coal company opportunity to offer evidence, directed that Braffet's contest be sustained and the protest of the state dismissed. The state and the coal company appealed to the Secretary who, July 31, 1922, held that the local office had erred in dismissing the contest for insufficiency of evidence, and that the Commissioner had also erred in disposing of the case without affording the state and the coal company an opportunity to offer evidence. He remanded the cause to the local office to proceed with the contest. 49 L. D. 212. In the meantime the Leasing Act of February 25, 1920, c. 85, 41 Stat. 437, 438, 451, had been enacted, authorizing the disposition of certain classes of mineral lands of the United States, including coal lands, by the Secretary of the Interior only by lease. Acting under this statute the Secretary, on June 4, 1923, executed a lease of the land to the coal company which, in contemplation of this action, had waived its claim under the state grant, expressly stipulating that its waiver was on condition. that the lease be granted. The state in the meantime had withdrawn its protest to Braffet's application, without prejudice to the claim of the company, setting up that it had no beneficial interest in the land, by reason of its own conveyance to the coal company's grantor. Braffet's contest was dismissed January 8, 1924, and his application to reopen it was denied on March 24, 1924. Later, the present suit was brought. The decree of the Supreme Court of the District directed the Secretary to vacate his decision remanding the proceedings to the local office, and to issue a patent on payment of the purchase price. The Court of Appeals modified the judgment in respects not now material, but held that Braffet's application was valid and that the Secretary should be directed to issue a patent. 57 App. D. C. 192. The principal question presented is whether, by the application to purchase and by bringing and conducting the Opinion of the Court. 276 U.S. contest, Braffet acquired rights which could not be or were not extinguished by the action taken by the Secretary under the Leasing Act. In giving an affirmative answer the Court of Appeals thought that as the Secretary had ruled that Braffet had made a prima facie case before the Department, the abandonment by the State and the coal company of the protest and their assent that the mineral lease be given were equivalent to the allowance of his claim, and that the Secretary under the Leasing Act was without power to defeat the claim since it had then ripened into a vested right. After the Leasing Act, coal lands of the United States were subject to disposition by the Secretary only by lease "except [under § 37] as to valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." Braffet's application was for the purchase of coal lands and not for a lease. It was not entitled to consideration under the Leasing Act unless saved by the exception as a "valid claim" existent at the date of the Act. R. S. § 2347, under which the application was made gives the "right to enter vacant coal lands of the United States not otherwise appropriated or reserved by competent authority." The departmental Regulations of March 6, 1903, 32 L. D. 39, withdrew school lands from entry with direction to local officers to treat applications for them in the same manner as contests. Rule 1 reads: "When a school section is identified by the government survey and no claim is at the date when the right of the State would attach, if at all, asserted thereto under the mining or other public-land laws, the presumption arises that the title to the land has passed to the State, but this presumption may be overcome by the submission of a satisfactory showing to the contrary. Applications pre 560 Opinion of the Court. sented under the mining laws covering parts of a school section will be disposed of in the same manner as other contest cases." This rule has never been expressly repealed. The Department has consistently held that it is applicable to school lands, Charles L. Ostenfeldt, 41 L. D. 265; Santa Fe Pac. R. R. v. California, 34 L. D. 12, and that applications for tracts embraced in an entry of record give rise to no rights until the entry has been cancelled of record, Walker v. Snider, 19 L. D. 467; Stewart v. Peterson, 28 L. D. 515, 519; Hiram M. Hamilton, 38 L. D. 597. The rule is an appropriate application to school-land grants of the established policy of the Department to treat as excluded from entry or preemption lands which may, in the execution of the laws of Congress, fall within the claims of others, a policy which avoids confusion and conflicting claims. Shepley v. Cowan, 91 U. S. 330; Holt v. Murphy, 207 U. S. 407, 414. Under both R. S. § 2347, conferring the right to purchase only "vacant coal lands of the United States not otherwise appropriated or reserved by competent authority," and Rule 1, supra, as interpreted and applied by the Department, we think that Braffet, by his application, acquired no legal status other than that of a contestant, and that this amounted to no more than a privilege of seeking to restore the lands to entry. The pending contest presented no obstacle to the withdrawal of the privilege by the United States. Compare Shepley v. Cowan, supra; Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 Wall. 77; Campbell v. Wade, 132 U. S. 34, 37; United States v. Norton, 19 F. (2d) 836; Alice M. Reason, 36 L. D. 279, 280-1; Instructions, 40 L. D. 415, 416, 417. Plainly it was withdrawn by the provisions of the Leasing Act, already quoted, unless saved by the exception "in favor of valid claims existent at the date of passage." Even if so saved the land would have been Opinion of the Court. 276 U.S. restored to entry only if the contest were determined in respondent's favor, which was not done. But we think that the exception in § 37 was not intended to save so nebulous and insubstantial a claim as that of the privilege of contesting the presumptive title of the state. The construction argued for would tend to defeat the purpose of the Leasing Act which was to prevent the sale of the mineral lands of the United States where substantial rights had not been acquired in them, and to permit their exploitation only by lessees paying royalties to the Government. The reference in § 37 to valid claims" thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery" at least suggests that they embrace only such substantial claims as would on compliance with the provisions of the former law ripen into ownership; such claims as might be acquired under the mining laws by location, possession and development which, if continued to discovery and entry, would entitle the claimant to a patent. That such was the purpose is established by the Congressional debates. 58 Cong. Rec. pt. 5, pp. 4577-4585. 66th Cong. 1st Sess. Here the claim of the contestant was not one which would necessarily ever come to fruition in ownership for, if successful, he would not have been entitled to entry or patent in preference to any other citizen desiring to apply for the land. In the absence of a statute or a departmental regulation securing it, there is no preference right. Compare Hartman v. Warren, 76 Fed. 157; Howell v. Sappington, 165 Fed. 944; Charles L. Ostenfeldt, 41 L. D. 265, 267. As the provisions of the Leasing Act precluded the contestant, if successful, from purchasing the lands in question as coal lands, his contest was rightly dismissed, and it becomes unnecessary to consider the effect upon the proceedings in the Department of the withdrawal of the State's protest. 560 Statement of the Case. Whether if the situation were otherwise the Secretary could by a mandatory injunction be directed to issue a patent, we need not consider. No decision of this Court has given sanction to such a direction. Reversed. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY v. RISTY ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA. No. 501. Argued February 21, 23, 1928.-Decided April 9, 1928. 1. A decree dismissing a suit to enjoin special tax assessments which in terms is without prejudice to the right of the plaintiff to contest the matters in question as though the suit had not been instituted or the decree entered, does not bar subsequent litigation of the same question. P. 569. 2. Due process of law does not require notice of a proceeding to determine merely whether an improvement shall be constructed, if land owners are later afforded an opportunity to be heard and to show that their property should not be assessed. P. 573. 3. A land owner, who, being duly notified, fails to avail himself of an opportunity afforded by a state statute to be heard upon the question whether his land will be benefited by a proposed public improvement and upon the constitutionality of including it in the proposed improvement district, cannot raise the question in this Court in a suit attacking the resulting assessment. P. 574. Affirmed. APPEAL from a decree of the District Court refusing an interlocutory injunction against apportionment and assessment of benefits on appellant's land for the maintenance of a drainage system. The suit was brought by Byram et al., as Receivers of the C., M. & St. P. Ry. Co. The C., M. & St. P. R. R. Company was substituted in this Court. Messrs. H. E. Judge and T. M. Bailey, with whom Messrs. C. O. Bailey, H. H. Field, O. W. Dynes, H. H. |