stead entry of Lemuel J. Holgate, made June 26, 1863. Holgate relinquished this entry February 16, 1864, but the same was not canceled of record until December 20, 1871. On December 18, 1879, John Schweitzer made soldier's homestead entry for the tract mentioned. On January 3, 1882, your office held this entry for cancellation on account of conflict with the selection mentioned. This action was revoked by letter of June 26, 1882, whereby your office held that the said selection having been made prior to the cancellation of Holgate's entry was "invalid and void ab initio" and re-instated the entry of Schweitzer.

Thereupon, on July 25, 1882, John Ross, transferee of the Territory, appealed to the Department.

On May 11, 1883, Schweitzer made final proof in support of his claim and patent therefor, dated August 13, 1883, was issued. This patent was transmitted to the local office but it does not appear to have passed into the actual possession of the claimant. Subsequently, i. e., October 29, 1883, your office, following the decision dated June 19, 1883, of my predecessor (Secretary Teller) in the case of Fred Jansen involving land embraced in said entry of Holgate, revoked the stated action of June 26th preceding, and held the claimant's (Schweitzer) entry for cancellation. From this decision Schweitzer appeals.

By letter dated December 29, 1884, your office stated that said patent had been inadvertently issued, pending the contest herein, and instructed the local officers to call upon Schweitzer to relinquish the

same.

Thereupon, in pursuance of your said office instructions Schweitzer, on February 16, 1885, filed his so-called relinquishment. In this "relinquishment" he set out that he was apprehensive his appeal would not be heard unless he executed "the relinquishment demanded," that he relinquished and abandoned (under protest) to the United States, the title conveyed by said patent, but expressly reserved all the rights which inured to him by virtue of his said entry. Although it does not appear that the patent referred to at any time passed into Schweitzer's possession still, it being on August 13, 1885, regularly issued and recorded the title to the land therein described, passed on the day named, 'out of the United States. United States v. Schurz, (102 U. S., 378). The record, therefore, shows that the United States was without title to the land on October 29, 1883, when your office beld Schweitzer's entry for cancellation. Consequently on the date mentioned, the land department had no jurisdiction in the premises. Wisconsin Central Railroad Co. r. Stinka (4 L. D., 344.)

This action by your office was accordingly void and of no effect, and it was therefore error to have insisted upon the surrender of his (Schweitzer's) title in the manner stated. Such surrender having been made under protest, and with a reservation of his claim under said entry, his rights in the premises should not be affected thereby. The order cancelling the homestead entry of Schweitzer is hereby revoked, and

you will return to him the patent, accompanied by a certified copy of this decision, so that the parties will be left to judicial proceedings for the determination of their conflicting rights.

This disposition of the case renders it unnecessary for me to pass upon the questions presented by this appeal.

Your decision is reversed.

INDEMNITY SCHOOL SELECTION-WITHDRAWAL.

STATE OF OREGON.

A school selection made on a valid basis, but covering in part lands excluded from selection, may be approved as to the tracts subject to selection.

A selection improperly allowed, because of a prior pending claim, may be permitted to stand on the removal of such claim from the record.

Secretary Vilas to Commissioner Stockslager, January 14, 1889.

This is an appeal by the State of Oregon from your office decision of March 10, 1887, whereby "List No. 11 of indemnity school selections" is held for cancellation.

This "list" was filed in the land office at La Grande, Oregon, by Z. F. Moody, Governor and ex-officio Land Commissioner, on December 11, 1886, and is based upon losses to the said State in sections sixteen and thirty-six, in townships 5 S., R. 27 E., 13 S., R. 45 E., 8 S., 15 S., and 18 S., R. 47 E., and 4 N., R. 49 E. Said list includes the following tracts, to wit:

It appears from your said decision that certain of the tracts so listed by the said State as indemnity, to wit: .. were within the limits of the indemnity withdrawal of January 1, 1872, for the benefit of the grant to the Dalles Military Road Company, act of February 25, 1867 (14 Stat., 409).

Your office finds the selection of the last named tracts to be invalid, by reason of said withdrawal, and holds the entire list for cancellation, on the ground that "a selection defective in part is invalid as a whole.” With the foregoing, I can not concur.

The withdrawal for the benefit of the said road was revoked by departmental decision of August 15, 1887 (6 L. D., 92). So far as either the record before me, or the records of your office disclose, no listing of any of the tracts involved has been made by the road company. Νο objection, therefore, can now be raised to the claim by the State on account of this withdrawal. Phillips v. Central Pacific R. R. Co. (6 L. D., 378). But even if it could be held that the State was without right to so list as school indemnity land embraced in the withdrawal referred to, I can not concur in your conclusion that the entire listing should therefore be canceled.

The case at bar is in my opinion expressly ruled by that of McKenzie v. State of California (6 L. D., 680). This case holds that a school selection made on a valid basis, but covering in part lands excluded from selection, may be approved as to the tracts subject to selection, and that a selection improperly allowed, because of a prior pending claim, may be permitted to stand on the removal of such claim from the record.

The validity of the basis upon which this listing has been made has not been questioned, nor has any adverse claim intervened. Unless other reasons should prevent, said list No. 11 should be approved. Your decision is reversed.

PRACTICE-APPEAL-INTERLOCUTORY ORDER.

JAY PIERCE.

An appeal will not lie from an order of the Commissioner requiring a claimant to furnish an additional affidavit in support of his entry, only from his final action on the refusal or failure of the entryman to comply with such order.

First Assistant Secretary Muldrow to Commissioner Stockslager, January 15, 1889.

I have considered the appeal of Jay Pierce, from the decision of your office dated February 15, 1887, requiring said Pierce to furnish supplemental evidence relative to his pre-emption entry No. 1091, for the NW. 1, Sec. 13, T. 115 N. R. 78 W., Huron land district, Dakota Territory.

The record shows that on April 27, 1883, claimant filed declaratory statement No. 3816, for said described tract, alleging settlement thereon the 25th of the same month.

On August 16, 1884, in accordance with published notice he made final proof before the clerk of the district court, Sully county, Dakota Territory, which was approved by the register and receiver and final certificate issued thereon September 19, 1884.

When the claimant made final proof he testified that he was a native born citizen, twenty-five years of age, and a single person; that he commenced to build a house on the land April 25, 1883, and established actual residence therein May 20, 1883; his improvements consisted of a house eight by eight feet, a sod stable thirteen by twenty feet, and five acres broken. Total value one hundred dollars.

In a special affidavit made at the same time he further alleged that— "his residence on said land has been continuous with the exception of eight weeks, during the months of August and September, 1883, when he was sick at the house of his father, and six weeks during the months of January and February, 1884, when he was attending school at Pierre, D. T.; that he has not been absent at any other time only when he was compelled to earn a living and secure money with which to make his improvements on the land."

In your office letter "G", of February 15, 1887, addressed to the register and receiver, they were informed that "Claimant fails to show continuous residence of six months prior to making final proof. His entry papers bear date of September 19, 1884, but there is on file with the case a second pre-emption affidavit dated December 18, 1885. The fact that claimant continued to own the land free of encumbrance for fifteen months after entry is established by said affidavit of December 18, 1885, but you will call upon him to furnish an affidavit showing whether he continued to reside upon and improve the said tract after making final proof."

On July 28, 1887, claimant appealed. Upon review of the record in this case, I am convinced that the appeal herein is not well taken, as it is very evident your said office letter merely required the claimant to furnish an additional affidavit in support of his entry, and that it did not suspend or hold for cancellation his final cash certificate.

Therefore, and as this Department has frequently held that" an appeal will not lie from the action of the Commissioner of the General Land Office, requiring a claimant to furnish an additional affidavit in support of his entry, but only from his final action in the case upon the refusal or failure of the entryman to comply with said request," the appeal of claimant is dismissed.

See case of Jennie M. Tarr (7 L. D., 67).

ALABAMA LANDS-ACT OF MARCH 3, 1883.

JULIUS P. KNABE.

Land, offered after it was returned as valuable for coal, and prior to the passage of the act of March 3, 1883, is not subject to entry if it has not been offered at public sale since the passage of said act.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

The record in this case shows that on February 23, 1887, Julius P. Knabe made private cash entry, No. 20, 785, for the S. of the NE. 4 of Sec. 7, T. 17 S., R. 7 W., Montgomery, Alabama.

On August 20, 1887, your office held said entry for cancellation "for illegality, the land embraced therein being described in the mineral list on file in this office as 'valuable coal.""

Claimant thereupon appealed. He alleges error generally, in holding said entry for cancellation, and specifically, in the finding of fact, that the tract in question is embraced in the mineral list ou file in your office.

As to the second error assigned by appellant, it is sufficient to say, that it appears from an examination of the records of your office, that the whole of said Sec. 7, T. 17 S., R. 7 W., is embraced in the list of

Alabama mineral lands now on file in your office, and that the tract here involved was reported to your office in they ear 1879 as " valuable coal." It also appears from the records of your office, that on February 26, 1880, the land in question was offered at public sale, at one dollar and twenty-five cents per acre, but no bid was received for the same.

By act of Congress approved March 3, 1883 (22 Stat., 487), entitled "An Act to exclude the public lands in Alabama from the operation of the laws relating to mineral lands," 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; Provided however, 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.

The only question to be determined upon appellant's first assignment of error is whether his entry can be sustained under this act.

The object of the proviso of the act referred to evidently was and is to except from or take out of the operation of the declaration in the act, that mineral lands shall thereafter be disposed of as agricultural lands, that class of lands which had been previously reported to and dealt with by the General Land Office as mineral lands, and thus prevent them from falling back into the system applicable to agricultural lands until they shall first be offered at public sale with a view that the government might receive the benefit of such enhanced value as may have attached thereto by reason of their having been classed as mineral; but it is also evident that the offering at public sale contemplated by said proviso, is a future offering. The fact that this land had been once offered at public sale, after the same was reported as valuable for its coal, but before the passage of said act, can not, therefore, affect the question here involved. The land has never been offered at public sale, since the passage of said act and for that reason, the entry of claimant can not be sustained thereunder.

Your office decision holding said entry for cancellation is therefore affirmed.

HOMESTEAD ENTRY-ACT OF JUNE 15, 1880.

CAMPBELL v. KELLEY.

Land entered under the homestead law prior to the passage of the act of June 15, 1880, may be purchased under the second section thereof, on the payment of the government price, if free from adverse claims.

An intervening entry, made after the passage of said act and canceled on relinquishment, is no bar to the right of purchase.

Secretary Vilas to Commissioner Stockslager, January 17, 1889.

I have considered the appeal of Helen T. Campbell (who discloses under oath that she is a party in interest as grantee of the land), from the decision of your office of October 18, 1887, holding for cancellation