water user and that such homesteader is not obligated by the act, as is the private land owner, to reside on the land, or to be an occupant thereof residing in the neighborhood of the land, to be entitled to apply for and be awarded a water right.

This is so because the act does not impose such a requirement on the homesteader, he not being a private land owner charged with the requirements as to residence on or occupation of the land, at the date on which he makes application for a water right.

If he is a qualified applicant on that date, under the law, and if his application is allowed on such basis, his status becomes fixed as a legal water user and is not changed because of his fulfilment of the specific requirements of the law imposed on a homesteader.

To place such homesteader in the only other class of water users mentioned in the act, viz., that of the private land owner, and to charge him with the requirements exacted of an applicant in that class, would be to prescribe another and further condition, which would in effect be an enlargement of the act, which it is not competent for the Department to undertake.

Because of the foregoing it appears that the provisions of the first paragraph of the circular of September 17, 1909, fully conform to the requirements of the act and that their adoption is in line with its proper execution.

The referred letter is returned herewith.

Very respectfully,

Approved, December 15, 1909:

R. A. BALLINGER,

FRED DENNETT, Commissioner.

Secretary.

REIBER V. STAUFFACHER.

Motion for review of departmental decision of September 15, 1909, 38 L. D.. 201, denied by First Assistant Secretary Pierce December 14. 1909.

UNITED STATES MINERAL SURVEYOR REVOCATION OF APPOINTMENT SECTION 452, REVISED STATUTES.

PHILIP CONTZEN.

The making of a homestead entry by a United States mineral surveyor is a violation of the provisions of section 452 of the Revised Statutes and he thereby subjects himself to the penalty provided by that section. Irrespective of the provisions of said section, however, the Commissioner of the General Land Office has authority to revoke the appointment of a mineral surveyor whenever he deems such action necessary or advisable.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, December 14, 1909. (J. H. T.) February 1, 1909, you directed the United States Surveyor-General of Arizona to notify Philip Contzen, a mineral surveyor, that he be allowed sixty days from service of notice within which to show cause why his appointment should not be revoked because he had on November 18, 1907, while holding office as United States mineral surveyor, made homestead entry No. 1117, Phoenix, Arizona, series, for the W. 4 NW. 4, SE. 4 NW. 4, NW. 4 SW. 1, Sec. 26, T. 12 S., R. 12 E., contrary to the provisions of section 452 U. S. R. S.

In response thereto Contzen by letter of February 9, 1909, admitted that he had made said entry but claimed that he did so in ignorance of the said statute, and stated that immediately upon learning that he could not legally make the entry while holding such office he relinquished the land in the entry and requested that his commission be not revoked.

April 5, 1909, you took further action in the matter and held that Contzen's ignorance of the law could not be accepted as an excuse for the violation of same, and further stated "there is sufficient evidence before this office of unlawful transactions by him to cast doubt at least upon his ignorance thereof in this particular." You held, therefore, that the showing was insufficient, and you directed the Surveyor-General to revoke his appointment at once, allowing the usual right of appeal.

A motion having been filed upon behalf of Contzen for modification of your decision, which had been made final, you, on October 25, 1909, reconsidered your said decision of April 5, 1909, and modified the language used therein, thereby eliminating the portion which stated that he relinquished his entry only after learning that his official conduct was being investigated, and also that portion which stated that there is sufficient evidence before your office of unlawful transactions by him to cast doubt at least upon his ignorance of the law. You stated as a reason for such action that said statements were not necessary to the conclusion reached as it was admitted by Contzen that he made the entry, and therefore the provisions of said section of the statute mentioned (452) made his removal from office mandatory, and you therefore adhered to the former action taken but allowed a further right of appeal. An appeal from your said last decision has been filed.

Section 452, United States Revised Statutes, provides as follows:

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

In the case of Herbert McMicken et al. (10 L. D., 97) it was held that:

The disqualification to enter public lands contained in section 452, R. S., extends to officers, clerks, and employes in any of the branches of the public service under the control and supervision of the Commissioner of the General Land Office in the discharge of his duties relating to the survey and sale of the public lands. A timber land entry made by an employe in the office of the surveyor-general of the district in which the land is situated is illegal and must be canceled.

It has also been specifically held by the Department that a United States mineral surveyor is within the prohibitive provisions of the said section of the revised statutes. (See Floyd et al. . Montgomery et al., 26 L. D., 122; Frank A. Maxwell, 29 L. D., 76.) The Supreme Court of Utah held to the same effect in the case of Lavagnino . Uhlig et al. (26 Utah, 1), which decision was affirmed by the Supreme Court of the United States (198 U. S., 443), the latter court, however, saying with reference to said section that it was unnecessary in reaching a conclusion in the case to consider the effect of same.

A case still more directly in point is that of Seymour K. Bradford (36 L. D., 61), wherein it was held that a United States mineral surveyor making a mineral location violates section 452 U. S. R. S., and thereby forfeits his official position.

The Department adheres to the opinion expressed in its decisions above cited and therefore finds the action taken to be correct. It may be further stated, however, that so far as this case is concerned it could well be disposed of irrespective of the forfeiture provision of said section.

The statutory authority for the appointment of mineral surveyors is found in section 2334, United States Revised Statutes, which provides:

The surveyor-general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims.

The mining regulations (37 L. D., 779) provide:

116. Persons desiring such appointment should therefore file their applications with the surveyor-general for the district wherein appointment is asked, who will furnish all information necessary.

117. All appointments of mineral surveyors must be submitted to the Commissioner of the General Land Office for approval.

118. The surveyors-general have autnority to suspend or revoke the commissions of mineral surveyors for cause. Before final action, however, the matter should be submitted to the Commissioner of the General Land Office for approval.

119. Such surveyors will be allowed the right of appeal from the action of the surveyor-general in the usual manner. Such appeal should be filed with the surveyor-general, who will at once transmit the same, with a full report, to the General Land Office.

The power to remove the incumbent of an office is incident to the power of appointment in the absence of some provision of law fixing the duration of the office and the mode of removal. Such office being held at the pleasure of the appointing power, the incumbent may be removed at any time, and charges, notice and hearing are unnecessary. Taylor . Kercheval (82 Fed. Rep., 497); Ex parte Hennen (13 Peters, 230); Am. and Eng. En. of Law, 2nd Ed., Vol. 23, 435, 439; Mechem on Public Officers, 284, 287; Throop on Public Officers, 309, 356.

There is ample authority, therefore, for the removal of a United States mineral surveyor from office irrespective of section 452 R. S., and his commission may be revoked whenever his superior officers deem such action necessary. The appointment of Contzen has been revoked by the surveyor-general in accordance with your direction. The record relative to said revocation and concerning his conduct in office has been carefully examined and it is found that the action taken is fully justified.

The same is therefore affirmed.

RECLAMATION FIRST-FORM WITHDRAWAL-HOMESTEAD APPLICA

TION.

ERNEST WOODCOCK.

An application to make homestead entry for land embraced within a first-form withdrawal under the reclamation act should not be allowed, nor received and suspended to await the possible restoration of the lands to entry, but should be rejected.

First Assistant Secretary Pierce to the Commissioner of the General (F. W. C.) Land Office, December 14, 1909.

(E. C. F.) Ernest Woodcock has appealed from your decision of July 15, 1909, in which, affirming the action of the register and receiver at North Yakima, Washington, you rejected Woodcock's application 02586 to make homestead entry for the NW. NW. 4, Sec. 28, T. 13 N., R. 17 E., for the reason that the land is included within a firstform withdrawal under the act of June 17, 1902 (32 Stat., 388), the withdrawal having been made by order of the Secretary of the Interior, dated October 9, 1905. It is urged in the brief and argument of appellant accompanying his appeal, that error was committed in holding that the land was withdrawn from all forms of entry under the reclamation act, for the alleged reason that no irrigation. works are to be constructed thereon and the withdrawal for any other purpose is not warranted by the law. It is further contended that the application should have been received and held suspended until

a contestant, who secured the cancellation of a homestead entry formerly embracing this land, had an opportunity to exercise his preference right upon one of the farm units, which it is assumed will be created from the land withdrawn, and thereafter upon the restoration of the lands to entry appellant's application to enter should be allowed.

The act of June 17, 1902, authorizes the Sécretary of the Interior to withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act." Such withdrawals are legislative in their effect and preclude the allowance of any application or filing therefor under the public land laws. The motives or purposes of the officer making the withdrawal can not be attacked by appellant, for, as held in the case of Riverside Oil Company v. Hitchcock (190 U. S., 316), “neither an injunction or mandamus will lie against an officer of the Land Department to control him in discharging an official duty which requires the exercise of his judgment and discretion." In the case of Wolsey . Chapman (101 U. S., 755), the court held that a withdrawal by the proper executive of the Government was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, "notwithstanding it was afterwards found that the law by reason of which this action was taken did not contemplate such a withdrawal."

Whether this particular tract of land is or will be required or used in the construction of irrigation works is a question to be determined by the Secretary of the Interior and until he has reached a determination of that question, the act of June 17, 1902, authorizes him to withhold the land from appropriation and disposition. It is a general rule well supported by both the law and good administration that no rights are obtained by an attempt to settle or file upon lands at the time embraced in a reservation or withdrawal made by or under proper authority.

Your decision in rejecting the homestead application to enter is accordingly hereby affirmed.

SCHOOL LANDS-INDEMNITY-SWAMP GRANT-SCHOOL SECTIONS IN

EVERGLADES.

STATE OF FLORIDA.

The swamp-land grant of September 28, 1850, did not supersede the school-land grant made to the State of Florida by the act of March 3, 1845, and the State is not entitled to indemnity for school sections within the Everglades, on the ground that they were lost to the school grant by reason of the swamp grant, such sections passing to the State under the school grant.