stated in the clerk's certificate, did, on October 22, 1895, dismiss said adverse-claim and notify T. B. Catron, attorney for the adverse claimants, of such dismissal, for the reason that he did not commence suit within the time allowed by law.

The local officers transmitted all the papers in the case to your office, together with the appeal of Catron et al. Your office by letter of January 17, 1896, reversed the action of the local officers on the following ground:

Whether the suit upon said adverse claim was commenced within the statutory period is the question to be determined, and the decision of that question involves the validity of the order of the court to the clerk thereof, which order is recited above. I am of the opinion that the power to annul and vacate said judicial order is vested by law in the courts of the Territory of New Mexico and not in this office, and until said order shall have been regularly vacated, I am bound to respect it.

Thereupon, the mineral applicants prosecute this appeal, assigning several grounds of error, but on the following the case may be disposed of:

1st. That under the laws of New Mexico suit was not brought within thirty days from the time notice was given said adverse claimants.

2d. The district court of Santa Fe had not acquired jurisdiction of said cause at the time of making said nunc pro tunc order of the judge entered in said case, and said order is wholly void.

3d. Said nunc pro tunc order was made ex parte, and said applicant has not by any summons or other process (up to this time) been brought into said court to plead or answer said complaint, and thereby be given an opportunity by said court to set aside and vacate said illegal order made in violation of the express statutes of this Territory.

(In connection with this specification of errors is presented the certificate of the clerk of said court, under date of February 12, 1896, wherein it is shown, "that there is no return in my office showing the service of any summons or other process upon the above named defendant, Leonard Lewishon, requiring him to appear or plead to the declaration in the above entitled suit.)

The contention of counsel for appellants is, that under the laws of the Territory of New Mexico suit cannot be commenced until the advance fee required by law shall have been paid; that said advance fee was not paid within thirty days as limited by the United States statute in which suit can be brought in support of au adverse claim, and that the court did not have jurisdiction of the cause at the time the order was issued.

By the Compiled Laws of New Mexico (1884), section 1867, it is provided:

The filing in the clerk's office of the petition, declaration, bill or affidavit, upon the filing of which process is authorized by law to be issued, with intent that process shall issue immediately thereupon, which intent shall be presumed unless the contrary appear, shall be deemed a commencement of the action.

Also by section 1907, it is provided:

All suits at law in the district courts shall be commenced by filing a declaration in office of the clerk of said court, etc.

By section 1262 of said statute, and also by Laws of New Mexico (1889), Chap. 69, p. 146 et seq., and Laws of New Mexico (1893), p. 126 et seq., it is made the duty of the clerk of the district court to collect part fees in advance.

The Commissioner of the General Land Office reversed the ruling of the local officers on the ground that the power to annul the judicial order of May 24th, rested in the courts of the Territory of New Mexico and not in his office.

The Department, it would seem, has the power to determine for itself the question of fact in each case as to whether or not action has been commenced within the statutory period, as is indicated in the cases of Downey v. Rogers (2 L. D., 707), and Nettie Lode v. Texas Lode (14) L. D., 180).

No certified transcript of the record showing the declaration and the entry of filing upon it is in evidence, though this would be the best evidence, yet it is virtually conceded that such declaration has been filed and that the official notation of the date of filing entered thereon is May 21, 1893, which would be within the statutory period. What is asked of the Department in the first instance, is that this official entry upon the declaration showing the date of filing shall be held to be false. In the cases cited, wherein it was held by the Department that judicial proceedings based on an adverse claim filed out of time, and such proceedings not begun within the prescribed period, do not preclude the allowance of a mineral entry, the fact of filing out of time appeared as a record fact, and required only a computation of the number of days to make such fact appear. These cases are not necessarily authority for doing what this Department is asked to do in this case. It is not so much construction of section 2326, Revised Statutes, or any other United States statute applicable to the case, which is now sought, as it is a construction of a statute of the Territorial legislature in reference to the collection of fees in advance, which applies to all suits brought in the Territorial courts.

The decision invoked is that the judge of the district court has committed error in construing a territorial statute in relation to what constitutes filing or the commencement of a suit in New Mexico under its laws. It is, in effect, a collateral attack upon the judgment of a court of competent jurisdiction.

It has been shown that under the laws of New Mexico, suit is commenced by filing a declaration in the office of the clerk. By another law of the Territory, it is made the duty of the clerk of the district court to collect fees in advance. It may be said then that a suit is commenced when a declaration is filed in the office of the clerk, and that it becomes the duty of the clerk to collect fees in advance.

It appears from the facts as stated, that when the declaration was presented to the clerk, the party was notified that it would not be filed until the fees were paid; that the party promised to pay the fees and

the clerk retained the papers until the fees should be paid. There is no doubt that the handing to the clerk at his office, a paper which is required to be filed in his office, is filed, whether the fact be entered upon the paper by the clerk or not. The entry is a clerical duty imposed by law upon the clerk, with the performance of which duty the party submitting the paper is in no way concerned. It seemed that the clerk treated the paper as filed, subject to the payment of the fees before it would be so entered, for he accepted it and became its custodian. The fact then is that it was handed to him on the 21st, in time, and was treated by him as filed, except on account of non-payment of fees, and if the non-payment of fees be not under the law of New Mexico a condition precedent to the filing, then both in fact and in law, the paper was filed on the 21st.

It may be a condition precedent to filing, but it does not appear to be from the statutes cited; nor do they authorize the conclusion that it is; but rather, that a certain part of the fees are due in advance and it is made the duty of the clerk to collect it. The statute is in reference to the duty of the clerk, and contains no provision declaring the filing nugatory by the non-payment of fees. If it had been intended that the filing should not be legal until the fees were paid, a very few words would have sufficed to make this point clear. If the statute had declared that it was the duty of the plaintiff to pay the fees when he filed his declaration, it would not have made the filing void, but the attorney who filed it would simply have failed to discharge his duty and, presumably, there would have been adequate means of reaching such breaches of duty.

Whether the handing of the paper to the clerk, under the circumstances detailed, amounted to a filing in office in the meaning of the law, need not be now considered, but the judge who made the order directly to be considered, seems to have been of the opinion that it was. That he entertained that opinion is evidenced by the fact that when the clerk failed or refused to file the paper as of the date of May 21st, by which it is to be understood that he failed and refused to endorse the same as filed on the 21st, the judge by an order of his court required him to do so. This order is referred to in some of the pleadings as a nune pro tunc order, but it does not purport to belong to this class of orders and cannot properly be so styled. It does not recite anything which indicates that it is an order which should have been passed on the 21st, but rather that it is an appropriate order as of the 24th, the date it bears. The order would appear to have been made on the complaint of some one, who presumably made it appear to the court that the clerk had received a declaration on the 21st; that it was not filed by the clerk for the reason that the plaintiff did not pay the advance fee required by law, and that it appearing to the court that such fee had been paid by the date of the order, the clerk was ordered to file the declaration as of the date May 21st.

Upon the statement of facts presented, the court was evidently of the opinion that there had been a legal filing of this declaration with the clerk of his court on the 21st; that for an unsatisfactory reason the clerk refused to endorse that filing, and the court then directed it to be done, subsequently to such filing. This may have been an improvident judgment or order of the court, but it is to be presumed that if this is so, and was so shown to the court, the court would on such showing revoke it. It is an interlocutory order which does not purport to dispose of the case; belongs to the class of orders which the court might lawfully make, and to a class from which there is no appeal, under the general rule, until the case, on its merits, is passed upon. There can be no doubt that the question of the legality of this filing received judicial consideration and was passed upon by tue court and held to be legal. The case to all intents and purposes is in court and before a tribunal having jurisdiction of the subject-matter. It is insisted that the order itself admits the fact that the fees might be lawfully demanded in advance and that they were not paid until the 24th, the day after the expiration of the thirty days; and therefore that it proves the want of jurisdiction of the court, and itself falls because of want of jurisdiction.

This conclusion rests upon the hypothesis that the penalty for a failure to pay the lawful fees at the time of filing his paper by a suitor, can be nothing else than to make the filing nugatory and void, and that this results by necessary implication because the statute provides no specific penalty. This evidently is exactly what the judge who passed the order disbelieved, and therefore held that the law provided no such penalty.

Section 2326 Revised Statutes, prescribes the duty of the adverse claimant to commence proceedings within a court of proper jurisdiction, within thirty days, to determine the question of the right of possession. Should he fail to do so, by this statute it is prescribed that such failure shall be a waiver of his adverse claim. But the statute goes further, and prescribes that upon payment of fees and of five dollars per acre for a claim, and the filing of the copy of the judgment roll with the register of the land office, that he is entitled to a patent. Evidently the idea of this statute is, that the court shall determine who is entitled, and while such determination is made upon the contingency of the filing of his proceeding in the court, it is nevertheless the clear intent of this statute that contest of claims of this character shall be determined by a court of competent jurisdiction.

In Richmond Mining Co. v. Rose et al., 114 U. S., 576, it was urged that the court acquired no jurisdiction because fees required by the statute were not paid at the time of the filing, to which the supreme court, on page 583, replies as follows:

What constitutes the commencement of an action in a State court, being matter of State law, the decision of that court on this point is not a federal question, and is not therefore reviewable here.

These propositions also answer the objection of non-payment of fees to the State, which is purely a matter of State concern, and if it could in any manner avail the defendant it must have been by motion at the time, and before demurring or answering to the merits.

The right of this Department, where it is clearly shown by dates that the proceedings were not begun within the given period of thirty days, to proceed with its own ruling on the assumption that there was a waiver of the adverse claim, seems to be settled.

The point of trouble in this case, however, is that it is insisted that the filing was not in time, notwithstanding the fact that the court, by solemn order, when attention was called to the alleged illegal filing, sanctioned it, and assumed jurisdiction, and the effect of holding the order void would be to make a departmental ruling in relation to a proper construction of the statutes of New Mexico, so as to deny to the courts of that State jurisdiction in a matter which they had directly assumed on consideration of the express jurisdictional question.

Whether rightfully or wrongfully, there is a case pending in the district court in New Mexico, to determine the question of right of possession. If there is no jurisdiction the point can be clearly made and decided by the court; if it should not be prosecuted with reasonable diligence to final judgment, we have authority that the Department may then step in and declare that the adverse claim is waived; but where the very question at issue is involved in a pending case and the court has assumed jurisdiction, and an opportunity is afforded the parties to have a judicial decision not only of the question of jurisdiction but of the merits of the case as well, it seems to me that it is now premature for the Department to declare that the court entertaining the case had no jurisdiction.

Your office decision is therefore approved.

RAILROAD LANDS-ACT OF JANUARY 23, 1896.

BROWN . ANDERSON ET AL. (ON REVIEW).

Under the provisions of the amendatory act of January 23, 1896, an applicant for the right of purchase, accorded by section 3, act of September 29, 1890, to settlers who have gone upon railroad lands with a view to purchasing the same from the company, is not required to show actual residence, if he has enclosed and cultivated the land applied for.

Secretary Smith to the Commissioner of the General Land Office, July (W. A. L.) (C. W. P.)

7, 1896.

This is a motion, on the part of Henderson Brown, for Jeview of the decision of the Department of September 23, 1895, in the above entitled

case.