very properly be declared invalid and canceled by this Department. For in the case before the court, it did not appear that Eldred ever applied to have his entries confirmed, under any of the rules prescribed by said Board for the government of the Commissioner of the General Land Office under the acts of Congress of August 3, 1846, March 3, 1853, and June 26, 1856. (See General Circular, March 1, 1884, page 76). Rule eleven of said rules provides for the submission of "all private sales of tracts which have not previously been offered at public sale, but where the entry appears to have been permitted by the land of ficers under the impression that the land was liable to private entry, and there is no reason to presume fraud, or to believe that the purchase was made otherwise than in good faith." Rule thirteen is as follows: "All bona fide entries on lands which had been once offered, but afterwards temporarily withdrawn from market, and then released from reservation, where such lands are not rightfully claimed by others." These rules were promulgated on October 3, 1846, and have never been abrogated by any subsequent Board of Equitable Adjudication. The provision of said acts relative to the Board of Equitable Adju dication are embodied in sections 2450 to 2457, and 2478 Revised Statutes. Section 2457 which is substantially the same as said act of 1856, provides that the provisions from section 2450 to 2456:

Shall be applicable to all cases of suspended entries and locations, which have arisen in the General Land Office since the twenty-sixth day of June, 1856, as well as to all cases of a similar kind, which may hereafter occur, embracing as well locations under bounty land warrants as ordinary entries or sales, including homestead entries and pre-emption locations or cases; where the law has been substantially complied with, and the error or informality arose from ignorance, accident, or mistake, which is satisfactorily explained, and where the rights of no other claimant or pre-emptor are prejudiced, or where there is no adverse claim.

But it must be observed that during all the time from 1856 until the revision of the statutes which became effective December 1, 1873 (United States v. Bowen, 100 U. S., 508) said rules had been in force and furnished the criterion by which the Board would be governed in determining whether "the law had been substantially complied with" in each particular case. The jurisdiction of said Board-that is, the power to determine when the law has been not absolutely, but substantially complied with-is given by said section, and the Board having prescribed general rules and regulations which had been in force for more than a quarter of a century, and upon the validity of which might depend the title to thousands of acres of land, it is fair to conclude that said rules, if unwarranted by, or in violation of law, would have been annulled by Congress in the revision of the laws under which they were framed. But this was not done. On the contrary, Section 2478 Revised Statutes, provides that:

The Commissioner of the General Land Office under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution by appropriate reglations, every part of the provisions of this title not otherwise specially provided

for.

The law did not attempt to prescribe every case in which an entry might be confirmed, but left the determination of that question to the Board in the particular case presented.

If it be urged, that, under the ruling in the Eldred-Sexton case (supra) no private cash entry can be allowed where the land has been reduced in price, until it has been put up at auction to the highest bidder, the answer is, that the decision will not bear that construction if the lands entered have once been offered at the price for which they were subsequently sold, although they have been temporarily withdrawn, and while so withdrawn, offered at the enhanced price. It will be remembered, that the court held, with reference to the joint resolution reducing the price of said lands, that "Congress meant nothing more than to fix $1.25 as their minimum price and to place them in the same category with other public lands not affected by land grant legislation. When they were withdrawn from the operation of this legislation, and their exceptional status terminated, the general provisions of the land system attached to them." Now if we can ascertain what were "the general provisions of the land system" with reference to tracts situated similarly to those in question, it can readily be determined whether the private cash entries of Eveleth were so "invalid" that they can not be confirmed.

On January 1, 1836, your office issued instructions to the local of ficers, requiring them to give notice by public advertisement for thirty days of the restoration to private entry of tracts once offered for sale, and improperly withheld from private entry, from any cause whatever, and that at a particular hour and day named in said notice, said officers would be prepared to receive applications to enter lands designated in said notice. It was further prescribed in said regulation, that "in no event will you allow any such lands to be entered, or located, before the expiration of the time thus prescribed." (Pub. Lands Instructions & Opinions, 514).

Said regulation was considered by Attorney General Butler on July 14, 1834 (3 Op. 275), and he held that while no power was expressly given to the Commissioner of the General Land Office to make said regulation by any act of Congress, yet the power to make it was "warranted by the nature of the case, and the general powers of the Executive under the Constitution;" that it is the duty of the Commissioner of the General Land Office, under the general supervision of the Department, to take care that the law is faithfully executed; that one of the most important points to be observed in the execution of the law is, the securing to all persons a fair and equal opportunity to become purchasers of the public lands; that where a considerable time has elapsed since the close of a public sale, if lands are brought into market, and are allowed to be entered by any particular individual before public notice has been given that they are subject to private entry, "would, in most cases, give to such individual a preference over the rest of the community."

This opinion was re-affirmed by the Attorney General in 3 Op., 653, and 4 Op., 167, and has been uniformly followed by the Department so far as I am advised since that time. See Jefferson Newcomb (2 C. L. O., 162); S. N. Putnam (2 C. L. L., 305); John C. Turpen (5 L. D., 25). It should, however, be kept in mind, that neither said regulation nor the opinions of the Attorney General (supra) required that lands which had once been offered at public auction, and afterwards suspended for "considerable time," should be re-offered at public sale. The restora tion notice published for at least thirty days was deemed sufficient to give all persons a fair opportunity to purchase the lands, which by a previous offering had been placed in the "category" of lands subject to private cash entry. It is a matter of history that millions of acres of offered lands withdrawn in anticipation of railroad grants have been restored to private entry in accordance with said regulation. (See Laud Office Report, 1854, page 61).

It can not be supposed, therefore, that the supreme court in the Eldred-Sexton case (supra) intended to decide that entries of lands, restored to private entry in accordance with a practice so long and so uniform, were invalid, nor that entries of lands, where the land officers have failed to give the published notice, can not be confirmed by the Board of Equitable Adjudication in accordance with the rules in force when said entries were allowed. Such a ruling by the court would apparently conflict with its own decisions both prior, and subsequent to the decision in the Eldred-Sexton case.

In 1815, the United States supreme court in the case of (Polks Lessee v. Wendal) (9 Cranch page 87) Chief Justice Marshall delivering the opinion of the court said:

The laws for the sale of public lands provide many guards to secure the regularity of grants, to protect the incipient rights of individuals, and also to protect the State from imposition. Officers are appointed to superintend the business; and rules are formed prescribing their duty. These rules, are in general, directory, and when all the proceedings are completed by a patent issued by the authority of the State, a compliance with these rules is pre-supposed. That every pre-requisite has been performed, is an inference properly deducible, and which every man has a right to draw from the existence of the grant itself. It would, therefore, be extremely unreasonable to avoid a grant in any court for irregularities in the conduct of those who are appointed by the government to supervise the progressive course of a title, from its commencement to its consummation in a patent.

The court further held that where the grant was void, its validity could be examined in a court of law.

In the case of Edwards Lesse v. Darby (12 Wheaton, 206), the court held that

In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.

See also United States v. Gilmore (8 Wall., 330); United States v. Burlington & Missouri River Railroad (98 U. S., 334); Douglas v. County of Pike (101 U. S., 677); United States v. Graham (110 U. S.,

221); Brown v. United States (113 U. S., 568); The Laura (114 U. S., 441).

In the case of Philbrick v. United States (120 U. S., 59), the court said: A cotemporaneous construction by the officers upon whom was imposed the duty of executing those statutes, is entitled to great weight, and since it is not clear that that construction was erroneous, it ought not now to be overturned.

See also United States v. Hill, (idem., 169); Siemans Administrator v. Sellers (123 U. S., 276); United States v. Johnston (124 U. S., 236). In the case of Robertson v. Downey (127 U. S., 607), the supreme court, considering a regulation of the Treasury Department, relative to the proper construction of section fourteen of the act of June 22, 1874 (18 Stat., 189), said:

This construction of the Department has been followed for many years without any attempt of Congress to change it, and without any attempt, as far as we are advised, of any other department of the government to question its correctness, except in the present instance. The regulation of a department of the government is not, of course, to control the construction of an act of Congress when its meaning is plain. But when there has been a long acquiescence in a regulation, and by it, rights of parties for many years have been determined and adjudicated, it is not to be disregarded without the most cogent and persuasive reasons.

Citing United States v. Hill, United States v. Philbrick, and Brown v. United States (supra).

The rule of disposition unquestionably is, and should be, that lands which have once been offered, and then temporarily withdrawn, but afterwards restored to market, are not to be sold at private entry without due notice of restoration; and lands which have been reduced in price should be re-offered at the reduced price before being held for private entry. I am not able to say, however, that any provision of the statute makes such an entry void. It is voidable at the option of the government only. And the precise question here is, whether where entries have been allowed by the local officers without such notice of restoration, and without re-offering, and the purchasers have acted in good faith, such entries can be confirmed by the Board of Equitable Adjudication.

The purchaser is not put in statu quo by merely returning the bare purchase price, perhaps years after his payment. He may have sold the lands to a purchaser who can be charged fairly with no laches. He himself acted with the approval of the local officers. Generally speaking, the fault was more theirs than his. They should be removed for a disregard of their duty, unless excusable. But the fact that they accepted his money and issued the certificate without notice gives him an equity to ask of the government not to exercise its option and cancel the entry, but to allow it to stand,

The Attorney General (14 Op., 645) held, that under rule 11, notice was not necessary to confer jurisdiction upon said Board; said rule was still in force and that "there is nothing in the acts of 1853 and 1856 to annul it." See also 1 Lester, 483.

In the case at bar the entries were allowed more than two years after the passage of the act, by which they were "reduced to one dollar and twenty-five cents per acre," and it would seem that no one was thereby deprived of a "fair and equal opportunity of purchasing them," if dur ing all that time, they were held subject to private entry. On the other hand, if they were not so held, but were sold by mistake, nevertheless, the tracts being public lands at the date of entry, the purchase money having been accepted, and the cash certificate issued, and long delay having ensued, it would be fair and equitable that the contract, if not fully authorized, should be ratified by the government, unless prohibited by law.

It has been well said that:

It is not the words of the law, but the internal sense of it, that makes the law; the letter of the law is the body; the sense and reason of the law is the soul. Every statute ought to be expounded, not according to the letter, but according to the mean ing; qui haeret in litera, haeret in cortice. (Potters Dwarris, 175.)

And the United States supreme court in the case of Heydenfeldt v. Daney Gold Co. (93 U. S., 634) speaking of the construction of a law, said:

In construing it, we are not to look at any single phrase in it, but to its whole scope and purpose in order to arrive at the intention of the makers of it. "It is better al ways," says Judge Sharswood, "to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction." Gyger's Estate (65 Penn., 312.) If a literal interpretation of any part of it, would operate unjustly or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.

See also United States v. Fisher (2 Cranch, 386); Atkins v. Disintegrating Co. (18 Wall., 272).

Tested by the principles above set forth, and bearing in mind the object to be attained in the creation of the Board of Equitable Adjudication, the injustice that might result from excluding from its jurisdiction cases, where, through mistake, the local officers had sold the lands, without having given the restoration notice required by said regulation, I must hold that said rules prescribed by said Board have not been annulled by said section 2457, Revised Statutes, and that the entries of Eveleth may very properly be referred to said Board for its consideration: Provided, however, it be shown that he was not duly notified of said cancellation. But since the local officers have allowed two of the tracts to be entered under the homestead laws after the application of Eveleth for re-instatement, and the evidence as to notice is not entirely satisfactory, I think a hearing should be ordered, in accordance with the Rules of Practice, and Strickland should be notified to show cause why his entry should not be canceled for said conflict and Eveleth should be afforded opportunity to contest the truth of the report that