concurred in the views of this Department. The decision rendered May 13, 1881, remained unquestioned for four years, and now, after that interval, the issues therein raised are presented anew, on the mere allegation of error in construing the law. To open the case now, on such showing, would be to invite the re-examination by this Department of all questions decided during that time, in which errors of law might be alleged. Such an undertaking cannot be assumed. It is entirely opposed to the practice

of courts and of this Department. I must therefore decline to re-examine the questions involved, as here presented, and the application is accordingly denied.

ACCOUNTS-LOCAL OFFICE.

CIRCULAR.

Commissioner Sparks to receivers of public moneys, November 6, 1886.

In order to secure uniformity in the preparation of your accounts relative to moneys received for reducing testimony to writing, and for clerical services rendered in contest cases, under the act of August 4, 1886, the following method will be observed:

You will credit the United States in your accounts as receiver with the gross amount of all fees received for reducing testimony to writing, except such sums as are paid by you for clerk hire in contest cases, which sums must be deducted from the gross proceeds received, and should not be included in the amounts so credited. You will also debit the United States with your deposits of such receipts exclusive of the amounts for clerk hire referred to above. In the special disbursing accounts for clerical service in reducing testimony in contest cases, you will credit the United States with the amounts of the deposits made by contestants and that were necessary to pay for clerk hire, in reducing such testimony, and will debit the United States with disbursements for that service, supporting the account with sworn statements and proper vouchers. This account should exactly balance.

The excess of receipts from fees over the expenses of clerical service must be reported in your receiver's weekly statements, monthly fee statements and in your quarterly and monthly accounts-current.

You will also report in detail on your receiver's monthly statements, form 4-146, all receipts for reducing testimony to writing, and also enter on the same the expenses incurred for clerical service.

Approved:

L. Q. C. LAMAR,

Secretary.

PRACTICE-FAILURE TO APPEAL FROM LOCAL OFFICE.

MORRISON v. MCKISSICK.

Under Rule 48 of Practice failure to appeal may be conclusive as to the rights of the parties, but will not preclude the Commissioner of the General Land Office from reviewing the decision of the local office.

Secretary Lamar to Commissioner Sparks, November 18, 1886.

Charles McKissick made homestead entry of the W. of NW. 1, the NE. of NW. 4, and the NW. of the NE. 1 of Sec. 30, T. 133 N., R. 48 W., Fargo, Dakota, September 23, 1881, and commuted the same to cash entry October 7, 1882.

November 9 following, John Morrison filed an affidavit of contest, alleging first, "that McKissick has not resided continuously on the land, but has abandoned it for more than six months; second, that his family have never resided on the place;" and third, that notice of final. proof was not published in a paper nearest the land. This affidavit of contest was transmitted to your office under Rules of Practice 6 and 7, upon which a hearing was ordered.

By agreement of parties testimony was taken and reduced to writing before the clerk of the district court for Richland county, Dakota Territory, on which the local officers rendered the following decision:

"Upon a careful consideration of the evidence in the case, we are of the opinion that the plaintiff has failed to establish the truth of his allegation, or to make out a case against the defendant, and that the contest should be dismissed."

From this decision Morrison failed to appeal.

Your office reversed the action of the local officers, and held that the contestant did establish his allegation of non-residence; that the claimant's plea of poverty and feeble health was not a satisfactory excuse for his absence; that he had ample means and opportunity to establish and maintain his residence on the land, and failed to do so because he found employment elsewhere more remunerative. For these reasons, you held his entry for cancellation, and allowed the preference right of contestant in the event of final cancellation of the entry.

From this action McKissick appealed, alleging among his grounds of appeal

"That the Honorable Commissioner erred in taking jurisdiction of the case to render the decision complained of, the district officers having agreed in finding from the testimony that the allegations of the contestant were not sustained, and no appeal having been taken from their finding."

Counsel for claimant in support of this denial of the jurisdiction of the Commissioner rely upon the 48th Rule of Practice, which is as fol lows:

"In case of a failure to appeal from the decision of the local officers, their decision will be considered final as to the facts in the case, and will be disturbed by the Commissioner only as follows:

"1st. Where fraud or gross irregularity is suggested on the face of the papers.

"2d. Where the decision is contrary to existing laws or regulations. "3d. In event of disagreeing decisions by the local officers. "4th. Where it is not shown that the party against whom the decision was rendered was duly notified of his right of appeal."

By reference to the preceding rules (44 and 46), embraced in this chapter, it is apparent that this rule was only intended to apply to par ties with reference to their rights as between themselves, and not to operate as a restriction upon the power or authority of the Commissioner to reject or approve the finding of the local officers upon a ques tion of fact, or their decision upon the law applicable thereto. The

action of the register and receiver is in no sense final as to the rights of the government, but in all cases their decision either upon the law or facts is subject to the approval of the Commissioner, whether directing the cancellation of an entry or approving it for patent. If the decision of the register and receiver has no force or effect to direct the cancellation of an entry, or to authorize the issuance of a patent, unless approved by the Commissioner, it follows that their decision would be inoperative, whether appealed from or not.

To give to rule 48 the effect contended for by counsel for McKissick would require the Commissioner to approve the findings of the local officers not appealed from on all issues of fact, although such finding might be contrary to his own judgment of what facts had been proven by the evidence submitted. The approval required of the Commissioner is not simply a ministerial act, but the decision of a tribunal especially charged with the duty of determining from the evidence whether the law has been complied with, and in the discharge of this duty the whole record of the case should be considered by him as if it had been submitted to him originally for his decision thereon.

While the failure of Morrison to appeal may be treated as a waiver of whatever right he might have acquired by pursuing his contest to a successful determination, yet as between McKissick and the government the Commissioner committed no error in taking jurisdiction of the case to determine from the evidence whether McKissick had sufficiently complied with the requirement of the law to entitle him to patent, and if not to direct the cancellation of his entry.

Waiving all other questions, it appears from his own statement that he never established an actual residence on the land, and failing to do so within six months from the date of his entry, it was subject to cancellation.

The case made by his own statement is this: He broke and cultivated the land in the summer of 1881, and the same summer made entry and built a shanty, twelve by fourteen feet. During the year 1882 he and his wife were in the employ of the Dwight Farm Company. Their term of service commenced in April, but he does not state whether April, 1881, or April, 1882. In March, 1882, he built a house on the land, which was occupied by John Morrison as his tenant, who worked the claim on halves. He first stayed on the land one night with his wife and family about the latter part of May, 1882, and was again on the land with his family about the last of June, 1882, and remained one night, and again stayed one night in August. His wife was taken sick in September, 1882, and he was taken sick shortly thereafter. He states that he was often on the claim in the day time during the summer of 1882, and made final proof in October, 1882.

McKissick's entry should therefore be canceled, and the land will be held subject to entry by the first legal applicant. The decision of your office is modified accordingly.

HOMESTEAD CONTEST-PRACTICE.

THOMPSON v. LANGE.

Failure to appeal from an adverse decision not excused on the plea of want of notice where the record shows notice to the attorney.

The preliminary affidavit having been made before a clerk of the court, instead of the local office, the entry was voidable, but the defect might be cured before the intervention of an adverse claim.

Secretary Lamar to Commissioner Sparks, November 18, 1886.

In the case of Hayden M. Thompson v. John H. C. Lange, involving the SE. of Sec. 13, T. 110 N., R. 55 W., Watertown, Dakota Territory, a motion for review and reconsideration of my decision, rendered June 17th last (not printed), has been filed on behalf of Thompson.

Said decision affirmed the action of your office and also that of the local office in the case, awarded the above mentioned tract to Lange under his homestead entry made May 18, 1881, and rejected the homestead application and the contest of Thompson. The grounds upon which the decision was based were: 1st. That Lange was the prior settler upon the tract and had acted in good faith in the matter of his claim; 2d. That the irregularity or informality in the matter of Lange's entry had been cured prior to the initiation of Thompson's contest against it; and 3d. That whatever rights Thompson might have asserted by virtue of his settlement were lost by his failure to appeal from the action of the local office in rejecting his homestead application August 13, 1881.

The motion for review sets up six specifications of error in the decis ion complained of, the first three of which relate to and combat my third finding above. It is strongly insisted that the record fails to show that Thompson was notified of such rejections, etc. Now, as a matter of fact, the record does show that Thompson's attorney was notified; for, he says, "Thompson, within three months after May 22, 1881 (the date of his alleged settlement), submitted his application and affidavit in due form, and tendered $14 homestead fees to the land office at Mitchell; and the money and papers were returned to his attorney at De Smet, because of the adverse filing of Lange." See also testimony, page 3 of record. Upon this state of facts it was not error to rule as I did in the decision complained of. I was simply following the rule laid down in the case of Wesley A. Cook (4 L. D., 187), where the facts as to notice were substantially the same as in this case.

This point being settled, it matters not which was the prior settler on the tract, for Thompson is restricted to the rights he may acquire by virtue of his contest, and if Lange at the date of the initiation of said contest had cured the irregularities and informalities in the matter of his homestead entry, the contest of Thompson against it was properly dismissed. It is admitted on all hands that Lange settled upon