This opinion was re-affirmed by the Attorney General in 3 Op., 653, and 4 Op., 167, and has been uniformly followed by the Department so far as I am advised since that time. See Jefferson Newcomb (2 C. L. O., 162); S. N. Putnam (2 C. L. L., 305); John C. Turpen (5 L. D., 25). It should, however, be kept in mind, that neither said regulation nor the opinions of the Attorney General (supra) required that lands which had once been offered at public auction, and afterwards suspended for "considerable time," should be re-offered at public sale. The restoration notice published for at least thirty days was deemed sufficient to give all persons a fair opportunity to purchase the lands, which by a previous offering had been placed in the "category" of lands subject to private cash entry. It is a matter of history that millions of acres of offered lands withdrawn in anticipation of railroad grants have been restored to private entry in accordance with said regulation. (See Land Office Report, 1854, page 61).

It can not be supposed, therefore, that the supreme court in the El. dred-Sexton case (supra) intended to decide that entries of lands, restored to private entry in accordance with a practice so long and so uniform, were invalid, nor that entries of lands, where the land officers have failed to give the published notice, can not be confirmed by the Board of Equitable Adjudication in accordance with the rules in force when said entries were allowed. Such a ruling by the court would ap parently conflict with its own decisions both prior, and subsequent to the decision in the Eldred-Sexton case.

In 1815, the United States supreme court in the case of (Polks Lessee v. Wendal) (9 Cranch page 87) Chief Justice Marshall delivering the opinion of the court said:

The laws for the sale of public lands provide many guards to secure the regularity of grants, to protect the incipient rights of individuals, and also to protect the State from imposition. Officers are appointed to superintend the business; and rules are formed prescribing their duty. These rules, are in general, directory, and when all the proceedings are completed by a patent issued by the authority of the State, a compliance with these rules is pre-supposed. That every pre-requisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the grant itself. It would, therefore, be extremely unreasonable to avoid a grant in any court for irregularities in the conduct of those who are appointed by the government to supervise the progressive course of a title, from its commencement to its consummation in a patent.

The court further held that where the grant was void, its validity could be examined in a court of law.

In the case of Edwards Lesse v. Darby (12 Wheaton, 206), the court held that

In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.

See also United States v. Gilmore (8 Wall., 330); United States v. Burlington & Missouri River Railroad (98 U. S., 334); Douglas r. County of Pike (101 U. S., 677); United States . Graham (110 U. S.,

221); Brown v. United States (113 U. S., 568); The Laura (114 U. S., 441).

In the case of Philbrick v. United States (120 U. S., 59), the court said: A cotemporaneous construction by the officers upon whom was imposed the duty of executing those statutes, is entitled to great weight, and since it is not clear that that construction was erroneous, it ought not now to be overturned.

See also United States v. Hill, (idem., 169); Siemans Administrator . Sellers (123 U. S., 276); United States v. Johnston (124 U. S., 236). In the case of Robertson v. Downey (127 U. S., 607), the supreme court, considering a regulation of the Treasury Department, relative to the proper construction of section fourteen of the act of June 22, 1874 (18 Stat., 189), said:

This construction of the Department has been followed for many years without any attempt of Congress to change it, and without any attempt, as far as we are advised, of any other department of the government to question its correctness, except in the present instance. The regulation of a department of the government is not, of course, to control the construction of an act of Congress when its meaning is plain. But when there has been a long acquiescence in a regulation, and by it, rights of parties for many years have been determined and adjudicated, it is not to be disregarded without the most cogent and persuasive reasons.

Citing United States v. Hill, United States v. Philbrick, and Brown v. United States (supra).

The rule of disposition unquestionably is, and should be, that lands which have once been offered, and then temporarily withdrawn, but afterwards restored to market, are not to be sold at private entry with out due notice of restoration; and lands which have been reduced in price should be re-offered at the reduced price before being held for private entry. I am not able to say, however, that any provision of the statute makes such an entry void. It is voidable at the option of the government only. And the precise question here is, whether where entries have been allowed by the local officers without such notice of restoration, and without re-offering, and the purchasers have acted in good faith, such entries can be confirmed by the Board of Equitable Ad judication.

The purchaser is not put in statu quo by merely returning the bare purchase price, perhaps years after his payment. He may have sold the lands to a purchaser who can be charged fairly with no laches. He himself acted with the approval of the local officers. Generally speaking, the fault was more theirs than his. They should be removed for a disregard of their duty, unless excusable. But the fact that they accepted his money and issued the certificate without notice gives him an equity to ask of the government not to exercise its option and cancel the entry, but to allow it to stand.

The Attorney General (14 Op., 645) held, that under rule 11, notice was not necessary to confer jurisdiction upon said Board; said rule was still in force and that "there is nothing in the acts of 1853 and 1856 to annul it." See also 1 Lester, 483.

In the case at bar the entries were allowed more than two years after the passage of the act, by which they were "reduced to one dollar and twenty-five cents per acre," and it would seem that no one was thereby deprived of a "fair and equal opportunity of purchasing them,” if during all that time, they were held subject to private entry. On the other hand, if they were not so held, but were sold by mistake, nevertheless, the tracts being public lands at the date of entry, the purchase money having been accepted, and the cash certificate issued, and long delay having ensued, it would be fair and equitable that the contract, if not fully authorized, should be ratified by the government, unless prohibited by law.

It has been well said that:

It is not the words of the law, but the internal sense of it, that makes the law; the letter of the law is the body; the sense and reason of the law is the soul. Every statute ought to be expounded, not according to the letter, but according to the mean ing; qui haeret in litera, haeret in cortice. (Potters Dwarris, 175.)

And the United States supreme court in the case of Heydenfeldt v. Daney Gold Co. (93 U. S., 634) speaking of the construction of a law, said:

In construing it, we are not to look at any single phrase in it, but to its whole scope and purpose in order to arrive at the intention of the makers of it. "It is better always," says Judge Sharswood, "to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction." Gyger's Estate (65 Penn., 312.) If a literal interpretation of any part of it, would operate unjustly or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.

See also United States v. Fisher (2 Cranch, 386); Atkins v. Disintegrating Co. (18 Wall., 272).

Tested by the principles above set forth, and bearing in mind the object to be attained in the creation of the Board of Equitable Adjudication, the injustice that might result from excluding from its jurisdiction cases, where, through mistake, the local officers had sold the lands, without having given the restoration notice required by said regulation, I must hold that said rules prescribed by said Board have not been annulled by said section 2457, Revised Statutes, and that the entries of Eveleth may very properly be referred to said Board for its consideration: Provided, however, it be shown that he was not duly notified of said cancellation. But since the local officers have allowed two of the tracts to be entered under the homestead laws after the application of Eveleth for re-instatement, and the evidence as to notice is not entirely satisfactory, I think a hearing should be ordered, in accordance with the Rules of Practice, and Strickland should be notified to show cause why his entry should not be canceled for said conflict and Eveleth should be afforded opportunity to contest the truth of the report that

he was duly notified of the decision of your office cancelling said entries, and of any other equity in his favor requiring submission to the Board. The decision of your office is modified accordingly.

DESERT LAND ENTRY-PRELIMINARY AFFIDAVIT.

VIOLETTE HALL.

The preliminary affidavit required of an entryman under the desert land act, must be based upon the applicant's knowledge of the land derived from a personal inspection thereof.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 21, 1889.

I have considered the case arising upon the appeal of Violette Hall from your office decision of October 4, 1887, rejecting her proffered application to enter under the desert land law a certain tract in the Cheyenne land district, Wyoming.

Applicant in the affidavit accompanying her application, says:

I became acquainted with said land through the testimony and representations of many credible and responsible persons who are well acquainted with said land.

The circular of your office, dated June 27, 1887, approved by the Department, says (see 5th paragraph, page 710, 5 L. D.) :

The required affidavit can not be made by an agent, nor upon information and belief; and you will hereafter reject all applications in which it does not appear that the entryman made the averments contained in the sworn declaration upon his own knowledge derived from a personal examination of the land.

I therefore affirm your decision rejecting said application.

HOMESTEAD-SECOND ENTRY.

BENJAMIN P. KNANS.

An entry under the homestead law cannot be lawfully made by one who is at the same time maintaining a pre-emption claim for another tract.

The right to make second entry will not be accorded, where the first was for land duly subject thereto, and failed through the fault of the entryman.

Secretary Vilas to Commissioner Stockslager, January 21, 1889.

This cause comes before me on appeal of Benjamin P. Knans, from your office decision of March 2, 1886, cancelling his homestead entry for the NE., Sec. 10, T. 2 S., R. 34 W., Garden City, Kansas land district.

On February 22, 1884, claimant filed his pre-emption declaratory statement for SW. 4, Sec. 2, of the same township and range, and made his final proof thereon and received his certificate therefor, July 27, 1885.

On November 13, 1884, and while residing on his said pre-emption claim and before offering his final proof, he made the homestead entry above stated.

On October 29, 1885 your office received through the local officers an application made by Knans himself, asking that his said homestead entry be canceled for illegality and that he be permitted to make a re-entry of the same tract.

Prior to making such application for cancellation he had proved up on his pre-emption claim, received his final certificate and had estab lished a residence on the tract embraced in his homestead entry.

Claimant in an affidavit and also in a private letter filed in the case, claims, that he made his homestead entry in ignorance of the law and on the advice of land attorneys and others, who professed to know, by whom he was told that he had a right to make a homestead entry while residing upon his pre-emption claim, provided he proved up on his preemption and commenced his residence on his homestead within six months after entry thereof.

In your said letter of March 2, 1886, you comply with his request in so far as the cancellation of his homestead entry is concerned, but refuse to allow him to make a second entry of the same tract under the homestead law, and you say, "as he has made pre-emption entry, the purpose of the law in according the same to him, being to afford him a homestead, it is not seen that he has any occasion for another, and the law allows but one homestead privilege."

If by this language it is intended to say that the law is that the exercise of either the homestead or pre-emption right exhausts the other, or both, I cannot concur in that view as the decisions of the Depart ment have never gone to that extent, and have indeed held to the contrary, but, however, that may be it is well settled that a claimant cannot make homestead entry while his pre-emption claim on another tract is pending, without abandoning his pre-emption claim. Rufus McCon liss (2 L. D., 622) J. J. Caward (3 L. D., 505) Austin v. Norin (4 L. D., 461) Krichbaum v. Perry (5 L. D., 403) Harlan Cole (6 L. D., 290).

It is undoubtedly true that the object of the homestead law was to furnish the opportunity of obtaining homes to those who might be unable to avail themselves of the privilege of the pre-emption law, and it was not the primary object of such law to give one hundred and sixty acres more to the owners of homestead claims.

Conceding however that a pre-emption claimant after he has made fiual proof, may still have a homestead right which he is at liberty to then exercise upon any unappropriated public land, it does not follow, nor can I believe it to be within the letter or spirit of the law, that while holding a pre-emption claim and before making final proof therefor, he can make a homestead entry for a piece of adjoining land and thereby prevent the same from being homesteaded or pre-empted by persons duly qualified to make such entries, and thus fraudulently hold the 16184-VOL 8——7