From this finding Walker appealed.

On August 23, 1886, your office affirmed the finding below, and held the entry of Custer for cancellation.

Walker again appealed. A number of errors are assigned by him, which amount, in substance, to a contention that said entry is not proven to have been made in fraud of the law, and that your office acted without jurisdiction of the subject matter of the controversy.

The final proof of Custer is to the effect that he is a qualified preempter, with improvements worth about $200; that he established his residence on the land June 17, 1880, and that the same was thereafter continuous.

By the testimony taken at the hearing it is shown that some time prior to October 19, 1882, the following memorandum or agreement, in the handwriting of Cavanaugh, was made and signed by "Custer and Bro.," namely:

PENDLETON, OREGON, 1882.

This memorandum, trade made this day between Jno. Custer and Josiah Custer and J. H. Cavanaugh, in terus following: Custers sell and agree to convey to Cavanaugh the NW. ‡ and SE. † of Sec. 32, (thirty-two) township 5 north, of range 31 east, at the fixed price of fourteen hundred dollars-deeded-in other words, this agreement is intended to be a memorandum of terms and price of the land above named, which Custers hereby agree and bind themselves to deed to Cavanaugh as soon as title is obtained.

CUSTER & BRO.

The final proofs of both John and Josiah Custer were made before the same notary and on the same day. Cavanaugh paid all the costs and fees attending said proofs, and he also furnished the money to pay for the land in both cases, when the proofs were submitted to and ap proved by the local officers. Some time prior to the date of making proof he negotiated a loan of $500, on the land in question by the Oregon and Washington Mortgage and Savings Bank of Portland, Oregon, to secure which a mortgage was given by John Custer on the land, October 12, 1882. It is also shown that Cavanaugh was in the habit of contracting for the purchase of lands covered by similar claims, and then negotiating loans thereon ostensibly for the benefit of the claimants, but appropriating the money to his own use.

On the same day that the final proof was acted upon by the local officers, Custer made and executed at Pendleton, Oregon, a deed of conveyance of the land in question to Cavanaugh for the stated consideration of $2,300. Pendleton is shown to be some fifty miles distant from the local office and in a different county, and at that time the mail communication between the two places was by stage. Notice of the accep tance of Custer's proof on October 19, 1882, was given by the local officers through the mail, and his final receipt and cash entry certificate were forwarded to him through the same source, and it is shown that both were mailed at the local office not earlier than the evening of October

19, 1882. It thus appears that the deed of conveyance from Custer to Cavanaugh was made and executed before the final receipt and certificate were received by the former.

Another memorandum in the handwriting of Cavanaugh is found in the evidence, which is signed by the Custer brothers, and is in the words and figures following:

PENDLESON, OREGON, Oct. ——, 1882. Received from J. H. Cavanaugh payment in full for the following lands deeded this day to Cavanaugh, to wit:

kind and character.

and in full payment of all debts, deeds and demands of every

JOSIAH CUSTER,
JOHN CUSTER.

Custer never exercised any acts of ownership over the land after the date of his said deed to Cavanaugh.

Custer himself testifies, that he got from Cavanaugh about $700 for the land. He swears in his final proof that he was then twentyfour years of age, but at the hearing, over two years after his proof was made, he swore that he would be twenty-three years old in the following December. Other witnesses, however, testify that he is a man of weak mind and bad memory, and that he was almost entirely under the control of his brother Josiah, who appears also to have been acting in the interest of Cavanaugh in reference to both entries.

On November 24, 1882, Cavanaugh sold and conveyed the land to Walker, for the stated consideration of $2000. Walker claims to have purchased in good faith without notice of any fraud in the entry. He states that he examined the record of the title to the land and found it in all respects clear and unincumbered, except by the aforesaid mortgage of $500, which he agreed to pay off as a part of the purchase price for the land.

Cavanaugh was not present at the hearing, and does not appear to have taken any interest in the controversy.

I am satisfied on a careful review of all the evidence in the case that there was an agreement and contract made by Custer with Cavanaugh, prior to making final proof, to convey the tract in question to the latter upon receipt of final certificate by the former, and therefore that said entry was fraudulently made by him.

This brings me to the consideration of the question of the jurisdiction of the Land Department to cancel said entry under the circumstances detailed.

Section 2262 of the Revised Statutes provides that before any person claiming the benefit of the pre-emption law shall be allowed to enter lands, he shall make oath, among other things:

That he has not settled upon and improved such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not directly, or indirectly, made any agreement or contract, in any way or manner,

with any person whatever, by which the title which he might acquire from the government of the United States, should inure in whole or in part to the benefit of any person except himself;

and proceeds to denounce the consequences of falsity in this oath as follows:

And if any person taking such oath swears falsely in the premises, he shall forfeit the money which he may have paid for such land, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, for a valuable consideration, shall be null and void, except as provided in section 2288.

The foregoing statement of the facts shows that the oath taken by the entryman was false, and that he falls under the penalty which the statute declares shall ensue. He made no actual conveyance at that time, although he had bargained to convey. Subsequently, he conveyed the land as stated, to a grantee, from whom Walker derives his Walker alone, of all concerned, stands in a position where he may claim to be protected as an innocent purchaser. He purchased the title, such as it was, which is evidenced by the receiver's receipt to the pre-emption purchaser. Upon that, and upon his good faith, he claims protection.

In maintenance of this claim he asserts that the Commissioner of the General Land Office, and the Secretary of the Interior are concluded by the decision of the register and receiver, implied by their acceptance of the proofs of the entryman and the receipt of his money and issuance of certificate thereupon; as well as that, as an innocent purchaser, he is entitled to his patent irrespectively of the defects which may now be discovered and adjudged in the entryman's claim to the land. It will be found, I think, that unless the former proposition can be maintained, the latter fails also; and, therefore, that the maintenance of the former is necessary to the establishment of the transferee's right.

I.

The exercise of the jurisdiction questioned has been continuous for a half century or more; indeed, it may be said to have begun with the public land system; but, as the mode of disposition of the public domain was originally simple, and generally by direct sale, the number of cases in which such a jurisdiction was exercised was comparatively few in the earlier years of the government. Since the provision of numerous other methods for acquiring title to public lands, and the change of policy by which direct sales have become few, there has been a great augmentation of the necessity and instances in which the Land Office and the Department should interfere. But, notwithstanding the long and continued usage, parties still frequently contest the jurisdiction.

Yet at this time there are many cases reported in the law books, upon adjudication by both state and federal courts, in which the point is discussed; and, although I have heard two oral discussions of the question, I do not think it necessary to review the cases or present 16184-VOL 8--18

elaborate argument in support of the conclusion arrived at. I think it very clear upon the statutes and upon the adjudged cases, that the jurisdiction of the land office and the Department stands as well established as the right of almost any tribunal or office of the government to the exercise of any function which it may possess.

It appears to be conceded, in all the arguments in favor of a contrary view, to which my attention has been drawn, that the jurisdiction is clear in cases of contest between two or more settlers claiming the same tract of land; because section 2273 of the Revised Statutes, following the provision in the act of 1841, after laying down generally the rule that the first settlement gives the better right, proceeds to add :

And all questions as to the right of pre-emption arising between different settlers shall be determined by the register and receiver of the district within which the land is situated; and appeals from the decision of district officers, in cases of contest for the right of pre-emption, shall be made to the Commissioner of the General Land Office, whose decision shall be final, unless appeal therefrom be taken to the Secretary of the Interior.

It will be apparent, on brief reflection, that this certainly gives the jurisdiction to hear all the inquiries and adjudge all the points which may go to the validity of an entry, provided only some other settler contests; because, it is plain that in such a controversy, if one settler showed that the other claimant was not entitled at all to the right of pre-emption, he, if himself entitled, must clearly prevail, although the other might have made the first settlement. The consequence of this position, therefore, is that, while the General Land Office and the Department may exercise this jurisdiction, at the instigation of a claimant, it may not be done when the government alone is interested. It would therefore follow that the government might be deprived of its lands without authority of law whenever the register and receiver saw fit to permit it to be done, or committed an error otherwise, without any power in the bureau or Department to protect the interests of the gov ernment. Then, the land office or Department might prevent the illegal acquisition of the national title at the instance of some other claimant, but could not in the interest of law or of the government as a proprietor. This theory is based upon the expressed grant of appeal in the case mentioned in section 2273, and because section 2263 reads as follows, without providing an appeal:

Prior to any entries being made under and by virtue of the provisions of section twenty-two hundred and fifty-nine, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land-district in which such lands lie, agreeably to such rules as may be prescribed by the Secretary of the Interior; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.

This is a mere inference, however, from the use of language probably employed with no such purpose; but, at all events, the inference is inconsistent with other statutes, to which the phrase "agreeably to such rules as may be prescribed by the Secretary of the Interior" clearly refers. The power to make these rules lies in the grant of authority which

comprehends the jurisdiction in question. These statutes are now incorporated with the revision of 1873.

Section 441 provides:

The Secretary of the Interior is charged with the supervision of public business relating to the following subjects: Second, The public lands, including mines.

Section 453 provides:

The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties pertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government.

When one considers the nature of the public business relating to lands, and the modes of conducting it, as prescribed by the statutes, the comprehensive grasp of this authority, and the sufficiency of these words as a grant of the full measure necessary become apparent.

The acquisition of the public land through the right of pre-emption is but one of many modes; but, as the one involved in this case, attention will be limited to it. The statutes prescribe many conditions, first, certain classes of lands only are subject to the right; secondly, certain classes of persons only may exercise the right; thirdly, certain acts must be done on the land to acquire the right; and, finally, certain proofs, probatory of these points and others, must be made in order to enjoy it. It is now clearly established doctrine that the pre-emption claimant acquires no right to the public land until full compliance with and performance of all these conditions and final payment. Frisbie v. Whitney (9 Wall., 187); the Yosemite Valley case (15 Wall., 77). The law provides for the issuance of patents by the President with all the machinery of a bureau equipped for the preservation of all information concerning the circumstances, condition and disposition of the public lands; the local offices are subordinate agencies for the transaction of the business committed to the General Land Office; the Commissioner is charged with the performance of "all executive duties" relating to the subject; and the Secretary with supervision of the entire public business concerning the lands; and the register and receiver can act only agreeably to the rules prescribed by the Secretary. Under such circumstances, is it to be rationally supposed that the law intended to leave it to the register and receiver to disregard all the limitations and conditions prescribed by statute, or the rules of the Secretary, without any right to review their action on the part of the Commissioner, who is charged with all executive duties, or the Secretary, who is charged with supervision over all? Such a theory makes the subordinate the superior, and inverts the order of authority and administration.

It must be conceded by all, to put a plain case, that if a pre-emption claimant should impose by his false affidavit upon the local officers, the United States are entitled to some redress. Is that redress only to be had by an action in the courts? If so, from what does the necessity