custom in any particular case it must be certain and de fined. It must have the shape of law, a general rule recognized by common consent. The usage of a department consists of these rules under which action is done, upon which action is based, and by which action is jus tified. Such a usage is of the same force as law, as much as a regulation is of the same force as law. Indeed, it must be obvious that to a greater or lesser extent an administration involves a customary law of the service.79

§ 101. Validity.

A common case for the enforcement of this unwritten law is seen when the construction given to a statute by the administration is brought in question. The leading case is Edwards' Lessee v. Darby, 12 Wheaton 206 (1827). Under the North Carolina Act of 1782 for the relief of officers and soldiers in the Continental line, the commissioners determined that the French Lick was within the reservations of the statute as public property. The litigation in this case at last turned upon the construction of the statute made by these commissioners. The statute was ambiguous, to be sure; but the propriety of the construction as an original question was doubtful also.

Mr. Justice TRUMBLE said: In the construction of a doubtful and ambiguous law, the contemporaneous

79 UNWRITTEN RULES.-United States v. Macdaniel, 7 Pet. 1; Five Per Cent Cases, 110 U. S. 485; Symonds v. United States, 21 Ct. of Cl. 148; Wilson v. United States, 26 Ct. of Cl. 187; Holbrook v. Wightman, 31 Minn. 168; Hilburn v. St. Paul, etc., R. R., 23 Mont. 245; Hewitt v. Schultz, 7 N. D. 611; Lockwood v. Bank, 9 R. I. 308; Keane v. Brygger, 3 Wash. 338.

construction of those who are called upon to act under the law, are bound to carry its provisions into effect, is entitled to very great respect. The law was not only thus construed by commissioners, but that construction seems to have received the sanction of the legislature. It was a public act done by a public authorized agent of the government, and afterwards recognized by the gov ernment itself. None but the government itself ought, therefore, to be permitted to call it in question.

This paragraph has been quoted with approval in repeated decisions. One of these from the many is United States v. Hill, 120 U. S. 169 (1887). It is the custom in the United States courts to charge $3 as fees in naturalization proceedings. The clerk of the courts never included those fees in his returns. The judges passed upon his returns without requiring him to include these fees. It was true that statute required a return to be made of all office fees, but the construction of the statute by those concerned in its enforcement had never regarded such returns to be made as within the contemplation of those statutes.

Mr. Justice BLATCHFORD said: This practice has had the approval of the Department of the Treasury, the Department of the Interior and the Department of Justice. Until this suit was brought it had never been called in question by any accounting officer of the government, nor has Congress seen fit to put a stop to it by legislation. This construction of the statute in practice, concurred in by all the departments of the government and continued for so many years, must be regarded as absolutely conclusive in its effect. If a change of the practice

should be thought desirable, it is obvious that it should be made by Congress and not by the Courts. That this long practice, amounting to contemporaneous and continuous construction of the statute, in a case where it is doubtful whether the statute requires return of the dis puted fees, and the heads of the departments have concurred in an interpretation in which those concerned are confided in the construction of a doubtful and ambiguous law, contemporaneous construction by those who are called upon to act under the law is entitled to great respect.

This is a salutary rule it must be admitted. The department that is most concerned with the execution of law is thus given a prepondering position in the construction of the statute. That comes about, it is to be noted, by the recognition of the force of the unwritten usage of the administration as a law to be taken into the account. Of course this construction must be within the bounds of the discretion vested in the administration. The unwritten rule must be within that as well as the written rule. But within that sphere of influence the operation of the custom of the service as a law is recognized by this line of decisions.80

§ 102. Propriety.

The best evidence to be found of the existence of these unwritten rules is in the adjudications of the departments based upon them. Hatfield, 17 Land Dec., 79 (1893). The motion for rehearing in the matter of

SO VALIDITY.-Edwards' Lessee v. Darby, 12 Wheat. 206; Robertson v. Downing, 127 U. S. 613; Arthur v. United States, 16 Ct. of

Cl. 422; United States v. Union Pac. R. R., 37 Fed. 555; Holbrook v. Wightman, 31 Minn. 168; Keane v. Brygger, 3 Wash. 338.

Smith Hatfield et al. for certification of additional homestead rights involving the question as to the right of those who rendered service in what were termed Missouri Home Guards to the benefits of the provisions of sections 2304 and 2306 of the Revised Statutes of the United States. This question had repeatedly been before the department, and the decisions have uniformly been to the effect that those who were members of the Missouri Home Guards were not entitled to the benefits of the statutes above cited.

Secretary SMITH ruled: The legal principle involved seems so well settled by numerous decisions of the De- v partment that I am not now called upon to determine its correctness. Thus, for a number of years, the rulings of the Department have uniformly been to the effect above indicated, and the principle has become so well established as to bring it within the rule of stare decisis, and as so settling a point by decision that it forms a precedent not to be departed from. I must therefore decline to disturb a ruling of so long standing as that which controls in this case, and the petition for re-review is overruled.

The theory that a previous decision is evidence of what the law is prevails in administration.-Eastridge, 8 Pen. Dec. 5 (1894). The rate of pension allowed in the invalid claim was $2 per month, and the amount so allowed from Oct. 2, 1862, date of soldier's discharge from the service, to date of death, January 8, 1881, was paid to his widow, the appellant herein. From this action an appeal was taken, wherein it was contended that the degree of disability shown in the invalid claim from discharge to August 15, 1880, was fully one-half as much

as the total for loss of a hand or foot. The action of the bureau was affirmed January 15, 1889, whereupon claimant filed additional affidavits, which were merely cumulative, in which affiants gave it as their opinion that the soldier was disabled in a degree entitling him to a higher rating, and were not deemed sufficient to justify the bureau in again opening said claim and rerating the pension. This appeal involves the correctness of the action of the bureau refusing to reconsider the application for rerating, or to again rerate the appellant's husband's pension.

Secretary REYNOLDS ruled: Aside from the sufficiency of these affidavits it is the well-settled rule, established by a long line of departmental decisions, that in cases of non-specific disability, the ratings fixed at the date of the certificate and based upon contemporaneous medical examinations, will not be disturbed on account of differences of opinion that may subsequently arise upon an application for rerating. If the placing of the name of an applicant upon the roll is to be considered a judicial act it should only be considered a judgment nisi, The proceedings are largely ex parte and from the vast numbers of applicants the work must be performed and the roll made up for the most part by the clerks. The doctrine, when adopted by the Department in pension cases, simply becomes a rule which each administration prescribes for itself as a matter of policy or convenience, and may be waived, suspended, or ignored as justice, public policy, or convenience requires. The facts in the case under consideration, however, show no reason for deviating from the hitherto almost uniform practice of refusing to disturb decisions of former administration