to whom such lands had been patented, be appraised and sold, and that the improvements on said lands should be appraised separately.

The land in question was appraised by the proper officer at $10 per acre, and the remainder of the land embraced in the patent of Charles, at $11 per acre, and his improvements at $300, the report of the appraising officer being as follows:

Patent No. 41, S. SE. 4, Sec. 32, T. 9, and N. NE. 4, Sec. 5, T. 8, R. 20; acres, 160.61. The two tracts named in this patent lie in different townships and by the "range correction lines "do not connect. The former, occupied by Charles, has $300 in value of improvements. There is timber for fuel and a few sawmill trees; a few acres, not more than twenty, have borne good crops. It is well located and is valued at $10 per acre. The second tract is unimproved, just south of No. 38, and has considerable good timber. It is appraised at $11 per acre.

It would seem from said report that Charles resided on the tract in question and that about twenty acres of it were in a state of cultivation and had yielded good crops.

It appears from the records that the N. NE. 4, Sec. 5, T. 8, R. 20, was purchased by J. T. Carroll on February 12, 1900, and that he made full payment therefor at the appraised value, but that he did. not pay for any improvements. That fact is cited in your said decision, which then says: "It must be held, therefore, that the improvements lie on the land desired by Latchem."

The fact that Carroll did not pay for any improvements on the land purchased by him does not prove, nor justify the inference, that there are improvements on the land in question. But the officer who appraised the land reports that there are improvements on it which he appraised at $300, and it is expressly provided by said statute "that no portion of said lands shall be sold at less than the appraised value thereof." No other appraisement of the land in question than the one above referred to has been made, and the statute expressly prohibits the sale at a less price than the appraised value. Therefore the application of Latchem to purchase said tract for less than its appraised value was properly denied.

The land in question had been patented to Charles, and, under said statute, could not be sold without his consent. He, or in case of his death, his heirs, are entitled to the proceeds of the sale when made. The government is authorized by the statute to sell the lands for the benefit of the Indians, but in discharging this duty, which is in the nature of a trust, it must observe and pursue the requirements and directions contained in the statute which gives it the authority to sell. One of said requirements is, that it shall not sell said lands for less than their appraised value; another is, that the person offering to purchase shall be required to tender a sum equal to one-third of the appraised value of the land, which evidently means the appraised value of the land and improvements thereon. The land and improvements

have been regularly appraised, the appraisement is a matter of public record, the Indians have acted upon it, and moved off the land, and now, years afterward, the government is asked to sell the land at a price less than the appraised value, and to allow this applicant to become the purchaser without complying with the requirements of the statute authorizing the sale. If he desires to purchase the land. let him comply with the plain provisions and requirements of the law under which alone the government has authority to sell it, and under which the Indians consented to the sale.

Your said decision rejecting the application is affirmed.

MA-GEE-SEE. JOHNSON.

Motion for review of departmental decision of July 5, 1900, 30 L. D., 125, denied by Secretary Hitchcock, October 10, 1900.

HOMESTEAD CONTEST-ABANDONMENT-ACT OF JUNE 16, 1898.

CHESSER 2. ONEIL

A long period of abandonment on the part of a homestead entryman having been shown to exist prior to and at the time of the outbreak of war, the presumption is that its continuance during the war was due to the original cause or intent, and not to the entryman's employment in the army, navy or marine corps of the United States.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) October 11, 1900. (J. R. W.)

John Chesser appealed from your office decision of June 11, 1900, dismissing his contest against the homestead entry of James O'Neil, for the NW. 4 of the SW. of Sec. 4, the E. of the SE. and the SW. of the SE. of Sec. 5, T. 59 N., R. 18 W., Duluth, Minnesota. May 23, 1891, said homestead entry was made. December 19, 1898, said Chesser filed a contest affidavit, duly corroborated, alleging:

...

Said James O'Neil has wholly abandoned said tract and has failed to establish his residence thereon since making said entry. . . . The failure of claimant to reside on said land has not been on account of his absence in the military or naval service of the United States during any war.

After due proceedings, notice was given by publication. Hearing was had at the local office March 11, 1899. Defendant made default. March 18, 1899, the local office found that the land "has been wholly abandoned by said entryman as charged in the complaint," and recommended cancellation of the entry. Your office, on January 4, 1900, without action on the merits, remanded the contest to the local office and called for the submission of further "testimony upon the charge

that the alleged default, abandonment, was not due to the defendant's employment in the military or naval service," in default of which your office dismissed the contest.

The commencement of the war with Spain dated from April 21, 1898, as fixed by the act of April 25, 1898 (30 Stat., 364). The United States had been at war with no nation from the time of the entry, May 23, 1891, to April 21, 1898. War is an occurrence so affecting public history, the whole people and public matters of government, that courts and the public must take judicial notice of the fact. Turner . Patton, 49 Ala., 406; Perkins . Rogers, 35 Ind., 124; O'Ferrell Davis, 1 Ia., 560; Swinnerton . Columbian Ins. Co., 37 N. Y., 174; Hix. Hix, 25 W. Va., 481; Ogden. Lund, 11 Tex., 688; Prize Cases, 2 Black (U. S.), 635.

v.

The testimony shows that James O'Neil had not at any time resided upon or in any way improved or cultivated said tract; that at the time. of the hearing the land was wild and uncultivated; that O'Neil's whereabouts was unknown; and that his absence from the land had existed. for more than six years prior to the outbreak of war with Spain, during a period of peace between the United States and all the world.

The default having existed so long before the war, the presumption is that its continuance during the war was due to the original cause or intent and therefore not to the entryman's employment in the army, navy or marine corps of the United States. The proof was sufficient to meet the requirements of the act of June 16, 1898 (30 Stat., 473). Your office decision dismissing the contest is reversed.

HAWAII-LAND PATENTS-ACT OF APRIL 30, 1900.

OPINION.

The provisions relating to the preparation, execution and issuance of patents for lands, found in sections 171, 172 and 200 of the laws of Hawaii (1897), are not specifically repealed by the act of Congress of April 30, 1900, and, as modified by the substitutions and amendments made by said act, said sections are and must remain in force until Congress shall otherwise provide.

Assistant Attorney-General Van Deranter to the Secretary of the Inte rior, October 16, 1900. (W. C. P.)

I am in receipt, by your reference, with request for an opinion upon the question presented therein, of a letter from the Governor of Hawaii, in which, after referring to the provisions of the Revised Statutes (Secs. 450, 451 and 458) relating to the issuing of land patents, he says:

Does this provision bear upon the execution of land patents under the laws of the Territory of Hawaii, or shall I proceed in such matters under the provisions of our laws regardless of these provisions of the Revised Statutes?

Said sections provide, in substance, that the President may appoint a secretary to sign his name to patents for land sold or granted under authority of the United States and that all patents issuing from the General Land Office shall be issued in the name of the United States and be signed by the President and countersigned by the Recorder of the General Land Office.

The joint resolution of July 7, 1898 (30 Stat., 750), accepting the cession of the Hawaiian Islands, provides, as to the public lands, as follows:

The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition.

Provision was made for the government of the Territory of Hawaii by the act of April 30, 1900 (31 Stat., 141). By section 73 of that act it is provided:

That the laws of Hawaii relating to public lands, the settlement of boundaries, and the issuance of patents on land-commission awards, except as changed by this act, shall continue in force until Congress shall otherwise provide . . . . In said laws "land patent" shall be substituted for "royal patent;" "commissioner of public lands" for "minister of the interior," "agent of public lands," and "commissioners of public lands,” or their equivalents.

Section 9 of said act provides:

66

That wherever the words "President of the Republic of Hawaii," or Republic of Hawaii,” or “Government of the Republic of Hawaii,” or their equivalents, occur in the laws of Hawaii not repealed by this act, they are hereby amended to read “Governor of the Territory of Hawaii," or "Territory of Hawaii," or "Government of the Territory of Hawaii," or their equivalents, as the context requires.

Provisions as to the preparation, execution and issuance of “* royal patents" and "land patents" are found in sections 171, 172 and 200 of the laws of Hawaii (1897), none of which sections is found in the list of acts, chapters and sections of the laws of Hawaii specifically repealed by said act of Congress of April 30, 1900, supra.

These sections as changed by the substitutions and amendments made by the act of Congress are in force and are to remain in force until Congress shall otherwise provide. Thus a system differing from that provided by the Revised Statutes is for the present provided for the Territory of Hawaii. The provisions thus made applicable to this Territory must control.

Approved:

F. L. CAMPBELL,

Acting Secretary.

REPAYMENT-PRICE OF LANDS FIXED BY SECRETARY.

ALEXANDER MOORE.

Where the Secretary of the Interior, in the exercise of discretionary authority vested in him by act of Congress, fixes the price of lands at $2.50 per acre, regardless of their location with reference to a railroad land grant, repayment of the alleged double minimum excess paid by the purchaser is not authorized.

Acting Secretary Campbell to the Commissioner of the General Land (W. V. D.) Office, October 16, 1900. (C. J. G.)

Alexander Moore has appealed from your office decision of April 25, 1900, denying his application for repayment of alleged double minimum excess paid by him on cash entries Nos. 6479, 6480 and 6481, made November 15, 1877, for the W. of SW. 4, W. of NW. 4, NE. of SW. 4, and SE. of NW. 4, Sec. 2, T. 8 S., R. 5 W., San Fran cisco, California, land district.

The lands described were originally entered by Moore by the location of Chippewa Half Breed Scrip, issued under the treaty of September 30, 1854 (10 Stat., 1109), which locations were canceled for illegality, by your office, April 30, 1878, cash having been substituted therefor. The application for repayment is based on the allegation-the case of Kitty Maynard (27 L. D., 452) being cited-that the lands purchased have been found not to be within the limits of a railroad land grant, and that said application, therefore, comes within the terms of section 2 of the act of June 16, 1880 (21 Stat., 287), which, among other things, provides:

And in all cases where parties have paid double-minimum price for land which has afterwards been found not to be within the limits of a railroad land grant, the excess of one dollar and twenty-five cents per acre shall in like manner be repaid to the purchaser thereof, or to his heirs or assigns.

An act of Congress approved June 8, 1872 (17 Stat., 340), among other things, provided:

That the Secretary of the Interior be, and he is hereby, authorized to permit the purchase, with cash or military bounty-land warrants, of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September thirtieth, eighteen hundred and fifty-four, at such price per acre as the Secretary of the Interior shall deem equitable and proper, but not at a less price than one dollar and twenty-five cents per acre, and that owners and holders of such claims in good faith be also permitted to complete their entries, and to perfect their titles under such claims upon compliance with the terms above mentioned.

March 29, 1875, the Secretary of the Interior, upon a request by the owners and holders of this Chippewa Half Breed Scrip and the patented locations thereunder that they be permitted to avail them