and ten acres of land broken, total cost $50, and by the contestants, "without the assistance of William Skaggs," one box house, thirty-five acres broken, fencing and garden, total cost $118.50;

(2) That the testimony upon which the forfeiture of the right of the said William Skaggs to said land was obtained was "fraudulent, false, and untrue."

(3) That said Murray was allowed to make his homestead entry before the contest proceeding of the said Murray and Skaggs was formally disposed of, and without notice to the contestants, or any other person, and that the contest and intervention of said Murray were illegal.

This affidavit of contest was rejected by the local officers, (1) because William Skaggs is not civilly dead, (2) because Mrs. Skaggs had not secured a divorce, but, on the contrary, is now living with said William as his wife, and (3) because minor heirs can make no valid settlement. Upon appeal your office held that:

If Mrs. Skaggs ever had any right to this land she has delayed too long in asserting it. She does not aver any ignorance of her husband's protracted efforts to assert his claim thereto. She will not be allowed to stand by and await the result of the protracted efforts of her husband to assert his claim thereto, until said efforts have proven fruitless, and, then, several years later, commence to assert her own claim. She has waited out the statutory life of the entry before making any claim whatever in her own right to the premises. She now comes too late,

and sustained the action of the local officers.

The records of your office show that on April 30, 1889, Robert M. McKenzie made homestead entry of said land. On May 30, 1889, William Skaggs filed a contest affidavit against said entry, alleging prior settlement. On August 20, 1889, William Murray filed affidavit of contest charging that both McKenzie and Skaggs were disqualified as "sooners."

A hearing was had, at which Skaggs, being in the penitentiary at Columbus, Ohio, appeared by attorney. Testimony was submitted, and the local officers decided in favor of Murray. Upon appeal your office, by letter of March 12, 1894, affirmed said judgment. Skaggs and McKenzie appealed. While the appeals were pending before the Department, Skaggs moved for a rehearing. On September 7, 1895, the Department denied Skaggs's motion for rehearing, without prejudice, and affirmed the decision of your office. On November 22, 1895, the Department denied a motion for review, filed by McKenzie, and McKenzie's entry was canceled by your office letter of December 19, 1895. On December 29, 1895, Murray made homestead entry of said land. Skaggs filed a motion for rehearing, and on January 31, 1896, appealed from the action of your office canceling McKenzie's entry. Said motion for rehearing was denied on February 10, 1896, and appeal dismissed on December 3, 1896.

But it is insisted that the decision against William Skaggs was void, because, while the contest was pending, and prior to the hearing before the local officers, Skaggs had been convicted of a penitentiary offence, and was imprisoned under his sentence, when the judgment of the

local officers was rendered. And a provision in the laws of the Territory of Oklahoma is relied on in support of the contention that the Land Office was divested of jurisdiction by reason of such conviction and imprisonment, which reads: Sec. 21, Ch. 25, Statutes of Oklahoma, 1890:

A sentence of imprisonment in the territorial prison for any term less than for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment. 2 New York Revised Statutes, 101, Sec. 19, declares that

a sentence of imprisonment in the State prison for any term less than for life, suspends all the civil rights of the person so sentenced . . . during the term of such imprisonment;

and the Court of Appeals of New York, in the case of Davis v. Duffie, 3 Keyes, 606, held that, under this provision, the service of legal process upon a convict in the State prison is regular and valid to confer jurisdiction; that the statute which "suspends all the civil rights of the person" sentenced to the State prison, does not suspend the rights of others against him; that he may be sued, and the suit against him may be prosecuted to judgment.

The provision in the New York statute is similar to the Oklahoma law, and the interpretation of the provision by the Court of Appeals of New York accords with sound reasoning. It would be strange indeed, if a convict in a State prison should be exempt from ordinary proceedings by action during his imprisonment.

The claim of Mrs. Skaggs to the land, independent of that of her husband, can not be recognized, for the reason (if for no other reason) that the preferred right of Murray as a successful contestant could not be defeated by Mrs. Skaggs's settlement acquired subsequent to the initiation of his contest against McKenzie's entry. Hodges et al. v. Colcord, 24 L. D., 221; Hine v. Cliff, Id., 432.

That the minor children of William Skaggs are not qualified to acquire title to public lands under the homestead laws is apparent. A homestead entryman must be the head of a family, or a person who has arrived at the age of twenty-one years. Sec. 2289 of the Revised Statutes.

Your office decisions denying the application for a hearing are affirmed.

On October 1, 1897, an application to intervene was filed by Robert M. McKenzie, wherein it is alleged, among other things,

that the petitioner employed an attorney of Washington, D. C., to appeal said case to the Honorable Secretary of the Interior for the consideration of $50.00, $48.00 of which was duly paid, and your petitioner rested in the assurance that said case was duly appealed to your Honor, for your consideration, and he only learned that such was not the case by the letter mentioned in his affidavit, hereunto attached, dated August 4, 1897, and it was then for the first time that your petitioner learned that his entry was canceled, on the 19th day of December, 1895, by direction of the Honorable Commissioner of the General Land Office.

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The record in the case of Skaggs and Murray v. McKenzie shows that an appeal was taken in behalf of McKenzie from the decision of your office, and that on September 7, 1895, the Department affirmed said decision; that a motion for review was then filed in behalf of McKenzie, which was denied by the Department on November 22, 1895, and McKenzie's entry canceled by your office letter of December 19,

1895.

This motion being founded on a misstatement of the record, affords no proper grounds for intervention. But Mrs. Skaggs's affidavit of contest being dismissed, the motion, for that reason, is without support. The motion to intervene is dismissed.

RES JUDICATA-SUPERVISORY AUTHORITY-PREFERENCE RIGHT.

PARCHER v. GILLEN.

The rule of res judicata as applied by the Department in determining whether a contest is barred by prior proceedings, does not, as against the government and third parties, place matters which might have been tried and determined upon the same footing with those which have thus been disposed of. While the legal title to land remains in the government the Secretary of the Interior is charged with the supervisory authority and duty of determining its proper disposition; and a change in the person holding the office of Secretary, does not defeat or prevent a review or reversal in any instance where the Secretary making the ruling, or rendering the decision, if still holding the office, would be in duty bound to review and reverse his own act.

The preferred right of entry given to the successful contestant by the act of May 14, 1880, can not be held to extend to one, who, under another statutory enactment, is disqualified and prohibited from entering the land involved.

Secretary Bliss to the Commissioner of the General Land Office, January 17, 1898.

This case involves the N of the NW and lot 1 of Sec. 12, T. 39 N., R. 6 E., Wausau land district, Wisconsin.

March 10, 1894, John Gillen made homestead entry No. 7121 of the tract, and March 24, 1894, D. W. Parcher filed an affidavit of contest against this entry alleging, among other things, that Gillen, in advance of their being opened for settlement, entered and occupied the lands, of which this tract is a part. A hearing was had, at which both parties were present and introduced testimony, the receiver alone presiding. A special agent was detailed to act in place of the register, who was disqualified. While not present at the hearing, the special agent duly considered the written transcription of the testimony and thereafter separate decisions were rendered, the receiver holding that the charge of premature and unlawful entry was sustained by the evidence and the special agent holding that the charge was not sustained.

April 3, 1895, your office approving the decision of the receiver, sustained Parcher's contest and held Gillen's entry for cancellation.

Gillen appealed, and April 22, 1896, this Department affirmed your office decision. (330 L. and R., 463, not reported.)

Motion for a review of the departmental decision was filed by Gillen, the chief error assigned being stated therein as follows:

(1). In not holding that the case of Gillen r. Beebe (16 L. D., 306), upon a motion for rehearing, was res adjudicata as to the question of whether or not Gillen was on the land in dispute prior to December 20, 1890, as the application for rehearing in that case was based upon this very point.

December 15, 1896 (23 L. D., 485), this Department revoked the departmental decision of April 28, 1896, dismissed Parcher's contest, and held Gillen's entry intact, solely upon the ground that the deci sions in the case of Gillen v. Beebe (16 L. D., 306 and 279 L. and R., 319) finally and conclusively adjudged that Gillen did not prematurely or unlawfully enter upon the land in contest.

January 12, 1897, Parcher filed a petition asking a reconsideration of this last decision of the Department and Gillen was duly notified. Briefs by both parties were filed; and February 24, 1897, counsel on both sides argued orally before the Department the questions involved in the case. My predecessor then concluded to defer action on said petition and to permit his successor to decide it.

The whole case has been recently re-argued, both orally and in writ ing, and it is now before me for disposition.

The record shows the following facts:

The tract in contest is part of the lands, commonly known as "water reserve lands," which were withdrawn from settlement and entry by the President's proclamation of April 5, 1881, and which were restored to settlement and entry under the homestead law, by the act of Congress approved June 20, 1890 (28 Stat., 169).

The third section of said act reads as follows:

Sec. 3. That no rights of any kind shall attach by reason of settlement or squatting upon any of the lands herein before described before the day on which such lands shall be subject to homestead entry at the several land offices, and until said lands are opened for settlement no person shall enter upon and occupy the same, and any person violating this provision shall never be permitted to enter any of said lands or acquire any title thereto. This act shall take effect six months after its approval by the President of the United States.

The act took effect December 20, 1890. The receiver, who saw the witnesses and heard them testify, your office, and the Department in its first decision, all concurred in finding from the evidence that Gillen unlawfully entered upon and occupied water reserve lands on December 19, 1890, and that he did this for the purpose of obtaining an advantage in the settlement and entry thereof. The record has again been carefully examined and I am of opinion that this finding is fully sustained by the evidence. Applied to these facts the statute commands that Gillen shall "never be permitted to enter any of said lands or acquire any title thereto." Smith v. Townsend (148 U. S., 490).

Gillen insists that by reason of the proceedings and the decisions in

Gillen v. Beebe, first decided March 22, 1893, (16 L. D., 306), and reaffirmed February 12, 1894 (279 L. and R. Letter-press 319), it was finally and conclusively adjudged that he did not enter upon and occupy said lands in violation of the act aforesaid; and that Parcher and the United States are bound by that adjudication. This claim of res judicata was not made before the local office in the present contest but was urged by Gillen upon his appeal to your office and again upon his further appeal to the Department. Your office in its decision of April 3, 1895, held that the matter was not res judicata and this holding was affirmed by the departmental decision of April 22, 1896, and was afterward withdrawn and reversed by the departmental decision of December 15, 1896. Upon the same record and upon the same question these two departmental decisions reached and announced opposite conclusions.

The facts in the case of Gillen v. Beebe will be briefly stated in order that the application of the contention made by Gillen and recognized in the decision now under review, may be understood. Beebe had made homestead entry of a part of the lands now in question shortly after 9 a. m., the hour of opening the local office, December 20, 1890, being the day upon which the lands were opened to settlement. Gillen subsequently made application to enter all the lands now in controversy, alleging settlement between the hours of 12 and 1 a. m., Decem. ber 20, 1890, and a hearing was had to determine the respective rights of Gillen and Beebe to the lands claimed by both. The evidence was brief and without conflict. The point of difference was one of law only. Beebe contended before the local office that the portion of the statute providing

that no rights of any kind shall attach by reason of settlement squatting upon any of the lands hereinbefore described, before the day on which said lands shall be subject to homestead entry at the several land offices,

referred to the business day recognized in the practice of the local office and not to the calendar day. It was insisted by him that since the local office opened at 9 a. m., and since a homestead entry could not be made until the local office did open, Congress intended to inhibit settlement up to the moment when the lands could be entered at the local office according to its recognized hours for transacting business, and that therefore Gillen's settlement was premature and unlawful and could not avail against Beebe's entry. The local officers held that the statute referred to the calendar day and not to the business day; that Gillen's settlement between the close of the calendar day of December 19, and 9 a. m., December 20, was not premature or unlawful, and that Gillen had the prior and better claim. On appeal, your office affirmed the decision of the local office in this respect and, on further appeal, the Department reached a like decision.

Up to this time there had been no claim, and no intimation of any claim, that Gillen had entered upon water reserve lands prior to the calendar day of December 20. Thus far, the claim of his disqualification