be presented here; but, where practicable, the practice above indicated should be followed.

Proceeding, however, to pass upon the present application (as this Department may, by virtue of its right and duty of supervision, in any case whether brought regularly before it or not), I am of the opinion that it should be rejected as insufficient in itself. Although based on matters contradictory of the records of the local office, it is not verified by affidavit and is wholly unaccompanied by proof or any offer of proof in its support. Such records are at least prima facie correct. (2 Wharton on Evidence, Secs. 1302 and 1303.)

The allegation in paragraph 2 above set forth, that the application of Kruger when originally made "was returned to him for an immaterial correction" is the averment of a legal conclusion, and, the nature of the correction not being given, it can not be determined whether or not the conclusion is correct. It may be admitted, as stated in said paragraph, that Kruger "forwarded" his application to the local office before May 13, 1887, but this statement alone (the time, mode, and place of forwarding not being given) does not raise even a presumption that it reached its destination before that date; and if it clearly appeared that it did, the entry could not have been allowed at that time, as the land was then covered by the entry of Rethke, which the records show was not canceled until May 14, 1887.

Paragraph 3 places the claim of priority upon an entirely different basis from that set up in paragraph 2, and is wholly inconsistent therewith. The latter concedes the priority in fact of the filing of Pollard's affidavit of contest, while the former expressly negatives it.

Upon such a showing, the application for a hearing to determine the question of priority must be and is denied.

The decision of your office is affirmed.

ACCOUNTS-FEES FOR NOTICE OF CANCELLATION.

GEORGE B. EVERETT.

Fees for giving notice of cancellation, deposited prior to the act of August 4, 1886, but not earned until after the passage of said act, must be accounted for in accordance with the circular regulations of March 15, 1887.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

Mr. George B. Everett, register of the land office at Mitchell, Dakota, appeals from the following instruction, given by you to the receiver of said office, November 18, 1887, and to which his attention was called by letter "M" of December 21, following, to wit:

In cases where fees for notices of cancellation were deposited with the register prior to August 4, 1886, and the notices were issued since that date, the register must pay the fees over to you, to be accounted for to the United States, as prescribed by circular, dated March 15, 18-7.

Said circular-which relates exclusively to fees and has been duly ap. proved by the Department (5 L. D., 577)-calls attention of registers and receivers to the following extract from the act making appropriations for sundry civil expenses of the government for the fiscal year ending January 30, 1887, and approved August 4, 1886, to wit:

All fees collected by registers and receivers, from any source whatever, which would increase their salaries beyond three thousand dollars each year, shall be covered into the Treasury, except only as may be necessary to pay actual cost of clerical services employed exclusively in contest cases, and they shall report quarterly, under oath, all expenditures for such clerical services, with vouchers therefor.

In relation to the disposition to be made of the particular fee now under consideration, the circular says:

The fee of one dollar, authorized to be retained by the register, for giving notice of the cancellation of an entry, as provided by the act of May 14, 1880, will be paid to the receiver, who will deposit it with the other fees, when the entry is canceled and the notice given. Should the cancellation not take place and no notice be given the fee is to be returned to the depositor.

Register Everett contends that the act of August 4, 1886, does not apply to fees collected or received prior to its passage.

It does not apply to fees earned by the register by actually giving the required notice prior to the passage of said act, but, as construed by said circular of instructions, it does, in my opinion, clearly apply to all cases where the fee was deposited in advance and the notice was not actually given and the fee earned until after the passage of the act.

Your instructions in this case, appearing to accord with the general instructions given to registers and receivers in said circular, are ap proved by the Department.

ALABAMA LANDS-ACT OF MARCH 3, 1883.

THOMAS M. KNIGHT ET AL.

Lands not known to be mineral, covered by bona fide settlement and filing, made prior to the act of March 3, 1883, and in accordance with existing regulations, are not required to be offered under said act before the allowance of pre-emption entry therefor.

Secretary Vilas to Commissioner Stockslager, March 1, 1889.

I have considered the appeal of counsel for Thomas M. Knight, John E. Williams, Wiley E. Godfrey and James R. Iveans, from the decision of your office, dated December 3, 1886, adhering to your office decis ion, dated January 4, 1886, holding for cancellation their several preemption cash entries, Nos. 18,179, 18,206, 18,233 and 18, 234, of lands in the Montgomery land district, State of Alabama.

The record shows that said Knight, on September 5, 1882, filed his pre-emption declaratory statement, No. 712, for the SW. of the SW. of Sec. 18, T. 17 S., R. 6 W., alleging settlement thereon February 10,

1882. On May 2, 1883, the local officers accepted his final proof and payment for said land, and issued cash certificate, No. 15,179, thereon.

The final proof shows that said Knight was duly qualified to make preemption cash entry; that he settled and built a house on said land the last of January, 1882; that he established his residence on the land about the first of February, 1882, and has lived on the land continuously since that time; that his improvements consist of one dwelling, two cribs, one stable, a vegetable garden and six acres of cleared landall valued at $100; and that there are no indications of coal, salines, or minerals, of any kind, upon said land.

The claimant filed the usual non-mineral affidavit.

On January 14, 1882, said Williams filed his pre-emption declaratory statement, No. 629, for the NE. of Sec. 25, T. 16, S., R. 6 W., alleging settlement thereon December 16, 1881, On June 14, 1883, the local land officers accepted his proof and payment, and issued cash certifi cate No. 18,206, thereon.

The final proof of Williams shows that he settled as alleged in his said filing, established his residence on said land on December 16, 1881, and his residence has been continuous since said date; that his improvements are worth $60, and that there are no indications of "coal, minerals, or salines" on the land claimed by him. The usual non-mineral affidavit was also filed by said Williams.

On May 19, 1879, said Godfrey filed his pre-emption declaratory statement, No. 121, for the NW. of the SE. † and the SW. † of the NE. 1 of Sec. 28, T. 17, S., R. 4 W., alleging settlement thereon May 6, same year. On February 25, 1881, Godfrey made proof, in support of his claim, before the clerk of the circuit court for Jefferson county, in said State, which shows that he settled upon said land as alleged in his said filing, established his residence thereon in May, 1879, and has resided on the land "ever since;" that there are no indications of coal, salines or minerals of any kind on said land, and that his improvements are worth $75.09. The usual non-mineral affidavit by the claimant does not appear in the proof, but there is filed therewith the corroborated affidavit of Mary A. Godfrey, dated November 30, 1881, alleging that said Godfrey died on May 26, 1881; that she is the widow of said Godfrey; that the said Godfrey "was unable pecuniarily" to make said entry; that she was advised that it was not necessary to perfect the entry of said Godfrey immediately after his death; that she has not alienated, and she believes said Godfrey, in his lifetime, did not alienate in any way said land, or make any agreement, with any one, by which the title should inure in whole or part to any other person than herself. On the proof submitted the local land officers, on July 11, 1883, issued final certificate, No. 18,234, in the name of Wiley E. Godfrey. The record further shows that, on January 17, 1883, said Iveans filed his pre-emption declaratory statement, No. 780, for the N. of the SW. of Sec. 26, T. 16 S:, R. 5 W., alleging settlement thereon January

10, same year. On February 1, 1883, the claimant gave notice, by publication, of his intention to make final proof in support of his claim, before the clerk of the circuit court, at Birmingham, Alabama, on March 27, 1883. The final proof, made as advertised, shows that the claimant was duly qualified to make pre-emption cash entry; that he settled and commenced his residence on said land in January, 1882, that his residence has been continuous since that time; that his improvements are worth $180, and that there are no indications of "coal, minerals, or salines thereon." The local land officers accepted said proof, received payment for the land, and, on July 11, 1883, issued certificate, No 18,233, therefor.

On January 4, 1886, your office held all of said entries for cancella tion, on the ground that, under the act of March 3, 1883 (22 Stat.. 487), the lands covered by said entries, were not subject to entry, until they have been offered under the provisions of said act.

On January 20, 1886, the register of said office addressed a letter of inquiry to your office, calling attention to the circular of April 9, 1883, (1 L. D., 655), enclosing a copy of said act, advising them that "all bona fide entries, under the homestead laws, may be perfected, regardless of the mineral character of the land, in accordance with rules and regulations governing the same.. Entries, whether by cash or location, already allowed and reported to this (your) office, will be examined and disposed of upon their merits, without reference to the question of mineral.” The register asked for further instructions in the premises, relative to said entries and others.

On March 26, 1886, the successor of the former register, also, addressed a letter of inquiry to your office, relative to said entries, calling attention to the decision of my predecessor, Secretary Teller (3 L. D., 169), and asking "for instructions as to what disposition to make of the entries."

On December 3, 1886, your office, in reply to said request of the regis ter, referred the local land officers to your office letter, dated May 4, 1883, in the case of Robert Lalley et al. (10 C. L. O., 55), the circular letter addressed to the Huntsville and Montgomery land offices, dated April 9, 1883, and the letter of Secretary Teller to your office, relative to the same matter, dated April 23, 1883 (10 C. L. O., 55), and held said entries for cancellation, for the reason that, although a settlement was alleged prior to the passage of said act, "yet all the entries were made subsequent to that date."

Your attention is called to the irregularity in the issuance of the final certificate in the name of W. E. Godfrey, who is shown by the record to have been dead more than two years prior to the date thereof.

The question at issue is, What is the proper construction of said act of March 3, 1883? Does said act require that lands which have been filed for, settled upon, and improved, in accordance with law and the

regulations of the Department in force at the time of such settlement. and filing, must be offered at public sale?

The act of March 3, 1883, is entitled, "An act to exclude the public lands in Alabama from the operation of the laws relating to mineral lands." By the first paragraph of the act, after the enacting clause, it is provided:-"That within the State of Alabama all public lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands." Then follow two provisos, 1st, "That all lands which have heretofore been reported to the General Land Office as containing coal and iron shall first be offered at public sale;" and, 2d, "That any bona fide entry under the provisions of the homestead law of lands within said State heretofore made, may be patented without reference to an act approved May 10, 1872, entitled 'An act to promote the development of the mining resources of the United States,' in cases where the persons making application for such patents have in all other respects complied with the homestead law relating thereto."

On April 9, 1883 (1 L. D., 655), your office advised the local officers in said State, not to allow an entry to be made for any lands, lists of which were transmitted to them on October 23, 1879, nor of other tracts that have been since investigated and reported as valuable for minerals, a list of which was enclosed; that all existing bona fide entries, under the homestead laws, may be perfected, regardless of the mineral character of the land; that any contest pending in said offices, where the only allegation is the mineral character of the land, must be dismissed, and that entries, whether by cash or location, already allowed and reported to your office, will be examined and disposed of upon their merits, without reference to the question of mineral.

The decision of my predecessor, Secretary Teller, referred to by your office, held that the act of May 14, 1880, has no applicatien to a settlement on lands not subject to homestead entry, "which was the condi tion of all mineral lands in Alabama, as well as in other States, where the mineral laws are in force," that "no previous right of entry existed to work a constructive intent to include a mere settlement or unperfected homestead claim upon mineral lands in the law confirming entries heretofore made'-such confirmation being manifestly intended to grant title, and legalize the official act already done, while providing a new rule for future disposal."

And your office, in the case of Robert Lalley et al. (supra), held that all entries of lands in Alabama that had been previously reported to your office as containing coal or iron, made subsequent to the passage of said act, were void, and that applications where the affidavits were made before the clerk of the court which failed to reach the local office prior to the passage of said act, must be rejected, although the affiants allege settlement prior to the date of said act.

On April 3, 1884, my predecessor, Secretary Teller, in the case of Nancy Ann Caste (3 L. D., 169), fully considered the effect of the act