validity of the entry was thereby adjudicated. This was not a decision, but a mere letter of information, intending to give the status of the entry.

The land had been included in the indemnity withdrawal for the Northern Pacific Railroad Company, and was restored December 15, 1886, and it was for this reason that it was deemed necessary to send the entry to the board for confirmation.

The entry is clearly shown to be illegal, and I therefore affirm your decision and direct its cancellation.

RULES OF PRACTICE-APPEAL-NOTICE-ACT OF OCTOBER 1, 1890. WILLIAM E. DARGIE.

A petition presented to the Commissioner of the General Land Office requesting the submission of a case to the Department for summary action should not be acted upon in the absence of due notice to the opposite party.

The right of appeal from the final decision of the local office, as provided in the rules of practice, should not be denied or abridged on the plea that such action is necessary for the protection of selections that must be located within a limited period, where such selections are made with full knowledge of the fact that the lands covered thereby are embraced within prior adverse claims.

Secretary Noble to the Commissioner of the General Land Office, September 12, 1891.

By letter of July 15, 1891 you transmitted certain papers in the matter of a number of desert land entries in the Visalia, California, land district, and subsequent applications to select the lands embraced in such entries under the provisions of the act of October 1, 1890 (26 Stat., 644), and by various letters of later dates you transmitted additional papers.

The desert land entries in question are a part of those referred to in the case of United States v. Haggin (12 L. D., 34), wherein the order suspending said entries was revoked. In that decision the fact that contests had been allowed as to some of the entries there referred to and applications to contest others had been filed and refused by the local officers was mentioned, and said papers were returned to your office for appropriate action it being said:

I see no objection, however, to passing upon the contests initiated prior to said order of suspension, where heatings were held and evidence submitted by the respective parties, and also allowing the parties, who have filed applications to contest to proceed with their contests where the grounds thereof are the invalidity of said entries.

This decision was rendered January 12, 1891, and by your office letter of February 10, 1891, the local officers were advised of the revocation

of the order of suspension and the applications to contest were returned to those officers for appropriate action it being said:

The said decision also provides that the parties who have since filed many applications to contest different entries included in the said order of suspension, most of which were rejected by your office, by reason of such order, and appeals filed, should be allowed to proceed where the invalidity of the respective entries is charged Before taking any action on the above you will carefully note each contest on the docket in the order of its priority, and in each case the prior contestant should be allowed to proceed, the others being held suspended until the first has been finally disposed of. The papers in each case should be carefully examined before the parties are allowed to proceed, to see that the affidavit of contest is properly executed, corroborated, and alleges sufficient grounds of contest, also that the entryman, and the tract involved, are properly described. Where several parties have filed separate contests against the same entry, and have also filed their respective applications to enter different parts of the tracts involved, they may be allowed to proceed as joint contestants.

On January 19, 1891, being a ter the departmental decision in the Haggin case and before the issuance of the instruction to the local of ficers thereunder, the various desert land entries were relinquished and applications made by William E. Dargie, as attorney in fact, to select the lands under the provisions of the act of October 1, 1890, supra. By your office letter of March 17, 1891, the selections by said Dargie were suspended and the local officers were directed to proceed with the ap plications to contest the desert land entries in accordance with the instructions of February 10. Afterwards the attorney for Dargie filed motions to dismiss the contests against the desert land entries and the contestants filed applications for hearings to determine all conflicting claims to said lands asserting the superiority of their rights under their contests and their applications to enter filed with their contest affidavits. The local officers dismissed the contests and rejected the applica tions to enter. Before the expiration of the time within which appeals from said decision might be taken the attorney for the claimants, under the act of October 1, 1890, filed in your office a petition asking that the entire record be submitted to the Secretary of the Interior with a request for his adjudication and instructions in the premises. You granted the prayer of the petition and forwarded the papers. All but two or three of the contestants have now filed appeals from the decisions of the local officers dismissing said contests.

In support of the petition filed in your office asking that the papers be sent to this Department, it was urged that it was of the utmost im portance that the rights of the claimants under the act of October 1, 1890, should be speedily adjudicated because any selection of lands under that act must be made within one year from the date thereof and the ordinary course of appeals if followed here would postpone a deci sion thereon, until it would be too late for these claimants to select other lands if it should be finally determined that they were not entitled to those here involved, and that inasmuch as the whole duty of executing the said law of 1890 is placed upon the Secretary of the In

terior, and as his final adjudication of the questions presented, whether by way of appeal or review will be equally full, fair and complete none of the interested parties could complain of unfair treatment if the whole matter were promptly submitted to him without awaiting the delays necessary to the usual course of decision by your office and appeal therefrom.

The attorney for the contestants has filed argument upon the ques tions involved, and has at the same time filed a motion to remand the record in each of said cases to you with instructions to take appropriate action thereon. It is urged in support of this motion that no notice of the petition upon which you transmitted the cases to this Department was ever served upon the contestants or their attorney, that your action was in violation of the rules and the law, both of which declare that appeal from the decision of the local officers lies in every case to the Commissioner of the General Land Office; that you could not under the rules and the law refuse to pass upon the appeal from the local officers, and that this Department has neither primary or appellate jurisdiction in the premises.

The petition or motion presented to you asking that the cases be submitted to this Department is certainly of the class contemplated by rule 99 of the Rules of Practice, which declares that "No motion affecting the merits of the case or the regular order of proceedings will be entertained except on due proof of service of notice," and should not have been acted upon by you in the absence of such notice to the opposite party as is prescribed by the rules. I find no evidence of the service of notice, nor is there any denial of the statement that no notice was served. Even if it be held that this was not such an error as would demand a refusal to consider the papers sent up in accordance with such motion, yet the fact that these parties had no opportunity to present to you their objections to that motion presents in itself sufficient reason for now considering such objections to the proposed course of action as they may see fit to make.

The Rules of Practice declare that appeals from the final action of the local officers "lie in every case to the Commissioner of the General Land Office" (Rule 43), and that an appeal may be taken from the decision of the Commissioner of the General Land Office to the Secretary of the Interior "upon any question relating to the disposal of the public lands and to private land claims" except in case of interlocutory orders etc., (Rule 81).

The fact that the law of October 1, 1890, places the entire duty of its execution upon the Secretary of the Interior, furnishes no reason for suspending the Rules of Practice and depriving parties of the rights given thereby, for by section 441, Revised Statutes, the Secretary of the Interior is charged with the supervision of the public business relating to public lands and by section 453, the Commissioner of the General Land Office is charged with the performance, under the direc

tion of the Secretary of the Interior, of "all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands," and section 2478, found under the title "The Public Lands " reads as follows:

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 regulations, every part of the provisions of this Title not otherwise specially provided for.

The duty of the Secretary under the act now in question is not different in character or extent from what it is under other laws relating to the disposal of public land; in all cases he is required to see that the provisions of the law are properly carried into execution.

The usual and ordinary mode of seeking a decision from the Secre tary upon questions of this character is by way of appeal pointed out in the Rules of Practice which have been formulated and approved as best adapted to protect the interest of claimants for the public lands and, at the same time, to expedite the transaction of the business in relation to such lands.

In the case of Stevens v. Robinson (5 L. D., 111), it was said:

The rules of practice were adopted to subserve the public interests and for the good of the practice in the transaction of business; and so long as they exist they have in effect the force of a statute. Parker v. Castle-on review-(4 L. D., 84), and although it is quite true that none of them "shall be construed to deprive the Secretary of the Interior of the exercise of the directory and supervisory powers conferred upon him by law," it is also equally true, that where they are not in conflict with the law, and have prescribed a plain and adequate course of action, they are to be followed, for there is then no occasion for invoking the Secretary's directory and supervisory powers.

The importance of having uniform rules in these matters and of enforcing them has been often recognized by the decisions of this Department. Ariel C. Harris (6 L. D., 122); Groom v. Missouri, Kansas and Texas Ry. Co. (9 L. D., 264); State of Oregon (9 L. D., 360).

A time may come, however, and a case may arise when for the protection of public interests it would become necessary for the Secretary to disregard such rules; and such course might possibly become necessary to protect even an individual right. Such course would not, however, be adopted unless the necessity were apparent and urgent, nor for the protection of an individual right unless it were clearly shown. that no other right could be adversely affected by such action.

The case now presented does not in my opinion. justify a disregard of the rules of practice in the particular asked.

It is true the beneficiaries under said act of October 1, 1890, must make their selections within one year from the date of that act, and that if they select lands not of the character contemplated by said act they do so at their peril; but these claimants were fully advised of these matters by letters and instructions (11 L. D., 512 and 550), long prior to the time the selections here in question were made. The fact that the relin

quishments of the desert land entries were filed on the same day these selections were made, indicates that they were filed in pursuance of some understanding or agreement between the parties interested, but however that may be, the parties making such selections must be held to have acted with a knowledge of all the facts, as to the status of the land selected, shown by the records. Among the facts so shown two may be mentioned: (1) Affidavits of contest against said desert land entries had been filed and were not yet finally disposed of; (2), Various applications to enter said lands had been presented upon which final action had not been taken. That there were then claims to said lands still pending undisposed of they must have known, and must, also, have known that those claims could be finally determined only under and in accordance with the rules of practice applicable to such cases. These rules of practice involved action by the local officers and upon appeal, action by your office, and upon further appeal, action by this Depart ment. It was not at all probable those adverse claims could be finally disposed of in the ordinary course of business within the time limited. for making selections under said act of October 1 1890, but these parties chose to take that risk or the risk of finally obtaining an adjudication of the questions involved, favorable to the validity of the selections then made. They do not and can not claim to have been in any manner, misled into selecting those lands in the belief that they were free from all claims. It may be of the utmost importance to these parties to secure such an early consideration of their claims under these selections as will leave them time, in case that adjudication should be adverse to them, to make other selections, but that would not justify this Department in extricating them from the position in which they voluntarily placed themselves when to do so would involve the setting aside of the established rules of practice, and the disregard of the rights of others in the premises, under such rules. As said before, this is not, in my opinion, a case that demands the exercise of the supervisory authority of the Secretary in utter disregard of the usual mode of procedure.

There is another feature of this case which should be noticed. These selections have been attacked as having been improperly made, and in some instance as being of land not of the character prescribed by the act under which they were made, and it is asked that hearings be ordered that evidence may be submitted in support of such allegations, with a view to the cancellation of such selections. The duty of passing upon such matters is primarily with the local officers and your office. and your action therein will very rarely be interfered with by this Department. The Secretary will not ordinarily assume the duty of passing upon such questions, and I find no sufficient reason for doing so in this instance. The mere fact that some individual may suffer a loss because of the time necessarily involved in considering his claim in due