i

RAILROAD GRANT-INDEMNITY SELECTIONS.

HASTINGS AND DAKOTA RY. Co. (On Review.)

The provision in the departmental circular of August 4, 1885, directing that where indemnity selections had been theretofore made, without specification of losses, the company should be required to designate the deficiencies for which such indemnity is to be applied, before further selections are allowed, is not applicable where the grant is deficient in quantity, and the danger of duplication of losses does not exist.

Secretary Smith to the Commissioner of the General Land Office, July 12, (J. I. H.) 1894. (V. B.)

An application has been made in behalf of the Hastings and Dakota Railway Company for the modification of the departmental decision of June 19, 1894 (18 L. D., 511), by excluding therefrom the paragraph, commencing at the bottom of page 512, which deals with, what seemed to be, an attempt on the part of the company to reopen the matter of the selections of 1883, which had been rejected by departmental deci sion of October 23, 1891. (13 L. D., 441-447).

'Strictly speaking, the matter of those selections was not then regularly before this Department. They had been rejected by its decision of October 23, 1891; no review of that decision having been asked for within the time allotted by the rule, it became final and determinative to be reopened only on application here, because of newly discovered evidence.

Instead of pursuing this regular course, counsel for the company, on the motion to reconsider the decision of your office, rejecting the selections of 1891, distinctly presented again in their brief the question of the "validity of the 1883 selections," and argued that the decision of this Department rejecting the same "was erroneous both in fact and law.” When the matter came here for consideration, copy of the same brief was filed, and in an oral argument, counsel pressed the point that the affidavit of the late register, showing that designations of losses were presented at the district land office with the selections of 1883, and, on the advice of said register withdrawn by the company's agent, showed the selections of 1883 ought to be admitted.

Nothwithstanding the irregularity of this proceeding, in courtesy to counsel, the matter was commented upon in the paragraph now asked to be eliminated from the decision.

Under the circumstances I see no reason for making the modification requested. The application is denied, and the papers are sent to you. Since the pendency of the motion for review, a letter has been received from the Hon. Haldor E. Boen, of the House of Representatives, suggesting that, in the departmental decision of June 19, 1894, a provision of the circular of August 4, 1885 (4 L. D., 90), had been overlooked.

The provision referred to directed that where indemnity selections had been theretofore made, without specification of losses, the compa

nies should be required to designate the deficiencies for which such indemnity is to be applied" before further selections are allowed."

Said provision was not overlooked, in the consideration of the matter then before me, as supposed by Mr. Boen, but was not deemed applicable thereto. No such selections, as are described in that clause of the circular, were then before me, but only a list of selections accompanied by a specification of losses.

Besides, in my opinion, that rule is not properly applicable in this case. The object in establishing the rule was to prevent the possibility of one basis of loss being used for more than one selection. As this grant is known to be deficient over eight hundred thousand acres, or more than double the whole quantity of land received and receivable by the company, the danger of a duplication of the losses does not exist; and the reason of the rule ceasing, the rule itself does not operate.

You will so inform Mr. Boen, whose letter is herewith sent you.

OKLAHOMA LANDS-SOLDIERS' HOMESTEAD.
ALBIN . HICKS.

The provision in the act of March 2, 1889, opening to entry lands in Oklahoma, to the effect that rights of honorably discharged soldiers shall not be abridged, does not except such soldiers from the terms of the clause in said act prohibiting all persons from entering said territory prior to the time fixed therefor.

Secretary Smith to the Commissioner of the General Land Office, July 12, (J. I. H.) (J. L. McC.)

1894.

Simeon S. Hicks has filed a motion for review of departmental decis ion of November 18, 1893 (unreported), directing the cancellation of his homestead entry for the NE. of Sec. 23, T. 13 N., R. 5 W., Oklahoma City land district, Oklahoma.

The ground of said decision was that Hicks entered the territory prior to the time the land in controversy was opened to entry (noon of April 22, 1889), and that he was therefore disqualified to make the entry in question.

The motion is, in substance, based upon the following ground: That by section 2304 and 2305, of the Revised Statutes, every private soldier or officer who served for ninety days in the United States army during the recent rebellion, and was honorably discharged, and has remained loyal to the government, shall, "on compliance with the provisions of this chapter," be entitled to enter one hundred and sixty acres of land; that the act of March 2, 1889, opening to entry the portion of Oklahoma embracing the land here in controversy, provided, "That the rights of honorably discharged union soldiers and sailors in the late civil war as defined and described in sections 2304 and 2305, Revised Statutes, shall not be abridged;" that this entryman was an honorably discharged

union soldier of the late civil war; that the clause prohibiting any person from entering upon and occupying the land-thus abridging the rights conferred by sections 2304 and 2305 of the Revised Statutesdoes not apply to him.

A perusal of the law shows that the proviso that the rights of union soldiers shall not be abridged, is followed by this limitation

And provided further, That until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same; and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto.

If the proviso that a soldier's rights should not be abridged had followed that above quoted, there might be some plausibility in the defendant's contention. But the sweeping proviso that no person shall be permitted to enter said lands is manifestly intended to include soldiersjust referred to in the preceding proviso-as well as other persons.

No reason appears why the departmental decision hitherto rendered should be disturbed. The motion for review is therefore dismissed, and herewith transmitted for the files of your office.

MCNAMARA v. ORR ET AL

Motion for review of departmental decision of April 5, 1894, 18 L. D., 504, denied by Secretary Smith, July 12, 1894.

CERTIORARI-PUBLIC SURVEYS-DEPOSIT SYSTEM.

ROBERT O. COLLIER.

Though an applicant for a writ of certiorari may not be entitled thereto on the ground of the wrongful denial of his appeal, yet, if it appears that he is justly entitled to relief, it may be granted under the supervisory authority of the Secretary.

A contract, under the deposit system of surveys, stipulating for the survey of “all lines necessary to complete the survey" of a township, authorizes payment, at the contract rate, for the survey of the township exterior line, where the establishment of such line is necessary to the completion of the stipulated survey, though said line can not be surveyed without coincidently extending a meridian line. Where several survey's are embraced in one contract, with liability therefor payable from special deposits for the different surveys, no part of any deposit should be used in paying for a survey for which it was not intended.

The retracement of lines previously surveyed is not authorized under the deposit system.

The extension of a survey which creates a liability in excess of the deposit made therefor is at the risk and expense of the deputy doing the work.

Secretary Smith to the Commissioner of the General Land Office, July 12, (J. I. H.) 1894. (W. M. B.)

This is an application made by Robert O. Collier, United States deputy surveyor, for a certiorari, under Rules of Practice 83 and 84, in the matter of account rendered by said Collier, and approved by the sur

veyor-general, for the sum of $2,011.47, for executed surveys in T. 21 S., R. 1 E.; T. 21 S., R. 1 W.; and T. 18 S., R. 6 W., Willamette meridian, Oregon, under contract No. 572, dated April 18, 1891; the said account having been revised, adjusted, and the amount reduced by your office, for reasons which will hereafter appear.

These surveys were made under what is known as the deposit system. This contract provided for surveys in four different townships, but the account for the three above designated only demand consideration, and require adjustment; the expense of surveys in T. 13 S., R. 6 W., (being the other township embraced in said contract) amounting to $600, was stated in a separate account, as per report No. 55951 of the General Land Office, and full amount of said deposit shown by said report to have been exhausted in discharging liability on account of surveys in that township.

The special deposits placed to the credit of the United States Treasury, on April 14, 1885, in the First National Bank of Portland, Oregon, for surveys embraced in this account; by whom made; for what particular survey; and statement of expense of surveys in each township, will be found to be as follows:

It will be observed from the above statement, that the total charge for surveys in the three above designated townships, amounts to $2,011.47, and that the account, as rendered, shows an access of $61.47 charged, over and above the sum total of deposits; an excess charge of $98.81 for surveys in T. 21 S., R. 1 E.; and an excess charge of $30.22 for surveys in T. 18 S., R. 6 W., there being a surplus or balance of 867.56 left over from deposits made for surveys in T. 21 S., R. 1 W. The following is a correct tabulated statement of account, after revision and final adjustment by your office:

The sums allowed for surveys in each township as designated above, amounting in the aggregate to $1868.03, as per your office report No. 55,950, was certified to the First Comptroller of the Treasury, as being correct, and properly due the deputy surveyor, and payment recommended, which was accordingly made.

Statement No. 2 shows a balance of $9.19 and $75.66 left to the credit of deposits appropriated for surveys in T. 21 S., R. 1 E., and T. 21 S., R. 1 W., respectively, and an excess of $2.88 over deposit paid out for surveys in T. 18 S., R. 6 W.

Comparing the two statements, it will be seen that the sum of $143.44 was disallowed in the account, as originally rendered, composed of the items and charges as follows, to wit:

For extending meridian line through T. 21 S., R. 1 E., 6 miles, at $18..... For retracing 3 miles and 3 chains, standard line, in T. 18 S., R. 6 W., at $18 a mile.....

$108.00

For overcharge of $7 per mile for 1 mile, 12 chains and 5 links of connecting line in T. 21 S., R. 1 W.

27.34

8.10

143.44

The charges for the above items were disallowed on the ground, which being substantially stated, is as follows: That under the rules and regulations of " Circular instructions relative to deposits by individuals for the survey of the public lands," approved and adopted June 24, 1885, the survey of "standard lines and bases" was not warranted (vide par. 5, p. 4 of Circular), under the deposit system; and also for the reason that the customary rate of $5 (instead of $12, as charged in the account) per mile, could only be allowed for the survey of connecting lines.

Collier, contending that he was entitled to the compensation claimed in his account, as rendered, and failing in his efforts to have your office reconsider its former action, and allow the relief prayed for, appealed on November 17, 1893, from your said office decision.

The right of appeal being denied on the ground that the same was not filed within the time prescribed by Rules 81 and 86 of Practice, Collier invoked the exercise of the "directory and supervisory power of the Secretary" for relief, petitioning this Department to have the record certified thereto.

It being evident that the petitioner is entitled to relief, in the way of further compensation, on account of these surveys, it will not be necessary to pass upon the question relative to denial of the right to appeal under said Rules, it being held in the case of ex-parte Oscar T. Roberts (8 L. D., 423) that:

Though an applicant for writ of certiorari may have failed to appeal within the time fixed by the Rules of Practice, and hence not be entitled to the writ on the ground of the wrongful denial of his appeal, yet, if it appears that he is justly entitled to relief, it may be granted under the Secretary's supervisory authority.