tion; that by letter of June 8, 1887, your office "adhered to the former decision except that the cash certificate and original entry were suspended instead of being held for cancellation; " that appeal was taken, and on October 16, 1888, the Department affirmed the latter decision and required new proof, and on June 7, 1890, denied a motion for review, and that claimant has failed to comply with the requirements of your office. You propose to pass this entry also to patent under said act.

You desire to know, in view of the decisions requiring further proof and of the passage of said act of March 3, whether such cases shall be passed to patent thereunder, without further showing by the claimants as to their compliance with law.

I do not deem it advisable to indicate what action should be taken in the cases submitted, but will embody in this paper my views of the general question, leaving to you the application of the law in particular

cases.

The proviso to said section provides:

That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or preemption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor.

In considering the instructions to the chiefs of division of your office, under said section 7, I had occasion to consider the scope of the proviso thereto, and the conclusions I then reached are expressed in the instructions as finally issued, in the following words:

Under the proviso to said section 7, after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the laws mentioned, when there are no proceedings initiated within that time by the government or individuals, the entryman shall be entitled to patent; but all "contests" and "protests" against any entries of the classes mentioned which were pending at the date of the passage of said act are excepted from this rule and will be considered and disposed of as if said section had not been passed. . . . . Nothing herein contained shall be construed as to prevent the government from completing proceedings initiated by it within two years after the issuance of the receiver's receipt.

The question presented is, what action on the part of the government will amount to the initiation of such proceedings?

Owing to the great number of cases awaiting adjudication, a case on appeal from your office cannot be reached in regular order by the Department, for decision, within two years from the date of certificate. This state of affairs has existed for many years, and appears plainly from the published reports of the Department. If then, all such final certificates that have stood for two years before they are reached for decision by the Department, are confirmed by said proviso, notwithstanding adverse action by your office, it follows that your office is ousted of its ordinary jurisdiction to determine whether claimants have com

plied with the law. For if entries on appeal are confirmed because of necessary delay, the action of your office will go for naught, notwithstanding you have found fraud on the part of claimants, or a failure to comply with the law. It will only be necessary to take an appeal and await the lapse of time. And this evil will be a continuing one, and in the present state of the working force, insurmountable.

From 1812 the Commissioner of the General Land Office has been specially charged with the administration of the land laws, (2 Stat., 716; 4 Stat., 107). Section 453 of the Revised Statutes provides that: The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties app ertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government.

In my judgment it was not the intention of the act, to oust the Commissioner of all practical jurisdiction of those matters which, from the beginning, he was specially authorized by statute to superintend, and to confirm all entries after two years from final receipt, without regard to their status: nor to confirm entries made without authority of law and which could not have been allowed under the law as it existed at the passage of the act of 1891; and certainly not to confirm former entries standing under judgment of cancellation, unappealed from. (James Ross, 12 L. D., 446.) It simply declares that after the lapse of two years the government can not begin proceedings to set aside the action of the register and receiver in allowing an entry.

You will, therefore approve for patent all entries against which no proceedings were begun within the period of two years from the date of the final certificate, but where proceedings have been, or shall be, begun within the specified period, the entry will be held to have been taken out of the operation of this statute, and such cases will proceed to final judgment as heretofore.

The word "proceedings," as used herein and in the circular of May 8, 1891 (12 L. D., 450), will be construed as including any action, order or judgment had or made in your office canceling an entry, holding it for cancellation, or which requires something more to be done by the entryman to duly complete and perfect his entry, and without which the entry would necessarily be canceled.

Every suspended entry, where the entryman has not been duly noti fied thereof, and required to furnish proof necessary to complete the entry within two years from the date of the final receipt, will be released from suspension and adjudicated under the foregoing rules.

The case of Stella G. Robinson (12 L. D., 443), and all other cases in conflict with the views herein expressed, are hereby overruled.

TOWNSITE ENTRY-PRACTICE-APPEAL.

TOWN OF JENNINGS v. MCFARLAIN.

An entry of a townsite by an incorporated town must be made by the corporate authorities thereof, through the mayor, or other principal officer, duly authorized to take such action, and the official character and authority of the officer making such entry must be duly shown.

The Department will not consider an appeal in the absence of notice to the opposite party, and due proof thereof.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 1, 1891.

I have considered the case of the town of Jennings v. Andrew D. McFarlain, on appeal of the said town from the decision of your office of February 6, 1890, rejecting the application made through its mayor, John H. Roberts, to enter the S. of the SE. 4 of Sec. 34, T. 9 S., R. 3 W., New Orleans land district, Louisiana, under section 2387 of the Revised Statutes, in trust for the use and benefit of the occupants thereof, according to their respective interests; and to contest the location of the same laud made by Andrew D. McFarlain, January 3, 1885, with Louisiana school indemnity warrant No. 3957. The application of the town to enter this land was made July 17, 1889, and its affidavit to contest the location of McFarlain was filed in August of the same year.

This affidavit alleged that McFarlain was not entitled to take said land, because it had been and is within the corporate limits of the town of Jennings, and is divided into town lots occupied by people living thereon. But its application was rejected by the local officers because it failed to show the official character of Roberts, who claimed to be the Mayor of the town, and also, failed to show that Roberts was authorized by "the corporate authorities of said town to act in this matter," and further because the affidavit of contest failed to allege or show that the land in contest at the date of McFarlain's location of the same was within the corporate limits of the town or was then occupied for municipal purposes, or that the town had any priority of right to the land over McFarlain. From this ruling of the local officers the town, through its attorney, appealed.

Your office, before rendering its decision, directed the register and receiver at New Orleans to notify Mr. Elms, the attorney of the town, of the omissions in the affidavit of contest and application to enter the land, but, if such omission should be supplied, and the affidavit of contest amended, so as to allege or show that Mr. Roberts was the official Mayor of the town, duly authorized by its corporate authorities to rep resent the said town in its application to enter this land, and should further allege or show that the town had a prior right to this land at the time of McFarlain's location of the same, that a hearing should be ordered to determine the facts of the case.

This notice, in substance, was served on Mr. Elms, the attorney for the town, September 21, 1889. But he neglected or refused to give it attention.

On the 8th of October, 1889, Andrew D. McFarlain made and filed an affidavit in which he alleged that at the date of his location of this laud the said land was wholly unoccupied, and therefore urged that the matter of his location be adjusted.

On receiving this communication from McFarlain, your office again directed the local officers at New Orleans to notify Mr. Elms, the attorney for the town, that the amendments be ore called for must be filed, if at all, within sixty days from the receipt of the original notice above mentioned. On the 25th of October, 1889, the certified copy of a commission, showing that John H. Roberts had been duly elected Mayor of the town of Jennings and was then acting in his official capacity, was duly filed, but it failed to show that he, the said Roberts, was authorized by the corporate authorities of the town to make application to enter this land or contest the right of McFarlain to the same. No amendment or change was made in the affidavit of contest, and, thereupon, your office, February 6, 1890, considered the appeal and affirmed the action of the local officers.

The said town, through its attorney, has appealed to this Department, and in its appeal expresses the belief that it would be able to show that the land, or a portion of it, had been already laid out into town lots and was actually inhabited by people holding under McFarlain, prior to the date of his, McFarlain's, location under the school war

rant.

This statement, if conceded as alleged, would not establish a priority of right to the land in the town; but a copy of this appeal, with its specifications of error and arguments, has not been properly served, according to the Rules of Practice, on the opposing party. The attorney for said town was advised of this omission, and on the 28th of April, 1890, filed an affidavit in which he averred that on that day he mailed to A. D. McFarlain, by registered letter, a copy of the said appeal, specifications of error and arguments. This notice is not in accordance with the 96th rule of practice, which provides "that the proof of service by registered letter shall be the affidavit of the person mailing the letter, attached to a copy of the post office receipt." The latter part of the rule was not observed, and there is no evidence that a copy of the appeal papers reached the opposing party.

The circular of the Department, approved November 5, 1886 (5 L. D., 265), relative to the manner of acquiring townsites on public lands, provides that "if the town is incorporated, the entry must be made by the corporate anthorities thereof, through the mayor or other principal officer duly authorized so to do," and the official character and authority of the officer making the entry must be shown.

As these provisions have not been observed, and, as the appeal is defective, it is hereby dismissed, and the decision of your office affirmed.

HOMESTEAD ENTRY-ACT OF MARCH 3, 1891, SECTION 7.

ALBERT A. BOSLEY.

A homestead entry allowed under a defective notice of intention to submit final proof, is within the confirmatory operation of section 7, act of Ma rch 3, 1891, where no proceedings against the same are initiated by the government within two years from the issuance of the final receipt, and there is no adverse claim, pending contest, or protest against said entry.

The expiration of the statutory life of an entry does not exclude the same from the confirmatory effect of the section aforesaid.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, July 1, 1891.

On November 11, 1882, Albert A. Bosley made homestead entry of the NE. 1, Sec. 35, T. 113 N., R. 67 W., Huron, Dakota.

He made commutation proof thereon October 23, 1883, and on November 6, 1883, final certificate and receipt for the money in payment for the land issued.

On November 11, 1885, you rejected his proof because of defective notice in that it stated that the proof "will be made before judge or clerk of court of record in and for Hand county, Dakota Territory," but did not designate the court or name the place where the court is located or when the proof would be made. The proof was made before the clerk of the district court for Hand county.

He appealed, and on July 30, 1888, the Department affirmed your action and required claimant to furnish new proof within the life time of the entry, after new and proper publication.

On June 7, 1889, he again appeared before the clerk of the district court of Hand county, D. T., and submitted testimony in accordance with new published notice. This proof was filed in the local office June 8, 1889, and was accompanied by a petition from claimant asking that he be allowed an extension of time from June 7, 1889, to December 7, 1889, in which to show compliance with law. It appears that after he made his first proof, and received his final certificate, he moved from the land, but continued to cultivate and improve it; he has sixty-five acres of breaking which were cropped every year and has erected a new house twelve by fourteen feet, and a barn fourteen by eighteen feet. It is seen that the entry expired by limitation November 11, 1889.

In consideration of the facts above given, you, on October 30, 1889, suspended the entry under the authority of departmental decision of July 30, 1888, (above referred to) and claimant brings this appeal from your action.

It does not appear that the land has been sold or encumbered. There are no adverse claims and no pending contest or protest against the validity of the entry; nor were any proceedings initiated against