adjudication by merely showing that the Secretary committed an error in his finding.

If

Such approval and certification, however, will not conclude the gov ernment, if it be shown that it was obtained by fraud or mistake. after such approval and certification of the list it is discovered that lands have been reported as swamp and overflowed, which in fact were not of that character, and that such lands were so reported through the false and fraudulent acts and misrepresentations of either the government agent or others charged with the investigation of the character of such lands, and upon whose decision and report the approval and certification was obtained, such approval and certification may upon proof of such facts be reviewed and recalled. "Fraud vitiates the most important judicial acts when found to exist in them, and renders them void upon discovery before the proper tribunal." De Louis r. Meek, 50 Am. Dec., 512, and notes to decision.

So in like manner a final decision of the Secretary may be reviewed and revoked, upon the ground of mistake: not mere error of judgment, but that character of mistake which would afford a ground of relief in a court of equity. The courts have no jurisdiction over public lands until after the issuance of patent. Hence, before the issuance of patent, the Department of the Interior is the only tribunal having jurisdiction to review the decision of a former Secretary, or to revoke or recall its own decision, when obtained by fraud or mistake. But the ground upon which such decision may be reviewed and revoked is the same that would be required in a court to set aside a patent obtained by fraud or mistake.

You will therefore dismiss all applications for contest, and hearings ordered thereon to determine the character of the lands heretofore ap proved and certified to the State as swamp and overflowed-unless in such applications it is charged that the decision was procured by fraud or mistake, or the contestant amends his affidavit within thirty days after notice alleging that said decision was procured by fraud or mistake, setting forth specifically the facts upon which such allegation is based. However, if the contestant alleges priority of right under any of the public land laws of the United States, acquired prior to approval of and certification of the list, he may then be allowed to contest without alleging fraud in the procurement of said decision, he not being concluded by the decision to which he was not a party.

This disposes of all lands that have been heretofore examined, and reported by the special agents, and passed upon by the land office.

After the decision of June 19, 1885, Charles Shackleford was, by letter from your office of August 11, 1885, assigned to the duty of examining in the field other lands claimed by the State of Oregon under the swamp grant, which have not been reported. This appointment, it is presumed, was made for the purpose of continuing the investigation commenced by Special Agent Ankeny. He was instructed specifically

as to the character of the land that passed by the grant, and was advised that in order to facilitate the adjustment of the State's claim, that it had been agreed by the authorities of the State of Oregon and the Secretary of the Interior that lands claimed by the State shall be examined in the field by the agents of the respective parties. A list of the lands to be examined was furnished him, and he was instructed to make a careful examination of each tract, and to secure evidence touching the character of the same in 1860 and prior thereto. He was further required to make out a list of the tracts upon which himself and the State's agent agreed, separating the swamp lands from those found to be dry; to attach their joint affidavit touching the character of the land, to each list, and to forward the same to your office, with his report and book of notes in the field. Since the issuing of these instructions, contests have been filed by various parties, alleging that certain tracts selected by the State as swamp land are not of the character contemplated by the act, and hearings have been ordered before the register and receiver to determine the character of said lands.

By letter of November 7, 1885, to this Department, you call attention to the fact that such hearings are ordered upon allegations filed under oath that the lands are not of the character granted, and are not swamp lands in fact, but public lands of the United States, which citizens have a right to enter under the public land laws. You treat these applications of contest as an absolute right, under the Rules of Practice, in any person to contest any claim, and that the rules make no exception in favor of swamp claims.

The act makes no provision for the contest of the right of the State to lands selected under the swamp land grant, and if contest are allowed by rules and regulations of the Department, it is simply in furtherance and aid of the duty devolving upon the Secretary of the Interior to determine the character of such lands, and not from any absolute right given by law.

It is the duty of the Secretary of the Interior to determine what lands are of the description granted by the act, and his office is made the tribunal whose decision on that subject is to control. While the Department has adopted general methods for designating such lands, the Secretary is not restricted to any plan, but may adopt and employ such agencies as may in his judgment satisfactorily determine what lands are of the character granted by the act. It is immaterial what means are employed, the essential object being the ascertainment of the character of the land. Therefore I do not concur in the view advanced by Governor Moody, that the Department having adopted one plan is estopped from employing any other agency to determine the character of lands which have not been ascertained by such adopted plan. While this plan may still be enforced, the Department is not estopped from permitting contests in conjunction with it, if, in the opinion of the Secre

tary, the true character of the land may by such contest be best determined.

The plan adopted by the Department and agreed to by the State seems to be a safe and practical plan of adjusting the grant to this State and of determining the true character of the land selected. Under the instructions to the special agent, he is empowered to take testimony as to the character of each particular tract and to make to your office a full report of such testimony. In this respect his investigation may be as full and complete as may be had in a hearing before the register and receiver, besides having the advantage of a personal examination in the field.

While under this plan the great mass of land claimed by the State may be safely adjusted, I can not pass by with indifference the charges openly made that a large amount of lands claimed as swamp in this State have been procured by affidavits of irresponsible persons, and that much of it is more of the character of desert than swamp, and that bona fide settlers have been thereby prevented from obtaining legal subdivisions of lands, the greater part of which is fit for cultivation without artificial drainage.

I do not know whether these charges are true or false, but being brought to my attention, a judicious administration of this subject would require that every means should be adopted whereby the truth may be obtained and the true character of these lands determined. If the lands were swamp at the date of the grant, the State is entitled to them, and her right to them should be determined as speedily as possible. If they are not swamp, the settler should not be deprived of his right to enter them. The truth can harm no one, although the inconvenience or discomfiture of parties may be involved in arriving at it.

I therefore direct that you will instruct the special agent of the government to proceed as early as practicable to make a careful and complete investigation of such lands, strictly observing the instructions. contained in your letter of August 11, 1885, and make report of the same to your office, with a view to have such lands as are by them reported swamp and overflowed approved and certified for patent; but if before such approval and certification any person files a contest under existing regulations of the Department, you will order a hearing to determine the character of any legal subdivision upon which such contest is filed.'

SWAMP LAND-EFFECT OF CERTIFICATION.

STATE OF CALIFORNIA v. FLEMING ET AL.

After due investigation and adjudication under the fifth clause of section 2488, R. S., the lands were certified to the State, and the character of the same may not now be called in question on the mere allegation that they were in fact not of the character granted.

Secretary Lamar to Commissioner Sparks, August 7, 1886.

I have considered the appeal of the State of California from your decision of November 19, 1885, modifying the decision of the register and receiver at Stockton, California, rejecting the application of the following parties to make pre-emption and homestead filings for certain tracts of land in Township 3 N., Range 7 E., Stockton, California, viz: Julius A. Fleming, pre-emption, SE. 1, sec. 23.

The register and receiver rejected these applications, upon the ground that the lands applied for had been listed to the State of California as swamp lands, from which decision applicants filed separate appeals, alleging that said lands had not been surveyed, segregated and listed by the surveyor-general as swamp lands, and that the lands were within. an asserted Mexican grant.

You modified this decision, holding that, although the land had been approved and certified to the State by the Secretary of the Interior, yet as patent had not been issued to the State under its grant, that the party applying to enter should have been advised of his right of contest, and his application to enter should be suspended and placed on file to await such action as may be taken to test the right of the State to said land, under the swamp land grant.

From this decision the State of California, in behalf of her grantees, to wit, J. H. Cole, Heath & Boody, C. H. Wakefield, C. A. Merrill, John Bunch, G. I. Leffler, B. F. Pope, J. J. Pope, appealed.

These lands are embraced in list No. 1, which was approved and certi fied to the governor of the State of California, December 12, 1866, and with other selections were the subject of investigation by the United States surveyor general for the State of California, upon whose report the Commissioner of the General Land Office, by letter of February 11, 1871, decided that said lands having been fully disposed of were no longer within the control of the General Land Office. Then, naming the lands now in controversy, he says: "The records of this office show that (these lands) have been approved as swamp lands, but suspended on account of the supposed interference of a private grant since declared invalid. They will therefore be carried into patent as swamp lands."

This ruling was concurred in by the Secretary of the Interior, October 16, 1872, and the decision of the Commissioner, deciding that patent

should issue for said lands, was affirmed, thereby removing from the Department all further control over the lands in controversy, unless said decision was procured by fraud or mistake.

The lands in controversy were returned by the surveyor general as "lands subject to periodical overflow," and hence were not subject to certification to the State by virtue of the return of the surveyor general. The State of California claimed said lands as swamp and overflowed, and under the fifth clause of section 2488 of the Revised Statutes, a full and complete investigation of the character of these lands was made by the surveyor general, who reported, while scarcely any of them could be classed strictly as swamp lands, yet their condition at that date was the result of artificial improvements, and in regard to the practical cultivation of staple crops the preponderance of testimony showed that no proper guarantee of security against floods could be had in a majority of seasons without artificial improvement, and consequently no hope of profitable cultivation in the long run. For this reason he determined that the claim of the State was valid and should be allowed. As the character of these lands was directly put in issue in the investigation before the surveyor general, and upon his finding they having been approved and certified to the State, these applicants should not now be allowed to raise the same question-especially after a lapse of twenty years, when it may be safely presumed that the present occupants have now fully reclaimed said land.

The decision of your office is reversed.

RIGHT OF PURCHASE UNDER THE ACT OF JUNE 3, 1878.

HEIRS OF WILLIAM FRIEND.

The right to receive title under this act accrues when the proper proof is furnished and the money paid.

Where an applicant had made proof and tendered the purchase money, but died prior to the allowance of his entry, it is held that his heirs may complete the purchase.

Secretary Lamar to Commissioner Sparks, August 7, 1886.

December 16, 1882, William Friend made application, under the act of June 3, 1878 (20 Stat., 89), to purchase Lots 6 and 7, and the E. of SW. 4 of Sec. 6, T. 2 N., R. 2 E., Humboldt, California. He published the usual notices, furnished all the proofs required by the statute, and tendered the purchase money for the land applied for; but was refused because of the adverse claim of one Jacob Showers. Jr.

By decision of this Department, dated November 24, 1884, (3 L. D., 210), the claim of Showers was rejected as invalid, and the land was awarded to Friend. Prior to said decision, however, to wit: April 14, March 6, 1885, his heirs made payment for the land (8417.23) and the entry was allowed by the local office in their name.

1884, Friend died.