Your office, upon examination of said certificate, on October 22, 1889, informed the local office that it had been compared with the records of your office and found to be genuine and receivable in the sum of oue hundred dollars in payment for public lands, in accordance with paragraph 22 of the circular issued from your office June 24, 1885, 3 L. D., 599, which is as follows:

Certificates issued before March 3, 1879, can be used only by the settlers in the purchase of lands in the township the surveying of which was paid for out of such deposits.

You, however, refused to accept the certificate because it was issued before March 3, 1879, and is not assignable. The claimant has appealed from your judgment to this Department, averring that "your office decision is contrary to law."

This certificate was issued under the provisions of sections 2401, 2402 and 2403 of the Revised Statutes of the United States. Section 2403 provides that:

Where settlers make deposits in accordance with the provisions of section twentyfour hundred and seven (one), the amount so deposited shall go in part payment for their lands situated in the townships, the surveying of which is paid for ont of such deposits.

Paragraph 22 aforesaid, and paragraphs 21 and 17 on page 59 of your general circular issued January 1, 1889 (supra), would seem to be in harmony with section 2403, which only limits the use of the certificates to the township the survey of which was paid for out of such deposits made by the homestead and pre-emption settlers thereof. The act of March 3, 1879, (20 Stats. 352), enlarged the use that might be made of these certificates by providing that they may be assigned by endorsement and be accepted as payment for any public land of the United States entered by settlers under the pre-emption and homestead laws.

The act of August 7, 1882 (22 Stats., 327), provided that certificates issued after the date of the passage of the act should not be received as payment for public land except in the land district where the surveying is done.

The record in this case does not show the date of the assignment of the certificate to Kirby. However, that is not important, since it is not tendered as payment outside of the township for the surveying of which the deposits were paid.

The amendments to section 2403 have not attempted to restrict the use to which the certificates might be applied, but have enlarged their sphere by providing that they may be received as payment, etc., outside of the township for the surveying of which the deposits were made. (Edward Pollitz, 4 L. D., 326.)

The transaction between the government and the pre-emption and homestead settlers of township 5 S., of R. 20 E., Stockton, California, was in the nature of a contract, and in consideration of a speedy survey being made of said township by the government the settlers agreed to

advance the money, the government agreeing to credit them with the amount of their deposit when they should purchase the land.

The act of March 3, 1879 (20 Stats., 352), makes certificates issued for deposits assignable by indorsement. This act is remedial in character, and it seems clear that Congress meant by its passage to make certificates then in existence as well as to make those thereafter to be issued assignable. The act says: "Certificates issued for such deposits may be assigned by indorsement." It makes no class of certificates assignable, but makes them all so. To hold that this certificate could only be received as payment for public land in township 5 when presented by Thompson, would be establishing a very harsh rule which in some instances would allow the government immunity from the payment of the debt to the settler, and this too after having received the benefit of the survey.

It is not necessary to decide whether the certificate would be received for land outside of the township or not, for it is presented as payment for land in the township for the surveying of which it was deposited; neither is it necessary to decide whether or not the certificate would have been assignable before the passage of the act of March 3, 1879, for the passage of that act makes existing certificates assignable whether they were before or not.

The certificate in question should be received as part payment for the land Kirby seeks to purchase.

Your office decision is accordingly reversed.

CONTEST-PREFERENCE RIGHT-PROCEEDINGS BY THE GOVERNMENT. COMAR . WENDLING.

A contestant is not entitled to a preference right unless the cancellation, or relinquishment. of the entry is the result of his contest.

No preference right is acquired by a contest filed during the pendency of proceedings against the entry by the government, if such proceedings result in the cancellation of the entry.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 7, 1891.

I have considered the case of Sylvin Comar v. Michael Wendling upon the appeal of the former from your office decision of July 5, 1889, dismissing his contest against the timber culture entry of Wendling, No. 19, for the NE. of section 22, T. 9 S., R. 2 W., New Orleans, Louisi

ana.

The record shows that on the 1st day of April, 1881, Wendling made timber culture entry for said tract. On the 26th day of December, 1887, Comar filed his affidavit of a contest against said entry, alleging failure "to comply with the timber culture laws in that he failed to plow or

break five acres the first year, and to plow or break five additional acres, to plant in seeds, trees or cuttings the required amount."

Notice was issued the same day and served, fixing the hearing before the local officers on the 19th day of March, 1888, at which time the parties appeared and upon the motion of contestant, the hearing was continued until the 26th day of May, 1888, at which time the parties appeared and Wendling filed with the local officers a motion for an indefinite postponement of further proceedings in the contest, which motion was granted by the local officers.

Contestant appealed.

On the 5th of July, 1889, your office affirmed the decision of the local officers and dismissed the contest.

Comar appeals.

The grounds of the motion to postpone indefinitely further proceedings are set out in your office decision, and are substantially as follows: It appears that on October 8, 1887, your office held the entry of Wendling for cancellation, upon the report of a special agent. The local officers based their action in sustaining the motion upon the fact that the case was under investigation by the government and that the filing of the application of Wendling to be allowed to comply with the timber culture law thereafter, was, at that time, pending in your office. On the 28th day June, 1888, your office passed upon said application of Wendling as follows: "The records show that T. C. entry No. 17, was made March 21, 1881, for lots 2 and 3, or NW. of Sec. 22, T. 9 S., R. 2 W., La. Mer. by Michael Connolly and canceled February 8, 1888, upon relinquishment. T. C. entry No. 19 is this day canceled for illegality, and Wendling hereby allowed to make new entry of the tract in question, of date of presentation of his affidavit, February 13, 1888." Under the authority of your said decision, the local officers allowed Wendling's entry on the 26th day of July, 1888, numbering it 673. Appellant assigns error:

1. Wendling's relinquishment of the above entry having been filed during the peudency of contest, said relinquishment was prima facie the result of said contest, and it was error not to have awarded the preference right to enter the land to the contestant in pursuance of the words and intent of the statute in such cases, made and provided,

citing the act of May 14, 1880 (21 Stat., 140), as authority in support of appellant's position.

Section 2 of said act provides:

In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead, or timber culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation and shall be allowed thirty days from the date of such notice to enter said lands.

Manifestly, these provisions are not applicable to the case at bar. In the first place Wendling filed no relinquishment of his entry, but inas

much as the government was proceeding against the same (and that before the affidavit of contest was filed), he simply filed a showing why he had not complied with the law which was properly adjudged to be sufficient and under which he was permitted to make a legal entry. His first one was improperly allowed and was illegal in its inception, as there was already one timber culture entry on the same section. But if his application should be treated as a relinquishment, the contestant would not acquire a preference right under the statute, because it is only accorded to such contestants as procure the cancellation or relinquishment-such as is brought about as the result of the filing of the contest-of any pre-emption, homestead, or timber culture entry." The relinquishment must, in some way, be the result of, or produced by, the filing of the affidavit of contest in order to entitle the contestant to a preference right. Sorenson v. Becker (S. L. D., 357); Dayton r. Hause et al. (9 L. D., 193).

There is another reason why this appeal should not be sustained, which is, that no preferred rights are secured under a contest filed during the pendency of government proceedings against the entry of record, if it is canceled as the result of said proceedings. Drury v. Shetterly (9 L. D., 211); Arthur B. Cornish (9 L. D., 569). The gov ernment was proceeding against the entry of Wendling before and at the time Comar filed his affidavit of contest, and your office had held the entry for cancellation on the 8th day of October, 1887, more than two months before the affidavit of contest was filed, and the entry is conclusively shown to have been canceled upon the government proceedings and the second entry allowed by your office in pursuance thereof.

The remaining error assigned is too general to present any question for determination. See Rule of Practice SS.

I discover no error in the decision appeaied from and it is accordingly, affirmed.

INDEMNITY WITHDRAWAL-APPLICATION TO ENTER.

HESTETUN ET AL. v. ST PAUL, MINNEAPOLIS AND MANITOBA RY. Co. An application to enter can not be allowed for land embraced within an existing indemnity withdrawal.

Secretary Noble to the Commissioner of the General Land Office, December 24, 1890.

I have considered the appeal of Anders A. Hestetun, and forty-three other persons from your office decision of February 15, 1889, affirming the judgment of the local officers at Benson, now Marshall, Minnesota, rejecting the applications of the respective parties to enter certain lands. It appears that at various dates during the years 1885, 1886, 1887 and 1888, the appellants herein applied at the local office to enter the

lands described in their respective applications, some of them under the pre-emption, some of them under the homestead, and some of them under the timber culture laws. Each of their respective applications was rejected by the local officers because it conflicted with the rights of the St. Paul, Minneapolis and Manitoba Railway company (main line) under the grant to aid in its construction. From the decision of the local officers each of the parties appealed to your office, which on the 15th day of February, 1889, affirmed the ruling of the local officers. From your decision each of the parties appeals."

The judgment appealed from includes each of the forty-four cases, and in it I find fully and clearly set out, the names of the several parties, and a particular description of the land applied for by each person, to which reference is hereby made. I have carefully examined the record in each particular case, so far as the same is before me, and as they can all be properly disposed of in one decision I deem it best so to do.

While the errors assigned are numerous, and cover almost every question pertaining to the rights of entrymen in the public lands so far as the pre-emption, homestead and timber culture laws are concerned, I am of the opinion that they can all be properly disposed of in a gen eral way, without specifically referring to each of them and that they are substantially met by the conclusion I reach in the case.

October 22, 1877, and October 16, 1883, the St. Paul and Pacific Railway company selected all of the tracts in controversy on account of the grants to aid in the construction of said road. These selections were not approved by the Secretary of the Interior. The lists of lost lands, filed by the company in lieu of which these selections were made, exceeded in quantity by a few acres, the lands embraced in said selections and all but seven of the tracts in controversy are covered by the lists of specified lost lands in lieu of them, as shown by the records of your office. All of the lands in controversy are within the twenty mile (indemnity) limits of the grant,-act of March 3, 1857 (11 Stat., 195), and act of March 3, 1865 (13 Stat., 526),-in aid of the St. Paul and Pacific (now the St. Paul, Minneapolis and Manitoba) railway company; the withdrawal for which became effective on the 20th day of July, 1865, and still remains in force. None of the claimants make any claim that they have any right or rights to the land antedating the time when the withdrawal became effective or that his claim was excepted from the withdrawal.

The legal effect of the withdrawal is to preclude the disposal of the land covered thereby, under any of the land laws. In other words, so long as the withdrawal remains in force the land covered thereby is simply held for the purpose for which the withdrawal was made.

In Julius A. Barnes (6 L. D., 522), it is said, in speaking of the effect of withdrawals of lands within indemnity limits for the benefit of a road (see page 524),