FINAL PROOF-POSTING NOTICE.

SOUTHERN PACIFIC R. R. Co. v. PATRICK BRADY.

Posting notice in the office of the register, of intention to make final proof is an essential, without which such proof cannot be accepted.

Acting Secretary Muldrow to Commissioner Sparks, February 7, 1887.

I have considered the case of the Southern Pacific Railroad Company r. Patrick Brady, as presented by the appeal of the company from the decision of your office, dated June 16, 1885, approving for patent Brady's homestead entry No. 323, of the SE. of the NE. 4, and the NE. of the SE. of Sec. 13, T. 26 S., R. 33 E., and Lot 3 of SW. and NE. † of the SW. of Sec. 18, T. 26 S., R. 34 E., M. D. M., made October 28, 1880, upon which final certificate No. 136 issued April 2, 1883, at the Bodie land office, California, and also rejecting the claim of said company to the tracts in the odd numbered section covered by said entry.

The claim of said company was rejected, for the reason that although the land in question is within the indemnity limits of the withdrawal for the benefit of said company under its grant made by act of Congress approved July 27, 1866 (14 Stat., 292), which became effective on May 21, 1867, yet the company has made no selection of said tracts, and did not appear at the date and place mentioned in the published notice of Brady's intention to make final proof, and contest his right to enter said tracts.

It is insisted by the company that there is no evidence of the posting of the notice of intention to make final proof by Brady in the office of the register as required by law and the regulations of this Department, and that your office has no power to waive a plain requirement of law. But your office held that as the notice of intention was duly published, the presumption must be that the register has done his duty, and since it is "now impossible to obtain a certificate to that effect, owing to a change of officers," the filing of said certificate will be waived.

It is quite clear that if said notice was not posted in the office of the register as required by law, then there was no legal notice given and the company was not bound to appear at the time and place designated for making said final proof. It is not shown that the former register is dead, or that his certificate cannot be procured. The entryman should be called upon to furnish the proper certificate of the register, or furnish satisfactory evidence that the said notice was duly posted, and in case he fails to do so, he should be required to make new proof as required by law.

The decision appealed from is modified accordingly.

ATTORNEYS-RECORDS OF THE LAND DEPARTMENT.

W. H. LAMAR.

An attorney in good standing before the Land Department, prior to filing his appearance in a case, but preliminary thereto, is entitled to inspect the record and all papers upon which action has been taken affecting the rights of the parties. Acting Secretary Muldrow to Commissioner Sparks, February 8, 1887.

On November 5, 1886, W. H. Lamar, esq., filed in this Department his petition, supported by affidavit, in which he avers that he is an attorney practicing before the courts of this District and the Executive Departments; that on or about the fourth day of November, 1886, he received from W. W. Leek, of Plum Creek, Dawson County, Nebraska, a letter requesting him to examine the record in the matter of the homestead entry of George Tull, number 16572, Grand Island, Nebraska, and to fix the fee for which he would take charge of and prosecute his case; that on said 4th day of November, 1886, he made personal application to you for permission to examine said record, for the purpose of determining whether he would accept a retainer in said case, and if so the amount he would charge; that permission was refused, on the ground that it would be contrary to the rules of the General Land Office to allow him to examine said record. Mr. Lamar alleges that said action of your office was erroneous, because,

First: "That there is no rule of the General Land Office prohibiting such examination of records."

Second: "That it is incompetent for the Commissioner to make a rule which would prohibit such examination."

Third: "That it is the imperative duty of the Commissioner to allow such examination of records for the purpose stated in this case."

On November 6th last, said petition was referred to your office by this Department" for early report," and on January 13, 1887, this Department received the report of your office upon said petition, which is dated December 4, 1886.

By your office letter, dated October 25, 1886, Mr. Lamar was advised that if he desired to appear for said entryman he would have to file the entryman's written authority for such appearance, citing as authority for said ruling the circular approved July 31, 1885 (4 L. D., 503) and the case of McIntyre (4 L. D., 527). Said circular and decision were considered by this Department on January 6, 1887, in the case of F. M. Heaton (5 L. D., 340), referred to in your said report, and it was held that said circular was not intended to and did not apply to attorneys practicing before your office and this Department; that the Department, on February 1, 1886 (5 L. D. 337) prescribed the conditions upon which attorneys-at-law and those not attorneys-at-law may be admitted to practice before this Department, which regulations require "them to furnish satisfactory evidence that they are of good moral character and in good repute, and possess the

necessary qualifications to enable them to render claimants valuable service, and otherwise competent to advise and assist them in the presentation of their claims." It was shown in said decision that the Supreme Court of the United States from Chief Justice Marshall to Chief Justice Waite had invariably held "that the appearance of an attorney for a party is always deemed sufficient for the opposite party and for the court, unless there are circumstances indicating fraud or collusion," citing Osborne v. United States Bank (9 Wheaton, 740), and Hill v. Mendenhall (21 Wall., 454).

The rules of practice adopted by this Department, in so far as practicable, are framed in accordance with the rules of practice usually established in courts of justice, and it is not apparent why attorneys in good standing practicing before this Department should not be held to the same accountability and be accorded the same privileges as if prac ticing in the courts of the country.

It is suggested in the report of your office that Mr. Lamar "overlooked Department circular of January 11, 1886 (4 L. D., 336), amending Rule 108 of Practice," and you hold that said circular specifies more distinctly the persons allowed to examine "the records of the case," and also emphasizes the discretionary power of the Commissioner.

Rule 108 of Practice, prior to amendment, provided that, " In the examination of any case, whether contested or ex parte and for the preparation of arguments, the attorneys employed, when in good standing in the Department, will be allowed full opportunity to consult the record of the case and to examine the abstracts, plates, field-notes, and tract-books, and correspondence of the General Land Office or of the Department relative thereto, and to make verbal inquiries of the various chiefs of divisions at their respective desks in respect to the papers or status of said case; but such personal inquiries will be made of no other clerk in the division except in the presence or with the consent of the head thereof, and will be restricted to the hours between 11 a. m. and 2 p. m.

Said rule was amended on January 11, 1886, as follows:

"In the examination of any case, whether contested or ex parte, the attorneys employed in said case, when in good standing in the Department, for the preparation of arguments, will be allowed full opportunity to consult the records of the case, the abstracts, field notes, and tract books, and the correspondence of the General Land Office or of the Department not deemed privileged and confidential; and whenever, in the judgment of the Commissioner, it would not jeopardize any public or official interest, may make verbal inquiries of chiefs of divisions at their respective desks in respect to the papers or status of said case; but such inquiries will not be made of said chiefs or other clerks of division except upon consent of the Commissioner, Assistant Commissioner, or Chief Clerk, and will be restricted to hours between 11 a. m. and 2 p. m.”

On May 24, 1884, this Department issued the following order: "Frequent requests are made for permission to examine the records and correspondence in this Department, and its several branches by per sons not connected therewith. All its records are public and should be accessible for examination to any reputable citizen for a legitimate object. This should not apply to private claims, caveats, nor pending applications for letters patent. They should not, however, be opened to examination for idle, curious, or malicious ends. It is therefore—

"Ordered, That any public record or account in this Department shall be subject to inspection by any reputable person, provided the specific record, subject, or account shall be set forth by such person and the reason given for the desired inspection.

"Subordinate officers of the Department, in determining their action under this order, will exercise their own judgment as to whether any public or official interests in each case would be jeopardized by any such inspection, and, if in doubt, submit the matter for the action of higher authority, together with the reasons for refusal, if any exist.

"It is the desire of the Secretary not to be embarrassed with the deciding of such cases, unless grave objections arise in the minds of sub. ordinates to granting such requests. It should be borne in mind by those who, for the time being, are the custodians of the records and correspondence of their several offices, that they can have no personal interest in these matters, and that they are the servants of the public, for the public good."

This order has never been revoked. The circular of January 11, 1886, amending Rule 108, makes no mention of said order of May 24th, and was not intended to change or abrogate it. The amended rule applies to a particular class, to wit, " attorneys employed," when in good standing in the Department. Again, attorneys admitted to practice in the courts are officers of the court, and their obligation to be faithful to the court is as binding upon them as their obligation to be true to the best interests of their clients. Bouvier, Vol. 1, 140.

In ex-parte Garland (4 Wall., 333), the supreme court of the United States held that "attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair pri vate character. The order of admission is the judgment of the court that the parties possess the requisite qualifications and are entitled to appear as attorneys and counselors and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good be havior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been offered. Their admission and their exclusion are the exercise of judicial power."

The same doctrine was held by the supreme court of California, in the case of Clark v. Willett (35 Cal., 534), and also that "an attorney's license is prima facie evidence of his authority to appear for any person whom he professes to represent." See also People v. Mariposa Company (39 Cal., 683); Boston Tunnel Company v. McKenzie (67 Cal., 485).

The ground upon which Mr. Lamar's said application was rejected by your office is, that he must file the entryman's written authority to appear for him, while in said report the authority for such rejection appears to be amended rule of practice No. 108. Attorneys have always been allowed by the courts to enter a special or limited appearance, and it would seem that attorneys practicing before this Department, in good standing, ought to be allowed to inspect the records of your office, including all papers upon which action has been taken affecting the rights of parties. The mere fact that a case is pending in one division of your office rather than in another can make no difference in the principle. It ought not to be presumed that attorneys of good standing in this Department will disregard their obligations to be faithful to the Department as well as to their clients.

No good reason is shown why an attorney practicing before this Department should have any less privileges than would be accorded to any other reputable person seeking to inspect the records of your office. While it must be conceded that a large discretion should be given to your office, yet that discretion is a legal one and Should be exercised in accordance with the regulations of the Department. When, therefore, any attorney practicing before this Department represents that he has been applied to by a party in interest to appear for such party in any case pending in your office, and that he desires to inspect the record of such case to learn the nature thereof and ascertain the amount of fee to be charged for his services in appearing for such party, such attorney should be allowed to inspect the record and all papers upon which action has been taken by your office adverse to the interest of such party.

The application of Mr. Lamar to be allowed to inspect the record in said case is allowed, unless there is some other objection that does not appear in the record before me.

HOMESTEAD-PRE-EMPTION-RESIDENCE; LOCAL OFFICE.

KRICHBAUM v. PERRY (ON REVIEW).

As residence is an essential under both pre-emption and homestead law, a claim under cach, at the same time, cannot be maintained.

A right in contravention of law cannot be recognized, though asserted as the result of erroneous advice on the part of the local office.

Acting Secretary Muldrow to Commissioner Sparks, February 8, 1887.

I have before me the application filed in behalf of George S. Perry