evinced any intention or desire to do so, although he testifies, that he had access to the land and was not prevented by intimidation or otherwise from so doing.

I do not concur with your office in rejecting Davis's proof because of the "adverse right of Davidson," and, that being the only obejction thereto, you are directed to approve the same, and on compliance by Davis with the further requirements of the law, his entry will be allowed and passed to patent. The decision of your office is reversed.

SALE OF ISOLATED TRACTS-SECTION 2455, R. S.
T. L. CHAMBERLIN.

The discretionary authority vested in the Commissioner of the General Land Office, by section 2455 of the Revised Statutes, to order into market isolated tracts of unoffered land, is not restricted by the later statute of July 15, 1870.

Secretary Noble to Commissioner Stockslager, April 19, 1889.

I have considered the appeal of T. L. Chamberlin from the decisions of your office, dated June 9, 1887, and February 27, 1888, rejecting his application to have ordered into market under the provisions of section 2455 of the U. S. Revised Statutes, the NE. of the SE. of Sec. 28, T. 13 N., R. 6 E., M. D. M., Sacramento land district, California.

The record shows that your office on June 9, 1887, rejected said petition, which alleges that said land has been used for school and cemetery purposes, by the citizens, for many years; that it is not suitable for agricultural purposes, and that title to the land is desired so that it may be kept for public uses.

The ground upon which said petition was refused is, that the land was offered on February 16, 1859, at one dollar and twenty-five cents per acre, and having been subsequently withdrawn from private entry was raised to two dollars and fifty cents per acre, and, therefore, under the provisions of section 2367 of the U. S. Revised Statutes could not be ordered into market under said section 2455 of the Revised Statutes. Your office, on February 27, 1888, declined to reconsider its said decision, and the applicant has appealed to this Department. The appeal is from both decisions of your office, but the letter of transmittal states, that the appeal is from the decision dated February 27, 1888, refusing to reconsider the former decision of your office.

Under the Rules of Practice, strictly speaking, no appeal lies from the decision of your office refusing a reconsideration of its former decision, but the appeal lies from the decision sought to be reviewed, and by Rule No. 79, "the time between the filing of a motion for rehearing or review and the notice of the decision upon such motion, shall be excluded in computing the time allowed for appeal."

Section 2455, under which said application is made, reads

It may be lawful for the Commissioner of the General Land Office to order into market, after due notice, without the formality and expense of a proclamation of the President, all lands of the second class, though heretofore unproclaimed and unoffered, and such other isolated or disconnected tracts or parcels of unoffered lands which, in his judgment, it would be proper to expose to sale in like manner. But public notice of at least thirty days shall be given by the land-officers of the district in which the lands may be situated, pursuant to the directions of the Commissioner. This section is a compilation of section five of the act of Congress, approved August 3, 1846 (9 Stat., 51).

By section 2367 of the Revised Statutes it is provided, that

Whenever lands in California, subject to private entry, have been or are hereafter withdrawn from market for any cause, such lands shall not, thereafter, be held subject to private entry, until they have first been opened for at least ninety days to homestead and pre-emption settlers, and again offered at public sale.

Your office construes the latter section as prohibiting the exercise of the discretion conferred by said section 2455. A careful consideration of the two sections leads me to a different conclusion. Section 2367 is a compilation of section one of the act of July 15, 1870 (16 Stat., 304), and it does not in terms repeal said section 2455. Besides, the applicant does not ask to be permitted to make private entry of the land in question; that can not be done under said section 2367. But there is nothing in that section to prevent, in my judgment, your office from or dering into market, after due notice, this isolated tract, and allowing all persons to bid for said land at a public sale thereof. That would be a public sale, not a "private entry" of the land in question. The gov ernment will then receive the benefit contemplated by its uniform policy of allowing competition at the public sale of said tract, and every one will have a fair and equal opportunity of purchasing, if it is worth more than the price fixed by law for its disposal. Eldred v. Sexton (19 Wall., 195).

The object sought by the applicant appears to be a worthy one, and his petition should be granted.

The decision of your office must be and it is hereby reversed, and you will please order said tract into market, in accordance with the provisions of said section 2455.

PRE-EMPTION-TRANSMUTATION-ACT OF MARCH 2, 1889.

JOSEPH BURGEL.

Under section 2, act of March 2, 1889, a pre-emptor, whose claim was initiated prior to the passage of said act, is entitled to transmute his claim into a homestead entry, notwithstanding the fact that he may have heretofore had the benefit of the homestead law.

Secretary Noble to Commissioner Stockslager, April 19, 1889.

I have before me the appeal of Joseph Burgel from your decision of October 13, 1886, cancelling his homestead entry, No. 9690, for the

SW. 1, Sec. 31, T. 154 N., R. 60 W., Grand Forks district, Dakota, but denying his petition that such cancellation be without prejudice, and that he be permitted to transmute into a homestead his pre emption declaratory statement for the SW. of Sec. 6, T. 153 N., R. 60 W., in the said district.

Since the date of said decision Congress has expressly provided

That all pre-emption settlers upon the public lands whose claims have been initiated prior to the passage of this act may change such entries to homestead entries, and proceed to perfect their titles to their respective claims under the homestead law, notwithstanding they may have heretofore had the benefit of such law, but such settlers who perfect title to such claims under the homestead law shall not thereafter be entitled to enter other lands under the pre-emption or homestead laws of the United States. (Proviso to section 2, act of March, 1889).

Burgel settled upon the land May 26, 1886; hence, under this enactment, his petition must be granted, it appearing that he is a "preemption settler upon the public lands, whose claim (was) initiated prior to the passage of (said) act," and his request being that he be allowed to change his pre-emption to a homestead entry. This the provision quoted expressly permits him to do, "notwithstanding his having heretofore had the benefit of the homestead law." Your said decision is modified accordingly.

PRACTICE-REVIEW-CERTIORARI-REPAYMENT.

OSCAR T. ROBERTS.

A motion for the review of a decision denying a writ of certiorari will not be considered as such, but as a petition invoking the supervisory authority of the Secretary.

Though the applicant for a writ of certiorari may have failed to appeal within the time fixed by the rules of practice and hence not be entitled to the writ on the ground of the wrongful denial of his appeal, yet, if it appears that he is justly entitled to relief, it may be granted under the Secretary's supervisory authority. An entry allowed by the local officers on testimony they deemed sufficient but rejected by the General Land Office and Department, is an entry "erroneously allowed," and repayment may be accorded if there was no concealment, or false testimony in the final proof or evidence of bad faith.

In such a case where the entryman is not able to show further compliance with law as required, but relinquishes, and applies for repayment under the advice of the General Land Office his relinquishment will not impair his right under such application.

Secretary Noble to Commissioner Stockslager, March 20, 1889.

This is a motion for review of the decision of the Department of October 6, 1888, refusing to direct a certification of the record in the above stated case.

While the motion should not be entertained as a motion for review of the decision complained of, yet as it presents a case calling for the

exercise of the supervisory power of the Secretary it may be considered as a petition filed for that purpose.

The closing paragraph of rules of practice provides:

None of the foregoing rules shall be construed to deprive the Secretary of the Interior of the exercise of the directory and supervisory powers conferred upon him by law.

So that notwithstanding the applicant may not have appealed within the time prescribed by the rules, and consequently may not for that reason be entitled to a certiorari on the ground of a wrongful denial of his appeal by the Commissioner; yet if the case now presented is such as to show that he is justly entitled to relief at the hands of the Secretary, there seems to be no good reason why it may not be granted in the exercise of said supervisory power.

The facts presented by this application are substantially as follows: Roberts made homestead entry of a tract of land December 10, 1884, and commuted the same to cash entry December 18, 1884. Your office rejected his final proof upon the ground that it was not sufficient to satisfy the requirements of your office and held his entry for cancellation for want of proof showing a bona fide residence on said tract.

Upon appeal the Department modified your decision holding as follows:

There is no concealment by the entryman in his final proof and no evidence of bad faith on his part. Under the circumstances disclosed by the record the entryman should be allowed to make new proof, showing compliance with the law as to resi. dence, cultivation, etc., within a reasonable time. His cash entry will remain suspended until such proof is furnished.

Prior to the promulgation of the decision, Roberts alleges that he went to St. Paul where he had an aged mother and a sister residing who demanded his care and protection, and finding it impossible to return to Dakota, and comply with the requirements of the decision of the Department, he made application for the return of the purchase money paid by him which the Department held had been erroneously allowed, and in reply to his application received the following letter from your office:

In reply to yours of February 15, 1887, to the Honorable Joseph Wheeler, referred by him to this office, you are advised that if you find yourself unable to comply with what is required by the decision of this office and Department in relation to your cash entry, and desire to apply for the return of the purchase money, you should bake application to the register and receiver in accordance with the enclosed form (4–109) accompanied by a relinquishment of the tract in question. C. E. No. 717, Bismarck, D.T. NW., Sec. 18, T. 139 N., R. 81 W.,

Respectfully,

(Signed) S. M. STOCKSLAGER, Assistant Commissioner.

In compliance with this letter of advice he filed another application with the local officers accompanied by a relinquishment of the tract. Your office denied said application upon the ground that the entry-man was allowed to make new proof showing compliance with the law as to residence, cultivation etc., within a reasonable time, and that Roberts,

instead of availing himself of the opportunity allowed by the decision of the Department, relinquished his entry and asked for the return of the purchase money.

Roberts alleges that he had made valuable improvements on the tract, and that the reason he could not return and make further residence was because his mother and sister demanded his care and protection, and that in order to fulfill this duty he would be compelled to lose the tract and his improvements.

The law does not require the entryman to remain on the tract after he has made final proof and received certificate of payment. His entry is then complete. If, however, the entry is allowed by the local officers upon testimony which they deemed sufficient, but which was rejected by the Commissioner and the Secretary, on appeal, such entry was erroneously allowed and the entryman would be entitled to the return of the purchase money, if there was no concealment or false swearing in his final proof and no evidence of bad faith on his part. Minerva A.Widger (6 L. D., 694).

If it is shown by the record that Roberts would be entitled to repayment by reason of his entry having been erroneously allowed by the local officers, the fact that he relinquished his entry, acting upon the advice from your office would not impair or defeat that right.

In view of the fact that the question presented by this application is one solely between the government and the entryman, and does not involve or affect in any manner the rights of others, and in view of the strong equities presented therein, I direct that the record in said case be certified to the Department that the right of the applicant to repayment may be passed upon.

OKLAHOMA LANDS-TOWNSITE ENTRY-CORPORATION.

OKLAHOMA CAPITAL CITY TOWNSITE Co.

The provisions of the act of March 2, 1889, with respect to the entry of lands for townsite purposes, under sections 2387, and 2388 of the Revised Statutes, do not extend to a corporation seeking to locate and enter prospective townsites.

Secretary Noble to Commissioner Stockslager, April 19, 1889.

I am in receipt of your communication of the 15th instant relative to the application of the Oklahoma Capital City Townsite and Improvement Company, asking permission to locate and enter certain lands in Guthrie and Kingfisher land districts, for townsites in the Indian Territory, seventeen in number, said application having been referred by the Department to your office on the 11th instant.

I concur in the views expressed by you in your said communication that there is no authority in the Department to grant the application of the Oklahoma Capital City Townsite and Improvement Company to enter lands, as now presented; and I am also of the opinion that the