deposit of oil shale was shown by testimony adduced in the protest proceeding to have been made by the protestant or his predecessors in interest within the limits of any of said claims prior to the approval of the leasing act of February 25, 1920, or the diligent prosecution of work leading to such a discovery. That decision was on motion for rehearing adhered to by departmental decision of May 23, 1925, which also denied an alternative motion for a new trial, the latter on the ground, in substance, that the allegations contained in the affidavits filed in support of the motion were insufficient, if substantiated at a further hearing, to establish the existence of a valid discovery upon any of the claims as of the date of said act, or to show diligent prosecution of work looking to discovery

That is to say, both the motion for rehearing upon the showing made and the affidavits supporting the contention that they could prove discovery, the motion for a new trial was likewise denied. (Reading :)

To support the petition now under consideration, wherein a new trial is sought, there is filed an affidavit by the petitioner in which he alleges:

That affiant now offers, and declares himself able to show at a further hearing, should one be ordered, that where there was, prior to February 25, 1920, exposed, naturally or as a result of development work, on each of the placer claims in conflict with said homestead entry, a valuable deposit of shale-oil bearing rock in place, of such thickness and carrying such shale-oil content as to be and constitute a valuable mineral deposit within the meaning and intent of the placer mining law.

That is what he was required to do in the first place, was it not? Mr. FINNEY. He should have made the showing in the first place. Senator WALSH of Montana. When he made his motion for a new trial, if he had any other evidence or could make a better showing, that would have been the place to present that, would it not?

Mr. FINNEY. It would have been, but the department was not satisfied they had done so, and another part of this same affidavit from which you are reading says:

That contrary to the statements and conclusions of said decision as described in the last preceding paragraph, it was the clear intention and purpose of affiant in the affidavits filed in support of said motion for rehearing, to "declare himself able to show at a further hearing" that he was able and willing to produce competent evidence to show beyond a question of doubt the exact facts which the conclusion above quoted indicates

Senator WALSH of Montana. What do you read from?
Mr. FINNEY. From the affidavit. [Continues reading:]

indicates that he had not offered to show, and affiant alleges that there is nothing in the affidavit filed in support of said motion for rehearing, to justify the conclusion that affiant was thereby offering only to show discoveries of mineral on the claims in question as the result of excavations subsequent to the hearing, or subsequent to February 25, 1920.

He alleged that he would be able to show new and additional evidence of discoveries prior to the act of 1920.

His attorneys concluded their petition by saying:

Counsel now simply urge the department give Freeman the chance to prove the facts.

Our sole object in reopening this case was to give a citizen of the United States, who said he had not been able to put his evidence, a chance to put it in. That was to be considered when it was read with the entire record.

Senator WALSH of Montana. Mr. Finney, that was his application for a new trial, was it not? He asked for a new trial.

Mr. FINNEY. Yes.

Senator WALSH of Montana. Because he was able to make better proof on a new trial than he had made in the first place?

Mr. FINNEY. Yes.

Senator WALSH of Montana. You denied his application for a new trial, did you not?

Mr. FINNEY. I denied his motion for rehearing, which was in the alternative. His motion for rehearing first said that my original decision was erroneous. He asked for its reversal. That was denied. In the alternative he said he would like to have a new trial. Senator WALSH of Montana. And that was denied?

Mr. FINNEY. That showing was found insufficient, and it was denied, and then he filed the petition which we have been discussing. Senator WALSH of Montana. What was there in the petition for supervisory control concerning what he could prove, which was different from the showing made in the motion for a new trial?

Mr. FINNEY. The affidavit and statement in the petition were more definite as to what he was prepared to prove.

Senator WALSH of Montana. What does he say in his affidavit he was prepared to prove?

Mr. FINNEY. To get the whole picture, we would have to read the petition filed by the attorneys, as well as the affidavit.

I will read the affidavit. [Reading:]

J. D. Freeman, being duly sworn on oath, deposes and states: That he is the party plaintiff named in the above-entitled proceeding, and makes this affidavit in support of his petition for the exercise of supervisory authority by the Secretary of the Interior.

That by decision of May 23, 1925, the Secretary denied and dismissed affiant's motion for rehearing and new trial; that said decision is apparently based primarily on the conclusion of fact that

"There is nothing in the evidence tending to show that at the date of the act a deposit of shale valuable on account of its oil content, was naturally exposed within the limits of any of the claims, nor that there had been performed upon any particular one of said claims any work that artificially exposed such a deposit."

That said decision is apparently further based on a misapprehension and misinterpretation, not only of the facts disclosed by the record of the hearing in this case, but also of the matters and things set forth and alleged in affidavits filed in support of said motion for rehearing, in that it it concluded and decided that said motion presents no ground for a new trial.

"In view of the protestant's failure to show at the hearing, or to now declare himself able to show at a further hearing should one be ordered, that there was at the date of the act physically exposed within the limits of any of said claims, a deposit of oil shale of such quality and thickness as to warrant the exposure being regarded as the discovery of a valuable mineral deposit," and the statement and discussion in the decision indicates a conclusion on the part of the Secretary that affiant has only offered to show and to prove the disclosure of valuable mineral on each of the claims in controversy as a result of excavations and development subsequent to the hearing in said case. Senator WALSH of Montana. He is simply telling what your decision was.

Mr. FINNEY. Yes.

Senator WALSH of Montana. Now we will hear what he can prove. Mr. FINNEY (reading):

That contrary to the statements and conclusions of said decision as described in the last preceding paragraph, it was the clear intention and purpose of affiant in the affidavit filed in support of said motion for rehearing, to "declare himself able to show at a further hearing" that he was able and willing to produce competent evidence to show beyond a question of doubt the

exact facts which the conclusion above quoted indicates he had not offered to show, and affiant alleges that there is nothing in the affidavit filed in support of said motion for rehearing, to justify the conclusion that affiant was thereby offering only to show discoveries of mineral on the claims in question as a result of excavations subsequent to the hearing, or subsequent to February 25, 1920.

That affiant now offers, and declares himself able to show at a further hearing, should one be ordered, that there was, prior to February 25, 1920, exposed, naturally or as a result of development work, on each of the placer claims in conflict with said homestead entry, a valuable deposit of shale oil bearing rock in place, of such thickness and carrying such shale oil content as to be and constitute a valuable mineral deposit within the meaning and intent of the placer mining law, and in conformity with the standards established by the scientific bureaus of the Government as to what shall constitute a valuable deposit of oilshale rock; or to be more specific, as stated in affiant's former affidavit, he offers to show by competent evidence at a hearing, that "on each of the placer claims in conflict with said homestead, deposits of oil shale more than 1 foot in thickness and carrying an oil content of more than 15 gallons per ton" were discovered and disclosed, prior to February 25, 1920; and affiant further offers to show and to prove by competent evidence, the existence of deposits of such value and character naturally exposed at points where no excavation or development work has never been done at all, and it was the purpose and intention of affiant to offer to make a showing such as here described, in the affidavits filed in support of his said motion for rehearing.

That affiant hereby by reference makes the affidavits heretofore filed in support of said motion for rehearing, to the extent applicable, a part of his showing in support of his said petition for the exercise of supervisory authority. That the facts and circumstances relative to the discovery of valuable deposits of oil shale on each of the placer claims of the Standard Shale Products Co., also in conflict with said homestead entry of George L. Summers, are identical in all respects with the facts herein alleged with respect to the claims of this affiant in conflict with said homestead, and affiant herewith makes the same statements and allegations above set out, and the same offer to make proof of discovery prior to February 25, 1920, on and with respect to each of the placer mining claims of the said Standard Shale Products Co. in conflict with said homestead, with the intention and purpose that this affidavit shall likewise be used in support of a similar petiton for supervisory authority in the companion case of the Standard Shale Products Co. v. George L. Summers (A-6957 (a)) pending before the Department of the Interior.

J. D. FREEMAN.

Senator WALSH of Montana. This recites what he claims he can prove concerning discovery.

Mr. FINNEY. Yes, this and his prior affidavits.

Senator WALSH of Montana. Did he make any showing why he did not make the proof when he had the opportunity to do so?

Mr. FINNEY. My recollection is he did make some such statement in connection with the motion for rehearing.

Senator WALSH of Montana. What reason did he offer for not making his proof of discovery in the first place.

Mr. FINNEY. My memory is not very clear, but I have a recollection.

Senator WALSH of Montana. Have you any document which will show that he was excusable for not having made this showing in the first place?

Mr. FINNEY. We have all the papers filed, of course, in the record. Senator WALSH of Montana. Would you call my attention to any document in the record which shows an excuse as to why he did not make a showing in the first place, which he claims now he can make if he is given an oportunity to make? Pardon me, Mr. Finney. When the hearing was had in the first place, of course it was

incumbent upon him to make his showing of a discovery on each of the claims.

Mr. FINNEY. Yes.

Senator WALSH of Montana. He claims in this petition for supervisory review after the whole case has gone through the regular course, that he now can make proof which he should have made in the first place, but so far as you have called our attention to it, he offers no reason why he did not.

Mr. FINNEY. His attorneys gave a reason, but even that is not material. It is the duty of the Secretary of the Interior to dispose of public lands according to their character and in accordance with the facts. If the parties to a contest do not bring out evidence, the Secretary can do that, so we do not stand on technicalities.

Senator WALSH of Montana. Would you regard this as a technicality?

Mr. FINNEY. On material evidence.

Senator WALSH of Montana. Unquestionably, material evidence, that would be a good reason, but no claim is made here that he tendered legitimate evidence and it was rejected. Of course that would be a good reason. A case goes clear through the regular course, and then an application for supervisory regulation is made, and he offers to prove the very things that he should have proven in the first place, and offers no reason why he did not prove them in the first place.

Mr. FINNEY. Somewhere in the record I am quite certain there is a statement that his local attorney failed to introduce certain testimony as to discovery.

In this petition signed by Consaul & Heltman, his resident counsel: We ask that it be borne in mind that the greater portion of the testimony adduced by Freeman was for the purpose of showing that the land claimed by Sumners under the homestead laws, possesses little or no value for agricultural purposes, whereas, the point to which testimony should have been directed, was the validity of the placer claim. The reason for this grave error of procedure has been stated, and while we appreciate that petitioner was required to make his showing of material facts at the original hearing, it is plain that he and his counsel were misled by the erroneous advice given them by the register of the local land office.

While in a sense, the giving of that mistaken advice constituted no reason for failure to adduce required testimony, we submit that it may be fairly accepted as an excuse for failure. The situation is analogous to the trial of a case in court, in which the judge directs that testimony be addressed to certain points, which he deems of controlling importance, whereas, an appellate court deems those points of no moment, and says that the testimony should have been addressed to different phases of the case.

Assuredly, under such circumstances, the appelate court would ordinarily remand the case for a new trial, to be conducted in accordance with the opinion on appeal.

That is all that petitioner now asks

Senator WALSH of Montana. Then really the showing is that his attorneys in the first place did not take care of the case in the right way.

Mr. FINNEY. Yes; and the statement here the register advised them to put in their testimony on the homestead and then on the point of discovery.

Senator WALSH of Montana. Who were the attorneys for Free-man at the original hearing?

Mr. FINNEY. I do not know.

46780-31-4

Senator WALSH of Montana. Will the records show?
Mr. FINNEY. Yes, sir.

Senator WALSH of Montana. Could you find that?

Mr. FINNEY. I have not the complete record here. The record would fill a trunk, but I can easily get that out for you.

Senator WALSH of Montana. The affidavit of the petitioner, which you read to us there, merely shows what he claims he can prove. Mr. FINNEY. Yes.

Senator WALSH of Montana. Was that supported by any affidavit telling what the actual facts are?

Mr. FINNEY. It was not accompanied at this time by other affidavits. There had been several affidavits filed in connection with the motion for a rehearing.

Senator WALSH of Montana. For a new trial. He makes the affidavit submitted on the motion for a new trial a part of this application?

Mr. FINNEY. Yes.

Senator WALSH of Montana. Did those affidavits undertake to tell when and where these discoveries were actually made?

Mr. FINNEY. I do not recall.

Senator WALSH of Montana. Mr. Finney, if you will pardon me, let me explain the idea I have in mind: One makes an application for a continuance, for instance, of a cause, we will say, a criminal case, the defendant applies for a continuance in a case, and he represents if the continuance is granted he will be able to make proof of certain facts, and in order to substantiate that he submits an affidavit from the witness or his witnesses, whom he expects to have, that they know the facts, and they are as follows. Affidavits to which you have called our attention, state if given an opportunity to prove the facts, if he submitted further evidence by those who know about the discoveries, they could make proof.

Mr. FINNEY. Not knowing just what questions I was to be asked, I did not have copies made of the entire record, which, as I tell you, is very voluminous. These things I have here are copies of decisions and motions which I thought might perhaps serve as a preliminary, but I have here, Senator, a communication from Consaul & Heltman, his attorneys, in which they recite or describe briefly affidavits they did file supporting the motion for a rehearing and new trial.

Senator WALSH of Montana. Could you gather those affidavits together for us?

Mr. FINNEY. Yes, sir; there were a number of them.

Senator WALSH of Montana. The affidavits submitted in support of the motion for a new trial, an affidavit submitted in support of the motion for supervisory control.

Mr. FINNEY. Yes, the affidavit by Freeman and a geologist and witnesses. There are a number of them.

Senator WALSH of Montana. We will pass that, then.

Mr. FINNEY. All right.

Senator WALSH of Montana. Was there any personal appeal of any character made in support of this exercise of supervisory control?

Mr. FINNEY. Yes, I think possibly Mr. Consaul or Mr. Heltman called at my office once or twice in connection with filing these affi