This case clearly falls within the exception contained in said paragraph, and must be governed thereby. The claimant had given his notice of intention to submit proof, and the usual order for the publication of such notice had been made before the circular in question had reached the local office.

As to the claimant's compliance with law the final proof shows that he made his original entry, January 15, 1885, and established his residence on the land March 24, 1885, that "there have been periods of absence but not to exceed thirty days at any one time, except from October 1885, to March 1886, during which time we were temporarily located at Fargo, Dakota for the purpose of sending our children to school. During other times while I was absent my family resided upon and cultivated the land." His improvements were valued at $600, and consisted of a frame house fourteen by sixteen, one and a half stories high, with a “lean to” of ten by twelve feet, one story high, frame stable thirteen by sixteen feet, with "lean to" seven by thirteen; a well fourteen feet deep, and curbed; fifty-four acres broken, with twenty-five acres in crop. In explauation of his absences the claimant states on cross-examination that he is Supt. of Missions for the Presbyterian church and that his short absences were occasioned by attention to duties under such appointment, but that during such absences his wife and children remained on the land; and that in the summer of 1885, he and his family were absent during the harvest season for the purpose of harvesting crops on another tract of land owned by the claimant, about seven miles distant from the homestead.

The improvements shown are ample, and the absences, under the explanation given, do not impeach the good faith of the claimant's residence.

Your decision is therefore reversed, and patent will issue in due course on the proof submitted.

PRACTICE-SECOND CONTEST-APPEAL.

WATERS ET AL. v. SHELDON.

The institution of a second contest is a waiver of any rights the contestant may have had under the first.

The date when the affidavit of contest is received and accepted by the local office determines whether the contest is premature.

First Assistant Secretary Muldrow to Commissioner Stockslager, October 5, 1888.

I have considered the appeal of John E. Gilbert from your office decision of March 29, 1887, rejecting his contest against R. O. Sheldon on the latter's homestead entry for the SW. 4, Sec. 21, T. 108 N., R. 66 W., Mitchell land district, Dakota.

Rudolph O. Sheldon made homestead entry for the said land October 30, 1885. On May 1, 1886, George H. Waters filed contest against said entry, alleging abandonment. The local officers dismissed the contest because prematurely brought, six months and one day, exclusive of the day of entry not having expired. (Baxter v. Cross 2 L. D., 69). Waters' appeal to your office was dismissed for the same reason.

On May 3, 1886, John E. Gilbert filed contest, affidavit executed May 1, same year, alleging that Sheldon had abandoned the said tract.

On May 4, 1886, said Waters executed a second contest affidavit, alleging abandonment which was received in the local office on the 6th of the said month and held subject to Gilbert's contest. Testimony showing abandonment was submitted June 28, 1886, in case Gilbert v. Sheldon, in accordance with due and proper notice.

The local officers on July 21, 1886, rendered a decision that Gilbert's contest was prematurely brought and that Waters second contest was "the first valid contest."

Gilbert appealed. Your office by said decision of March 29, 1887, affirmed the judgment of the local officers; thereupon Gilbert instituted his appeal to this Department.

The institution by Waters of his second contest was a waiver of his first. Holdrige et al. v. Clark (4 L. D., 382).

Gilbert's contest was not initiated until his affidavit of contest was received and accepted by the local office, May 3, 1886. Bolster r. Barlow (6 L. D., 825); Seitz v. Wallace (6 L. D., 299).

The local office entertained Gilbert's contest, received Waters second contest subject to it, issued proper notice for a hearing on the former for June 28, 1886. A hearing was had on that day, Gilbert submitted testimony showing abandonment and under the authority cited it was error to reject his contest. Your decision is accordingly reversed.

SCHOOL INDEMNITY-VOIDABLE SELECTION.

EARLY v. STATE OF CALIFORNIA.

A school indemnity selection, based upon a loss alleged prior to the survey of the township in which such basis is situated, is not void, but voidable, and becomes valid, in the absence of an intervening adverse claim, from the date when said township is surveyed and said loss definitely ascertained.

First Assistant Secretary Muldrow to Commissioner Stockslager, October 8, 1888.

I have considered the case of Thomas G. Early v. the State of California, as presented by the appeal of the State from the decision of your office, dated August 13, 1886, holding for cancellation the indemnity school selections of the NE. 4 of the SE. 4 of Sec. 10, the N. of the SW.

and the SW. 4 of the NW. of Sec. 11, T. 3 N., R. 4 E., H.

M., made May 17, and 31, 1878, at the Humboldt land office in said State as per lists Nos. 34 and 35.

The record shows that said selections were filed by the State claiming said land in lieu of portions of Sec. 16, in T. 8 N., R. 5 E., H. M.. conceded to be within the limits of the Hoopa Valley Indian reservation created by executive order, dated June 23, 1876, under the provisions of the act of Congress approved April 8, 1864 (13 Stat., 39).

On December 1, 1883, the plats of survey of townships 8 and 9, so far as the same fell outside of said reservation, were approved and the same were filed in the local land office on January 11, 1884.

On March 2, 1886, the local officers rejected the homestead application of said Early filed the same day, for the reason that the land applied for was covered by said indemnity selections. On appeal, your office held the selections for cancellation, for the reason that at the date when the same were filed there were no proper bases.

Your office concedes that if the subdivisional surveys were extended over the entire township, the reservation would embrace the 16th section and that under the proper construction of the act of Congress approved July 23, 1866 (14 Stat., 218), "the State should be regarded as entitled to indemnity when that fact was determined by the surveys above mentioned." But your office decided, upon the authority of departmental decision in the case of Selby et al. v. said State (2 C. L. L., 634-5), that said selections were invalid, and hence, no bar to the appro priation of said lands under the settlement laws.

It is strenuously urged by the appellant, that if the bases upon which said selections were made, were defective at the date thereof, the selections became validated upon the filing of the township plats of survey, showing conclusively that the 16th section was wholly within said reservation and therefore a proper basis for said selection.

In support of said contention, counsel for the State urges that the Indian reservation was surveyed in 1875, under the directions of your office; that during the same year, townships 8 and 9 north, of range 3 east, were surveyed by United States Surveyor Foreman; that the east line of said townships intersects the north and west lines of the reservation; that said townships were properly connected with said reservation as appears from an inspection of the map of California made in your office in 1879; that the plats and field notes of the survey of said townships, and of said reservation were filed in the local office prior to November, 1879, and that upon the evidence thus furnished, indemnity selections were made, based upon the loss of the same sixteenth section; that said selections were allowed by this Department in March 1878, in the case of Eugene W. Kaster; and that after said selections had been allowed, and upon the same evidence, the State selecting agent treated said sixteenth section as lost to the State and filed said selections for the land in question in lieu thereof, which selections were certified by the regis ter of the local land office to be correct.

The sixth section of said act of 1866, provides that the act of Congress approved March 3, 1853 (10 Stat., 244),

Shall be construed as giving the State of California the right to select for school purposes other lands in lieu of such sixteenth and thirty-sixth sections as were settled upon prior to survey, reserved for public uses, covered by grants made under Spanish or Mexican authority, or by other private claims, or where such sections would be so covered if the lines of the public surveys were extended over such lands, which shall be determined whenever township lines have been extended over such land, and the case of Spanish or Mexican grants, when the field survey of such grants shall have been made. The surveyor general of California shall furnish the State authorities with lists of all such sections so covered, as a basis of selection, such selections to be made from surveyed lands, and within the same land district.

It has been uniformly held by this Department that said act of 1866, is remedial and should receive a liberal construction so as to accomplish its object as indicated by its title, namely: "To quiet land titles in California."

The case of Selby et al. v. said State (supra), arose upon the applications of certain pre-emptors to prove up and pay for lands claimed by said State under certain indemnity selections for lands alleged to be lost to the State, by reason of being included in Spanish or Mexican grants. The local officers rejected the applications for the reason that the lands applied for were covered by the prior state selections. On appeal, however, this Department, found, from an inspection of the records of your office that,

In nearly every instance the school sections alleged to be lost to the State, and in lieu of which these selections are made, are included in the limits of a grant not yet adjusted, and without final survey. The State had not lost the land, and was not entitled to select indemnity therefor. Her pretended selections were therefore without authority of law and void. She can not be permitted to substitute other lands actually lost and thereby preserve her selections, so as to defeat the claim of said pre-emptor, for such substitution would be virtually a new selection taking effect from its date. (Citing State of California v. Haile and Watson, 1 C. L. L., 324).

Your office, in the Selby decision (supra) was directed to carefully examine the State selections alleged to be invalid, and if the allegation be true to reject the selections and examine the pre-emption claims upon their merits; and furthermore, that if persons apply to enter or file for lands covered by a State selection which is alleged to be invalid, they should be permitted to contest the selection after due notice to the State, and if, upon investigation, it be shown that the selection is invalid, it should be canceled, and the entries or filings should be received as of the date they were offered.

Taking the whole decision together in the Selby case (supra), it is quite evident that the selections were not void ab initio, only voidable. The lands selected were open to selection, settlement and entry in a proper manner. The selections had been allowed and posted upon the records, and by the express terms of the decision, if claimants under the homestead or pre-emption laws allege that the indemnity selections are invalid, contests should be allowed to determine the truth of the

allegation, and if the same be proven, the selections should be canceled and the applications should be received as of the day offered. This is in harmony with the rulings of the courts and the Department upon claims under the settlement and other laws of the United States.

In the case of Durand v. Martin (120 U. S., 367) Martin claimed certain lands by virtue of his patent from the State of California, which had selected the land as indemnity for land lost in Sec. 16, T. 22 S., R. 6 E., M. D. M., under the provisions of section seven of the act of March 3, 1853 (10 Stat., 244 to 247). It was contended that his title was bad, for the reason that said township had never been surveyed by the United States, and the east half of said section sixteen, which was the basis for the indemnity selection, was within the boundaries of a Mexican grant, the final survey of which was approved in 1859; that the land in question was within the exterior boundaries of said grant, upon which patent issued in 1872, excluding the land from the claim. The court said:

It is true that the certificate of the Commissioner to a list of lands which were not open to selection at the time they were selected, nor at the time they were certified, would not pass title out of the United States, because he had no authority in law to make such a certificate. But the case is quite different when the State presents for certification as an existing selection one that was bad when made but good when presented. Under such circumstances, if the rights of no third parties have intervened, there is nothing to prevent the Commissioner from treating the selection as if made on the day of presentation, and certifying accordingly. His certification is of selections claimed by the State at the time of its date, and if the State had a right to the title under the circumstances existing then, it was within his official authority to make the transfer. It is a matter of no moment that the selection was bad at the time it was made, if, at the time of its presentation for title it was good, and there were no intervening rights to be injured by reason of its acceptance and ratification by the United States.

Applying the principle thus announced to the case at bar, it is evident that said selection was good in 1883, which was prior to the application under the homestead laws.

In the case of the Southern Pacific Railroad Company ". said State (3 L. D., 88), this Department held that selections under the act of 1866, made prematurely because the question of the loss to the State had not been ascertained, were not void but voidable, and served to except the land selected from the grant to said company. See also State of California (3 L. D., 327).

In the case of Niven v. the State of California (6 L. D., 439), the Department held that an invalid school selection of record bars the allowance of an application to enter, but that the application to enter must be considered as an attack upon the selection.

In the case at bar the selection became validated long prior to the application to enter and hence, the attack upon it must fail.

The decision of your office must be and it is hereby reversed.