desert land entry is made of unsurveyed lands, proof must be submitted within the time specified by the act of March 3, 1877 (19 Stat., 377), as amended by the act of March 3, 1891 (26 Stat., 1095), but the issuance of final certificate thereon will be suspended until survey, when the entryman will be required to submit supplemental proof, describing the entry by the proper legal subdivisions and conforming it to the lines of the public survey. Until such supplemental proof is made final payment should not be accepted for the land. C. B. Mendenhall (11 L. D., 414); John W. Phillips (23 L. D., 410). Where a portion of the land only is unsurveyed the same practice should be followed. In no other way can the entry be maintained in its entirety, or the rule prohibiting the assignment of a portion of a desert land entry adhered to. The practice is well settled, and good administration demands that but one certificate should be issued upon a single entry, and the action of your office in following the procedure outlined in the general circular of January 25, 1904 (page 39), is hereby affirmed.

It is noticed in connection with the affidavit of Fallon made in connection with his final proof, that he has heretofore made entry under the agricultural public land laws of 200 acres of land. In the affidavit made by him at the time of making desert land entry he averred that he had never made entry of land sufficient in amount to aggregate, with that applied for, more than 320 acres. It would seem therefore, that a portion of the land, other than that embraced in the entry now under consideration, was made subsequent to the filing of said affidavit. The description given by the claimant of the land entered by him under the homestead and timber and stone laws is not specific enough to enable the Department to ascertain whether such entries, or either of them, were relinquished or perfected. If both were perfected claimant would not now be entitled to complete his present entry in a greater amount than 120 acres. Unless the records of the local office show what disposition was made of said entries, Fallon should be called upon at the time he submits supplemental proof conforming his present entry to the lines of the public survey, to furnish evidence that he did not perfect title under said entries to more than 160 acres of public land, and to show what disposition was actually made of said entries.

The papers are herewith returned and the final certificate erroneously issued on Fallon's desert land entry will be canceled as directed by your office.

PRACTICE-DEPOSITIONS-OFFICER-RELATIONSHIP TO ATTORNEY.

HELLER. HILLIUS.

The fact that a United States Commissioner is the father of the attorney for one of the parties to a contest does not disqualify him to take depositions in the case where he has no interest in the subject-matter of the suit.

Acting Secretary Pierce to the Commissioner of the General Land (G. W. W.) Office, November 27, 1907. (C. E. W.)

This is an appeal filed by John Hillius, contestee in the above entitled action, from your decision of March 25, 1907, reversing the decision of local officers, and holding for cancellation the homestead entry of said Hillius, No. 18387, for lots 1 and 2 and S. 4, T. 134 N., R. 68 W., Bismarck, North Dakota.

NE. 1, Sec.

The evidence in this case was taken before a United States Commissioner, who, it is conceded, was the father of one of plaintiff's attorneys. Defendant protested against his authority to act, at and during the trial, but refused to enter into a stipulation to change the officer before whom the depositions were taken. Counsel for defendant appeared specially for the purpose of objecting to the commissioner's jurisdiction. He cross-examined the witnesses presented although introducing no testimony in behalf of the contestee. A continuance was granted to enable the latter to present evidence in defense of the charge made in the protest, but he chose not to avail himself of the opportunity.

Defendant now urges in his appeal that the depositions taken by said commissioner should not be admitted in evidence owing to the latter's disqualification and cites in support of his contention Tillinghast v. Walton (5 Ga., 335); Crockett v. McLendon (73 Ga., 85); Glanton v. Griggs (5 Ga., 424); Nichols v. Harris (Fed. Cas., No. 10243); Dodd v. Northrop (27 Conn., 216); Bryant v. Ingraham (16 Ala., 116); Call v. Pike (66 Me., 350); McLean v. Adams (45) Hun., 189); and Bean v. Quimby (5 N. H., 84).

An examination of the cited authorities shows that none sustains the proposition advanced by appellant. It is indubitably true that relationship by blood or affinity to a party litigant disqualifies the magistrate (Bryant v. Ingraham, Call v. Pike, and Bean v. Quimby, supra), and that a law partner of one of the counsel (Nichols v. Harris, Dodd v. Northrop, supra), or the attorney's clerk (Tillinghast v. Walton, supra), or student (Glanton v. Griggs, supra), or correspondent or agent (McLean v. Adams, supra), may not act as such a magistrate. But no published case, as far as the Department is advised, extends this disqualification through relationship or interest to a commissioner who is merely related to one of counsel, without having a particle of interest in the subject

matter of the suit. It may be true that kinship to counsel disqualifies one to be a juror in the case (Crockett v. McLendon, supra); but there is a vast difference in the nature of the offices; one judicial— to decide facts; the other ministerial-to transcribe testimony; "mechanical," as it was called in United States v. Lopez (17 L. D., 321). Of course, were there actual bias or prejudice on account of such relationship, such an officer should not be designated to act as magistrate. Sparks v. Galvin (8 L. D., 534). And, as you intimate, even the suspicion of bias which might arise from the relationship suggests the impropriety of making such an appointment. But a review of the proceedings before the commissioner in this case is quite sufficient to convince the Department that appellant was not the party who suffered on account of the relationship of officer and plaintiff's counsel. It is doubtful that the relationship complained of would even disqualify the register or receiver, as long as the relationship is merely to one of counsel and not to "any of the parties in interest." (28 Stat., 26.) A judge closely related by consanguinity to one who is counsel for one of the parties has been held not to be disqualified. Winston v. Masterson (87 Tex., 200; 27 S. W., 768).

The testimony adduced at that hearing is clearly admissible, the mere fact of relationship by blood between counsel and commissioner not being sufficient to disqualify the latter to act in a ministerial capacity.

As to the merits of the case, your finding that Hillius has defaulted in the matter of residence, etc., is entirely justified by the evidence and your decision is affirmed.

UINTAH INDIAN LANDS-MINING CLAIMS-LIABILITY UNDER LEASE.

RAVEN MINING COMPANY.

The rights of the Raven Mining Company under its lease with the Uintah and White River tribes of Ute Indians and the acts of May 27, 1902, and March 3, 1905, attached and became definitely fixed by the actual location of any given claim, in the form as filed conformably to the act of 1905, and where the located ground had prior to that time been operated under its lease. rights theretofore existing under such lease were at that date terminated.

Acting Secretary Pierce to the Commissioner of Indian Affairs, (G. W. W.) November 29, 1907.

(F. W. C.)

Several conferences have been held with a representative of the Raven Mining Company looking to an amicable adjustment and settlement of the amount due the Indians by reason of mineral extracted by said company under its lease with the Uintah and White River tribes of Utes.

The view of the matter heretofore entertained by this Department, as evidenced by departmental letter of August 3, 1903, and the opinion of the Assistant Attorney-General for this Department dated January 16, 1904, was that the right to royalties under the lease continued until the lands were, under the legislation of Congress, actually restored to entry. The company has heretofore contended that the preferential right of selection of 100 mining claims in lieu of its lease, provided for in the act of May 27, 1902 (32 Stat., 245, 263), was a grant in praesenti and by operation of law terminated all rights under the lease.

After a further consideration of the matter the Department is at present inclined to the belief that neither the view heretofore entertained by it respecting this matter, nor that advanced by the Raven Mining Company, is the proper one, but rather that the rights under the lease were terminated upon the definite location of the ground by the Raven Mining Company in the form in which it has applied for the issue of patent under the locations made.

It will be remembered that the act of May 27, 1902, supra, granted to the Raven Mining Company in lieu of its lease the right to locate 100 mining claims of the character of mineral mentioned in its lease up to thirty days before said lands are restored to the public domain." The act of March 3, 1905 (33 Stat., 1048, 1069), required of the Raven Mining Company that it should within sixty days from the passage of that act file in the office of the recorder of deeds of the county in which its claims are located a proper certificate of each location, and that it should also, within the same time, file with the office of the Secretary of the Interior said description and a map showing the locations made by it under the act of May 27, 1902.

In a letter from Mr. Leroy D. Thoman, dated the 15th instant, it is represented that the only claims from which elaterite was taken prior to the formal opening of these lands to entry, October 28, 1905, were the Potwin, 1, 2, and 3, and the Thoman. It is also represented that these four claims were surveyed and located June 3, 1903, and were duly recorded in the office of the recorder of deeds of Wasatch County, Utah, on the 12th of June, 1903; that the Potwin claims, 1, 2, and 3, were resurveyed and relocated February 28, 1905, and that the Thoman was resurveyed and relocated March 2, 1905.

There was no specific requirement for filing with the Department the description of the lands located under the act of 1902, until the passage of the act of March 3, 1905, supra. It seems clear, however, that until some formal notice was in a proper manner given so as to bind the company, it was within its power to locate and relocate its claims to the extent of the preferential right granted it. Under these circumstances the most reasonable deduction is that the date of the actual location of any given claim, in the form as filed in obedience to

the act of 1905, definitely fixed and attached the right of the company in and to the located ground, and where the same had been theretofore operated under the lease made with the Indians, rights theretofore existing under such lease were at that date terminated.

Whether the ground actually worked was located June 3, 1903, and duly recorded June 12, 1903, as claimed, and whether the locations then made were in the form as relocated in February and March, 1905, and on account of which the claims were recorded and filed in the Department as prescribed by the act of March 3, 1905, can not be told from the record now before the Department. It is therefore directed that you cause investigation to be made of these matters, and also as to the amount of mineral actually mined prior to the location of the lands in the manner herein defined, and the amounts of royalty due the Indians on account thereof. For your information I inclose herewith the letter from Mr. Thoman, dated the 15th instant, hereinbefore refered to. You will facilitate the inquiry and investigation herein directed, reporting the matter to the Department at your earliest convenience.

COAL LAND REGULATIONS-AMENDMENT OF PARAGRAPH 18.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., November 30, 1907.

Registers and Receivers, United States Land Offices.

SIRS: Paragraph 18 of the Coal-Land Regulations, approved April 12, 1907 [35 L. D., 665], is hereby amended by adding thereto the following requirement:

The claimant will be required within thirty days after the expiration of the period of newspaper publication, to furnish the proofs specified in said paragraph and tender the purchase price of the land. Should the specified proofs and purchase price be not furnished and tendered, within this time, the local land officers will thereupon reject the application, subject to appeal. Furthermore, in the exercise of a preference right to purchase, no part of the thirty-day period specified herein may extend beyond the year fixed by the statute. R. A. BALLINGER, Commissioner.

Approved:

JAMES RUDOLPH GARFIELD, Secretary.