The Department held that the qualifications of Brown to make entry must be determined not as of 1917 when he made his first entry, but as of April 15, 1931, when he made his second entry; that the provision in Revised Statutes, section 2289, that, "no person who is the proprietor of more than 160 acres of land in any State or Territory shall acquire any right under the homestead law," was explicit and mandatory; that Brown, being the owner of more than 160 acres of land at the time of second entry, was unquestionably disqualified to make entry at that time and the fact that he later disposed of his holdings would not operate to cure his disqualification at the time of entry; that since Brown's qualifications must meet the statutory specifications, neither his good faith nor the fact that the Department might have been aware of his other land holdings at the time he made his second entry was material on the issue whether he was disqualified by virtue of ownership of more than 160 acres of land; that if Brown's contention that by disposing of his land holdings he removed his disqualifications were the law, it would not avail him, for until December 1937 he could not have acquired any rights to the land embraced in his entry and until that time such land was in legal contemplation "vacant, unreserved and unappropriated public land" within the meaning of the First General Order of Withdrawal (43 CFR 297.11) and whatever rights Brown might allege that he acquired in December 1937 could not, because of the withdrawal order, become effective; that no equities that may exist can alter the mandatory effect of the statutory prohibition and the withdrawal order.

It is idle for Brown to contend, as he does in his motion, that he substantially complied with the homestead law under his first entry in the face of final decision to the contrary. That question is res judicata. As to his contention that such residence as he made on his first should be credited on his second entry, it is sufficient to say that the matter of sufficient residence is not involved, and does not affect the validity of the charge and, therefore, requires no notice.

His contention that there is no authority of law or rule of the Department that permits appeals by the Division of Investigations from decisions of the Commissioner of the General Land Office is apparently made without knowledge of the rules governing proceedings upon the reports of special agents which expressly provide for such appeals (54 I. D. 214, 43 CFR 222.13).

He further contends that the land was not vacant, unappropriated land as he has had a possessory title to the same since 1917, held it under final certificate upon his first entry and paid taxes thereon; that he has lived upon the land and complied with the law in every particular and has been in possession and exercising "jurisdiction"

September 4, 1940

over the same since said date. Whatever may have been the status of the land during the existence of Brown's first entry, in the present case the status of the land on November 26, 1934, alone is material. Upon the cancelation of the first entry Brown's right of possession ceased. At the time of said withdrawal he was in possession of the land under an entry made in express violation of the provision above quoted in section 2289, Revised Statutes. The general rule of law is that an act done in violation of a statutory prohibition is void and confers no right upon the wrongdoer. Waskey v. Hammer, 223 U. S. 85, 94. The plain object of the prohibition was to restrict the bounty of the Government to citizens owning not more than 160 acres of land, and clearly the general rule applies. The word "unappropriated" in the order of withdrawal can hardly be held to apply to land other than that which has not been lawfully appropriated, and Brown's entry, allowed upon the misrepresentation by him in his application that he was not the proprietor of more than 160 acres, can in no sense be considered a lawful appropriation. Moreover, the withdrawal order excepted "existing valid rights" from its operation. Under this exception all valid entries and prior applications substantially complete are protected (Opinion of the Solicitor, 55 I. D. 205, 210; State of Arizona, 55 I. D. 249, 253), but it cannot reasonably be held to extend to entries void ab initio. In this view the land in Brown's entry fell within the spell of the withdrawal. Brown invites attention to the fact that his disposal of the land owned by him, which removed his disqualification to make entry, occurred before the adverse proceedings were filed, and he relies upon the case of Jones v. Burch, 39 L. D. 418, in support of his contention that upon disposal of his interest in the property he owned before the date of adverse proceedings, the disqualification to make entry was removed and the entry should be considered effective from the date he became so qualified.

In Jones v. Burch, supra, the entryman consummated a purchase of 480 acres of land after he filed his application but before it was received in the land office. Before a contest was filed alleging he was not a qualified entryman, he disposed of said land. In declining to entertain a second contest against a homestead entry, charging that the entryman was disqualified by reason of the ownership of more than 160 acres of land on the ground that the question had been decided in the first contest, the Department approved a statement made by the local officers in the first contest as follows:

Technically, we think the defendant Burch was not a qualified entryman at the time this entry was made. We think, however, that the defendant Burch at the time he made this entry believed himself to be a qualified entryinan, and he did not intentionally commit any fraud against the United States

in acquiring this entry ✶ ✶ The defendant having not intentionally made this entry when he was disqualified, and having in good faith become a qualified entryman before the contest was initiated, we think his entry became a valid entry, and we therefore recommend that this contest be and the same is hereby dismissed.

It may be that action taken in accordance with the above-quoted view would tend to thwart the policy of the statute forbidding entry by those who at the time owned more than 160 acres. See Prosser v. Finn, 208 U. S. 67, and Lowe v. Dickson, 274 U. S. 23, 26, 28. But whether Jones v. Burch should now or hereafter be followed as an authority it is unnecessary now to decide, since the withdrawal of the land from entry November 26, 1934, intervened before his disability was removed and his entry cannot be held validated thereafter. By withdrawing the land the Government is considered as asserting a right adverse in character. Interstate Oil Corporation and Frank O. Chittenden, 50 L. D. 262, 264.

Brown further contends that:

if there is any question as to my qualifications to make second entry, this land should most certainly be given the status of a pending application or entry during the period of my possession and occupation of said lands and credit should be granted for residence and improvements upon said land prior to 1937, the same as credit is allowed to any homestead entryman after he has filed application and petitions for designation and prior to allowance of his entry.

There is no merit in this contention. Brown's application as well as his entry had no force or validity because of his disqualification. His occupation of the land cannot be considered as a valid settlement as it is an elementary principle in the administration of the public lands that a settler must have the qualifications of a homesteader in order to make a valid settlement.

It is true, as a general proposition, that the rights of a prior settler are no greater than his rights as an entryman, and if he is disqualified as the latter he becomes a mere trespasser when attempting to assert the former,

*

In other words, one disqualified to initiate a valid settlement right can not claim the privilege of having his status as an entryman determined as of the date of his application to protect such invalid settlement right. The right will only be protected from the date the impediment to its initiation is removed, and the right attaches. If before the disqualification to make settlement is removed a superior right intervenes, such right, in all equity and justice, will be recognized and protected. Short v. Bowman, 35 L. D. 70, 73, 74, 76.

Nor is there any factual basis for the allegation that the Land Department was advised of appellant's interests in his father's estate when his second entry was allowed and the fault in allowing it was not entirely that of entryman, the Department being mostly responsible. While there is some reference incidentally in the proceedings

September 21, 1940

relating to the first entry and in connection with the second, to the interest of Brown in his deceased father's ranch property, there is nothing therein that charges the Land Department with any knowledge that at date of the application for second entry Brown was the owner of more than 160 acres of land. Brown specifically alleged in said application that he was not the proprietor of more than 160 acres of land. The Land Department was under no obligation to seek grounds to doubt his statement. He is, in effect, now asserting that the Government should not have believed him, and discredited or challenged his statement.

For the reasons above stated, the decision of the Department reversing dismissal of the proceedings will not be disturbed and the motion to that extent is denied. The Commissioner's decision, however, dismissing the proceedings was not final and it is proper for the Department to determine whether or not the charges have been sustained. Under paragraph 5, Circular 460 (43 CFR 222.5) the charges are accepted as true unless the entryman or claimant denies them under oath or submits a statement of facts rendering the charges immaterial or fails to appear at the hearing. The entryman admits in his motion that he acquired the property which he is charged with owning by inheritance from his father in 1924, and he has also admitted that he did not dispose of it until 1937.

In view of the law expressed by the Department, the fact that he does not now own the property is immaterial and so much of the charge as alleges such present ownership is mere surplusage. Having admitted all that is essential to show that his entry is invalid and of no effect, and having failed to show that the charges are immaterial, there is no issue of fact that requires a hearing. The charges are therefore held sustained and the entry should be canceled.

We should point out that the only agency which can afford the appellant any relief is Congress.

As above modified the previous departmental decision is affirmed. Modified.

GILA PROJECT LANDS-VETERANS PREFERENCE PROVISION OF BOULDER CANYON ACT

Opinion, September 21, 1940

RECLAMATION-HOMESTEAD-SOLDIERS' PREFERENCE.

Lands in the Gila Project, Arizona, are not subject to the veterans' preference provision of section 9 of the Boulder Canyon Act of December 21, 1928 (45 Stat. 1057), although that act was adopted by the item of appropriation for the Gila Project in the Interior Department Appropriation Act, 1938 (act of August 9, 1937, 50 Stat. 564, 595).

KIRGIS, Acting Solicitor:

The question whether public land entries on lands included within the Gila Project, Arizona, are subject to the veterans' preference provision of section 9 of the Boulder Canyon Act of December 21, 1928 (45 Stat. 1057), has been submitted to me for opinion.

The Interior Department Appropriation Act, 1938 (act of August 9, 1937, 50 Stat. 564, 595), contains the following item concerning the Gila Project:

Gila project, Arizona, $700,000; said Gila project, including the waters to be diverted and used thereby and the lands and structures for the diversion and storage thereof, to be subject to the provisions of the Boulder Canyon Project Act of December 21, 1928, and subject to and controlled by the provisions of the Colorado River Compact signed at Santa Fe, New Mexico, November 24, 1922.

Section 9 of the Boulder Canyon Project Act, supra, provides as follows:

That all lands of the United States found by the Secretary of the Interior to be practicable of irrigation and reclamation by the irrigation works authorized herein shall be withdrawn from public entry. Thereafter, at the direction of the Secretary of the Interior, such lands shall be opened for entry, in tracts varying in size but not exceeding one hundred and sixty acres, as may be determined by the Secretary of the Interior, in accordance with the provisions of the reclamation law, and any such entryman shall pay an equitable share in accordance with the benefits received, as determined by the said Secretary, of the construction cost of said canal and appurtenant structures; said payments to be made in such installments and at such times as may be specified by the Secretary of the Interior, in accordance with the provisions of the said reclamation law, and shall constitute revenue from said project and be covered into the fund herein provided for: Provided, That all persons who have served in the United States Army, Navy, or Marine Corps during the war with Germany, the war with Spain, or in the suppression of the insurrection in the Philippines, and who have been honorably separated or discharged therefrom or placed in the Regular Army or Navy Reserve, shall have the exclusive preference right for a period of three months to enter said lands, subject, however, to the provisions of subsection (e) of section 4, act of December 5, 1924 (Forty-third Statutes at Large, page 702); and also, so far as practicable, preference shall be given to said persons in all construction work authorized by this act:

Thus it appears that Congress, in making the appropriation for the Gila project in the 1938 act, adopted the Boulder Canyon Act. When a statute is so adopted, only such portion is adopted as relates to the particular subject of the adopting act, and as is applicable and appropriate thereto. 2 Lewis' Sutherland Statutory Construction, Sections 404, 405. Gadd v. McGuire, 69 Cal. App. 347, 231 Pac. 754; State v. Marion County, 170 Ind. 595, 85 N. E. 513; State v. Board of Commissioners, 83 Kans. 199, 110 Pac. 92; Gillesby v. Board of Commissioners, 17 Idaho 586, 107 Pac. 71.

It will be noted that the second sentence of section 9 of the Boulder Canyon Act provides for the opening of certain lands for entry.