the fact that the issue here is not whether or not certain written or printed rules were adopted, or certain decisions rendered, but it is, what was the true construction and legal effect of certain rules and decisions of the department whose existence on February 23, 1889, all parties admitted at the trial before the secretary in 1894, and conceded in the hearing before the court below? That inquiry presents no issue of fact, but a clear question of law, which our system of jurisprudence has imposed upon the courts the duty of considering and deciding.

The principles and rules to which reference has already been made and the following rules and decisions of the land department condition the determination of this issue. On December 1, 1875, the commissioner of the general land office, in a circular to the registers and receivers of the United States land offices, wrote concerning investigations of the rights of contesting claimants to land that "the observance of certain fixed general rules will tend to promote uniformity and dispatch in proceedings, and will materially aid registers and receivers in the performance of this delicate and highly important duty," and announced that the following rule regarding contested cases had been adopted by the department:

"Having carefully taken and examined the evidence, the register and receiver will render thereon their joint report and opinion, with full and specific reference to the posting and annotations upon their records, subject to the appeal hereinafter provided in these regulations, and will forward the entire record to the general land office, with a brief letter of transmittal, describing the case by its title, the nature of the contest, and the tract involved, and thereafter take no further action affecting the disposal of the land until instructed by the commissioner."

2 Copp, Landowner, pp. 154, 155.

On January 8, 1878, the commissioner of the general land office issued a circular to the registers and receivers, which contains these words:

"Gentlemen: By direction of the honorable secretary of the interior, dated the 22d ultimo, your attention is called to the practice prevailing at many district offices of admitting entries and filings upon papers prepared and left in the hands of registers and receivers, and of attorneys practicing before them, prior to the cancellation of an invalid entry under a pending contest or relinquishment, by which practice parties hope and expect to secure a priority of right by having the entry allowed immediately upon the receipt of notice of cancellation. The receipt of such applications and declaratory statements is not authorized by law or by your instructions, and must be discontinued. In the general circular of May 18, 1876, page 6, paragraph 19, respecting the presentation of applications after contest, it is provided that the contestant 'must, if he desires the land, by proper diligence ascertain when notice of cancellation is received by the register and receiver, and then make formal written application for the tract; the land, after reception by said officers of notice of cancellation, being always open to the first legal applicant, unless withdrawn from entry by competent authority.' This instruction will be found also on page 7 of the revised circular of December 1, 1877. Its purport is plain to the effect that an application, to be valid, must be made at a time when the land is free from appropriation, and legally subject to entry, and no other should be considered."

4 Copp, Landowner, p. 167.

On October 9, 1878, the commissioner issued another circular to the local land officers, in which he announced that the revised rules of

practice embodied therein had been adopted by the department. This revision contains a verbatim copy of the rule of 1875 which has been quoted above. 7 Copp, Landowner, p. 153. This rule remained in force without abrogation or substantial modification from 1875 until after 1889. In a revision of the rules issued in 1885 it appears in three rules numbered 51, 52, and 53, and they read:

"Rule 51. Upon the termination of a contest the register and receiver will render a joint report and opinion in the case, making full and specific reference to the postings and annotations upon their records.

"Rule 52. The register and receiver will promptly forward their report, together with the testimony and all the papers in the case, to the commissioner of the general land office, with a brief letter of transmittal, describing the case by its title, the nature of the contest, and the tract involved.

"Rule 53. The local officers will thereafter take no further action affecting the disposal of the land in contest until instructed by the commissioner."

In Crystal v. Dahl, Copp, Pub. Land Laws (1869-1875) 316, and Eno v. McDonald, Id. 317, the secretary of the interior decided that no rights to land could be initiated between the date of a decision of the commissioner holding a prior entry void and the receipt of notice of it by the local land officers. In the latter case the decision that the prior entry was void was rendered on October 16, 1872. It was received at the local office on October 29, 1872. One McDonald alleged settlement on October 26, 1872. The secretary said:

"The cancellation of the prior homestead entry took effect when notice of such cancellation was received at the local office, and then, and not till then, was the land subject to entry and settlement. Crystal v. Dahl, Secretary's Decision April 13, 1872. 2 Op. Asst. Attys. Gen. p. 5."

The rule announced in this case in 1874 was recognized as the established practice of the department in 1880 in Jayne v. Gowdy, 7 Copp, Landowner, 137; in 1883 in Pomeroy v. Wright, 2 Land Dec. Dep. Int. 164; and in 1888 in Perkins v. Robson, 6 Land. Dec. Dep. Int. 828.

Counsel for the appellants rely upon the decisions in the following cases to support their proposition that this rule and the practice disclosed by the decisions in Crystal v. Dahl and Eno v. McDonald are inapplicable to the case in hand, and that they were abrogated prior to 1889; Pomeroy v. Wright, 2 Land Dec. Dep. Int. 164; Ryan v. Conley, 4 Land Dec. Dep. Int. 246, 248; In re Reed, 6 Land Dec. Dep. Int. 563; Barclay v. California, Id. 699; Anderson v. Railroad Co., 7 Land Dec. Dep. Int. 163. Bearing in mind that the rule was that, after sending forward their reports in a contested case, the register and receiver should "take no further action affecting the disposal of the land in contest until instructed by the commissioner," and that the issue here involves its application not to claims of parties to the contest, but to those of strangers to it, let us see if there is anything in these decisions which repealed or modified this rule or the practice which had certainly grown up in conformity with it.

Pomeroy v. Wright, 2 Land Dec. Dep. Int. 164, which was decided in 1883, involved the rights of the parties to the original contest, not the right of strangers to such a contest. It involved the time when the right of the defeated entryman to purchase the land under the act of June 15, 1880, expired, and the right of the successful contestant

to enter it under the act of May 14, 1880, accrued. The secretary held that the decision of the commissioner was a final judgment between the parties to such a contest, and that the right of the one ceased and that of the other accrued at its date. But this decision rests upon the special provisions of the acts of congress mentioned above, and does not determine when the rights of strangers to the contest accrue. It distinguishes the case in which it is rendered from those governed by rule 53, and expressly concedes the existence of the general rule and of the practice which it prescribes. The secretary

says:

"Nor is there any conflict between the rule laid down here and the established rule of the land department, referred to by counsel for Wright and in your decision aforesaid, that cancellation takes effect by a formal act at the local office. That rule is made for a different purpose, and is founded on another law, or construction of law, which reserved all land covered by an entry, and declares it not to be 'public land.' When the entry is canceled in fact, the reservation is removed, and the land is restored to the public domain."

It would be difficult to conceive of more conclusive proof of the rule and practice found by the court below than these remarks of the secretary, and the fact that the commissioner in his decision which the secretary was reviewing cited and followed it. And it is interesting to note, although the fact has no relevancy to the issues in this case, that, after numerous conflicting decisions, the department has finally practically applied the provisions of rule 53 to the rights of claimants under the acts of June 15 and May 14, 1880. Stewart v. Peterson, 28 Land Dec. Dep. Int. 515, 519.

Ryan v. Conley, 4 Land Dec. Dep. Int. 246, 248, decided in 1885, was a case in which the decision forfeiting the prior entry was made by the local officers themselves, so that it was within their knowledge and in their office ever after it was rendered, but they failed for some time to note upon their records the cancellation which they had adjudged. The secretary simply held that their failure to perform the clerical act of noting the cancellation on the plats and records did not withhold the land from entry. No provision of rule 53 was violated or affected by this ruling, because the contest had never been sent to the commissioner, and the rule had no application to the case.

In the case of In re Reed, 6 Land Dec. Dep. Int. 563, decided in 1888, there is an obiter dictum of the secretary in accord with the contention of counsel for the appellants. He there says that a decision of the commissioner on December 27, 1884, canceling the entry of George G. Reed, was a final judgment which opened the land to subsequent entrymen, and that, consequently, the application of John H. Reed to enter the land on January 23, 1885, should have been allowed. But the decision of the commissioner of December 27, 1884, had been received by the local land officers, and they had canceled the prior entry of George G. Reed on January 5, 1885, 18 days before John H. Reed applied to make his entry, so that there was no question of the right to enter the land after the decision and before its official communication involved in the case. The truth is that the secretary was not considering or discussing this question, but was arguing and deciding the issue whether or not an entry could be permitted after a

decision and before the expiration of the time allowed for an appeal, and it was with reference to that question and that time only that he suggested the dangerous practice which counsel seek to establish as a general rule in these words:

“In such cases the proper practice would be to receive the application subject to the right of appeal, but not to allow the entry to be made of record until the rights of the former entryman have been finally determined, either by the expiration of the time allowed for appeal or by the judgment of the appellate tribunal."

The opinion in Barclay v. California, 6 Land Dec. Dep. Int. 699, filed in 1888, merely holds, on the authority of the Reed Case, that a deficiency used as the basis of a selection of school-indemnity lands is freed from the date of a decision canceling the selection so that it may be used as the basis of another selection, although the time to appeal from that decision has not expired. The case did not involve the power of local land officers to receive applications, and violate rule 53, nor was that question discussed or referred to in any way.

In Anderson v. Railroad Co., 7 Land Dec. Dep. Int. 163, decided in 1888, the secretary held, on the authority of the obiter dictum in the Reed Case, without discussing the question, or referring to rule 53, or the practice under it, that the decision of the commissioner canceling an entry took effect from its date, and before the cancellation was entered in the local land office, so that the filing of the line of definite location of the St. Paul & Pacific Railroad meanwhile vested the right to the land in the railroad company. Even this decision, however, in no way violates or modifies rule 53, because the map of definite location was not filed with the local land officers, but in the office at Washington; and the local officers neither took, nor were they asked to take, any action affecting the disposal of the land before they received the decision.

This completes the recital of the rules and decisions which condition the determination of the question before us, and we are now ready to enter upon its decision. It is earnestly contended that there is a marked distinction between the cases in which a cancellation of an entry is adjudged by the secretary or commissioner and those in which the decision is that the entry shall be held for cancellation, that in the former class the register and receiver are empowered to receive applications before they are officially notified of the decision, while in the latter class they may not. But this is a distinction without reason and without a difference, born of the zeal and ingenuity of counsel, and first found in the books in the erroneous decision of the secretary in this case on December 21, 1894. The rule forbade any action by the local officers affecting the disposal of the land until instructed by the commissioner, and under it they were as peremptorily prohibited from acting after a judgment of cancellation above, and before the commissioner informed them of and instructed them concerning it, as they were from acting under a decision holding an entry for cancellation before they were informed of it. The mischief to be remedied and the purpose of the rule were the same in the one case as in the other, and the rule itself was without exception, and alike applicable to both.

It is sometimes claimed in the briefs for the appellants that the mere receipt of applications to enter land and the subsequent allowance to the first applicant of a preferential right of entry when the decision is received is not a violation of rule 53, because it does not allow an entry before the receipt of notice of the decision; but such a practice allows the acquisition of an absolute right to the land by the first applicant, and thus, in effect, disposes of the land before notice of the decision, in flagrant violation of the rule. The review of the rules and decisions of the land department in which we have indulged conclusively demonstrates the facts that on February 23, 1889, when Hartmann filed his application, there was, and there had been for 14 years prior to that time, a printed rule of the department to the effect that, after the reports of the register and receiver upon a contest over an entry had been forwarded to the commissioner, those officers should take no further action affecting the disposal of the land until instructed by the commissioner; that the practice of the department had conformed to the rule; that there had been no decision of the department which, after consideration or discussion of the rule, had modified it or limited its effect; that the few opinions cited against it do not mention or refer to the rule, and are either devoted to the determination of other questions or to a repetition of the obiter dictum in the Reed Case. In this state of the case, what was the true construction and legal effect of this rule on February 23, 1889? Even if the opinions cited against it had decided that the rule was abrogated or limited, they would have been nothing more than erroneous judgments. They could not have affected the rule. Their only ef fect would have been to have caused the issue of the patents to the particular tracts of land whose title was in question in them to the wrong party. Nothing short of an express and formal repeal or abrogation of the rule and public notice thereof by the secretary, who alone had the power to establish and overthrow rules, could have destroyed its force or limited its terms. Rev. St. §§ 453, 2478 All the authorities were that this rule, and a practice in confromity with it, obtained during the pendency of a contest, and all that discussed the question were that it continued in force until the decision of the secretary or commissioner was officially communicated to the local land officers. Crystal v. Dahl, Copp, Pub. Land Laws (1869-1875) 316; Eno v. McDonald, Id. 317; Jayne v. Gowdy, 7 Copp, Landowners, p. 137; Pomeroy v. Wright, 2 Land Dec. Dep. Int. 164; Perkins v. Robson, 6 Land Dec. Dep. Int. 828. It may well be for obvious reasons that a failure of the local land officers after receipt of the decision to perform the clerical act of canceling the prior entry on their plats and records promptly in the ordinary course of business would not continue the withdrawal of the land from acquisition or entry, but this question is not presented in the case before us. The evil which the rule was made to remedy, the reason for its adoption, the terms of the rule itself have the same application to the time between the decision of a contest by the commissioner or by the secretary and the receipt of notice of the opinion by the local officers that they do to any of the time during the pendency of the contest. The rule contains no excep tion of this interim, but broadly covers it with the prohibition that