are to comply with the law, and that at the hearing in the following month the contestant and two others gave testimony in support of said charge. The local officers, on motion, dismissed the contest on the ground that the contest allegations were not sustained, and thereupon the contestant appealed. Your office, by decision of February 3, 1886, sustained the appeal, in the following manner, namely:

"While it is true that the testimony introduced, owing to its negative character, is insufficient to warrant the cancellation of the entry, I am of the opinion that such a showing was made as, coupled with the fact that no evidence was introduced on behalf of the defendant, to constitute a proper case for further investigation, in order that the good faith of the entryman may be affirmatively shown if he desires to have the charge against his entry dismissed. (See Practice Rule 72.) The appeal is therefore sustained, and McMahon's affidavit of contest is herewith inclosed to be used as the basis of a new hearing, to be had after due notice to the parties interested."

From this decision McMahon appealed to the Department, protesting against the expense and delay of a new hearing, for the reason that he had offered the best testimony at his command, and alleging among other errors the following, to wit:

"Said decision is contrary to law and the facts, as shown by the evidence produced and submitted by said plaintiff.

"The testimony and facts of record in the case warranted the cancellation of said entry, . . . . . and were clearly sufficient to make out a prima-facie case; i. e., a case which compels the cancellation of said entry if not contradicted."

On receipt of said appeal your office ruled on May 21, 1886, as fol lows:

"As the ordering of hearings is a matter resting in my discretion from which no appeal will lie (see Practice Rule 81), McMahon's appeal will not be entertained or forwarded to the Department at this stage of the case."

The foregoing state of facts is such that I am enabled to dispose of the questions involved without resort to the contest papers, and I will therefore treat the case as though the petition for certiorari had been granted.

I think it very clear that there is error in the decision complained of. At the time that the contestee moved the dismissal of the contest, for want of evidence to sustain the charge, the status of the controversy was this, to wit, that the contestant, who had rested on the evidence produced, either had or had not established a prima-facie case; if the local officers held that he had established such a case, the contestee was bound to make his defense, or submit to the judgment of cancellation; if they held that he had not established it, judgment dismissing the contest properly followed. The former ruling is sustained by the case of James Copeland (4 L. D., 275), and the latter is in analogy to the practice in judicial tribunals. The finding of your office, therefore, that McMahon had not made out a prima facie case, and the ruling that not

withstanding this his appeal must be sustained, are manifestly inconsistent. On the other hand, if it was proper to sustain the contestant's appeal, the judgment should have been that the contestee proceed with his defense on a day certain or his entry would be canceled.

The object in view in your ruling sustaining the appeal, notwithstanding the admitted defect in the evidence, was evidently to protect the interests of the government in the land in controversy. Apparently there was sufficient evidence to satisfy your mind that a full inquiry ought to be instituted into Mr. Grey's doings subsequent to entry. The propriety of this view I do not question, but I am quite clear that the object sought could not be attained in the manner proposed in the decision. For it is averred by the contestant that he has no further evidence to submit, and you have already held that the evidence submitted "is insufficient to warrant a cancellation of the entry;" wherefore if the entryman should at the new hearing refuse to offer evidence on his own behalf, there would appear to be no recourse but to dismiss the contest. To cancel his entry, on his refusal to show his good faith affirmatively, as your decision suggests that he must do, would seem to be in violation of the statute, which declares the entry forfeited for non-compliance with the law only in the event that such non compliance is proved in the contest.

In my judgment, the better procedure in a case like that at bar, where further inquiry is deemed advisable, is for the government to institute an independent investigation in the usual way after final disposition of the contest. Such, I think, is the proper method of enforcing the latter clause of Rule 72, in so far as it is applicable to such cases.

Your said decision of the third of February, though sustaining McMahon's appeal from the ruling of the local officers, is injurious to him in directing a new trial, and it was therefore subject to an appeal by him to the Department. It finds that he has not made out a primafacie case of non-compliance with law, and, as his appeal to the Department challenges the correctness of this finding, he is entitled to have it reviewed. You will therefore please allow said appeal, and in the usual course forward it to the Department. The order for a new hearing, which I think was not discretionary in this case, is hereby vacated.

MOTION FOR REVIEW DENIED.

WALKER v. SNIDER.

Motion for review of departmental decision of February 12, 1886 (4 L. D., 387), was denied by Acting Secretary Muldrow, August 13, 1886

PRIVATE CLAIM-FORM OF PATENT.

TOWN OF TECOLOTE.

A confirmatory statute is effectual in passing title, and the patent issued thereunder should follow the provisions contained in such statute.

Acting Secretary Muldrow to Commissioner Sparks, August 13, 1886.

I have considered the appeal of Thomas B. Catron, for himself and other owners, from the decision of your office, dated April 11, 1885, holding that the patent of the Tecolote grant, in the Territory of New Mexico, confirmed as private land claim No. 7, must follow the confirmatory act.

It will be unnecessary to recapitulate the proceedings relative to the confirmation of said grant, which are clearly and fully recited in the decision appealed from. The sole question raised by the appeal is, who are the proper parties to be inserted in the patent as patentees? Shall the patent issue to Salvador Montoya and others, their heirs and assigns, or shall it issue to the town of Tecolote, and to their successors and assigns?

It appears, as stated in said decision, that said grant was confirmed, with others, by the act of Congress, approved December 22, 1858 (11 Stat., 374), which is entitled "An act to confirm the land claim of certain pueblos and towns in the Territory of New Mexico." Said act provides that, besides the pueblos therein named, "also claim No. 7 of the town of Tecolote, in the county of San Miguel. . . . . be and they are hereby confirmed, and the Commissioner of the Land Office shall issue the necessary instructions for the survey of all of said claims, as recommended for confirmation by the said surveyor general, and shall cause a patent to issue therefor as in ordinary cases to private individuals.”

.....

A careful consideration of said confirmatory act can leave lätle doubt as to the intention of Congress. The title of the act, which in cases of doubt may be considered in arriving at the intention of Congress, clearly refers to the confirmation of land claims of pueblos and towns, and not of private individuals. There is nothing in the body of the act in conflict with the title. On the contrary, it is expressly provided that the Commissioner of the General Land Office "shall cause a patent to issue therefor as in ordinary cases to private individuals."

In 2d Cranch, 386, Chief Justice Marshall, speaking for the United States Supreme Court, says: "Neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration." See also United States v. Palmer (3 Wheaton, 631).

It is insisted by the appellants that the case of Anton Chico (1 L. D., 295) is conclusive of the case at bar. But an examination of that case shows that said claim was confirmed as No. 29, by the third section of the act of Congress approved June 21, 1860 (12 Stat., 71), which materially differs from the act confirming the Tecolote grant.

It was held by the United States Supreme Court, in Ryan e. Carter (93 U. S., 78), and Tameling v. U. S. Freehold Co. (Ibid., 644), that a confirmatory statute passes a title as effectually as if it in terms contained a grant de novo, or as if a patent was issued. See also Whitney v. Morrow (112 U. S., 693).

Since Congress with the whole record before it has confirmed said grant to the town of Tecolote, I am of opinion that the patent should follow the provisions of the confirmatory act. Said decision is accordugly aflirmed.

RAILROAD GRANT-PRIVATE CLAIM.

REES v. CENTRAL PACIFIC R. R. Co.

Under the terms of the grant to this company its right to the odd-numbered sections within the granted limits attached to lands that were disembarrassed at the date of definite location, though the same were included within the alleged limits of a Mexican private claim at date of the grant.

The date on which the President accepted the completed sections of this road between San José and Sacramento determines the time when the line of said road was “definitely fixed.”

The extent of a Mexican private claim must be determined by the records in such claim as presented to the Board of Commissioners for confirmation.

Acting Secretary Muldrow to Commissioner Sparks, August 14, 1886.

On May 7, 1883, Thomas Rees offered to file declaratory statement, tendering fees therefor, claiming settlement upon the NE. 4 of Sec. 7, T. 2 S., R. 2 W., M. D. M., San Francisco, California. On the same day the application was refused by the register and receiver, "because of the claim of the Western Pacific Railroad Company." Appeal was taken at once and on July 23, 1884, Acting Commissioner Harrison affirmed said decision, and the case is now before me on appeal from his decision. By the third and ninth sections of the act of July 1, 1862, (12 Stat., 492) was granted to the Central Pacific Railroad Company of California "every alternate section of public land designated by odd numbers to the amount of five alternate sections per mile on each side of said railroad, on the line thereof and within the limits of ten miles on each side of said road not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed."

By the fourth section of the act of July 2, 1864, (13 Stat., 358,) said grant was extended so as to give ten sections per mile on each side of the road within the limits of twenty miles

The Central Pacific Company assigned to the Western Pacific the right to construct that portion of the road lying between San José and Sacramento, California, and Congress by act of March 3, 1865, (13 Stat., 504,) ratified the assignment, requiring the first twenty miles of said road to be completed in one year from July 1, 1865, and the entire road from San José to Sacramento to be completed within four years thereafter, and to connect with the Central Pacific at the latter point. Afterwards, on June 23, 1870, under the laws of California, the Central Pacific became successor to, by consolidation with, the Western Pacific. It was held by your office that the land in controversy in this case was within the twenty miles granted limits of the above railroad grant, as extended by the act of July 2, 1864, to the Central Pacific, "the withdrawal for which became effective January 31, 1865. The line of the road was definitely located opposite said tract between February 25, and April 1, 1868."

It is contended on behalf of appellant that Acting Commissioner Harrison erred in holding that the railroad grant attached to the land in question, because

1st, At the date of said grant the land was reserved, by operation of law, being within the claimed limits of the Mexican private land grant of Laguna de los Palos Colorados to Moraga and Bernal; and was so reserved until August 10, 1878, when survey of said grant was finally confirmed and patent issued.

2d, That when said survey was confirmed, the land in controversy, being surplus of said grant, became thereby determined to be part of the Mexican private grant of El Sobrante to the Castros; and continued in reservation, because within the claimed limits thereof, until February 23, 1882, when the survey of the last named grant was finally approved.

3, That, if the tract in question was not within the claimed limits of the aforegoing grants, then it was within the claimed limits of the Mexican grant of San Lorenzo to Guillermo Castro and thereby placed in reservation, and so remained until the approval of final survey of this grant by the U. S. Circuit Court of California, on October 31, 1864, or until said survey was approved by the Commissioner, which was when patent was issued, February 14, 1865, it being insisted that the last date and approval is the correct one, because of the act of July 1, 1864, (13 Stat., 332.)

4, That the Acting Commissioner erred in holding that the line of the railroad was definitely located opposite said tract between February 25, and April 1, 1868, but that the same was located in contemplation of law when the map of route was filed in the General Land Office December 8, 1864, at which time the land in controversy was in reservation as above.

The plat of township 2 S., range 2 W., M. D. M., was filed in the land office at San Francisco July 8, 1878, withdrawn by order of Com