Military Reservation, restored to the public domain under and in accordance with the act of July 5, 1884 (23 Stat., 103), as amended by the act of August 23, 1894 (28 Stat., 491), which provides, among other things, that the land should be appraised and disposed of to homesteaders, subject to such appraisement. After most careful consideration of said case it was held that such lands were not subject to the company's selection, mainly because the provision for appraisement amounts to an appropriation or dedication thereof to a particular use, and that they were therefore "reserved" from the company's selection within the meaning of the excepting clause in the act of July 1, 1898.

In view of this ruling, I have to advise you that that provision of the act of August 15, 1894, above quoted, which provides for the payment of $1.50 per acre for lands restored to the public domain from the former Siletz Indian Reservation, amounts to a reservation and appropriation of said lands for a particular disposition, and that they are not therefore subject to selection under the acts of July 1, 1898, and May 17, 1906.

The cases of Cole et al. v. State of Washington, and Northern Pacific Railway Company, supra, cited by your office, are not controlling of the question presented. In those cases the lands involved were restored to the public domain under acts which did not require the payment of any money therefor.

THOMAS EMANUELSON.

Motion for review of departmental decision of May 13, 1909, 37 L. D., 687, denied by First Assistant Secretary Pierce June 18, 1909.

SOLDIERS ADDITIONAL-MILITARY SERVICE-SIXTH DELAWARE IN

FANTRY.

JURGEN KUHR.

Members of the Sixth Regiment Delaware Infantry Volunteers, organized and mustered in under special contract for duty in that State, are entitled to credit for military service, as a basis for soldiers' additional rights, only from the date or dates on which they were called upon to perform active military duty, and not from the date of muster-in.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, June 23, 1909.

(J. H. T.)

Jurgen Kuhr, assignee of Jonathan S. Green, has appealed from your office decision of April 26, 1909, rejecting his application to

enter, under Sec. 2306, R. S., lots 1 and 2, Sec. 2, T. 30 N., R. 20 E., M. M., Glasgow, Montana. The tract applied for contains 79.60 acres. The application was based on homestead entry No. 1810, made by Jonathan S. Green at Nebraska City, Nebraska, April 13, 1868, for the NW. NE. and NE. 4 NW. 4, Sec. 10, T. 12 N., R. 10 E., containing 80 acres, and on military service alleged by Jonathan S. Green in the name of John S. Green, in Company G, 6th Regiment, Delaware Infantry Volunteers, claiming that he was mustered into said service November 22, 1862, and honorably discharged therefrom August 23, 1863.

It sufficiently appears from the affidavit of Jonathan S. Green, sworn to. June 29, 1906, the affidavit of M. E. Balloo, dated August 16, 1906, and that of Phil Green, dated September 15, 1906, that the Jonathan S. Green who made said entry is identical with the John S. Green who performed military service in the said 6th Delaware.

The sole ground for rejecting the application is your holding that Green's military service was for less than ninety days, hence did not authorize favorable consideration, under the terms of the statute.

The appeal takes definite exception to that holding, and insists that the said Green served for more than ninety days in the Army of the United States during the War of the Rebellion.

Your office bases its holding on a supplemental report of the War Department, dated April 16, 1909. Said report reads as follows:

The 6th Delaware Infantry was organized in the months of October, November and December, 1862, and mustered into service for special duty in the State of Delaware with the condition that the officers and men were to receive pay only for the time they were actually on duty. After its muster into service · the regiment was disbanded and the members thereof permitted to go to their homes to pursue their private vocations until the month of June, 1863, when they were called upon to perform military service.

The service of this regiment was therefore under a special contract which was in force for the period of nine months from the date of muster-in, the officers and men being bound for that period to perform service for the Government, provided that they were called upon to do so, but not until so called, and it has always been held by this Department that they were in the military service of the United States only from the date or dates on which they were called upon to perform active military duty.

Although the records show that John S. Green of Company G, of that regiment, was mustered into service November 22, 1862, it is also shown by the records that he was actually on duty in the military service of the United States from June 27, 1863, only to August 23, 1863, when mustered out.

In the case of Sarah A. Kersey, widow of William Kersey, late of Company G, 6th Delaware Volunteer Infantry, the Department (6 P. D., 1) affirmed the action of the Commissioner of Pensions rejecting the claim for pension under the act of June 27, 1890. Kersey, the deceased husband of the applicant, served in the same company and regiment with John S. Green, whose right to soldier's

additional entry is here in question, both having been mustered in on the same date, having been called into active service on the same date, and having been mustered out on the same date. The claim was rejected on the ground that service for at least ninety days is essential to pensionable status under the act of June 27, 1890, and that the soldier in question served less than the required period.

In said decision recital was made at length from the official orders of the War Department, and it was stated:

From the foregoing official papers, it is clear (1) that the actual service rendered by the 6th Regiment, to which the soldier (Kersey) belonged, extended from June 27, 1863, to August 22, 1863, a period of less than sixty days; and (2) that the members of said regiment were paid by the Government for only said period of actual service. These two facts of record can be neither ignored nor modified by this Department, and they furnish a conclusive index in determining the question whether or not the late soldier (Kersey) served ninety days or more in the Army or Navy of the United States during the late War of the Rebellion. . . . The fact appears that the 6th Regiment of Deleware Volunteers, to which the late soldier (Kersey) belonged, was simply a military regiment mustered into the service of the United States and then practically disbanded, but made subject to a call into the service as occasion or emergency might require. They were not enlisted in the Army for regular service but for special service.

Secs. 2304 and 2306, R. S., upon which the alleged claim herein is based, reads substantially, so far as here material, as the act of June 27, 1890, upon which the decision above quoted was rendered, except that the act of 1890 requires ninety days service in the military or naval service of the United States, while Sec. 2304 requires service for said period in the Army, Navy, or Marine Corps of the United States.

The cases of Edgar A. Coffin (32 L. D., 44), Julian D. Whitehurst (32 L. D., 356), George C. Hazelet (32 L. D., 500), and like cases, wherein it is stated that the date of the muster-in determines the beginning of the service of a soldier, were intended only to apply to the ordinary and usual muster-in and not to a special muster-in or contract as shown in the case here under consideration. In said decisions it was intended to establish the rule that the service, required as a basis for a soldiers' additional right, must have been in the Army, Navy, or Marine Corps of the United States, and that service rendered before actual muster-in to such organization was not service defined by the law, and therefore the period between the date of the enlistment and the date of the actual muster-in could not be credited. Said decisions are not considered in conflict with the holding now made that the soldier herein did not serve the required ninety days as required by Sec. 2304, R. S.

3098-VOL 38-09- 4

In the case of George W. Hill (7 P. D., 235), it was stated:

The question as to commencement of service is peculiarly within the province of the War Department to determine from its records, and when determined, after full consideration of the law and the facts in any claim based upon service during or since the War of the Rebellion, this Department will accept such determination as final.

It is, therefore, held that Green did not perform military service for the required ninety days, and, therefore, your action rejecting the application is affirmed.

OKLAHOMA PASTURE LANDS-PAYMENTS-EXTENSION OF TIME.

INSTRUCTIONS.

REGISTER AND Receiver,

DEPARTMENT OF THE INTERIOR,

Lawton, Oklahoma.

GENERAL LAND OFFICE, Washington, D. C., June 24, 1909.

GENTLEMEN: I am in receipt of your letter of May 20, 1909, requesting instructions in the matter of collections on deferred payments on pasture lands sold under the acts of June 5, 1906 (34 Stat., 213), and June 28, 1906 (34 Stat., 550).

The acts under which these lands were sold, referred to above, contained substantially the same proviso, to wit:

In case any purchaser fails to make such annual payments when due, all rights in and to the land covered by his or her purchase shall at once cease, and any payments theretofore made shall be forfeited and his or her entry shall be canceled.

Thus an absolute forfeiture was provided as penalty for failure to pay any annual payment when due.

By the acts of March 11, 1908 (35 Stat., 41), and February 18, 1909 (35 Stat., 636), extensions of time for one year from the date the annual payments affected thereby became due were provided for. As a condition precedent to obtaining the benefits of such extensions, a payment of four per centum, under the act of June 5, 1906, and five per centum, under the act of June 28, 1906, upon the amount of the deferred instalment, was required.

In a large number of cases, entrymen, with the intention of submitting commutation proof, have failed to make the payment due at the end of the first year, or to pay the per centum which would entitle them to the benefits of the relief acts of March 11, 1908, and February 18, 1909.

Under the terms of the original act, June 5, 1906, these entries were subject to forfeiture, but in view of the statutory extensions of time,

such persons will be deemed to have intended to avail themselves of the relief afforded, and will be required to pay the per centum fixed by law.

You will observe that this payment is not interest, but is in the nature of a premium for the additional privilege; and being, as before stated, a condition precedent, upon payment thereof the entryman may avail himself of the year's time granted by the law. Whether he takes advantage of the entire year, or makes proof in a less time, is optional with the entryman, but the payment for such privilege is the same in any event.

Where the lands were sold under the act of June 5, 1906, in all cases in which a payment is deferred, and regardless of the time such payment is deferred under one year, you will collect four per centum of the amount of such delayed instalments.

Where the lands were sold under the act of June 28, 1906, you will collect five per centum of the amount of the deferred instalment, as above, and this payment will be in lieu of interest for the year for which the payment is extended.

In all such cases wherein you have been directed to require interest payment for a given time, you will instead collect four per centum of the amount of the instalment not paid when due.

These instructions will supersede any former instructions which may be in conflict herewith.

Very respectfully,

Approved June 24, 1909:

FRANK PIERCE, Acting Secretary.

S. V. PROUDFIT, Assistant Commissioner.

PRACTICE-WITHDRAWAL OF CONTEST PENDING APPEAL-DISMISSAL OF APPEAL -READJUDICATION.

OWNBEY. CULVER.

Where a contest is withdrawn while an appeal to the Department by the entryman is pending, and the entryman thereupon and for that reason withdraws his appeal, the matter should thereupon be reconsidered as between the entryman and the government in the light of conditions then existing.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, June 26, 1909.

(J. F. T.)

May 13, 1902, Frederick W. Culver made homestead entry number 20878 for the S. NW. and N. SW. 1. Sec. 14, T. 4 N., R. 70 W.,

6th P. M., Denver, Colorado, land district.