his directions he shall endorse upon the survey and plat adopted, his certificate of approval." There is no publication of notice required. The law is complied with when the new survey is made in conformity with the directions.

This is in harmony with the practice and decisions of this Department. In 1879 Mr. Schurz held that the law contemplates the publication of but one survey, and that any subsequent survey of the same claim is not required to be published. In giving his directions to the Commissioner on this subject he says:

"During the time limited to such publication all objections to the survey will be presented. If upon the consideration of such objections and the testimony filed in support of them a new survey is ordered, either by your office or by this Department, the order directing the new survey should point out specifically in what respect the first survey is incorrect, and how the new survey should be made. . . . When a survey is made in accordance with such directions and returned to your office for approval, the only question to be considered is whether the decision directing the survey has been complied with. If it has, then the survey should be approved; if it has not, then it should be returned for correction, and when corrected, approved. law contemplates that objections may be raised to the first survey made, and hence gives an opportunity during the period of publication of ninety days thereafter, to any person affected thereby, to appear and object to the survey; but after the survey is corrected in accordance with your decision, no further publication is provided for, but the law directs that the plat of survey shall be approved by you and thereupon a patent shall issue to the claimant as soon as practicable after such approval."

The

This was in full accord with a decision made by the Commissioner of the General Land Office in 1875, in the Rancho Corral de Tierra case. Speaking of the act in question, Commissioner Burdett says:

"Here, it will be observed, is no express or implied authority for the publication of a resurvey of a private land claim in California, made after contest, under a decision of this office or of the Honorable Secretary; and there being no other provisions of law authorizing such a publica. tion, it follows that none can legally be made by your office in such cases; for your office is one of limited jurisdiction, with only the powers conferred by legislative enactment, which cannot legally be exceeded, however disastrous the result.

In view of the law and for the reasons above set forth, you are hereby directed not to publish, under the provisions of the act of July 1, 1864, any resurvey of a private land claim in California made under a decis ion of this office, or of the Honorable Secretary of the Interior, where the publication of a prior survey of the same claim has once been properly made under said act, and the survey thus published, rejected by this office." (2 C. L. L., 1196).

There are other points in support of this application which I do not deem it necessary to dwell upon farther than to say that, in my opinion, they do not furnish any ground for recalling the patent and issuing an other in its stead based upon an erroneous original survey.

It is to be observed that a patent of the United States upon a private land claim in California is made conclusive between the United States and the claimant only, and does not affect the interests of third persons. Such is the express language of the law. As was well observed in the report of the judiciary committee of the House, above referred to, if the applicants or parties claiming under them have rights superior to those of the city, they can assert them in the courts. If the patent is void, as applicants contend, it will be so pronounced by the courts.

In conclusion, I am of the opinion that there is no power in the Department to recall the patent issued to the city of San Francisco; that my order to that effect would be illegal and void; and that the matters presented for my consideration in the past proceedings of the case, do not justify any recommendation to the legal department of the government to institute proceedings to recall or modify or in any manner to interfere with said patent.

Application dismissed.

FINAL PROOF-PUBLICATION OF NOTICE.

DAVID B. WELLMAN.

The requirement that publication of notice shall be made in the paper nearest the land described in the application, is in accordance with the manifest purpose of the law, and must be observed in the submission of final proof.

Acting Secretary Muldrow to Commissioner Sparks, February 5, 1887. I am in receipt of your letter of November 30, 1885, transmitting the appeal of David B. Wellman from your office decision of August 4, 1885, demanding that he make new proof in the matter of his commutation entry for the SE. of Sec. 35, T. 150, R. 66, Devil's Lake district, Dakota.

The ground upon which Wellman's proof was suspended and new proof demanded, was that notice of proof was published in the "Devil's Lake Inter-Ocean," more than forty miles from the tract. Upon being called on to show cause why his proof should not be suspended, Wellman made affidavit, duly corroborated by two witnesses, as follows:

That at the time deponent filed notice of his intention to make final proof in the Devil's Lake land office it was his desire that it be published in the "New Rockford Transcript," a paper published nearest the land; but the register ordered its publication to be made in the "Devil's Lake Inter-Ocean," against the wishes of this deponent; and deponent was informed and did believe that the designation of the paper was a matter entirely in the discretion of the register.

This affidavit the register transmitted to your office without comment; but when your office directed the local office "To advise Wellman that he will be allowed to make new proof within sixty days after notice, at the expense of the register of the Devil's Lake land office," the

register hastened to explain that he had forwarded Wellman's affidavit without having seen it, and added, "Mr. Wellman's allegation is unqualifiedly false if understood to mean that he expressed any such desire to the register. He never spoke to the register on the subject, nor did the register to his knowledge ever see the man."

Wellman appeals from your said office decision, alleging that

Even though the register should pay for publication of new notice, this appellant would be obliged to encounter the expense of writing the proof, and a trip to Devil's Lake land office, about forty miles distant, of taking with him two of his neighbors as witnesses, of paying such witnesses for their time expended in so doing, and their expenses, and sundry other expenses necessarily incident to such trip.

The instructions, approved by the Department, and having the force of law, which have repeatedly been issued, directing that the time and place of giving homestead or pre-emption proof shall be printed in the newspaper "published nearest the land described in the application" (see circular instructions of March 1, 1884, pp. 14 and 8, as modified by circular instructions of July 31, 1884, 3 L. D., 52,) are in accordance with and pursuance of the manifest purpose of the law, that such notice shall be circulated in the community residing in the vicinity of the tract, in order that adverse claimants or other parties desiring to assert their own claims or object to the entryman's proof may be afforded an opportunity to do so. In the present case, notice given in a paper forty miles away, in another county, with a lake and an Indian reservation lying between, is practically equivalent to no notice at all to persons in the vicinity of the tract, who would naturally watch the columns of their own county paper for notice of final proof. I therefore affirm your decision in so far as it demands a new publication of notice of final proof. In order to save the entryman unnecessary expense, however, if on the day set for making such proof no protest or objection is filed, the proof formerly submitted may be accepted as final proofprovided that the claimant shall make affidavit, duly corroborated, showing continued compliance with the law from the date of making former proof.

Your office decision is modified accordingly.

PRACTICE-APPEAL; ACTING COMMISSIONER.

JOHN M. WALKER ET AL.

A decision made by the Acting Commissioner of the General Land Office, must be treated as if made by the Commissioner himself, for the law provides that the Assistant Commissioner shall act as Commissioner in the absence of that officer. The General Land Office has no jurisdiction over a case after appeal therein. Acting Secretary Muldrow to Commissioner Sparks, March 17, 1887. On November 18, 1886, Attorneys A. G. Heylmun, Van H. Manning and S. F. Marshall filed an application to have certified to this Depart

ment the proceedings in the cases of John M. Walker, C. M. Blair, D. C. W. Brashears, A. W. Harrison, Moses Roley, James R. Blades, Thomas U. George, W. D. Reynolds, E. S. Whittenberg, William Bohannan, John Pendleton, Leland Betterton, Caleb Sill, John F. Parrish and Edward Rush, applicants for certification of additional homestead rights.

It appears that by letter of August 12, 1886, you passed upon the separate application of John M. Walker, and held that in his case you had "no right to make the certification requested"; that on August 20, 1886, the Assistant Commissioner as Acting Commissioner took up the remaining cases above mentioned-C. M. Blair et al.-and decided that as said cases "are similar to the Walker case, they can not be certified to for the reasons mentioned in said decision." On August 21, 1886, a joint appeal in all of said cases was filed. On September 24th ensuing you addressed the following letter to the attorneys representing said claimants:

My attention has been called to office letter of 20th ultimo, refusing to certify to additional homestead rights in the following cases, viz: C. M. Blair, D. C. W. Brashears, A. W. Harrison, Moses Roley, James R. Blades, Thomas O. George, W. D. Reynolds, E. S. Whittenberg, William Bohannan, John Pendleton, Leland Betterton, Caleb Sill, John F. Parrish and Edward Rush. You are advised that I have not considered, nor was it it my intention to have acted upon any of the above until after decision by the Hon. Secretary of the Interior in the case of John M. Walker, decided by me August 12, 1886. The letter of the 20th ultimo was therefore inadvertently signed. It also embraced a number of cases which should have been acted upon separately. For those reasons the action taken by said letter of August 20, 1886, is hereby reconsidered and revoked. Your appeal of 21st ultimo is returned for amendment accordingly. The usual time for this purpose will be allowed.

Respectfully,

WM. A. J. SPARKS,
Commissioner.

From the tenor of this letter, I gather that it was the intention of the Commissioner to withhold decision in the cases of C. M. Blair et al., until the Walker case had been decided by this Department, but that in his absence the Acting Commissioner took up said cases and decided them in accordance with the principles laid down in the Walker case. It appears that the decision of the Acting Commissioner was properly and carefully considered by him. The decision itself bears evidence that the cases involved were carefully examined, for it states that they are similar to the Walker case, and governed by it. Respecting this similarity to the Walker case, his opinion and yours seem to be the same, inasmuch as you held them subject to the determination of the latter case. The decision made by the Acting Commissioner must be treated as if made by the Commissioner himself. For the law provides that the Assistant Commissioner "shall act as Commissioner in the absence of that officer," (23 Stat., 136). Had it been claimed that the Acting

Commissioner signed the decision by mistake and unintentionally, a different question would be presented.

The facts were set forth in my letter of January 20th last, and it was therein held that "no such state of facts is presented as to take the case out of the ordinary rule that an appeal removes a case from the jurisdiction of the lower tribunal," and you were directed to transmit the papers in said cases to this Department. Afterwards, on the 22d of said month, said letter, on verbal request of the Commissioner, was recalled for further consideration.

Upon re-examination of the case, I find no reason for disturbing the former order. The case turns altogether on the question, whether your office can disturb its own decision after appeal therefrom is filed. This question was first presented to the Department in the case of McGovern v. Bartels (3 C. L. O., 70), wherein your office, after having rendered its decision, on the ex-parte statement of Bartels made after appeal, reopened the case and reversed its own decision. The matter was presented to this Department by counsel for McGovern, and it was held that the point was well taken, "for after appeal the case was beyond your jurisdiction."

In the case of King v. Leitensdorfer (3 L. D., 110), an inspection of the record of the facts upon which that case was decided shows that the rule adopted in the McGovern-Bartels case was not only not departed from, but adhered to. Your office, on June 27, 1883, had rendered a decision adverse to King, and she had filed appeal therefrom. A motion to dismiss the appeal was filed by Leitensdorfer, on the grounds:

1st. That the decision of June 27 was merely interlocutory, and 2d. That the appeal was not filed in time.

Your office dismissed the motion, and the case came up on appea!. The Acting Secretary on September 15, 1884, held:

I concur with you that your decision of June 27, 1883, was a final determination of the matter as presented by the application of Mrs. King, and that an appeal therefrom by her to this Department was properly taken. The motion to dismiss, however, should have been made to this Department, ard not to your office. The appeal was filed in time, reckoning from the date of notice to the attorneys residing in Colorado, and when said appeal was accepted by you, your jurisdiction over the matter ended: (McGovern v. Bartels, 3 C. L. O., 70).

The reference to the McGovern-Bartels case, without other comment, shows that the rule therein laid down was enforced, and not changed. The expression, "when said appeal was accepted by you, your juris diction over the matter ceased," refers merely to the jurisdiction of your office over the appeal (not the case,) under the then existing rule of practice. For rule S2, of rules of practice approved December 28, 1882, then provided:

When the Commissioner considers an appeal defective, he will notify the party of the defect, and if not amended within fifteen days from