test has ever been filed against said entry. It is therefore confirmed under the proviso of the act cited.

Your judgment is accordingly modified, and you are directed to issue a patent on the entry in question.

TIMBER LAND ENTRY-SECTION 452 R. S.

GILMORE v. SIMPSON.

The condition of the land at the date of purchase determines whether it is of the character contemplated by the act of June 3, 1878.

One engaged as an agent or attorney of others in securing information from the records of the local office for the benefit of such individuals, is not by such employment disqualified under section 452 R. S., to enter public land.

First Assistant Secretary Sims to the Commissioner of the General Land Office, June 22, 1893.

On July 27, 1889, Nora Simpson made timber land cash entry (No. 3367) of the N. of the NW. and the SE. of the NW. of Sec. 26, T. 8 N., R. 9 W., at Oregon City, Oregon.

On March 8, 1890, Neil Gilmore filed an affidavit of contest against said entry, alleging in substance that said land was more valuable for agricultural than for timber purposes, and that on May 14, 1889, the time said Nora Simpson applied to purchase said land, she "was em ployed in" the local land office at Oregon City, by William T. Burney, the register of said office.

A hearing was appointed for May 14, 1890, at the local office, when the parties appeared and testimony was submitted.

On June 23, 1890, the local officers rendered their joint opinion that said land was chiefly valuable for its timber, and that said Simpson was qualified to make said entry, and was entitled to a patent for said land.

On appeal, by letter of February 6, 1892, you affirmed their decision and dismissed the contest.

A motion for review was filed by said Gilmore, and by letter of May 23, 1892, you re-affirmed your former decision as to the character of said land but you then found that said Simpson was "an employe of said office" at the date she entered said land, and was therefore disqualified to make said entry under the provisions of section 452 of the Revised Statutes; consequently you reversed your former decision of February 6, 1892, and held said entry for cancellation.

An appeal now brings the case to this Department.

Having examined the evidence I find that at the hearing the testimony on both sides was confined to the charge relating to the character of the land. It appears that the land is rough and uneven, cut up by gulches, with a second rate soil, and covered with a growth of timber consisting mainly of hemlock, spruce and fir trees.

The act of June 3, 1878 (20 Stat., 89), under which the entry was made, provides that lands "valuable chiefly for timber, but unfit for cultivation" may be sold as therein provided. In United States v. Budd (144 U. S., 154, 167), this statute was construed, and the court, in speaking of the scope of the act, say—

Lands are not excluded by the scope of the act because in the future, by large expenditures of money and labor, they may be rendered suitable for cultivation. It is enough that at the time of the purchase they are not, in their then condition, fit therefor. The statute does not refer to the probabilities of the future, but to the facts of the present.

Judged by this rule the land in dispute must be considered to have been "valuable chiefly for timber, but unfit for cultivation " at the date when said entry was made. I concur in your two opinions and in that of the local officers upon this question of fact.

No evidence that Nora Simpson was disqualified to purchase said land, as charged, was introduced upon the trial. Apparently the contestant abandoned that part of his charge, for he submitted no testimony that she was ever employed in the local office by William T. Burney, the register, or by any one else.

The charge is that on May 14, 1889, she was "employed" in the local office by said Burney, as register.

By your letter of January 18, 1890, before this contest was initiated, you called on the local officers for a report as to her said employment. The register and receiver each made a report, with the affidavit of the late register, said Burney, who was in office on May 14, 1889, and with the affidavit of the register who preceded him in that office.

The register, in his letter of February 1, 1890, says in response

As to "how long she has been employed in your office," the records of the office do not disclose the fact that she was employed, or at what time she commenced work in the office.

It appears from this report that there is no record evidence that she was an employé in the office, as charged, or upon the roll of government employés. The receiver, in his letter of March 8, 1890, saysNot at the date of the initiation of said claim nor at the final entry thereof, was she employed in this office, nor engaged in any business connected therewith, except in those cases where persons required information or services not within the power of the officials to furnish for any reason; then such persons secured her services and paid for them such sum as she and they should agree upon therefor. She was not paid as a clerk in the office nor under oath to perform any duties therein, nor was she required to account to the office in the matter of her business, but was at liberty to dispose of her time as her own will dictated.

William T. Burney, by his affidavit of March 7, 1890, swears that he was register of said office from January 1, 1886, to August 1, 1889, and that on or about March 1, 1888, Nora Simpson began to perform the services in the local office as already described, and continued to do so until November 5, 1889.

That she was not in the employ of the government, nor ever sworn to perform any duties or business connected with said office, nor was she accountable to the

office or to the register, or receiver, for her services, nor ever received any remuneration from the government, or either of the officers of said office, for the same, as such, or otherwise, that I remember of.

This affiant was the register charged with having employed Miss Simpson in the local office.

L. T. Barin, by his affidavit of March 6, 1890, swears that he preceded said Burney in the office of register of said local office, and afterwards continued to practice law before the officers thereof, and that said Simpson "was not supposed to be, nor was, an employé of said office, enjoying only such privileges and rights as every other person was entitled, and had in fact, the advantages of."

These reports and affidavits made before the initiation of the present contest, furnish all the evidence upon the subject, and appear to me to negative the charge that on May 14, 1889, Nora Simpson was "employed" by the register of the local office.

Webster's definition of the verb " employ" is "To use as an agent, servant, or representative." Miss Simpson is reported to have rendered services as a copyist, in making copies of maps, plats, and other records of the local office, for parties outside of said office, upon their application, and not for the register or receiver, or any one connected with the office.

Section 452, of the Revised Statutes, upon which your decision is based, canceling said entry, provides as follows

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

This provision prohibits a certain class of persons from the right to purchase land, which right is accorded to citizens generally. It may be properly classed, therefore, as a statute against common right.

Statutes against common right are those which operate exceptionally to the prejudice of particular persons; not laws of general application which happen to harshly affect a few individuals on account of their exceptional condition, but laws which do not have such an application; those which operate, when they apply at all, to a few, while the rest of the community are exempt. Such statutes are construed strictly. Sutherland ou Stat., §366.

Again this statute further inflicts the penalty of a summary removal from office of the offender against its provisions. In all respects it is penal in character. Penal statutes are those which "impose any special burden, or take away or impair any privilege or right." Idem $358. It is well settled that such statutes are to be strictly construed.

A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and the policy of the law. Although a case may be within the mischief intended to be remedied by a penal act, that fact affords no sufficient reason for construing it so as to extend it to the cases not within the correct and ordinary meaning of its language." Idem, $350.

Such a statute should not be construed "by equity, so as to extend it to cases not within the correct and ordinary meaning of the expres sions of the law." United States v. Sheldon (2 Wheat. 119, 121); see also Chase v. Curtis (113 U. S., 452).

This Department has construed the statute in question in accordance with the view that it is penal in its nature, and not to be extended by implication. In Grandy v. Bedell (2 L. D., 314), Secretary Teller, in construing this statute, says

It will be observed that the section quoted, and this is the only statutory provision bearing on the subject, does not extend to clerks in the district offices, but by its terms is confined to those employed in the General Land Office. Your office has, however, by rule, extended the operation of this statute so as to include clerks in the local office and this Department held in the case of the State of Nebraska v. Dorrington (Copp's L. L., 1882, p. 547), the defendant being at the time of making his timber culture entry a clerk in a local land office, that such fact was sufficient ground for the cancellation of the entry. But in the case now under consideration, the entry was allowed November 5, 1875, and since that time the claimant has apparently in good faith observed the requirements of the timber culture law so far as within his power. At the time of the contest the claimant was not an employé of the district office. Taking these facts into consideration, and the further one that he was not by express provision of law incompetent to make the entry, I am of the opinion that it should be permitted to stand.

Under this decision Miss Simpson "was not by express provision of law incompetent to make the entry " which she made July 27, 1889, and would not have been incompetent if she had been a clerk in the district office, so far as the express provision of the law affected her.

In the case of Richardson v. Linden (4 L. D., 77), Secretary Lamar held that the regulation of August 23, 1876 (2 C. L. L., 1448) prohibiting registers and receivers, their clerks and employés, "and those intimately and confidentially related" to them, from making entries of public land, could not "be made to defeat a statutory right."

This construction of the law was in force and effect when Miss Simpson made her entry on July 27, 1889.

On February 3, 1890, this Department, in the case of Herbert McMicken et al. (10 L. D., 97), extended the scope of the statutes so as to include an employé in the office of the surveyor general of Washington Territory as a branch of the General Land Office. In the case of Herbert Mc Micken, on review (11 L. D., 96, 98), it was considered as a fact of controlling importance that he received his compensation from the government appropriation. This decision was followed by the cir cular of September 15, 1890 (11 L. D., 348), which prohibited all officers, clerks, and employés in the local land offices, "or any persons, wherever located, employed under the supervision of the Commissioner of the General Land Office from entering any public land.

Miss Simpson was not paid by the government, and I do not think her case is governed by the decisions and circular last cited. Neither do I think that Miss Simpson was "employed under the supervision of the Commissioner of the General Land Office;" she had control of her

own time, and was employed only by persons outside of the local land office. She waived no statutory right by such employment, and no officer of the government had power to waive any right which she may have under the law, as held in Richardson v. Linden (supra).

The act of March 3, 1883 (22 Stat., 484), cited by you, providesSec. 2. That registers and receivers shall, upon application, furnish plats of diagrams of townships in their respective districts, showing what lands are vacant and what lands are taken, and shall be allowed to receive compensation there for from the party obtaining said plat or diagram at such rates as may be prescribed by the Commissioner of the General Land Office.

This statute was construed by this Department in the case of Adolph Munter, (3 L. D., 174) as not excluding the public or individuals from free access to the records of the local offices for obtaining information, or making copies of the same, when the conduct of the public business would fairly permit it. The public, or individuals, have a right to employ attorneys or agents to do this business for them, especially by the permission of the local officers. Miss Simpson was so employed, and she forfeited no rights thereby.

Your judgment is reversed.

PRIVATE CLAIM-CONFIRMATORY STATUTES.

JESSE FISH.

In the adjudication of private claims the Department must follow statutory enactments, even though it be conceded that such enactments are in violation of treaty obligations.

The statutory provisions with respect to the confirmation of private claims in Florida contemplate that all such claims, whether founded upon perfect grants or incomplete titles, should be presented to the board of commissioners for confirmation, or to Congress for final action, and that all such claims, not finally acted upon by Congress, should be brought into the courts for adjudication; and a claim not confirmed by the commissioners, or by Congressional action, is barred if not asserted in the courts within the period specified.

Secretary Smith to the Commissioner of the General Land Office, June 22,

1893.

On July 16, 1870, Mr. Charles M. Furman addressed a communication to the Commissioner of the General Land Office, claiming to be the owner of Anastatia Island, in Florida, under a title derived from a Spanish grant, made prior to 1763, to Jesse Fish, and that the said grantee and his heirs have had continuous possession of said property from the date of the grant to the present time.

On August 2, 1890, you rendered a decision upon the claim of the heirs of Jesse Fish to said property, holding that the claimants having failed to comply with the acts of Congress providing for the confirmation of such grants, it has never been confirmed and has no validity before the land department.

From this decision the heirs of Jesse Fish have filed an appeal.