said entry was, so far as it covered land in the odd section, held for cancellation "for conflict with the withdrawal for the grant to the Northern Pacific Railroad Company, upon general route, the withdrawal for which took effect February 21, 1872."

On appeal, the Department, January 29, 1881, affirmed the action of your office. The entry was thereupon canceled, February 10, 1881, as to the eighty acres in the odd section and approved for patent as to the remaining eighty, being in section 24.

Holmes now applies to amend his entry of the tract in section 24, so as to embrace the S. of SW. 1, Sec. 13, this being the tract covered by his original entry, which was canceled as above stated.

In making this application he claims that the tract was excepted from the grant to the railroad company by the homestead entry of one Henry Miller, made February 5, 1872, and covering this land, which entry was canceled July 16, 1872. It will be observed that the withdrawal for the railroad company, on account of which Holmes's entry was canceled, was made while Miller's entry was intact on the record.

The decision appealed from in effect holds that if the question at issue had been under consideration as an original one, the application could under existing rulings have been allowed, but as Holmes's rights to the tract in controversy were fully considered, and were finally adjudicated under the rulings in force at the date of the cancellation, the case can not now be re-opened. In other words, the holding of your office decision. is that the case is res judicata.

Upon an examination of the case as now presented, and a consideration of the questions involved, I find the conditions somewhat different from what they were at the date of the adjudication in 1881, in fact so changed as, in my judgment, to entitle the case, as presented, to consideration and determination.

Though in the adjudication referred to, it was held that Holmes was not entitled to the tract under his original homestead entry, because of the adverse claim of the railroad company under its grant, it has since become a well settled rule of law, as interpreted by this Department, that, in such cases as this, where an entry existed at the date of filing the map of general route, and of the withdrawal thereunder, which entry was after such filing and before definite location of the road canceled, the land covered thereby becomes public land which is not to be held to await the definite location of the road, but is open to the first legal applicant. Talbert v. Northern Pacific Railroad Company (2 L. D., 536). In the case of Holmes v. the Northern Pacific Railroad Company, as formerly adjudicated, the tract in question was at the date of withdrawal for the benefit of the company on its map of general route appropriated by the entry of Henry Miller, which was subsequently canceled, and before the date of definite location was entered by Holmes. His entry having been canceled and the case closed by the departmental

decision of January, 1881, the case as then presented has become res judicata as between Holmes and the railroad company.

This, however, does not change the fact that the title to the land being still in the government and subject to its disposal, must be disposed of according to law. It can not be held that by the former judgment, now admitted to have been erroneous, the government is bound to pass title to the land to the company in disregard of the law. While Holmes now comes here asking to be allowed to amend his entry so that it may embrace the tract in question, his application is, in effect, a petition for the re instatement and recognition of his claim under his entry as originally made, since the tract covered by his application to amend is the same which was embraced in his original homestead entry, but which was eliminated, not by any act of his, but by the erroneous judgment mentioned. He urges his claim because of his occupancy for years of that tract and his valuable improvements thereon. This occupancy and improvement could of course avail him nothing as against the rights of another party having a superior claim, but as between him and the gov ernment it is not without weight.

In the case of Hastings and Dakota Railroad Company v. Whitnall, decided by this Department November 19, 1885 (4 L. D., 249), it was held that, although under a decision that became final, the claim of the entryman was rejected and the land awarded to the railroad company, it now appearing that the company has no valid claim to the land, thus leaving the question between the government and the entryman, he should be allowed to make a new entry for the land.

What is the present status of the railroad company as to the tract in question? Has it any valid claim thereto? If it has, it must be by virtue of the definite location of its line of road, and not by virtue of the withdrawal on map of general route. For reasons already stated the latter gave it no right or title to the land.

A new question is therefore presented for consideration-one not be fore the Department when the former case was decided. That question is one as to the effect of the filing of map of definite location. Did it operate to render the grant to the company effective as to this tract? Said map of definite location, it appears, was filed in your office in July, 1882, about a year and a half after departmental decision was rendered on which the plea of res judicata is now urged.

The third section of the act of July 2, 1864, (13 Stat., 365,) granted to said company all lands to which the United States had full title, not reserved, etc., "and free from pre-emption or other claims, or rights, at the time the line of said road is definitely fixed.”

Holmes has continued to claim and to occupy the tract in controversy and still claims and occupies it, and he is now here asking that his original entry be so amended as to include it. He occupied and claimed it at the date of the definite location of the line of the road. On the

foregoing facts Holmes has the right of purchase under the act of June 15, 1880 (21 Stat., 236), the second section of which provides

"That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads, may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor .. Provided, This shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws."

In the case of Northern Pacific Railroad Company v. Burt, decided by this Department April 21, 1885 (3 L.D., 490), it was held that Mrs. Burt, who was the widow of a homestead entryman whose entry, subsisting at date of withdrawal on general route, had subsequently thereto and prior to date of definite location been canceled, had the right, under the law quoted, to purchase, notwithstanding the cancellation and the subsequent definite location of the road. In that case there was no allegation of residence or occupancy by the widow or by any one for her after the death of the entryman, which occurred in July, 1875, and her right to purchase was recognized ten years thereafter. In this there have been continuous claim and occupancy, and the land has on it valuable and permanent improvements. There has been no homestead entry of the tract by another; consequently the proviso in the law quoted from the act of June 15, 1880, places no inhibition upon the right of Holmes to purchase under said act.

Applying the rule enunciated in the Burt case to this, it is clear that Holmes has the right of purchase, and that such right existed at the date of definite location of the road in July, 1882. Therefore the tract was not at the date of said definite location "free from pre-emption or other claims, or rights," as required to be under the granting act in order to make it available for the company.

Holmes claimed the land, and, under the Burt decision, he had a right thereto, to wit, the right of purchase under the act of 1880. Such right was under the terms of the granting act sufficient to except it from the grant to the company.

This being true, the railroad company is eliminated. No other rights have intervened. The question is now one solely between Holmes and the government, and in my judgment he is clearly entitled to such favorable action as will secure to him the benefits of his original entry and of his improvements made thereunder. His entry as originally made should therefore be re-instated, and as his final proof covered the entire. one hundred and sixty acres, patent should issue accordingly.

You will call upon him to surrender his patent, which it appears was issued in August, 1881, for the eighty acres in the even section, in order that one patent may issue for the entire one hundred and sixty acres, embracing that already patented, together with the eighty acres in the odd section, which he claims and which is a part of the tract covered by his original entry.

RECOGNITION OF ATTORNEYS-GENERAL REGULATIONS.

CIRCULAR.*

WASHINGTON, D. C., February 1, 1886.

The following statutes relate to the recognition of attorneys and agents for claimants before this Department:

"That the Secretary of the Interior may prescribe rules and regula tions governing the recognition of agents, attorneys, or other persons representing claimants before his Department, and may require of such persons, agents, or attorneys, before being recognized as representatives of claimants, that they shall show that they are of good moral character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their claims; and such Secretary may, after notice and opportunity for a hearing, suspend or exclude from further practice before his Department any such person, agent, or attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and regulations, or who shall with intent to defraud, in any manner deceive, mislead, or threaten any claimant or prospective claimant, by word, circular, letter, or by advertisement." (Act July 4, 1884, Stats., vol. 23, p. 101, sec. 5.)

"Every officer of the United States, or person holding any place of trust or profit, or discharging any official function under, or in connection with, any Executive Department of the Government of the United States, or under the Senate or House of Representatives of the United States, who acts as an agent or attorney for prosecuting any claim against the United States, or in any manner, or by any means, otherwise than in discharge of his proper official duties, aids or assists in the prosecution or support of any such claim, or receives any gratuity, or any share of or interest in any claim from any claimant against the United States, with intent to aid or assist, or in consideration of having aided or assisted, in the prosecution of such claim, shall pay a fine of not more than five thousand dollars, or suffer imprisonment not more than one year, or both." (Section 5498, Revised Statutes.)

"It shall not be lawful for any person appointed after the first day of June, one thousand eight hundred and seventy-two, as an officer, clerk, or employé in any of the Departments, to act as counsel, attorney, or agent for prosecuting any claim against the United States, which was pending in either of said Departments while he was such officer,

*Not published in 4 L. D For departmental circular of September 18, 1884, see 3 L. D., 113. Official order of October 21, 1885, 4 L. D., 220. See also cases of Neil Dumont, 4 id. 55; Luther Harrison, id. 179; and F. M. Heaton, 5 id., 340,

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clerk, or employé, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer, clerk, or employé." (Section 190, Revised Statutes.)

"Any person prosecuting claims, either as attorney or on his own account, before any of the Departments or Bureaus of the United States, shall be required to take the oath of allegiance, and to support the Constitution of the United States as required of persons in the civil service." (Section 3478, Revised Statutes.)

"The oath provided for in the preceding section may be taken before any justice of the peace, notary public, or any person who is legally authorized to administer an oath in the State or district where the same may be administered." (Section 3479, Revised Statutes.)

The act of May 13, 1884 (Stats., v. 23, p. 22), provides that the oath above required shall be that prescribed by section 1757, Revised Statutes, which is as follows:

"I, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

REGULATIONS.

1. Under the authority conferred on the Secretary of the Interior by the fifth section of the act of July 4, 1884, it is hereby prescribed that an attorney at law who desires to represent claimants before the Department or one of its Bureaus, shall file a certificate of the clerk of a United States, State, or Territorial court, duly authenticated under the seal of the court, that he is an attorney in good standing.

2. Any person (not an attorney at law) who desires to appear as agent for claimants before the Department or one of its Bureaus must file a certificate from a judge of a United States, State, or Territorial court, duly authenticated under the seal of the court, that such person is of good moral character and in good repute, possessed of the necessary qualifications to enable him to render claimants valuable service, and otherwise competent to advise and assist them in the presentation of their claims.

The Secretary may demand additional proof of qualifications, and reserves the right to decline to recognize any attorney, agent, or other person applying to represent claimants under this rule.

3. The oath of allegiance required by section 3478 of the United States Revised Statutes must also be filed.

In the case of a firm the names of the individuals composing the firm must be given, and a certificate and oath as to each member of the firm will be required.