Subsequent to the report of Messrs. Cosby and Skipwith, Congress passed the act of May 8, 1822 (3 Stat., 707), entitled "An act supplementary to the several acts for adjusting the claims to land, and establishing land offices, in the districts east of the Island of New Orleans.

By the second section of said act, it is provided:

That all the claims reported as aforesaid, and contained in the several reports of the said registers and receivers, founded on orders of survey, requettes, permission to settle, or other written evidences of claims, derived from the Spanish authorities, which ought, in the opinion of the registers and receivers, to be confirmed, shall be confirmed in the same manner as if the title had been completed: Provided, That the confirmation of all the said claims provided for by this act, shall amount only to a relinquishment for ever, on the part of the United States, of any claim whatever to the tract of land so confirmed or granted.

There can be no doubt that Herault's claim was confirmed by said act, and the only question is, was it confirmed without limitation? Your office, following the interpretation of said section 2 adopted by your predecessor in the case of Antonio Grass, decided October 19 1880 (which decision was affirmed by the Department October 17, 1883. solely upon the technical ground that the claim was res judicata), held that "the case of Francis Herault is controlled by the subsisting deci sion in that of Antonio Grass;" that "it must be held that the first mentioned claim has been fully satisfied by location in place, for the quantity of 1,283.04 acres;" and therefore overruled the action of the surveyor-general and held his certificates of location for cancellation. The surveyor-general, in his report of December 14, 1896, transmitting the application of McManus and the certificates of location, as quoted in your office decision, states that:

It appears that under certificate No. 30 issued on June 23rd, 1823, an order of survey was issued in favor of this claim by the register and receiver on June 28th, 1823. The said order requiring that the said claim be surveyed in strict conformity with the survey made by R. Dupin, on June 8, 1806. This survey embraced an area of 2000 superficial arpents.

I transmit herewith a certified copy of a copy of the above stated order of survey duly certified by Amos Kent, register of the U. S. Land Office, on December 24, 1852; also a copy of the certified copy by the said register on the same day of the plat recorded in his office book C, No. 3, page 348, in support of the said claim of Francis Herault.

I also find the original certificate of confirmation No. 30 issued June 23, 1823 (copy herewith), in favor of this claim. This certificate was originally for two thousand arpents, but appears to have been corrected to twelve hundred and eighty acres. This correction, I suppose, was made after receipt of Commissioner's letter to the register and receiver dated August 13, 1823, in which the Commissioner seems to be of the opinion that the said claim of Francis Herault is not entitled to confirmation for more than 1280 acres (Laws, Instructions and Opinions, 2-717-720).

The records of this office further disclose that the said claim of Herault was surveyed and located in T. 6 S., R. 1 E., Greensburg district, La., and therein designated as section 50, containing 1283.04 acres. (See map approved June 29, 1853.)

I am of opinion that the said claim is valid in its entirety as represented by the plat of survey by Dupin, and entitled to be recognized according to its established

boundaries as per said survey containing 2000 superficial arpents, the equivalent of 1701.40 superficial acres, and that therefore the said claim stands confirmed by the aforementioned act of May 8, 1822, for the amount of 2000 arpents equal to 1701.40 acres, and having been as before stated surveyed and located for 1283.04 acres, there remains a deficiency of 418.36 acres yet unlocated and due said claim; etc.

It is true, that the register and receiver in their report of March 17, 1820, state that, "in their estimation," the claims contained in register E ought to be confirmed under the provisions and limitations of the law of March 3, 1819, but it can not be presumed that Congress adopted their opinion, in the face of the fact that by the act of May 8, 1822, said class is confirmed absolutely and unconditionally, without any limitation as to quantity, subject only to the proviso:

That the confirmation of all the said claims provided for by this act, shall amount only to a relinquishment for ever, on the part of the United States, of any claim whatever to the tract of land so confirmed or granted.

The second section of the act of 1819 contained a proviso:

That such grant as a donation shall not be made to any one person for more than 1280 acres; which confirmation of the said incomplete titles and grants of donation, hereby provided to be made, shall amount only to a relinquishment for ever, on the part of the United States, of any claim whatever to the tract of land so confirmed or granted.

While a proviso is found in the second section of the act of 1822 that the confirmation of the claims provided for by that act, shall amount only to a relinquishment by the United States, of any claim to the tract of land confirmed or granted, there is no limitation as to quantity, and there seems to be no ground for importing into the later act the proviso as to quantity contained in the earlier act.

While it is thus true that statutes relating to the same subject are to be construed together, this rule does not go to the extent of controlling the language of subsequent statutes by any supposed policy of previous statutes, where such language requires such policy to be disregarded. Where the last statute is complete in itself, and intended to prescribe the only rule to be observed, it will not be modified by the displaced legislation, as laws in pari materia. Sutherland on Statutes, Sec. 286.

The doctrine that statutes in pari materia are to be taken together is a rule of construction, resorted to in cases of doubt, and is never applicable when the statute is plain and unambiguous. State r. Cram, 16 Wis., 343, 347. The rule in pari materia does not go to the extent of controlling the language of subsequent statutes by the sup posed policy of previous ones. Goodrich v. Russell, 42 N. Y., 177, 184. The concluding part of the third section of the act of June 2, 1858, under which this application is made, provides:

That in all cases of confirmation by this act, or where any private land claim has been confirmed by Congress, and the same, in whole or in part, has not been located or satisfied, either for want of a specific location prior to such confirmation, or for any reason whatsoever, other than a discovery of fraud in such claim subsequent to such confirmation, it shall be the duty of the surveyor general of the district in which such claim was situated, upon satisfactory proof that such claim has been so confirmed, and that the same, in whole or in part, remains unsatisfied, to issue to the

claimant, or his legal representatives, a certificate of location for a quantity of land equal to that so confirmed and unsatisfied; which certificate may be located upon any of the public lands of the United States subject to sale at private entry, at a price not exceeding one dollar and twenty-five cents per acre: Prorided, That such location shall conform to legal divisions and subdivisions.

As it appears that there remains a deficiency of 418.36 acres yet unlocated and due on this claim, and as a duly certified copy of the record of the proceedings in the matter of the succession of Francis Herault filed in the case shows the necessary facts to confer jurisdiction under the Louisiana law, and that Archibald McManus was appointed by the 22d district court for the parish of Plaquemines, Louisiana, to manage this succession and complied with the law as to notice, bond, oath, inventory and appraisement of effects, the decision appealed from is reversed, and the case is remanded to your office for such further proceedings as may be necessary and proper in consonance with this decision.

PRACTICE-NOTICE-SERVICE BY PUBLICATION.
CLAFLIN . THOMPSON.

Where a proper affidavit as the basis for service of notice by publication is furnished, and the order there for duly made, but the service thereunder is defective, and new notice is required, a further showing as a basis for publication is not necessary.

Secretary Hitchcock to the Commissioner of the General Land Office, April (W. V. D.)

14, 1899.

(W. M.W.)

On the 18th day of October, 1893, John A. Thompson made homestead entry for the N. of the NW. of Sec. 8, T. 144 N., R. 63 W., Fargo, North Dakota, land district.

On September 20, 1897, Ellen Claflin filed an affidavit of contest against said entry, alleging that the entryman had failed to comply with the requirements of the homestead law in the matters of establishing residence upon the tract and the improvement and cultivation thereof. At the same time contestant filed an affidavit for publication of notice to the entryman, upon which notice was published.

The entryman made default. The contestant appeared and submitted evidence, upon which the local officers recommended the cancellation of the entry and sent notice of this decision by registered letter to Jamestown, North Dakota, the entryman's address as given in the record, and said letter was returned unclaimed.

The record and papers were transmitted to your office, and on the 29th day of April, 1898, the same was examined and it was found that:

A copy of contest notice should have been mailed to the entryman at his address of record, as there is nothing in the record to show that he had changed his address. See Popp v. Doty, 24 L. D., 350.

Because a copy of contest notice was not properly mailed to the entryman, said case is hereby remanded and the record returned. You are directed to notify the plaintiff that she will be allowed thirty days to apply for notice and proceed anew in strict compliance with the rules of practice, and if she fails to take action, her contest will be dismissed.

On June 2, 1898, new notice was applied for and it was issued and published in a newspaper and posted as required by the law and regu lations, but there was no new affidavit or other evidence presented showing that diligence had been used and that personal service could not be made upon the entryman; the only affidavit of diligence and search for the entryman furnished as a basis for service of notice by publication was filed on September 20, 1897.

The entryman did not appear, and the local officers again found in favor of the contestant and recommended the cancellation of Thompson's entry.

The record was transmitted to your office, and on October 31, 1898, your office held that said affidavit for publication, filed September 20, 1897, was not sufficient basis for publishing notice on June 2, 1898, and that:

In order to justify service by publication, the impossibility of personal service must be shown to have existed so recently before the order to serve by publication, as to warrant the presumption of the existence of such status when the publication is made.

A new affidavit as a basis for publication should have been filed.

The record was thereupon remanded with directions to allow the contestant thirty days to apply for notice and proceed anew in strict compliance with the rules of practice.

The contestant appeals, and with her appeal submits an affidavit, made on December 10, 1898, by Ernest Claflin, showing that he had made search and inquiry for the entryman for the purpose of making personal service of notice of the contest upon him, and further stating:

That said contestee was not in said State or a resident of said State at the time the contest herein was initiated or at any time since the initiation of said contest; that personal service cannot now be made within this State, and that there has been no time since the initiation of the said contest when personal service could be made in said case.

Appellant asks that this affidavit be accepted and the case considered on the merits and decided in her favor.

In the appeal error is alleged in the action of your office holding that a new affidavit of diligence as a basis for publication should have been filed before new notice was obtained from the local office.

In this case a proper basis, by affidavit, was laid, originally, for service of notice by publication, whereby the district officers acquired jurisdiction to proceed in the case. There was an irregularity in the service of this notice, in failing to send a copy of the same by registered mail to the entryman at his address of record. Because of this omission your office properly remanded the case with instructions to notify

plaintiff that she will be allowed thirty days within which "to apply for notice and proceed anew,” etc.

The failure to send copy of notice by registered letter, as prescribed, was an irregularity in the service thereof but did not destroy the jurisdiction which had been theretofore acquired by the land officers to issue notice by publication in the case. Being an irregularity, it could be cured by proper service, as directed, which was subsequently made. This seems to have been the view of your office when, on April 29, 1898, the case was remanded, with direction to give plaintiff thirty days in which to apply "for notice" and to proceed thenceforth anew. She did so apply and proceeded thereafter regularly in accordance with the rules; and it would be a hardship to again remand the case after she has complied with the instructions of your office.

But independently of your instructions, it was not necessary, under the circumstances, that a new affidavit showing basis for notice by publication, should have been required in this case, as such showing had already been made and accepted by the district officers.

In this respect the case under consideration differs from all the cited cases, in which no proper basis for service, by publication, had been originally laid, but was attempted to be done by affidavits subsequently filed. As said affidavit is a pre-requisite to an order directing service by publication, it has been properly held that the omission could not be subsequently cured. But in this case no such question is presented, as the jurisdictional foundation had been laid by the filing of the prerequisite affidavit.

It is to be observed that the entryman is not here, nor any one for him, complaining that the service in the case was not proper; and an affidavit filed by the contestant shows that the same conditions existed at the time of the second hearing as when the original application for contest was filed.

Entertaining these views the decision of your office is reversed, and the papers in the case are returned, with directions to proceed to adjudicate the case upon the record thereof.

RAILROAD GRANT-INDEMNITY SELECTION-RESERVATION.

SOUTHERN PACIFIC R. R. Co.

Until the approval of a railroad indemnity selection no rights are secured thereunder that can be asserted against the government; and the creation of a forest reservation under authority of the act of March 3, 1891, prior to the approval of a selection embraced within the limits of said reservation, is such a disposition of the land as to defeat the selection thereof, even though the tract was subject thereto when selected by the company.