February 28, 1908, George B. Pratt made homestead application for the SW. SW. 1, Sec. 34, T. 34 N., R. 26 E., being a part of the land theretofore applied for by Weatherstone. The application of Pratt was rejected by the local office February 29, 1908, because the records of that office showed that the land was still withdrawn under the first form. Upon appeal to your office, the action of the local office was reversed in your letter "K" of April 16, 1908, in view of the fact that, as stated in your letter, the land had been restored to entry under the second form. You further stated therein that the change in the form of withdrawal became effective on February 17, . 1908. However, by your letter "K" of May 14, 1908, you rescinded your action of April 16, 1908, and rejected the application of Pratt because of the conflicting application of Weatherstone. Upon appeal to the Department your decision of May 14, 1908, was affirmed by departmental decision of April 26, 1909. A motion for review of said decision has been filed.

In the motion for review it is stated that Pratt's application was the first legal application after the land became subject to entry, and that the restoration became effective as of date February 17, 1908, although the order had not at that time reached the local office, and according to the local office records at the time Pratt filed his application the land was still withdrawn under the first form.

It is stated in the record that Weatherstone on March 5, 1908, filed a second application for the same lands embraced in his first application, which application was suspended by the local officers to await instructions, inasmuch as his first application was still pending on appeal. The records also show that the said departmental order of February 17, 1908, changing the withdrawal from the first to the second form, was promulgated by your letter "K" of February 26, 1908, directed to the local office. It is not shown when that order was received at the local land office, but by letter of March 13, 1908, the local officers acknowledged the receipt of same and reported that they had noted the change on their records. There appears to be no doubt that the said order restoring the land to entry under the second form must have been received at the local land office prior to March 5, 1908, at the time Weatherstone filed his second application. It also appears that said order could not have reached the local office prior to the time when Pratt filed his application-February 28, 1908. It therefore appears that Weatherstone must have been the first person to apply for the land in conflict after the said order of restoration had been received at the local land office. The material question to be considered is whether the restoration should be held as taking effect at the date it was made, to-wit, February 17, 1908, or at the time it was received at the local land office.

After very careful consideration of this matter the Department is of the opinion that such restorations should be given effect so as to make the lands subject to entry only from the time the same are received at the local land office. Any other rule would be impracticable for administrative purposes. This view is in harmony with other similar rules now in force. Circular of July 14, 1899 (29 L. D., 29), directs that

no application will be received or any rights recognized as initiated by the tender of an application for a tract embraced in an entry of record until said entry has been cancelled upon the records of the local office. Cancellation of entry should be promptly noted upon your records upon receipt of instructions from this office to that effect.

Also, the circular of July 13, 1908 (37 L. D., 27), directs that where the Secretary of the Interior by approval of farm-unit plats has determined that the lands designated thereon are irrigable, “the filing of such plats in the office of the Commisioner of the General Land Office and in the local offices shall be regarded as equivalent to an order withdrawing such lands under the second form under said act, and as an order changing to the second form any withdrawal of the first form then effective as to any such tracts."

It is apparent that where lands have been withdrawn from all disposition they cannot be entered at the local land office until the local land officers have received instructions revoking or modifying such withdrawal.

Counsel for Pratt insist that Weatherstone cannot be awarded the land, as the farm unit plats allow the entry of only forty acres. In answer to that contention, it is sufficient to say that according to the farm unit plats on file in your office it appears that farm unit “A " embraces 120 acres, the identical area and subdivisions embraced in the application of Weatherstone.

It appears that Weatherstone's application was allowed, and his entry made of record May 16, 1908, under authority of your said letter "C" of March 17, 1908. As he appears to have been the first legal applicant after the land became subject to entry, his entry will be allowed to stand and the application of Pratt rejected. The motion for review is denied.

RESIDENCE-MILITARY SERVICE-SECTIONS 2304 AND 2305, R. S.

HERMAN LOGAN.

One who is qualified to make a homestead entry under section 2304 of the Revised Statutes, by reason of having served ninety days in the army, navy, or marine corps, is entitled to credit under section 2305, in lieu of residence, to the full period of his service, provided he has resided upon, cultivated and improved his homestead for at least one year.

Carl McGregor, 37 L. D., 693. overruled.

First Assistant Secretary Pierce to the Commissioner of the General (W. C. P.) Land Office, August 17, 1909. (E. F. B.) Herman Logan appeals from the decision of your office of January 15, 1909, rejecting the final proof submitted upon his homestead entry of the NW.SW. 4, Sec. 33, N. † SE. 1, and SW. ‡ NE. 1, Sec. 32, T. 13 N., R. 20 E., Lewistown, Montana, for the reason that it was prematurely offered. Said ruling was adhered to by your decision of April 6, 1909.

The entry was made April 26, 1906, and final proof was submitted May 8, 1908, two years and thirteen days after the date of entry. Claimant, however, supplemented his proof by his record of service in the army of the United States from the date of his enlistment, February 23, 1903, to the date of his discharge, February 22, 1906.

The proof was rejected as premature under the decision of your office holding that the entryman was only entitled to credit for military service of four months and twenty-three days, commencing from the term of his enlistment to July 15, 1903, the close of the Philippine insurrection.

Error as alleged in not giving claimant credit for the full term of his military service, as authorized by section 2305, Revised Statutes, and in confining him to the time he performed active service during the suppression of the insurrection in the Philippines.

This entry was made under authority of section 2304, Revised Statutes, which provides that "every private soldier and officer who has served in the army of the United States . during the suppression of the insurrection in the Philippines for ninety days, and who was or shall be honorably discharged," shall be entitled to enter a quantity of public lands not exceeding one hundred and sixty acres, or one quarter section.

The sole purpose of that section was to fix a qualification for persons making entry under its provisions. The military service must have been performed for a period of at least ninety days "during the recent rebellion" or "during the Spanish War" or "during the suppression of the insurrection in the Philippines." That is an essential requisite to qualification to make entry under said section, but it was not intended to fix the period for which the entryman shall be entitled to credit for military service in lieu of residence. That is provided for by the next section (2305), which declares that:

The time which the homestead settler has served in the Army, Navy, or Marine Corps shall be deducted from the time heretofore required to perfect title, or if discharged on account of wounds received or disability incurred in the line of duty, then the term of enlistment shall be deducted from the time heretofore required to perfect title, without reference to the length of time he may have served; but no patent shall issue to any homestead settler who has not resided upon, improved, and cultivated his homestead for a period of at least one year after he shall have commenced his improvements.

The manifest purpose of that provision was to give to every one qualified to make entry under said section 2304, credit for his entire service in the army from the date of his enlistment to the date of his discharge, irrespective of whether his active service "during the recent rebellion" or "during the suppression of the insurrection in the Philippines" covered the entire period of his enlistment or only ninety days. That is made apparent by the provision giving to persons discharged on account of wounds received or disability incurred in line of duty credit for the full term of their enlistment, thus indicating a purpose to fix the term of enlistment as the measure of credit in all cases where the active service performed was sufficient to qualify the person to make entry under the preceding section.

It was not merely by virtue of his enlistment in the army of the United States that Logan was qualified to make entry under said section, but by virtue of his service in the army for a period at least of ninety days during the suppression of the insurrection in the Philippines. His qualification being fixed by reason of such service, and having made entry by virtue thereof, he was entitled to all the provisions of section 2305, Revised Statutes.

In the case of James M. Esterling (36 L. D., 294) the entry was not made under authority of section 2304, Revised Statutes, but under the general provisions of the homestead law contained in section 2289, which does not require active service in the army as a requisite to qualification. After the entry had been made, the entryman enlisted in the army of the United States, January 13, 1903, and was sent to the Philippines in June, 1903, but on account of illness did not join his regiment until December, 1903. He was discharged January 12, 1906, at the end of his term of enlistment.

Your office held that Easterling was only entitled to credit for military service from the date of his enlistment until July 15, 1903, the date when the Philippine insurrection ceased; but the Department overruled your decision, holding that an entryman having enlisted for a fixed term during the war was entitled to credit for constructive residence during his absence occasioned thereby although the war may terminate prior to the term of his enlistment.

That entry was protected by the act of June 16, 1898 (30 Stat., 473), which was passed expressly for the benefit of such settlers. It provides:

That in every case in which a settler on the public land of the United States under the homestead laws enlists or is actually engaged in the Army, Navy, or Marine Corps of the United States as private soldier, officer, seaman, or marine, during the existing War with Spain, or during any other war in which the United States may be engaged, his services therein shall, in the administration of the homestead laws, be construed to be equivalent to all intents and purposes to residence and cultivation for the same length of time upon the tract entered or settled upon.

It was designed to encourage enlistments by allowing absence from the homestead for the full term of the enlistment, without forfeiture of entry initiated before enlistment.

As the right given by section 2304 is only to soldiers whose term of enlistment embraced a period of ninety days during the wars named in said section, it follows that credit can only be given for the term of enlistment during which such service was performed and not for any other enlistment. Hence the reenlistment of the soldier who served for ninety days in such wars cannot be tacked to his former enlistment so as to extend the credit beyond the term of his first enlistment, nor can his credit for service under such enlistment be diminished by reason of close of war or insurrection during such period of actual service.

In McGregor's case (37 L. D., 693) entry was under section 2304 of the Revised Statutes. He enlisted during the insurrection April, 1903 (not November 20, as there stated), and was discharged April 11, 1906. He was held entitled to credit for only that part of his service rendered during the insurrection. Credit for his full term of service was denied because he did not serve actively in the Philippine Islands, it being stated that "while claimant enlisted during the suppression of the Philippine insurrection, it is not shown that he was ever in or near the Philippine Islands, or that he directly aided in the suppression." As he actively served during the insurrection, he was qualified under section 2304 and, on the view here taken, was entitled to full credit for his term of service. The different purposes of the two sections were overlooked, one fixing qualification, the other credit upon residence for the time held in service. The rule stated in that case will not be followed.

As Logan actively served during the insurrection for a time qualifying him under section 2304, he is by section 2305 entitled to credit for his full term of service.

Your decision is reversed.

REPAYMENT-MORTGAGEE-LEGAL REPRESENTATIVE-ACT OF MARCH

26, 1908.

ALEXANDER FRASER.

A mortgagee under a mortgage which is merely a lien on the land is not a "legal representative" within the meaning of the act of March 26, 1908, authorizing repayment of purchase money and commissions to the persons who originally made the payment or their “legal representatives." First Assistant Secretary Pierce to the Commissioner of the General (W. C. P.) Land Office, August 17, 1909.

(O. W. L.)

Alexander Fraser, by his attorney, W. H. Smallwood, has appealed from your decision of June 11, 1909, denying his application for re