sioner's decision is based is not denied in said petition, nor is it urged that the decision is not in harmony with that of the Department based on a like state of facts, but it is the admitted purpose of the petitioner to secure the acceptance of the appeal,

In order that he may have the time which the condition of the docket affords in other cases, in which to present the case with that deliberation which shall bear due respect to the Department, and enable the subject to be treated in such manner and completeness as to justify a reconsideration of any adverse doctrines heretofore announced in other cases.

The facts given by the Commissioner clearly show that the certificate issued to Edgington was assigned, and that the present attempted location was not in his (Edgington's) interest, but for the benefit of the assignee.

The question as to the assignability of the right to make a soldier's additional homestead entry has been thoroughly considered by this Department, and it is held that such right is personal and not assignable. John M. Walker et al., 7 L. D., 565, on review, 10 L. D., 354.

This position has been re-affirmed in numerous cases, and the question can not now be con sidered an open one; further, this question might have been argued upon the present petition, and sufficient time has already elapsed since the presentation of the petition for that purpose.

Were the case now before the Department, the decision of September 10, 1891, would be sustained, and for this reason the writ of certiorari is denied. Forney v. Union Pacific Railway Company (11 L. D., 430).

PRE-EMPTION-FINAL PROOF-LEAVE OF ABSENCE.

CHARLES H. WHITAKER.

A pre-emptor is not entitled to an extension of time within which to submit final proof on showing a failure of crops and applying for leave of absence from the land.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 19, 1892.

On the 17th of February, 1888, Charles H. Whitaker filed his preemption declaratory statement for the SW of Sec. 11, T. 105 N., R. 68 W., Chamberlain land district, South Dakota, alleging settlement three days prior to that date. The thirty-three months within which he must make final proof, would therefore expire on the 14th of November, 1890. On the 11th of November, 1890, he made it appear to the register and receiver that in consequence of a total or partial failure of crops during that and the preceding year, he was unable to secure a support for himself and those dependent upon him, upon the land settled upon, and he applied for a leave of absence from the claim for one year from that date.

Leave was granted him by the local officers for six months, such term expiring on the 11th of May, 1891. These facts being reported to you, the local officers were informed that their action was without authority, and they were directed to notify Whitaker of the fact, and to inform him that you had revoked their six months leave of absence, and to advise him of his right of appeal from your action. An appeal from your decision in the case brings the subject before me for consideration.

Section 2265 Revised Statutes requires that every claimant under the pre-emption law shall make known his claim in writing to the register of the proper office, within three months from the time of his settlement, giving the designation of the tract and the time of settlement.

Section 2267 of the statutes provides that all claimants of pre-emption rights, under the two preceding sections, shall, when no shorter time is prescribed by law, make the proper proof and payment for the land claimed within thirty months after the date prescribed therein, for filing their declaratory notices has expired.

Under these provisions of the statutes, the time within which Whitaker must make known in writing to the register his claim to the land expired three months after his settlement, to wit, on the 14th of May, 1888, and his time for making proper proof and payment expired thirty months after that date, to wit, on the 14th of November, 1890.

The third section of the act of Congress of March 2, 1889 (25 Stat., 854) provides for granting to settlers a leave of absence from the claim, in the cases in said section mentioned, for a period not exceeding one year at any one time, without the forfeiture of any rights, but also provides that the time of such actual absence shall not be deducted from the actual residence required by law.

The act last cited makes no provisions for extending the time for making final proof, and only provides for temporary absences, as stated. In this respect it differs from the act of July 1, 1879 (21 Stat., 48) which afforded relief to settlers whose crops were injured or destroyed by grasshoppers, where the time for making proof and payment was extended one year, during which no adverse rights should attach, and the settler was allowed to resume and perfect his settlement as though no such absence had occurred. That act also allowed a still further extension of one year, after the expiration of the term of absence first provided for, if the circumstances, in your discretion, were such as to justify it.

The joint resolution of Congress of September 30, 1890 (26 Stat., 684), (11 L. D., 417), provided for extending the time of payment for one year to settlers on the public lands, in cases where there was a failure of crops for which the settler was in no wise responsible, but which rendered him unable to make the payment as required by law. This resolution, however, did not extend the time for making final proof.

Whitaker, in no way, attributes the failure of his crops to the rav

ages of grasshoppers, and his case, therefore, does not come within the provisions of the act of July 1, 1879, which extended the time for making final proof, as well as the time for payment. His case is governed by the provision of section 2267 of the statutes, already cited, and by not making proof prior to or at the time the period therein mentioned expired, the land became subject to settlement by any other qualified pre-emptor. Under the circumstances of his case, however, he having been misled by the action of the local officers, should he return to the land before any adverse claim should attach, and make satisfactory final proof, his time for making payment might be extended in accordance with the acts and resolutions of Congress. Your instructions to the local officers as to your revocation of his leave of absence, and as to the effect of his remaining away from the land, are hereby approved.

FOREST RESERVATION-WITHDRAWAL-RESTORATION.

INSTRUCTIONS.

Where a reservation of forest lands has been created by the President, under section 24, act of March 3, 1891, no act of Congress is required to restore the land thus reserved to the public domain, but the same may be done by the President.

Secretary Noble to the Commissioner of the General Land Office, February 15, 1892.

I enclose herewith copy of an opinion of the Assistant Attorney-General, which I approve, in regard to the question "whether after the President, under act of March 3rd, 1891, has withdrawn lands from entry and made proclamation, it will require an act of Congress to restore them to the public domain."

OPINION.

Assistant Attorney General Shields to the Secretary of the Interior, February 13, 1892.

I am in receipt of your request for an expression of my opinion on the question "whether after the President under act of March 3, 1891 (26 Stat., 1095), has withdrawn lands from entry and made proclamation, it will require an act of Congress to restore them to the public domain ?"

Section 24, of the act above cited, provides:

That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof.

The principle recognized in this section, and the authority conferred thereby, are simply in accordance with what has been recognized from 14561-VOL 14-14

an early period in the history of the government; thus in the case of Grisar v. McDowell (6 Wallace, 381), the court says:

It has been the practice of the President to order from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.

The act in question is in the nature of a discretionary statute. The location, the extent and the time of creating the reservations, is left wholly within the discretion of the President. Both the language of the section, and the theory which prompted the legislation, seem to have recognized that said reservation might be temporary or permanent, as, in the discretion of the President, the good of the public service might demand; had it been otherwise, it is but reasonable to assume that Congress would have established the boundaries of tracts to be reserved, as was done in the case of the Yellowstone National Park, and the forest reservations in California, created by the acts of September 25, and October 1, 1890 (26 Stat., 478 and 650). Again this view is sustained by the consideration, that, as the result of erroneous information a tract of land not intended to be included, and the reservation of which would inflict great hardship on the public might be reserved by the President. To await action by Congress for the restoration of the land would result in much loss to the public, hence, in my opinion, Congress intended to recognize the principle that the President has the power to withdraw public lands, and to restore the same to the public domain, as the public good may demand.

It is true that it is held that the President can not restore lands formerly reserved for military purposes to the mass of the public domain, but this results from the act of June 12, 1858 (11 Stat., 336) which provides that lands in abandoned military reservations were not subject to sale or pre-emption under any of the laws of the United States; and this law was in force until July 5, 1884, when by a general act (23 Stat., 103) Congress provided that lands embraced in military reservations, which, in the opinion of the President, have become useless for such purposes, shall be disposed in a certain prescribed manner. In other words, the authority of the President over a certain portion of the public domain is limited by express statute, but does this limitation of his power extend to lands not embraced in the statutes above referred to? In 1855, Associate Justice McLean rendered a decision in the case of United States v. Railroad Bridge Company (6 McLean 517). The decision bears the impress of careful consideration.

Rock Island had been reserved for military purposes in 1825. It was abandoned in 1836. It appears that the Secretary of War in 1838 declined to sell the land under the provisions of the act of March 3, 1819, (3 Stat., 520) which provided

That the Secretary of War be, and he is hereby authorized, under the direction of the President of the United States, to cause to be sold such military sites, belonging to the United States, as may have been found, or become useless for military purposes.

The court said:

This law, from its language, was not intended to be a general regulation; but authorized the sale of military reserves, which, at that time, had become useless. It changed the settled mode of selling public lands, as it authorized the Secretary to sell for a price agreed on, which precludes, or at least renders unnecessary a sale by public auction, as the general law for the sale of the public lands required. This consideration, as well as the purport of the section, showed that it was not a general regulation, but was intended to operate upon military reservations which then existed and which were unnecessary.

The Attorney-General contends that the frequent interposition of Congress, especially authorizing the sale of military reservations, negatives the idea that they could be sold without statute authority.

When land has been purchased by the United States for military or other purposes, it is admitted the land can not be sold without the special authority of Congress. In such cases the purchase is made for a specific object, and being purchased with the consent of the State, under the federal constitution, there is a cession of juirsdiction as well as of property. Now, to transfer property so acquired and relinquish the jurisdiction, the authority of Congress is indispensable. And this shows the reason why the act of the 28th of April, 1828, was passed. It provides in the first section, "that in all cases where lands have been, or shall hereafter be conveyed to or for the United States, for forts, arsenals, dock yards, light houses, or any like purpose, etc., which shall not be used as necessary for the purpose, for which they were purchased or other authorized purposes, it shall be lawful for the President of the United States, to cause the same to be sold for the best price to be obtained, and to convey the same by grant or otherwise."

Now from this act it does not follow, that where the government reserves its own land from sale, for any public purpose, that a special act of Congress after its abandonment is necessary for the sale of it. The President, under a general power given him by the act of 1809, selected a part of the land on Rock Island for a military site, on which Fort Armstrong was built. And when he finds the place no longer useful as a military post, or for any other public purpose, he has a right to abandon it, and notify the land offices where the reservation was entered. The entry on the books of the land offices within which the reserved site is situated and the occupancy of the place by the government, are the only evidence of the reservation. And when this evidence is withdrawn, and the site is abandoned, the reserve falls back into the mass of the public lands subject to be sold under the general law.

This language is clear and explicit and seems to recognize the power of the President, through his subordinates, to restore public land which had been withdrawn for military or other purposes, under the acts of Congress, to the mass of the public domain. This decision was rendered prior to the passage of the act of June 12, 1858, supra, which did not embrace lands reserved under law for public purposes, other than military. Attorney General Bates rendered an opinion in 1862 (10 Ops., 359) in which he questioned the correctness of Justice McLean's opinion on the point now under consideration. This opinion was rendered after the passage of the act of June 12, 1858 supra which created a different status of the lands from that which existed at the time of the decision of Justice McLean; that is to say, by the act of 1858, Congress fixed by statute what before was an open question, viz., what disposition should be made of lands released from a military reservation, and