CERTIORARI-APPEAL-NOTICE OF DECISION

PROUTY v. CONDIT.

An application for certiorari will be granted where the right of appeal is denied on the ground that it was exercised out of time, and the record does not show that notice of the decision appealed from was served on the applicant.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. S. H.) ber 6, 1894. (E. M. R.)

This case involves lot 2, block 60, Guthrie, Oklahoma, and is before the Department on an application for certiorari by Lottie Condit from your office decision of July 18, 1894, refusing to forward the appeal filed by her, from your office decision of March 28, 1894, because not taken in time.

The record shows that on August 25, 1890, Frank G. Prouty applied to townsite board No. 1, for the above described tract. On the next day Lottie Condit made a like application.

Hearing having been had on December 22, 1890, to pass upon the question thus raised between the adverse claimants, the townsite board decided the case in favor of the defendant, Lottie Condit.

Upon appeal, your office decision of March 28, 1894, reversed the findings of the townsite board and awarded the land to Prouty.

Your office decision shows that on May 26, 1894, an appeal was filed by Attorney Fred M. Elkins; and it is further stated that Prouty on April 3, 1894, filed an affidavit setting forth that "he does not believe that Fred Elkins has the right to accept service on behalf of Lottie Condit," and requesting that you require Fred Elkins to show his authority for accepting service in said cause or appearing in any manner in said action."

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It appears, further, that Elkins filed before the townsite board a letter received from Mrs. Lottie Condit Ritter-the defendant having married subsequent to the initiation of the proceedings in this caserequesting him to look after her interest.

This authority was not deemed sufficient by the townsite board and an attempted service of notice was made upon Mrs. Ritter herself.

Your office decision complained of sets forth: "The registry receipt is addressed to Mrs. Lottie Ritter, formerly Miss Lottie Condit, Pueblo, Colorado, and dated April 24, 1894, and the return receipt is signed Mrs. L. Ritter per A. A. Ritter."

It is well settled that the service of notice of a decision must be made upon the attorney or the party in interest. This notice must affirmatively appear. Harris v. Llewellyn (18 L. D., 439).

In the case at bar it not receive the notice.

appears, on the contrary, that Mrs. Ritter did Counsel for appellant appeals to the supervi sory power with which I am clothed, but in view of what the record

shows it becomes unnecessary for me to consider the question of whether such a case is made as would justify its use.

The record shows no service of notice upon Mrs. Ritter. The townsite board having held that Attorney Elkins produced no competent authority to act as attorney, it follows that proper service of the deci sion should have been made upon Mrs. Ritter, which has not been done.

You will therefore certify to this Department the record in the case and suspend all further action until the matter is passed upon as presented by the record.

DUFFY QUARTZ MINE.

Motion for review of departmental decision of March 23, 1894, 18 L. D., 259, denied by Secretary Smith, December 7, 1894.

PRACTICE-MOTION FOR REVIEW.

MULLER v. COLEMAN.

A question as to the correctness of the record comes too late, when raised for the first time on motion for review.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.) ber 6, 1894. (E. M. R.)

This is a motion for review by Sherrard Coleman in the above entitled case, of departmental decision of April 16, 1894, which reversed the decision of your office and canceled the filing of the defendant. The land involved is the SE. of the SW. of Sec. 32, T. 13 N., R. 9 E., Santa Fe land district, New Mexico.

The record shows that Sherrard Coleman filed a coal declaratory statement on March 29, 1890, for the SW. of said section, township and range, alleging possession on February 15, 1890.

On the same day Frederick Muller filed a like declaratory statement for the SE. of the SW. 4 of the said section, alleging possession from March 26, 1890.

On the third day of May following, Coleman applied to purchase said land as coal land under the act of congress of March 3, 1873 (17 Stat., 607), which application was suspended by the local officers and Frederick Muller notified, who then appeared and filed a protest.

A hearing was had at which a decision was rendered in which it was held that Coleman was disqualified from making entry by reason of the fact that he was a deputy United States surveyor. Upon appeal your office decision of October 13, 1892, decided that Coleman was not under contract with the United States during the year 1890, as a deputy United States surveyor, and, upon the facts as disclosed by the

evidence, it was held that Coleman had a preference right of purchase to the land.

Upon a motion for review your office, by decision of December 24, 1892, held:

A further examination of the records of this office disclose that February 15, 1899, and thereafter, Coleman was under contract with the Department for the survey of certain public lands.

But it was further held in said decision that a deputy United States surveyor was not an employé in the office of the Commissioner of the General Land office as defined in the McMicken case, and therefore the motion for review was refused.

Muller appealed to this Department, and in the departmental decision complained of dated April 16, 1894, the decision of your office was reversed, it being held that the position occupied by Coleman came within the inhibition of section 452 of the Revised Statutes, which is as follows:

The officers, clerks and employes of the General Land office are prohibited from directly, or indirectly, purchasing or becoming interested in the purchase of any of the public lands; and any person who violates this section will forthwith be removed from his office.

And in the case, supra, 10 L. D., 96, it is held that this inhibition applies to any of the branches of the public service under the control and supervision of the Commissioner of the General Land office.

Your office decision was, therefore, accordingly reversed.

In the motion for review now before the Department it is set out that while the evidence shows that in reply to the question asked Coleman as to whether he was a deputy United States surveyor his reply was "yes;" as a matter of fact the reply that he really made was "I do not know."

The brief sets out:

whereupon the register and receiver undertook to decide the question and having reached the erroneous conclusion that he was a deputy, directed the clerk to put down the reply "yes."

It is now asserted that his commission as a deputy United States surveyor had expired a year prior thereto with the term of office of Surveyor-General George W. Julian, and that he was not re-appointed a deputy by Surveyor-General Edward F. Hobart until nearly a year thereafter.

This question was not raised before the Department when the former decision was rendered, though the decision of the local officers and of the Commissioner of the General Land office, on motion for review, had stated that he was a deputy United States surveyor. Nor does it appear that the movant objected to the answer with which he is accred ited at the hearing; now, for the first time, he undertakes to raise the question in a motion for review.

This is not, I think, permissible. It appears from his own answer that he was a deputy United States surveyor; the records of your

office-so it is stated in your decision-show that at the time of making the filing he was a deputy United States surveyor. He had his opportunity to contradict this at the hearing; he failed to do so then, and, subsequently, when the case appeared before your office and this office, and the question is now raised too late to be favorably considered. In a motion for review the movant will not be allowed to question the correctness of the record.

For the reasons stated the motion is refused.

FLORIDA PHOSPHATE LANDS-ACT OF OCTOBER 1, 1890.

GARY v. TODD (ON REVIEW).

The act of October 1, 1890, with respect to settlement claims on Florida phosphate lands is retrospective in character, applying exclusively to cases arising prior to April 1, 1890; and under the provisions of said act an entry made prior to said date will not be canceled, on account of the subsequent discovery of phosphate, if at the date of the entryman's settlement he had no knowledge of the existence of phosphate deposits on his claim.

Secretary Smith to the Commissioner of the General Land Office, Decem(J. I. H.)

ber 7, 1894.

(J. L. McC.)

The Department is in receipt of three motions, filed by Clarence C. Todd and his attorneys, for review of departmental decision of February 12, 1894 (18 L. D., 58), in the case of Thomas R. Gary against said Todd, directing the cancellation of his homestead entry, made September 18, 1889, for the E. of the SW.4, the SW. of the SW. 4, and Lot 3, of Sec. 11, T. 18 S., R. 19 E., Gainesville land district, Florida.

The ground of said decision was that Todd made the entry with the knowledge that the land embraced therein contained a valuable deposit of phosphates.

The motions will not be treated separately. The only one of the numerous allegations of error that need be considered is, in substance, that the decision is not sustained by a preponderance of the evidenceaccepting the testimony as given to be true. Furthermore, the applicant for review, in connection with his motion, swears "that the evidence given by Poacher and Abston is wholly untrue, and he believes that all of their said evidence was given for the sole purpose of reward and compensation, and in a malicious way," and files the affidavits of others tending to show that such was the case. I think these affidavits need not be considered.

The local officers, after giving a full resume of the testimony of the witnesses, find:

It is clear from the evidence that the existence of phosphate in Citrus county(Not upon the land in controversy, but in the county in which it was situated)

was not generally known in September, 1889, at the time when defendant made his homestead entry; yet it is equally clear that the fact of its existence was known to

some of the citizens of Citrus county, even prior to the month of September, 1889. It is clear that the defendant complied with the law as to residence, cultivation, and improvement; and were it not for the statements made by him to the witnesses who testify in behalf of the contestant there would be no difficulty in reaching a favorable conclusion in his behalf. . . . This contest hay

ing been initiated prior to the passage of the act of October 1, 1890, we hold that the determination of the issue is dependent on the statute in existence at the time the contest was commenced, and can not be in any way affected by legislation passed after its commencement and prior to the close of proceedings pending at the date of the passage of said act. Holding this view of the case

and that he knew at the time said entry was made that the land was more valuable for mineral than for agricultural purposes, we recommend the cancellation of homestead entry No. 19,502.

As one factor, and manifestly a highly important one, in leading the local officers to their conclusion, was their opinion that the act of October 1, 1890 (26 Stat., 662), had no application to entries made prior to that date, such conclusion might be to a considerable extent vitiated if it should appear that this opinion was incorrect, and that said act does not refer to and affect entries made prior to its passage. It reads as follows:

That any person who has in good faith entered upon any lands of the United States in the State of Florida, subject at the date of said entry to homestead or pre-emption entry, and has actually occupied and improved the same for the purpose of making his or her home thereon, under the homestead or pre-emption laws, prior to the first day of April, anno domini, 1890, shall have the right, upon complying with the further requirements of the law, in other respects, to complete such homestead or pre-emption entry and receive a patent for the lands so entered, occupied and improved, notwithstanding any discovery of phosphate deposits upon or under the surface of any of said lands after such entry was made: Provided, That the entryman had no knowledge of the existence of such phosphate deposits upon the land which is subject of such entry at the date when the settlement thereon was made.

It will be seen that the act is entirely retrospective; that it applies, and that exclusively, to entries made "prior to the 1st day of April, 1890"-of which this entry of Todd's is one.

In all cases of attempts to defeat an existing entry, the burden of proof is on the party attacking its validity.

In the case at bar, it must be shown that the phosphate deposit was "upon the land which was the subject of the entry"-not upon land in adjacent counties, or even upon adjacent lands in the same county.

It must be shown that the entryman had "knowledge"-not simply suspicion or hope-of the existence of such deposits on his claim.

The local officers avowedly ignore the law passed especially for the protection of certain entries made on phosphate lands in Florida, and largely base their decision adverse to the defendant on the fact that phosphate was about that time being found in other parts of Citrus county and in adjoining counties; and that Todd expressed a suspicion and hope that some might be found on his land.