ment to make proof and payment. Having failed to do this, his preemption right was then determined, unless subsequently saved by such proof and payment before the initiation of any adverse right. Proof and payment were never made, and an adverse right has arisen in the railroads. While Arnold made his homestead entry, he attempted to initiate a new right, (for he had no pre-emption right to commute) and this attempt must fail because the land claimed was not at that date of a class subject to homestead appropriation.

The act of March 21st, 1864, section 5, applies to cases of this kind, arising subsequent to its passage; but it has no retroactive effect, and does not relieve the great hardship which this necessary construction of law works upon Arnold, who has in good faith cultivated and improved a homestead to which he had every reason to believe his title was good.

I affirm your decision, and return herewith the papers transmitted with your letter of the 5th ultimo.

Very respectfully,

B. R. COWEN, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 416.

NICKELL ET AL. V. ST. JOSEPH AND DENVER CITY R. R. CO. The entries of these parties were allowed under a ruling of the landoffice then in force, to the effect that the railroad acquired no right to lands until the notice of withdrawal was received at the local office. The Commissioner directed them to be cancelled, pursuant to a later ruling of the Department on this subject.

Held-That the ruling was intended to be prospective in its operation and not to disturb past transactions.

Secretary's decision dated Sept. 3, 1872.

No. 417.

MISSOURI, KANSAS AND TEXAS R. R. v. BROCK ET AL. Held-That the rule of construction adopted and in force at the time, a patent was executed should be followed, and the case considered as res adju dicata, although subsequent to such execution a new rule had been adopted. But in all cases where a patent had not been executed, the rule of construction in force at the time of the hearing in all its stages and before any proper officer or officers, should be applied, although the proceedings might have been commenced under a different rule.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., 17th July, 1873. SIR-I have examined the. questions presented by your letter of April 14th, 1873, transmitting the appeal of the Missouri, Kansas and Texas Railroad Company from recent decisions of your office refusing to cancel certain homestead entries made of lands within the limits of its grant, subsequent to the definite location of the line of the road, but prior to the order of the Secretary.withdrawing the land from market." Your action in this case is based upon a construction of law supposed to have been adopted by the Acting Secretary in the recent cases of A.

W. Nickell et al. and Frank Hatke v. the St. Joe and Denver Railroad Company.

I learn from the Acting Secretary, who decided said cases, that he did it with the understanding that patents had actually been issued in each of them, in accordance with the construction of law adopted by the Department and in force at the time the patents were issued. In point of fact, however, patents had not issued in said cases, or either of them, and the decisions of the Acting Secretary are capable of a construction never intended for them, and have led to some confusion between your office and the Department, resulting from the mistake of fact upon which they were founded. It was intended to be held in said cases, that inasmuch as patents had actually been executed in them in accordance with a construction of the act creating the railroad company, which had been adopted by the Department and was in force at the time the patents were executed, they would be considered as res adjudicatæ, and would not be disturbed, although the former rule of construction had been changed by the Department and a new and different one adopted, which new rule was in force at the time the cases were heard and decided.

I now hold, and you will adopt the rule for your future guidance, in this case and all like it, that in all cases where patents have actually been executed, in accordance with a construction of law adopted by the Department and in force at the time of the execution of the patents, the patents will not be cancelled or set aside upon any subsequent controversy arising between the different claimants, but the parties will be left to their remedies in court and the cases will be treated as res adjudicatæ. But in all cases where the controversy arises before patent has been executed, the rule of construction adopted by the Department and in force at the time of the hearing, in all its stages and before any proper officer or officers, will be applied and the cases decided in accordance with it, although it may differ from the rule recognized by the Department at the time the respective proceedings were commenced.

In the case now under consideration, the right of the railroad attached upon the definite location of its road, and before any of the filings of the contesting parties were made.

These filings were made before the withdrawal of the lands, but under the construction now adopted by this Department, the right of the railroad attached at the time of definite location, and not, as formerly held, at the time of withdrawal. No patents have been executed, and under the law, as I understand it, and the rule above stated, the right of the railroad is superior to that of the other parties, and your decision should be reversed.

I therefore reverse the same, and herewith return the papers transmitted with your letter of April 14th, 1873.

Very respectfully,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 418.

LATIMER ET AL V. BURLINGTON AND MISSOURI RIVER R. R. CO. At the time the line of the road was definitely located, the tracts now claimed by the applicants were covered with homestead entries, which were subsequently cancelled, and the lands, May 10, 1869, certified to the Company.

Held-That the Commissioner and Secretary having passed upon these claims, and judged that the tracts should go to the road, their decision was upon a subject over which they had jurisdiction, and although it was erroneous, it was not void and could not be attacked collaterally. That the proper way to avoid it was by instituting a suit in equity in favor of the United States, to cancel the certificate of the road.

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL,

Washington, D. C., May 4th, 1872. SIR-I have examined the case of Maxwell I. Latimer, William H. Malony and John Barker v. Burlington and Missouri River Railroad Company, on appeal from the decision of the Commissioner of the General Land-Office.

The Railroad Company claims the tract in controversy under its grant of June 2d, 1864 (13 Stat., 96). The appellants claim under homestead entries made subsequent to that date, which entries were cancelled by the decision of the Commissioner above referred to, on the ground that the land covered by them was embraced within such grant to the company. The tracts in controversy are within the six-mile limits of the located and constructed line of the road, and were approved to the Company, May 10th, 1869.

The grant to the road by the act of 1864, was not in the nature of a float, but was a grant, in presenti, of six sections per mile, on each side of the then designated route, not sold, reserved or otherwise disposed of, or to which a pre-emption claim or right of homestead settlement had not attached, with right of indemnity within twenty miles of its line. (Johnson v. B. and M. R. R. R. Co., 1 Ops., Ass't Att'y Gen'l, p. 146.) As the homestead entries of the appellants were all made subsequent to the passage of the act, the Commissioner ordered their cancellation.

It is alleged, however, upon appeal, and shown by report of the Commissioner of September 5, 1871, that the tracts claimed were covered by certain other uncancelled homestead entries on the 2d day of June, 1864, which entries were severally cancelled soon after the passage of said act. Subsequently appellants made entry of the tracts now claimed by them, and their entries were duly cancelled by the Commissioner of the General Land-Office, that of Barker, May 1, 1867, and those of Latimer and Malony, each November 10, 1868. From these orders of cancellation no appeal was ever taken by either party. On the 10th of May, 1870, applicants tendered to the Receiver the fees for a final receipt, and offered final proof, but their tender and offer were refused on the ground that their entries had been cancelled. From this refusal the parties appealed. The orders of cancellation, never having been appealed from, are still in force, and the Register rightly rejected their offers, and the Commissioner rightly affirmed his action.

This is a complete answer to the case now under consideration; but inasmuch as other questions which do arise in other pending cases, have been very fully and ably argued in this, I have concluded to consider them now.

It is insisted by counsel for appellants that these tracts were excluded from the grant to the road because they were covered by homestead entries at the time of the passage of the act of June 2, 1864, and that upon the subsequent cancellation of said entries the lands became public lands, and did not not inure to the railroad.

In the case of S. M. Boyd, (Opinions of Assistant Attorney General, Sec. 1,) I held that a subsisting homestead upon the tract at the time the line of the road was definitely fixed, excluded the land from the grant to the road, and that upon a subsequent termination of the homestead the land reverted to the United States, and did not go to the road.

Prior to that opinion the rule had been otherwise in the Interior Department. From 1866 to 1871, it had been uniformly held that an abandonment or termination of such claims operated to invest the railroad with title to the land, and this was the recognized rule at the time the lands now in controversy were certified to the road. (May 10, 1869.)

The question now raised is whether the Department can at this day declare its prior action null and void, and adjust the grant upon principle now held applicable to similar cases. This is insisted upon by the appellants, and is the main question presented by the case under consideration.

The act of June 2d, 1864, granted to the Burlington and Mo. R. R. R. Company a certain amount of land, and directed that the Secretary of the Interior should cause such land to be "certified and conveyed" to said company as the road progressed. It was the duty of the Commissioner of the General Land-Office, under the direction of the Secretary, to ascertain what lands were and what were not granted, under this act. After having so ascertained and determined the extent of the grant, it was then his duty to "certify and convey " the lands covered by it to the Company as the road progressed. For the purpose of this examination, and to ascertain the extent of the grant, the Commissioner, under the Secretary, was vested by the act with limited judicial powers. He was a quasi court to give construction to the act, and thereafter a ministerial officer to execute its provisions. In a case of this kind such a jurisdiction must exist and be exercised somewhere, and when Congress directed that the Secretary should cause the lands granted to be certified and conveyed to the Company, it evidently intended to give him power, as a quasi judicial officer, to construe the act and declare what lands should be conveyed. The Commissioner derived through the Secretary a like jurisdiction and power. Thus proceeding, he resorted to the act, and acting within the scope of his judicial powers, construed the grant to include the land in controversy, notwithstanding the fact that uncancelled homestead entries were subsisting upon the same at the date of the passage of the act. This construction was approved by the Secretary, who thereupon certified the tracts to the road.

It should here be particularly noticed that this action of the Department was in conformity to the then established rule applied to the construction of similar grants, and was not in violation of any clear and unambiguous provision of law.

The certification of these tracts to the State is thus shown to have been the result of a deliberate judgment of officers clothed for certain purposes with judicial powers, and acting within the scope of their

authority. As such it binds the Department, according to the well recognized principle of law that the judgment of any tribunal acting judicially and within the scope of its jurisdiction, is conclusive until reversed by a direct proceeding, and cannot be impeached collaterally. Elliott v. Peirsol, 1 Pet., 340. Wilcox v. Jackson, 13 Do., 511.

I am clearly of the opinion that the construction given to the act by your predecessor was an erroneous one, and I have before intimated that a different rule is now applied; but the remedy in a case of this kind is not to be had by collaterally attacking the prior decision before the same tribunal in which it was made, but by recourse to a court of Equity to cancel and annul patents or certificates so erroneously issued. This is an admitted source of Equity jurisdiction, and affords the government ample relief in a case like the present. United States v. Stone, 2 Wall., 525.

Sound policy, as well as legal principles, forbids the adoption of any other rule than the one I recommend. It is of the utmost importance that titles given by the Department should rest on a firm and substantial basis, that they should be accepted and recognized as final adjudications by the Department of the rights on which they are founded, that persons holding these should be secure in their possessions, and that the public generally should have confidence in their stability. This result can never be attained if decisions once made by the Department upon full consideration of all the facts, and within the scope of this authority, are made subject to review by the same tribunal upon a change in its officers.

Such a practice would render insecure every title from the Government, and encourage controversy and litigation.

I recommend, on the grounds and for the reasons set forth, that you affirm the decision of the Commissioner rejecting the claim of the appellants. Very respectfully,

W. H. SMITH, Assistant Attorney General.

HON. C. DELANO, Secretary of Interior.

Decision by the Secretary, May 9, 1872, adopting this opinion.

No. 419.

III. VERSUS PRE-EMPTIONS.

CIRCULAR.

Public notice to settlers on lands reserved for railroad purposes.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,
February 10, 1870.

WHEREAS, by an Act of Congress, approved 27th March, 1854, entitled "An Act for the Relief of Settlers on lands reserved for Railroad purposes," "every settler on lands which have been, or may be, withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them: Provided, They shall prove up their right, according to such rules and regulations as may be prescribed by the Secretary of the Interior."