for cancellation the entryman should be allowed sixty days, after due notice, in which to appeal to the Secretary of the Interior or to show cause why the entry should be sustained. This circular was amended May 24, 1886 (4 L. D., 545), by striking out the alternative of direct appeal to the Secretary, since which time there has been no further material change in the practice.

In the case of Henry C. Putnam (5 L. D., 22,) an outline of the proceedings upon a special agent's report was given, as follows:

When from the report of a special agent it appears that an entry is fraudulent, or from any other cause its validity should be enquired into, such entry should not be canceled upon the report of the agent or the testimony accompanying it, but should be held for cancellation, and the entryman should be notified of such action and allowed sixty days in which to apply for a hearing to show cause why the entry should be sustained; and if it appears from the report of the special agent that the entry has been transferred, the transferee shall also be notified as well as the original entryman. If at the expiration of such time the claimant fails to apply for a hearing to show cause, the entry should then be canceled by the action of your office. But if in response to such notice, the claimant offers to show cause why the entry should be sustained, a hearing should be ordered, at which the government should offer proof to sustain the allegation that the entry is illegal or fraudulent before the entryman shall be required to present his defense. Such hearing is a proceeding de novo, at which the register and receiver should not consider the ex parte testimony contained in the agent's report, but in all such cases where the entry has been regularly made and final certificate issued, the burden of proof is on the government, and it will be required to establish the truth of the charge at the time of the hearing by the examination of the special agent or such other witnesses as may be produced, so that the entryman may have the opportunity of cross examination as allowed by law.

It is doubtful whether the special agent's report against Miller's entry stated facts, as contradistinguished from mere opinions of the agent, sufficient to warrant the cancellation of the entry, even if they had been admitted to be true, but apart from this, the question arises as to whether Miller was properly notified of the charges against his entry and given due opportunity to make defense against the same.

As the proceedings on the reports of special agents are required to be conducted in accordance with the rules of practice prescribed for contests so far as the same are applicable, and as it has been held that notice by registered mail in contest cases is not sufficient to confer jurisdiction, it follows that jurisdiction is not acquired in these proceedings where notice is served by registered mail, unless it is so provided in some special rule.

It is considered by your office that special authority is found in the circular of July 31, 1885, supra, which provides that:

Notice to claimants will be sent by registered letter to their last known post office address, and the return letter receipt (or returned letter) will be transmitted to this office with register and receiver's report.

Notice will also be served personally if claimant can be reached, and registers and receivers and special agents will take every precaution to see that notice reaches the party or his attorney, and to preserve and transmit the evidence of service, or of attempt to procure service.

Under the terms of this circular, notice by registered letter to the last known address and personal service, if the claimant can be reached, are equally important and equally necessary.

In the case of United States v. Dana, (18 L. D., 161), it was said:

That part of the circular quoted, which provides that notice will be served personally if claimant can be reached, and enjoining on registers and receivers and special agents that they shall take every precaution to see that notice reaches the party or his attorney, is merely directory, and is not a limitation on the manner of notice, as therein before provided.

This statement was not necessary to the decision in that case and overlooks the letter and spirit of the rule and the superiority of personal service, where claimant can be reached, as a means of imparting information of the action taken and about to be taken on the special agent's report. The quoted portion of the decision cited will not be followed. Here the report of the special agent affirmatively showed that the entryman was not at home, but was in jail, charged with murder. It was known therefore that he could be reached and yet no effort was made to serve notice upon him personally. It is true that the regis tered letter containing notice was received and receipted for by his minor son, but it is not shown that this minor son was acting at the request of the father or with his knowledge.

It appears then, that the claimant was never properly served with notice of the action of your office. Your office decision is accordingly reversed, and you are directed to instruct the local officers to call upon Germain to show cause why his entry should not be canceled and the entry of Miller reinstated.

APPLICATION TO ENTER-ADVERSE CLAIM.

MURRAY v. PIERCE.

An application to enter presented in accordance with an order of the local office at a time when on account of the press of business it could not be acted upon, and on which the fees were tendered in a reasonable time, confers upon the applicant a right superior to that acquired under a subsequent entry of the land by another. Acting Secretary Ryan to the Commissioner of the General Land Office, (W. V. D.) January 23, 1899. (L. L. B.)

On December 26, 1893, Clarence L. Pierce made homestead entry for the NE. of Sec. 1, T. 25 N., R. 3 W., Enid, Oklahoma.

January 25, 1894, Francis E. Murray filed contest against said entry, alleging settlement on the 16th day of September, 1893, and claiming priority of right by reason of his said settlement.

This was the sole charge in the affidavit, except that he applied to enter on December 26, 1893. The record shows that this application to enter was rejected because of the prior entry of Pierce made on the same day.

The hearing was finally reached January 10, 1895. Francis E. Mur

ray was introduced, and after stating his name, age, residence and occupation, and that he had been sworn, counsel for the defendant objected to the introduction of any testimony on the material charge, and moved to dismiss the contest because the contest affidavit did not contain sufficient facts to constitute a cause of action, for that the charge was prior settlement, and the settlement was alleged to have been made more than ninety days prior to the entry of Pierce. The notice of contest recited the same charge.

The motion was overruled, and the evidence at the hearing showed that the contestant had actually applied to make entry on the 12th of December, 1893, within ninety days from his alleged settlement.

His said application of December 12th was made in virtue and under the provisions of the following order made and signed by the register and receiver of the said land office, and conspicuously posted on the land office door.

Whereas there are about 7,243 quarter sections of land subject to entry in this district, and whereas up to the close of business on December 5, 1873, there have been acted on by this office 6,589 applications to wit: 5,142 homestead entries, 1,168 rejected and suspended applications, 287 declaratory statements, 34 applications to make second entries, and 18 applications to amend, and whereas only 10 days, including this day remains before the expiration of the 90 days allowed by law for those to file their applications who claim settlement on September 16, 1893, and whereas there has lately been issued by this office for the convenience of the people 1,822 numbers 925 of which were called up to the close of business on Dec. 5th, now therefore:

It is ordered that those who have received numbers present themselves as usual at the Land Office and will be disposed of at a rate not to exceed 200 per day.

Beginning on Monday the 11th inst., in addition to the numbered line the register will receive the application of all those who have not been numbered, swear the parties to the affidavit if desired, and stamp upon each application the day, hour and minute or fraction of a minute at which it is received. The application will then be kept in the Land Office and considered filed as of the time it is stamped and will be acted upon in its order. The applicant calling after the 15th inst., if necessary, to pay his money, and get his receipt, as the law only requires that the application shall be presented within 90 days by this process every possible application can be received within the 90 days and no right be lost to any applicant. The result shows that more applications will have been acted upon by Dec. 16th than there are quarter sections subject to entry, but lest the fact that there are more applications than there are tracts subject to entry may impair the right of some person who has made settlement, the above method is adopted out of abundance of caution.

The record shows that in obedience to this order Murray presented his application and swore to his homestead affidavit on the said 12th of December, 1893, and left his entry papers in the hands of the local officers. This was a full compliance with said order.

But the register and receiver in their opinion, wherein they awarded the superior right to Pierce, say:

They (referring to applicants under this order) were notified that this was simply done in order to give every one an opportunity to file his application before the expiration of ninety days, and that all parties must see to it that they responded as their numbers were called, so as to pay the fees and commissions and have their applications acted upon,

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that this applicant failed to respond, although his number was repeatedly called prior to December 16, 1893.

Mr. Whittinghill, the attorney for Murray, testified that as such attorney he appeared at the land office for the purpose of paying his $14.00 (fee and commission for entering), and getting his receipt; that when he got there the register came to the door of the land office and announced that they would call these numbers up to 100; that Mr. Murray's number, being No. 486, was not reached for several days; that he appeared at the land office for Mr. Murray and others almost every day for two weeks longer, and finally was, with many others, allowed to look through a great number of papers lying on a desk in the east end of the land office, but could not find Murray's papers; that he finally found them on December 26, 1893, and tendered the fees for filing, but was informed that the land had been filed on just before he came in. This testimony, which is not disputed by any witness, relieves Murray from any charge of negligence, and appears to show that his failure to tender the fees at an earlier date was due in a measure to his papers having been misplaced, or so promiscuously mixed up with a large number of similar applications as to make it difficult to discover them. But, however this may be, having made his application in compliance with the order of the register and receiver, and having tendered the money due for making his entry within a reasonable time thereafter, it must be held that his rights under his application were superior to those of Pierce under his entry.

Pierce initiated his claim by entry made December 26, 1893. He was not a settler on the land at that date. It follows that Murray's right, in virtue of his application to enter made December 12, 1893, entitles him to the land, irrespective of any rights he may have acquired by settlement.

As the records of the local office as here presented show that Murray is entitled to the tract in controversy although such showing is not set out in the contest affidavit, this Department in the exercise of its supervisory authority will administer justice on the record presented.

It is therefore ordered that the entry of Pierce be canceled and the application of Murray be accepted of record. The decision appealed from is therefore affirmed.

CONTEST-AUTHORITY OF LOCAL OFFICE TO ORDER HEARING.

MENDENHALL v. CAGLE.

The Department will not interfere with the action of the local officers in directing a hearing in any case unless it be shown that by such action they have exceeded their authority.

Secretary Bliss to the Commissioner of the General Land Office, January (W. V. D.)

25, 1899.

(J. L. McC.)

This Department, on February 9, 1898 (26 L. D., 177), rendered a decision in the case of Byron E. Cagle v. W. J. Mendenhall, reversing

previous departmental rulings in the same case (20 L. D., 447, and 21 L. D., 96), and directing that Cagle be allowed to make homestead entry for the NW. of Sec. 22, T. 23 N., R. 1 W., Perry land district, Oklahoma Territory.

Pursuant to the above direction, your office, on March 11, 1898, instructed the local office to cancel Mendenhall's entry and permit Cagle to make entry of the land.

On March 2, 1898, Mendenhall filed in the local office a protest against the allowance of Cagle's entry, alleging that the latter was a "sooner," and asking a hearing to establish that fact. On March 22, 1898, when Cagle presented his application to enter, the local officers declined to receive it, and ordered a hearing on Mendenhall's protest. Cagle filed in the Department a petition addressed to the supervisory authority of the Secretary. This petition, with affidavits and exhibits accompanying the same, were by departmental letter of April 7, 1898, transmitted to your office "for your early consideration and appropriate action." On April 14, 1898, Cagle made entry of the land.

On April 26, 1898, Mendenhall filed contest affidavit against said Cagle, alleging "that said Byron E. Cagle, subsequent to August 19, 1893, and prior to 12 o'clock, noon, September 16, 1893, did enter upon and occupy a portion of the lands known as the Cherokee Outlet."

This affidavit is corroborated by that of M. F. Kelso, who states, in substance, that he saw said Byron E. Cagle (and another man) in the vicinity of the land in controversy, and at a point about two or two and a half miles west of the west line of the Otoe and Missouria reservation," at about eleven o'clock A. M. of the day of the opening. This affidavit was afterwards amended so as to read:

That on September 16, 1893, and before twelve o'clock, noon, on said date, I saw Byron E. Cagle in the Red Rock bottom, at a point west of the west line of the Otoe and Missouria Indian reservation, near the NW. of Sec. 22, T. 23 N., R. 1 W.

Cagle filed a motion to dismiss the contest, principally upon the ground that the question of "soonerism" had already been adjudicated by this Department, in the decisions herein before referred to.

The local officers denied the motion, and ordered a hearing to be had on January 25, 1899.

Cagle has filed in the Department a petition for the exercise of its supervisory authority, asking that it order the dismissal of said contest, on the grounds, in substance, that the contest affidavit is not sufficiently specific, and that the question of "soonerism" has been already adjudicated.

In the departmental decisions (20 L. D., 447; 21 L. D., 90; and 26 L. D., 177;) heretofore rendered, the controlling question has been whether or not Cagle was disqualified because of his having entered the territory from the west line of the Otoe and Missouria Indian reservation. This question was, by the decision of February 9, 1898, decided in the negative, and Cagle was held not to be disqualified-on that ground. The question as to whether Cagle entered the territory prior to twelve