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('HANDLER, the Commissioner, ruled: The department can and may of its own motion, if necessary, direct the cancellation. The government is a real party in interest against both contesting parties; and it is entitled to judgment on the facts, however such facts may have been disclosed, and whatever the rights of the private parties as against one another. This is the object in all administration."
§ 126. Contest.
The fourth illustration proposed was of a contest in the Patent Office between two applicants. The first prerequisite is that each application should be found good according to the regular process in point of patentability. This involves an examination of each application before the proper Primary Examiner and an allowance by him, according to the proper course of proceedings. It may then appear that two applications interfere; that is, that two claims have the same tenor and scope. If such an interference is found between two applications, either by discovery of the examiners or by indications of one of the applicants, the two claims are certified to another division of the Patent Office and there put in interfer
The Examiner of Interferences then adjudicates upon the priority between the two applications upon the case as submitted to him.
37 INTER PARTES PROCEEDINGS.—West v. Cochran, 17 How. 416; Commissioner v. Whiteley, 4 Wall. 532; Collector v. Beggs, 17 Wall. 182; Pahlman v. Collector, 20 Wall. 199; Clinkenbeard v. United States, 21 Wall. 65; Snyder v. Marks, 109 U. S. 193; Butterworth v. United States, 112 U. S. 50; Caha v. United States, 152 U, S. 217: Morgan v. Daniels, 153 U. S. 120; Orchard v. Alexander, 157 U. S. 383; Michigan L. & L. Co. v, Rust, 168 U. S. 602; United States v. Duell, 172 U. S. 582.
If either applicant is aggrieved the appeal lies in due course to the Board of Examiners-in-Chief. The process before the Examiners-in-Chief is more formal. A record is made up and submitted. The Examiners-inChief in usual confine their decision to the pleadings submitted to them. Their decision upon the interference in point of law and fact is then given in due form.
From the decision of the Examiners-in-Chief an appeal lies to the Commissioner himself. In an extraordinary case the Commissioner may require the matter to be brought before him on his own motion. It often happens that before the Commissioner or the Assistant Commis. sioner most important questions involving great property interests are argued with the same forms as in any court of law. If either party feel aggrieved by the decision of the Commissioner an appeal lies according to the provisions of the specific statute to the judicial courts. This statute has been criticized on an earlier page. The rules of practice in this matter are put in Appendix D for further detail.98
$ 127. Protest.
The fifth illustration proposed was that of a protest by a stranger, which is allowed by the process of the Land Office. A statute gives a right of preferential entry upon a tract of land to a contestant who has protested and procured the cancellation of any entry by any previous entryman. The policy of this act requires some explanation. It was remedial to keep lands which had been occupied unjustly still open for entry and to induce citizens to co-operate in unearthing frauds upon the government by giving to the successful contestants the premium of a preferential entry. Such a contestant may thus appear after any entry and file his protest against the occupants in the form required by the regulations of the department.
98 CONTEST.–Foster v. Fowle, 1869 Pat. Dec. 35; Krake, 1869 Pat. Dec. 100; Hull, 1869 Pat. Dec. 68; Eames v. McDougall, 1871 Pat. Dec. 206; Clymer's Appeal, 1874 Pat. Dec. 72; United States v. Thacher, 7 0. G. 603; Little v. Lillie, 10 0. G. 543; Whiteley v. McCormick, 10 0. G. 826; Wilson v. Yakel, 10 0. G. 944; Elbers, 1877 Pat. Dec. 123; Ex parte Rodgers, 1879 Pat. Dec. 207; Packard v. Sandford, 1879 Pat. Dec. 314; Hibbard v. Richmond, 17 0. G. 1155; Moore, 1881 Pat. Dec. 249; Sellers v. Walter, 37 0. G. 1001; Zeidler v. Leech, 1891 Pat. Dec. 9; Fowler v. Dodge, 1898 Pat. Dec. 257.
The matter is first adjudicated before the local land officers who decide the matter after a full hearing upon the law in fact involved. After the decision upon the contest by the local officers, the whole record of the case is forwarded to the General Land Office. An appeal from the decision of the Register and Receiver may be taken by either party. Moreover, as in all adjudication by the administration, the Commissioner may take the matter up upon his own motion in extraordinary circumstances. At all events the matter is in Washington referred to the Contest Division, where the whole merits of the controversy are reviewed and laid before the Commissioner for his action.
When a final adjudication has been made by the General Land Office, either party, if he still feels aggrieved, may take an appeal to the Secretary of the Interior. There the matter is decided by a trained body of experts who act under the direction of an Assistant Attorney-General assigned to the Interior Department for this purpose. This is the last stage possible in the proceeding and the adjudication is therefore adequate and thorough upon the points taken. The process necessary in such contests is put in Appendix E, if more information is wanted.99
$ 128. Remission.
The sixth illustration proposed was an account of the proceedings for an abatement of a tax which must be made before the office of the Commissioner of Internal Revenue. Upon the whole the complainant has no remedy until the tax has been paid by him to the collector. The rule in cases of collection is to pay first and litigate afterwards. It is true that after assessment it is not impossible that a motion for an abatement of the tax may be entertained by the Commissioner before payment of the tax to the Collector; but upon the whole no motion for remission will generally be entertained until the tax has been paid, when a motion for a refund is in order.
The claimant must, as in the usual administrative process, set forth his claim upon a form provided, which relates the essential facts and makes the points upon which he believed he should have refund. The motion is first passed upon by the Collector, who must make affidavit of his finding. The papers, together with all the evidence in the case, is then forwarded to the principal office, where a decision is made upon the matter. Upon the whole, the decision of the Commissioner is final upon the executive department. The statutes governing such abatement are in Appendix F.100
99 PROTEST.-So. Minnesota Ry. v. Kufner, 2 Land Dec. 492; Field v. Black, 2 Land Dec. 581; Albion Mfg. Co., 4 Land Dec. 376; Stevens v. Robinson, 5 Land Dec. 111; Pueblo Case, 5 Land Dec. 483; Middle Grounds, 7 Land Dec. 255; Saunders v. Baldwin, 9 Land Dec. 391; Gray v. Whitehouse, 15 Land Dec. 352; Mott v. Coffman, 19 Land Dec. 106; Currency Min, Co., 20 Land Dec. 178; Trotter v. Yowell, 21 Land Dec. 54.
$ 129. Conclusion.
It is not pretended that it would be safe to follow this outline in proceeding in any actual case before the office without a careful consultation of the regulations which are in the appendix. All that has been wished is to bring together a variety of illustrations of the sort of thing that is met in practice before the various offices of the administration. The appendix will be found more definite as to the steps necessary in procedure of a given department.
Moreover, it is hoped that a more definite idea of the methods employed in administration may be had even after the description of the proceedings is reduced to such general terms as to be vague. Upon the whole, one is impressed by the excellent balance maintained in administration between form and substance. The regulations indeed are explicit upon the forms to be observed in the practice; but whenever a case arises where these forms would obstruct the due execution of administrative justice they are not followed. This is the most characteristic thing in the processes of the administration.
100 REMISSION.-In re Brown, 3 Int. Rev. Rec. 134; In re Phillips, 10 Int. Rev. Rec. 107; Compromises, 12 Opin. 472; Taxes, 13 Opin. 439; Instructions, 22 Int. Rev. Rec. 109; Commissioner, Treas. Dec. No. 20,459. (356)