tion by the railroad company, and he had appealed to your office, where the matter was, January 1, 1898, pending. So long as the railroad indemnity selection remained intact, the land embraced therein was not subject to entry or purchase under the timber and stone act, and no right or claim could be initiated by an application for such entry or purchase. There had been no ruling of the Interior Department, at the time of the tender of his application, in anywise questioning the validity of the railroad selection. His claim was therefore not initiated under any ruling of the Interior Department. His application was properly rejected, and his appeal from the action of the local officers entitled him only to a judgment as to the correctness of their action when taken. Hanson v. Roneson (27 L. D., 382); Northern Pacific R. R. Co. v. Wolfe (28 L. D., 298); Falje v. Moe (28 L. D., 371); Olson . Welch (28 L. D., 431); Olson et al. v. Hagemann (29 L. D., 125); Oregon and California R. R. Co. v. Johnston (29 L. D., 442).

It is true that during the pendency of his appeal the railroad selection was canceled under a decision of this Department since held by the supreme court to have been erroneous, but this, cancellation was not in any way attributable to his appeal, and it has been repeatedly held that an appeal from the action of the local officers properly rejecting an application because the land described therein is not at the time subject to entry, confers no right upon the applicant, even though the land becomes subject to entry during the pendency of the appeal. Maggie Laird (13 L. D., 502); Swanson ». Simmons (16 L. D., 44) Katharine Davis (30 L. D., 220); Hall v. State of Oregon (32 L. D., 565). Therefore, no right or claim was initiated by Eaton's appeal.

For somewhat similar reasons, Huntoon did not, prior to January 1, 1898, initiate any right or claim to the land under color of any ruling of this Department. The decision of November 13, 1895, before mentioned, was prior to Huntoon's homestead application, and questioned but did not determine the validity of the company's indemnity selection of lands like that here in controversy situate between Thomson's Junction and Superior City; but that decision. instead of inviting application to make entry or purchase of the land here in controversy, expressly directed that for the time being action. should be suspended "upon all cases involving the question of the company's right to a grant between Thomson's Junction and Sperior City." It was while this order of suspension was operative that Huntoon's application was tendered and rejected. The action of the local officers in rejecting his application was subsequently affirmed by your office, and no further appeal was taken by Huntoon.

This was the status of the claims of Eaton and Huntoon on January 1, 1898, and your office therefore very properly held that there

were no such conflicting claims to this land January 1, 1898, as were subject to adjustment under the provisions of the act of July 1, 1898. See Lamb. Northern Pacific Ry. Co. (28 L. D., 124); Northern Pacific Ry. Co. . Sherwood (28 L. D., 126); and Northern Pacific Ry. Co. v. Rooney (29 L. D., 242).

Subsequently, and prior to the passage of the act of July 1, 1898, to wit, on May 19, 1898, the local officers accepted the money tendered by Eaton and permitted him to make purchase of this land, but their action in permitting such purchase was in direct violation of the order of suspension of February 28, 1898 (of which they had full notice), for Eaton had not made the entry or purchase or even given notice of his application to make the purchase, prior to the receipt of notice of the order of suspension.

Had the entry been regularly allowed after January 1, 1898, the claim would not, under the plain terms of the statute, have been subject to adjustment under the act of July 1, 1898.

It is insisted, however, that your office erred in holding Eaton's purchase for cancellation without first affording him an opportunity to be heard in the matter of the validity of the railroad selection, and many reasons are assigned in his appeal and arguments filed herein why such selection should not be recognized, and exhibits are submitted in support of the contentions made.

From the previous recitation it is apparent that Eaton's purchase was allowed in plain violation of the order of suspension, and it can not be held, therefore, that any such right was acquired by this purchase as entitled Eaton to be heard upon the question as to the validity of the railroad selection or any other claim asserted to the land prior to an order for the cancellation of the purchase thus erroneously allowed, and the fact that the government might, on the removal of all adverse claims to the land, permit a purchase thus erroneously allowed, to stand, does not in anywise affect the question here under consideration.

Your action holding Eaton's purchase for cancellation is therefore affirmed. This action is without prejudice to his right, upon a proper application, to question the validity of the selection of record, but, in such a proceeding, the record made, if it reaches this Department, will presumably be in such condition as will enable it to intelligently pass upon the questions presented, which it could not do upon the record now before it.

It is equally clear that Huntoon's first application was properly rejected, and was probably subsequently abandoned. His second application, tendered September 28, 1898, was also properly rejected under the terms of the suspending order of February 28, 1898. The decision appealed from is accordingly affirmed.

3685-Vol. 33-04-28

SOLDIERS' ADDITIONAL-ASSIGNMENT - PERSONAL REPRESENTATIVE.

FREDERICK ROTH,

The assignment of a soldiers' additional right of entry under section 2306 of the Revised Statutes, by the personal representative of the deceased soldier, will not be recognized by the land department unless it be shown that there is neither widow nor minor orphan child of the soldier capable of exer cising such right under section 2307 of the Revised Statutes. Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 25, 1905. (E. P.)

September 1, 1902, Frederick Roth, as assignee of William Stout, administrator of the estate of William Yarberry, deceased, applied to make soldiers' additional entry of the SE. 4 of the SW. of Sec. 8, and the N. of the NW. of Sec. 17, T. 25 N., R. 28 E., Clayton land district, New Mexico, basing his application upon the service of said Yarberry for a period of more than ninety days in the army of the United States during the war of the rebellion, and upon a homestead entry made by him July 11, 1870, for the SE. 4 of the NW. (40.38 acres) of Sec: 31, T. 31 N., R. 32 W., Harrison land district, Arkansas.

Your office, by decision of October 8, 1904, rejected Roth's application because it appeared from the records of your office that Mary F. Yarberry, the widow of the said William Yarberry, has assigned the additional right, in forty-acre lots, to B. N. Borman, John S. Maginnis, and Noah Hudson.

From this decision Roth has appealed, contending that there is nothing to show that Mary F. Yarberry was the sole heir of the deceased soldier; that according to appellant's information Yarberry left surviving him other heirs, to wit, a number of children; that under the laws of Arkansas, in which State the soldier was domiciled at the time of his death, the widow, if any, of a deceased person takes, and only after administration, but a one-third interest in the estate of such deceased person, the remaining two-thirds going to his children, if any; that Yarberry's soldiers' additional right passed under the laws of said State to his personal representative, by whom alone it was assignable; that the alleged attempted assignment of this right by Yarberry's widow was therefore absolutely void and should not be permitted to have any effect upon an assignment thereof by the administrator of Yarberry's estate, or to defeat an application to enter based thereon.

The rights of appellant in the premises must be determined not. as contended by him, in accordance with the laws of Arkansas, but in accordance with the laws of the United States, and in the disposition of this case the Department does not deem it necessary to consider the assignment of Mary F. Yarberry. It need be held only that before an assignment by the personal representative of a deceased

soldier of such soldiers' right under section 2306 of the Revised Statutes can be recognized by the Department, it must be shown that there is neither widow nor minor orphan child of the soldier capable of exercising such right under section 2307 of the Revised Statutes. Roth has failed to make any such showing, and for this reason the action of your office in rejecting his application is hereby affirmed.

EMPLOYE OF GENERAL LAND OFFICE-FOREST RANGER-SECTION 452, REVISED STATUTES.

ROBERT J. WATSON.

A forest ranger is an employe of the General Land Office within the meaning of section 452 of the Revised Statutes, and as such prohibited from "purchasing or becoming interested in the purchase of any of the public land,” regardless of whether actually employed or on furlough at the time of presenting his application.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) February 25, 1905.

(A. W. P.)

On November 5, 1902, Robert J. Watson filed his sworn timber land application No. 3911, for the NE. of the SW. and the SE. 1 of the NW. of Sec. 4, T. 27 S., R. 2 W., Roseburg, Oregon, land district, on which proof was submitted and cash certificate No. 11155 issued, May 26, 1903.

By decision of July 30, 1904, you held said entry for cancellation on the ground that the proof "disclosed the fact that entryman at the time of making application for the purchase of said land was a forest ranger of the General Land Office and therefore disqualified from making such entry by Sec. 452 of the Revised Statutes," and therefore directed that claimant be given notice that he would be allowed sixty days within which to show cause why said entry should not be canceled.

In response thereto the local officers, by letter of August 25, 1904, transmitted Watson's sworn statement, wherein he alleged, substantially, that at the time of initiating said entry he was on a furlough and working for his brother, and therefore was not an employe of the General Land Office; and that he had examined the land in question and had determined to enter the same long before he became such an employe, although he did nothing toward initiating entry until after receiving appointment from your office as a forest ranger. This statement you construed as a motion for review of your said former decision, and upon consideration thereof, by decision of September 23, 1904, denied the same.

The case is now before the Department upon the appeal of Watson, wherein he alleges, in substance, that you erred in holding that a

forest ranger is such an employe as to be included in the enumeration mentioned in section 452 of the Revised Statutes; and in holding that he could not make the filing and receive patent for the land when at the time of making application there for he was on furlough and not receiving salary as an employe of your office.

Section 452 of the Revised Statutes provides that:

The officers, clerks and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office.

The Department in construing this section in Herbert McMicken et al. (10 L. D., 97), held that it extends to officers, clerks, and employes in any of the branches of the public service under the control and supervision of the Commissioner of the General Land Office, in the discharge of his duties relating to the survey and sale of the public lands, and that an entry made by such an employe is illegal and must be canceled.

In affirming this decision on review (11 L. D., 96), the Departinent directed the formulation of a circular in accordance with the construction placed upon the law therein. Such circular, which was issued September 15, 1890 (11 L. D., 348), after setting out section 452 of the Revised Statutes, and referring to the decisions above cited, concluded as follows:

In accordance with said decision, all officers, clerks, and employes in the offices of the surveyors-general, the local land offices, and the General Land Office, or any persons, wherever located, employed under the supervision of the Commissioner of the General Land Office, are, during such employment, prohibited from entering, or becoming interested, directly or indirectly, in any of the public lands of the United States.

The appointment of Watson was made in conformity with an act of Congress passed July 1, 1898 (30 Stat., 597, 618), making appro priations for sundry civil expenses of the government for the fiscal year ending June 30, 1899, and for other purposes. Similar provision has been contained in all subsequent acts making appropriations for sundry civil expenses. Under this authority said Watson was commissioned by the Secretary of the Interior as a "Forest Ranger of the General Land Office," by way of reinstatement, July 8, 1901, to take effect July 1, 1901, or as soon thereafter as he should file the oath of office and enter on duty. It appears that he duly entered upon the discharge of his duties under said appointment: that on October 23, 1902, he was given notice of furlough, owing to weather conditions, until further notice; and that shortly thereafter, to wit, November 5, 1902, he filed the sworn timber land application in question.

Considering the plain purpose of the statute, the language of the