3. If the testimony of either claimant or witness is taken at a different place than that advertised the Commissioner may, if in his opinion same is required, cause new advertisement for the proof to be taken at such place as he may deem advisable, or if in his opinion new advertisement is unnecessary, and no protest or objection has been filed, the proof theretofore submitted, if regular in all other respects, may be accepted without further testimony.

4. When a witness not named in the advertisement is substituted for an advertised witness, unless two of the advertised witnesses testify, require new advertisement of the names of the witnesses who do testify at such time and place as you may direct; and if no protest or objection is then filed, the proof theretofore submitted, if satisfactory in all other respects, may be accepted.

5. Where final proof is taken before an officer not named in the advertisement, it may be accepted if otherwise sufficient, provided the proof is taken at the time and place designated in the printed notice, or within ten days thereafter under the exceptions provided in Rule 1; and provided further, that both the officer advertised to take such proof and the officer taking same shall officially certify that no protest was at any time filed before him against the claimant's entry.

6. Evidence of declaration of intention to become a citizen of the United States or other evidence necessary to establish citizenship of foreign-born applicants should be received only when under the hand and seal of the proper officer of the court in which such papers appear of record. However, where it is shown that the judicial record has been lost or destroyed, proof of citizenship in such cases may be established under the rules governing the introduction of secondary evidence.

7. When proof is made before the register or receiver and the final certificate does not bear the date of proof, the register must indorse on the back of the final certificate of entry, at the time of its issuance, a brief statement of the reason for the delay in issuance of final papers, the indorsement to be in each instance signed by the register. If the delay was caused by failure of applicant to tender the money or other consideration at the time of making proof, additional evidence must be furnished showing that the claimant had not, at date of certificate, transferred the land, which evidence may consist of his affidavit taken before some officer authorized to administer oaths. cases where it appears that the delay in issuance of final papers was not the fault of the claimant, the proofs being otherwise regular, the Commissioner of the General Land Office may in his discretion pass same to patent.

In

8. When proof is made before any officer other than the register or receiver a reasonable time will be allowed for the transmission of papers to the local office, and if a longer interval is shown between

date of proof and date of certificate, if the proof is otherwise sufficient and the record contains no reason for the delay, the register will indorse upon the back of the final certificate the statement required by Rule 7; and if such delay was the fault of the claimant, require the additional evidence prescribed by Rule 7.

9. Where final proof has been accepted by the local officers prior to promulgation of this circular, if in other respects satisfactory except. that the register and receiver have failed to submit an explanation as to delay in issuance of final papers as required by Rule 7, the Commissioner of the General Land Office may, if in his opinion the facts and circumstances so warrant, pass the cases to patent in the absence of other objection.

Approved:

E. A. HITCHCOCK, Secretary.

W. A. RICHARDS, Commissioner.

FOREST RESERVE-LIEU SELECTION-UNSURVEYED LAND-ACT OF MARCH 3, 1905.

GARY B. PEAVEY.

Where prior to the repeal of the exchange provisions of the act of June 4, 1897, by the act of March 3, 1905, selection was made and approved for unsurveyed lands described in terms of legal subdivisions of the public surveys, and upon survey some of the subdivisions were shown to be fractional and to contain a less area than contemplated by the selection, the selector may, under the saving provisions of the act of March 3, 1905, make additional selection to cover such deficiency.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) May 12, 1906. (C. J. G.)

An appeal has been filed by Gary B. Peavey from the decision of your office of January 26, 1906, requiring him to waive his right to excess in area of land offered as base for his selection, No. 2687, made under the exchange provisions of the act of June 4, 1897, (30 Stat., 36).

June 2, 1900, Peavey filed application to select under said act the NW. NE. 1, Sec. 5, and E. SW. 1, Sec. 19, T. 25 N., R. 2 W., W. M., then unsurveyed, Seattle, Washington, in lieu of lots 9, 10, 11, and N. SW. 4, Sec. 5, T. 27 N., R. 12 W., W. M., containing 142.20 acres, relinquished to the United States in the Olympic forest reserve. The records of your office show that 16.58 acres of the base lands above described were tendered as base for selection No. 3053, covering lot 12, Sec. 6, T. 36 N., R. 6 E., W. M., same land district, which was patented July 23, 1904, leaving 125.62 acres as base for the present

selection, No. 2687. Said selection, which was described as containing 120 acres, was approved by your office as for unsurveyed land July 28, 1903, and the official plat of survey of township 25 north was filed in the local office September 21, 1905, showing said township to be fractional. Thereupon Peavey applied to have his selection adjusted to the plat of survey, setting forth that said plat shows the lands embraced in his selection to be more correctly described as lot 2, Sec. 5, and NE. SW. and lot 8, Sec. 19, T. 25 N., R. 2 W., and that the lands last described are the same as covered by his original application. In the decision appealed from your office stated and held:

The plat of survey of said township was filed in your office September 21, 1905, and the records of this office show that the NW. NE. 1, Sec. 5, is designated as lot 2, area 29.68 acres, and the E. SW. 4, Sec. 19, is designated as the NE. SW. 4, area 40 acres, and lot 8, area 41.85 acres, total area 111.53 acres, accordingly, the selection is so adjusted and you will note the fact on your records.

The area of the base land being 14.09 acres in excess of that selected, you will require the selector to waive his right to such excess, giving him sixty days in which to comply, or to appeal, in default of which the selection will be rejected.

It is urged in the appeal, among other things, "there was nothing. to guide the selector in this case as to the probable amount that would be shown in the survey to be subsequently filed;" that "it can not be said that due diligence was not exercised in the attempt to adjust the base lands to the selection in order to equalize the area."

The forest lieu law of 1897 was repealed by the act of March 3, 1905 (33 Stat., 1264), the proviso thereto, which is the part material here, being as follows:

That selections heretofore made in lieu of lands relinquished to the United States may be perfected and patent issue therefor the same as though this act had not been passed, and if for any reason not the fault of the party making the same any pending selection is held invalid another selection for a like quantity of land may be made in lieu thereof.

The application of Peavey was made prior to said act and described legal subdivisions which if not fractional would contain the quantity of land applied for by him, namely, 120 acres. That quantity does not equal the right remaining to him under his assignment of base lands, which is 125.62 acres, and while it is a reasonable implication that he elected to take the tract applied for in full satisfaction of said right, yet it does not necessarily follow that he intended to also waive the excess in case the tract upon survey should be found to contain less than 120 acres. No error can be attributed to the government for accepting the application of Peavey for a less quantity than that relinquished, the same being for an unsurveyed tract which upon survey might be shown to contain more or less than the quantity esti

mated by him. It is also true that he had no means of knowing what the exact area would be upon survey. Under such circumstances the justifiable course would be to afford the selector an opportunity either to fill his selection or waive his right to the excess. This would have been the selector's privilege and the proper course to pursue prior to the repealing act of March 3, 1905. It is believed said act invests the Department with discretionary powers in a case like this, as it is provided therein that selections theretofore made "may be perfected and patents issue therefor the same as though this act had not been passed." The phrase "may be perfected" fairly includes such selections pending at the date of the act as might properly have been completed prior to its passage.

The decision of your office herein is accordingly modified, and Peavey will be afforded a reasonable time, to be fixed by your office, in which to make additional selection to cover the excess in question, or waive his right to the same.

EMPLOYEE OF GENERAL LAND OFFICE-SECTION 452, REVISED STATUTES.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., May 12, 1906.

To all Officers, Clerks, and Employees of the

United States who are in any way connected

with enforcement of the Public Land Laws:

1. Your attention is called to section 452, United States Revised Statutes, which reads as follows:

The officers, clerks, and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office. (See 11 L. D., 348.)

In construing this statute the Department has held (10 L. D., 97) that its provisions

extend to officers, clerks, and employees in any of the branches of the public service under the control and supervision of the Commissioner of the General Land Office in the discharge of his duties relating to the survey and sale of the public lands.

2. Acting under the spirit of this law and the decisions referred to, this office will recommend the removal or dismissal of any of the above-named officers, clerks, or employees who shall, either for themselves or others, in any manner negotiate for, buy, sell, or locate, any warrant, scrip, lieu land selection, soldiers' additional right, or any

other negotiable right or claim under which an interest in public lands may be asserted, as well as such officers, clerks, or employees who shall, except in the discharge of an official duty, help or in any manner whatever aid or assist in any such negotiations, purchases, sales, or locations as may be made by others for speculative purposes, or who shall in any manner whatever, except in the discharge of an official duty, furnish any information whatever to, or in any manner be in communication with, any person, firm, or corporation dealing in any such rights, in relation to such rights.

3. While section 452 of the Revised Statutes does not prohibit the acquisition of title to the public lands of the United States under appropriate laws by the wives of officers, clerks, and employees of the land department, it is not deemed advisable or proper in the interest of good administration that they should do so. Accordingly, such officers, clerks, and employees are advised that the application, entry, purchase, or acquisition of title, directly or indirectly, to any of the public lands by their wives, prior to the separation from the service of such officers, clerks, or employees, will be deemed a sufficient cause upon which to base a recommendation for removal or dismissal from the service of the officer, clerk, or employee whose wife acquires or seeks to acquire title to any of the public lands.

4. All of such officers who shall be in charge of and maintain offices are hereby directed to bring this circular to the attention of their subordinates, and to hereafter keep the same conspicuously posted in their respective offices.

Approved:

E. A. HITCHCOCK, Secretary.

W. A. RICHARDS, Commissioner.

MILITARY BOUNTY LAND WARRANT-ASSIGNMENT.

ANDREW M. TURNER.

Where two military bounty land warrants are erroneously issued upon the same military service, both can not be recognized, and where in such case the warrantee, having both warrants in his possession, assigns one of them, he is estopped thereafter to assert the validity of the other, and an assignee of such invalid warrant has no higher legal right than the warrantee. The cases of Andrew Anderson et al., 1 L. D., 1, and L. C. Black, 3 L. D., 101, overruled.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) (J. R. W.)

May 15, 1906.

Andrew M. Turner appealed from your decision of October 9, 1905, refusing to return to him military bounty land warrant, No. 29118, issued May 31, 1856, under the act of March 3, 1855 (10 Stat., 701).