for the reason that it failed to show six month's continuous residence next preceding its date. This action was sustained by your office decision of November 12, 1885, from which the claimant appealed.

The claimant made settlement and established his residence upon the land on April 1, 1882. His improvements, valued at $900, consist of a frame house fourteen by six, with an addition twelve by sixteen, stable, well, and one hundred and twenty-eight acres of breaking, which he has cultivated for four years.

On April 15, 1882, following, his settlement, he was appointed sheriff of Grand Forks county to serve until January 1, 1883. In November, 1882, he was elected to the same office for two years, beginning January 1, 1883, and on March 5, 1883, he was also appointed deputy United States marshal for the Territory of Dakota. He was subsequently reelected sheriff of the said county for the term of two years, beginning January 1, 1885.

By corroborated affidavit which accompanies his proof, the claimant sets out that to discharge the duties of his office and to comply with the requirements of the territorial code, he was required to reside in Grand Forks, the county-seat, about twenty-two miles distant; that he went to Grand Forks on April 15, 1882; that his wife and family continued to live on the land until October 25, 1882, when, owing to the claimant's illness, they came to Grand Forks; that he cultivated the land during each year succeeding his entry, and in 1884, built a good and substantial house, costing $300, and a small stable, that he frequently returned to the land and supervised the improvements; that his wife being in delicate health it was not advisable for her to live upon the land and that he needed her aid in caring for the prisoners in the county jail. He submitted proof and payment for the reason that as seventeen months of his term of office remained, during which time he could not personally occupy the land he considered himself in danger of losing it.

Since the appeal herein, the claimant by his attorney asks "that the final entry be allowed under section 2291, Revised Statutes, and that the local officers be instructed to issue final homestead certificate upon the payment of the proper commissions and the taking of the proper final affidavit."

This application is based on the claimant's affidavit dated January 8, 1889, wherein he avers, "that he is now living with his family upon said tract and has continued to reside upon the same continuously for the past two years."

The claimant first established his residence upon the land in good faith. His subsequent absence although covering the greater part of the time from April, 1882, until January 1887, having been caused by his duties as a public officer, could not operate as an abandonment of such residence.

This case is clearly governed by the rule laid down in the case of A.

E. Flint (6 L. D., 668). In that case the Department held that when a bona fide settler has established a residence and is afterwards called away by official duty, which required his presence at the county-seat, such absence will not work a forfeiture of his rights.

This record, therefore, indicates that the claimant has complied with the homestead law. His application that final entry be allowed upon the papers now before me can not, however, be granted. The claimant should be permitted, within a reasonable time, to make in the regular manner, final proof showing compliance with the law.

Your decision is modified.

ATION.

PRIVATE ENTRY-EQUITABLE ADJUDICATION.

IRWIN EVELETH.

Where land was once offered, then increased in price and again offered, and while in that condition reduced to the first price by act of Congress, and private entry thereof allowed without re-offering, such entry is voidable only, for the want of restoration notice, and may be confirmed by the Board of Equitable Adjudication.

Secretary Vilas to Commissioner Stockslager, January 21, 1889.

I have considered the appeal of Irwin Eveleth from the decision of your office, dated October 20, 1887, refusing to re-instate his private cash entries, Nos. 12,685 and 12,686, the former made July 12, 1882, at the East Saginaw, Michigan, land office, covering the NE. of the SE., and the SE. of the SW. of Sec. 20, T. 27 N., R. 2 W., and the latter made July 15, same year, at the same office, covering the SW. of the NW. of Sec. 8, and the SE. of the NE. of Sec. 20, T. 27 N., R. 2 W.

The record shows that the land covered by said entries is within the limits of the grant to the State of Michigan, by act of Congress approved June 3, 1856 (11 Stat., 21), for the benefit of the Amboy, Lansing and Traverse Bay Railroad Company (now the Jackson, Lansing and Saginaw Railroad Company). The odd numbered sections were withdrawn on May 30, 1856. The even numbered sections were offered at public sale on May 10, 1841, under proclamation, dated December 14, 1840.

The second section of said act provides "that the sections and parts of sections of land, which, by such grant, shall remain to the United States, within six miles on each side of said roads, shall not be sold for less than double the minimum price of the public lands when sold; nor shall any of said lands become subject to private entry until the same have been first offered at public sale at the increased price."

The lands in question were re-offered at double minimum price on August 20, 1860, Proclamation No. 657.

Section three of the act approved June 15, 1880, (21 Stat., 236,) pro

vides "that the price of lands now subject to entry, which were raised to two dollars and fifty cents per acre, and put in market prior to January, eighteen hundred and sixty one, by reason of the grant of alternate sections for railroad purposes, is hereby reduced to one dollar and twenty-five cents per acre."

It does not appear that the lands in controversy were re-offered after their reduction in price, nor was there any notice given of their restoration to private entry. The local officers, however, sold said lands at private cash entry, and issued cash certificates therefor.

Your office, on December 13, 1881, canceled said entries for illegality, because the land involved had never been restored to market, after having been once withdrawn, although subsequently reduced in price by section three of the act of Congress approved June 15, 1880 (21 Stat., 239).

On November 26, 1884, the local office reported to your office that said Eveleth had been duly advised of the action of your office dated August 27, 1884, holding said entry for cancellation, and that he had taken no action thereon.

On May 9, 1887, the claimant applied for re-instatement of said entries, alleging, under oath, that be never received any "official notice whatever from the land department" of the action of your office; that he had been absent from the State of Michigan for a large part of the time since said entries were canceled, but that he supposed said entries were perfect and that patents therefor would be issued in due time.

The claimant, therefore, prays that said entries may be re-instated and referred to the Board of Equitable Adjudication for its consideration. Your office, however, on October 20, 1887, refused said application.

An examination of the records of your office shows that one Earnest Strickland made homestead entry No. 4986 of the SE. 4 of the NE. †, and the NE. of the SE. of said Sec. 20, on December 10, 1887. This homestead entry was erroneously allowed, so far as the same conflicts with the private cash entries for which application for re-instatement was pending. Sarah Renner (2 L. D., 43.) If Eveleth did not in fact have any notice of the cancellation of said entries, then there would seem to be no valid reason why the entries should not be re instated and referred to the Board of Equitable Adjudication for consideration.

The facts as shown by the record, relative to the allowance of said entries, are, in all respects, similar to those in the case of Pecard v. Camens (4 L. D., 152), wherein my predecessor, Secretary Lamar, held, that where land had been once offered, then increased in price, and again offered, and while in that condition it was declared by act of Congress to be subject to sale at the first price, and private entries were allowed therefor, without further offering, such entries are not void, but voidable, for the want of a restoration notice, and they may be confirmed by the Board of Equitable Adjudication.

The case of Eldred v. Sexton (19 Wall., 189) was cited and distinguished in the Pecard v. Camens' case. In the case of Julius A. Barnes (6 L. D., 522), the Department used the following language:

In support of their position, counsel refer to the decision of Pecard v. Camens (4 L. D., 152), to show that a re-advertisement is not necessary in restoring lands to private entry after a temporary withdrawal. In the case of Pecard v. Camens the land had always been offered, and had not been withdrawn from market after the increase in price; besides the entry had been allowed in that case, and, although it was held to have been improperly allowed, it was considered not to be void, but voidable only, and that the defect might be cured by a reference to the Board of Equitable Adjudication. It was upon these grounds, that the department distinguished that case from the case of Eldred v. Sexton.

See also Wilhelm Boeing (6 L. D., 262).

In the case of Frank V. Holston (7 L. D., 218), the Department held that where there was no adverse claim, a private cash entry for land, included within a prior swamp selection, may be submitted to the Board of Equitable Adjudication, where the selection was subsequently canceled and good faith appears. If it be conceded for the sake of argument, that the principle announced in the Eldred-Sexton case is applicable to the private entries under consideration, it should, nevertheless be observed, that the jurisdiction of the Board of Equitable Adjudication to confirm private cash entries similar to those in question, was not presented to the court, nor was it considered or mentioned in said decision. The question before the court, and that which was decided by the court was, whether the action of the Department was right in canceling Eldred's private cash entry of lands, where the same had never been offered at public auction at the price for which the land was sold, namely, $1.25 per acre. The record showed that Eldred's entries were made in 1865 and 1866; that the lands had once been offered at $2.50 per acre, by reason of being within the limits of a railroad grant, but on account of a change of the route duly authorized, the lands fell outside of the railroad limits, and by the fourth section of the joint resolution of April 25, 1862 (12 Stat., 618), it was provided that the lands (inter alia) "shall hereafter be sold at $1.25 per acre." Eldred's entries were subsequently canceled by your office, on the ground that the lands were not subject to a private entry at the price paid and on appeal, the decision of your office was affirmed by this Department.

Upon the cancellation of Eldred's entries, the lands in question were offered at public sale at the minimum price of $1.25 per acre, and not being sold at such sale, were subsequently purchased at private entry by Sexton to whom patents were issued in 1870. Then Eldred commenced an action in one of the courts of the State of Wisconsin, praying that Sexton be declared a trustee for him, and that Sexton should surrender the patents and convey the lands to Eldred.

The State courts rendered a decree adverse to Eldred, which was affirmed by the State supreme court, and the same was taken to the su

preme court of the United States for a final adjudication. In the report of the case (19 Wall., 192), it is stated that

The sole question was, whether the action, as above stated of the Commissioner of the General Land Office, and of the Secretary of the Interior was correct. If correct, it was conceded that the defendant's title, obtained subsequently could not be impeached. If incorrect, the defendant was to be treated as a trustee holding the legal title for the plaintiff.

In the body of the opinion, Mr. Justice Davis, speaking for the court, said (page 195)

It is a fundamental principle underlying the land system of this country, that private entries are never permitted until after the lands have been exposed to publie auction at the price for which they are afterwards subject to entry.

After referring to the manner of conducting the public sales of gov ernment lands, the learned Justice continues.

There is an obvious reason for requiring a public sale before leaving the lands open to private entry. It is to secure to all persons a fair and equal opportunity of purchasing them, and to obtain for the government the benefit of competition in case the lands should be worth more than the price fixed by Congress.

It is further observed in the decision that the system of public sales commenced very early in the history of the country and was perfected in 1820; that for a period of twenty years from the commencement of the country, the public lands were sold on a credit, at not less than $2 per acre, but the practice of selling on a credit working badly, it was abandoned in 1820 and the price of the lands was reduced to $1.25 per acre; that since 1820, the great body of the public domain has been brought into market, after proper notice, at said reduced price; that private entries have never been allowed, except by special act of Congress, unless the land applied for had been previously offered at public sale to the highest bidder at the same price; that "This has been the established practice of the Land Office, sanctioned by the law officers of the government, and recognized by this court as a leading feature in our system of land sales" citing Johnson v. Towsley (13 Wall., 88); Chotard v. Pope (12 Wheaton, 588); (2 Op., 200; 3 id., 274; 4 id., 167).

The court also held, that by said joint resolution, Congress did not intend to change its policy relative to public sales as aforesaid; that "Congress meant nothing more than to fix $1.25 as their mimimum price, and to place them in the same category with other public lands not affected by land grant legislation. When they were withdrawn. from the operation of this legislation and their exceptional status ter minated the general provisions of the land system attached to them, and they could not, therefore, be sold at private entry, until all persons had the opportunity of bidding for them at public auction." The court held, that the entries were invalid and rightly canceled, because they were made before the lands had been proclaimed for sale at the minimum price of $1.25 an acre. It is quite evident that the court did not have in mind the question of the jurisdiction of the Board of Equitable Adjudication to confirm an entry that might without confirmation,