authority to select, the granting clause is as follows: "Now, therefore, we Ferdinand S. Phillips and Anna J. Phillips, his wife, of Los Angeles, California, have made, constituted, and appointed and by these presents do hereby make, constitute, and appoint

our

true and lawful attorney for us and in our names, places and stead to enter into and upon and take possession of each and every tract of public land opened for settlement in any State or Territory of the United States, of equal acreage or any part thereof, in lieu of the following described tract of land: . . Each of these instruments contains a clause as follows: "For value received, the receipt whereof is hereby acknowledged, this power of attorney is hereby made and declared to be irrevocable by us or otherwise." The other instruments, after reciting surrender of the base lands, provides: "Now, therefore, we Ferdinand S. Phillips and Anna J. Phillips, his wife, have made, constituted, and appointed and by these presents do make, constitute, and appoint . . of . . . . county, State of . . . . our true and lawful attorney for us and in our names, places and stead to enter into and take possession of each and every tract of public land in any State or Territory of the United States that have been or may hereafter be selected by us in lieu of the land surrendered to the United States, as aforesaid, or any portion thereof." This is followed by authority to sell and convey the land and by a clause making the power of attorney for value received, irrevocable.

The power to select executed by Todd makes an unnamed person his agent and attorney "to locate and select" the land to which he is entitled under the provisions of the act of June 4, 1897, in lieu of the land relinquished, describing it. In this instrument there is no clause stating it is for value received and irrevocable. The power to sell executed by Todd is in the same terms as those by Phillips.

Your office rejected the several applications, saying:

The right to make selection under the provisions of said act of June 4, 1897, is conferred upon the owner of land within the limits of a forest reserve and is not assignable; therefore, said McCornack is not entitled to make such selection in his own right by reason of any assignment to him by Phillips and Todd.

Upon appeal errors are assigned as follows:

1. The Honorable Commissioner erred in rejecting the application of the appellant to make lieu selections as shown by the record at a time when the lands attempted to be taken were otherwise unappropriated.

2. The Honorable Commissioner erred in holding and deciding that the appellant could not make lieu selections in his own name in as much as he had paid for the rights which this scrip confers.

3. If assignment No. 2 is not well taken, then the Honorable Commissioner erred in not giving to the appellant J. K. McCornack a permit to obtain from the various persons named, duly executed powers of attorney authorizing the location of the scrip in their names respectively.

The provision of law under which these applications are presented is: That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected: Provided further, That in cases of unperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims. This law does not provide for the issuance of scrip in any form or for the certification of a right of selection. To speak of a "scrip right” under said act is inaccurate and tends to confuse and mislead. Where a tract within a forest reservation is covered by a patent or its equivalent, the law provides for an exchange of lands between the two owners, the United States and the individual, and nothing in it can be construed as indicating that it contemplated any other or different character of transaction. Holding this view, the Department has from the beginning insisted that a relinquishment and a selection covering all the relinquished land shall be presented together and the matter disposed of as a single transaction. In F. A. Hyde et al., on review (28 L. D., 284, 286), it was said:

The officers of the land department are not authorized to accept, consider or pass upon a relinquishment of the tract within the limits of a forest reservation, except in connection with a proffered or tendered selection of other lands in lieu thereof.

In William S. Tevis (29 L. D., 575), Tevis filed a relinquishment and abstract of title with a view to the selection thereafter of land of equal area. Your office refused to accept such relinquishment and Tevis appealed, contending it was not necessary that an application to select lieu land should be filed with the relinquishment of the land used as a basis for selection, but that such application may be made at any time thereafter. This Department quoted a portion of the decision in F. A. Hyde et al., supra, as directly in point, and continuing said:

Paragraphs 15 and 16 of the rules and regulations issued June 30, 1897, under said act (24 L. D., 589, 592), clearly require that in all cases of exchange of lands under said act, whether the land relinquished be "a tract covered by an unperfected bona fide claim or by a patent," an application to select lieu lands must accompany the relinquishment of the lands included within the limits of a forest reserve.

Further along in said decision (p. 577), is the following:

The Department can not escape the conviction, upon careful consideration, that the act contemplates and that good administration and the best interests of all concerned in the exchange of lands so provided for, require that the steps necessary to complete such exchange, when once initiated, be concluded as promptly as possible, and that as contributory to that end an application to select lieu lands should accompany the papers filed to effect a relinquishment to the United States of the land upon which the lieu selection is based.

In the instructions of March 6, 1900 (29 L. D., 578), the position theretofore taken was adhered to. Paragraph 19 of instructions of July 7, 1902 (31 L. D., 372), is as follows:

A selection based upon land covered by a patent or by a patent certificate must be made by the owner of the land relinquished or by a duly authorized agent or attorney-in-fact; and when made by an agent or attorney-in-fact, proof of authority must be furnished.

In William G. Gosslin (32 L. D., 100, 102), it was said:

No right to make a selection under the act of 1897 can arise until legal title actually exists in the person assuming to convey it to the United States and claiming right to make selection.

In C. W. Clarke (32 L. D., 26, 27), it is said that "a lieu selection under the act of June 4, 1897, is essentially an exchange," and in Maybury v. Hazletine (ib., 41, 42), that "the act of June 4, 1897, proposes an exchange with 'the owner' of lands in a forest reserve.” The same idea, that said act contemplates a transaction between the individual, the owner of the lands relinquished, and the United States, the owner of the lands selected, is involved and expressed in numerous other decisions of the Department.

The foregoing citations demonstrate that the Department has proceeded from the very first upon the theory that the law in question contemplates that the selection shall be made by or in behalf of the owner of the lands relinquished. This theory is wrong if the hypothesis, that the right of selection is assignable, upon which the appeal herein is based, is right. If the contention of appellant is to be sustained, the declarations of the Department hereinbefore quoted must each and all be held erroneous. It is not believed that there is any

good reason for such a course.

The Department has, however, directly and fully considered and decided this question of the assignability of the right of selection arising under said act of June 4, 1897. In F. A. Hyde, on review (28 L. D., 284), it was contended that there was error in the original decision (27 L. D., 472) in holding that unsurveyed land was not subject to selection under said act of 1897. After stating this contention, the Department said (p. 286):

Before considering this contention of the motion, the purported assignment by Belden to Hyde should receive some attention. The provision of the statute under which this case arises clearly contemplates an exchange of lands. The parties to the exchange are the United States, on the one hand, and on the other a holder of "an unperfected bona fide claim" within the limits of a forest reservation or an owner "by patent" of land so situated. A case is not properly presented for the favorable action of the land department under said provision until there is filed a relinquishment of the tract covered by the unperfected bona fide claim or patent and a selection by the claimant or owner of the land in lieu thereof. The officers of the land department are not authorized to accept, consider or pass upon a relinquishment of the tract within the limits of a forest reservation except in connection with a proffered or tendered selection of other lands in lieu thereof. Delivery and acceptance

of the relinquishment are necessary to give it any effect, and until this is done there is no right to lieu land and hence no right to assign. Hyde had no title to the tract described by Belden's deed, had nothing to relinquish, and had no right of selection. His application can not therefore be recognized. Considered as his application alone, it should have been rejected. Inasmuch, however, as both Hyde and Belden now aver that such application was made by the direction of the latter and for his benefit, and since, furthermore, the relinquishment and selection have been presented by Belden himself, as owner of the tract, the case will be considered as if upon the application of Belden from the beginning.

In conclusion it was held:

Where an exchange of land is sought under the act of June 4, 1897, supra, the relinquishment and selection can be made only by the claimant or owner of the land within the limits of the forest reservation.

This ruling is fully sustained by the language of the law, which is that "the owner" may relinquish and "may select," and by every consideration of good administration. If it had been intended to create a floating right different language expressing such intention would have been used. That Congress might have so provided can not be doubted, but that it intended to do so is clearly negated by the language used. The contention of appellant in this particular can not be sustained. Because of this conclusion, it is not necessary to consider the form of the instruments under which appellant claims or to determine their sufficiency to constitute him an assignee of the claimed right.

It is insisted that if the application to select as assignee be not recognized, then the appellant should be given time and permission "to obtain from the various persons named duly executed powers of attorney authorizing the location of the scrip in their names respectively." The presentation of applications in the names of the respective owners of the relinquished land could not be held to relate back and be effective from the date of presentation of McCornack's unauthorized and invalid application. Such new application would take effect only from the date of its presentation accompanied by the required proofs, especially as to the character and condition at that time of the lands applied for. Even if it were held that the applicacations now before the Department might be perfected by substituting the names of the respective owners of the relinquished tracts for that of McCornack, the proofs would have to be brought down to the date such substitution was made and rights under the substituted applications would be determined under the facts shown to exist at that time. The decisions of the Department to this effect are too numerous and the rule is too well established to require citation of any cases so holding.

In some cases applicants have been allowed time to make corrections in the papers pertaining to their applications and to supply admissions, but these have been in respect of formal or unessential matters and

the privilege has been given as a matter of grace and not as a matter of right. Here there is no application capable of being perfected. Neither Phillips nor Todd has a foundation application upon which to base a request to be allowed to cure defects or supply omissions. Any proceedings in their behalf must begin with the initial act of presenting a formal application and their rights must be determined as of the date when such application may be presented accompanied by the required proofs.

If applications be hereafter presented in the names of the owners of the relinquished tracts they will receive due consideration and be disposed of under the law and the decisions governing such cases.

For the reasons given the decision of your office rejecting McCornack's applications is affirmed.

HOMESTEAD-INSANE ENTRYMAN-SECTION 441, REVISED STATUTES. THOMPSON v. SWELANDER.

The power vested in the Secretary of the Interior by section 441, Revised Statutes, to supervise all proceedings instituted to acquire portions of the public lands, includes authority to inquire into the mental capacity of an entryman to make entry.

The test of mental capacity to make homestead entry is whether or not the entryman possesses sufficient mind to have a reasonable perception of the nature, effect and legal consequences of his act in making the entry.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) April 30, 1904.

(D. C. H.)

On October 15, 1896, Louis A. Swelander made homestead entry for the SE. of Sec. 20, T. 128 N., R. 50 W., Watertown, South Dakota. On November 5, 1901, Thomas P. Thompson filed contest against said entry, alleging that said entry was and is fraudulent, speculative and void, for the reason that for many years prior to the making of said entry the said Louis A. Swelander was and ever since has been a hopeless and confirmed idiot and imbecile, incapable of making a valid homestead entry, and of complying with the requirements of the homestead laws, and that said entry was in fact made for the benefit of Alfred Swelander, the father of the said Louis A. Swelander, and was therefore wholly speculative and could not have been made during any or all of said time for the personal use and benefit of the said Louis A. Swelander because of his mental incapacity.

Notice of contest issued and appears to have been served on the entryman and his guardian, Alfred Swelander. At the hearing both parties submitted testimony, the plaintiff appearing in person and by attorneys, and the defendant appearing by guardian and attorneys. The local officers found in favor of the plaintiff on all the issues of the