Tucker, upon the application of Seabury L. and Levi Mastick. The Masticks claim title to said lands as purchasers by virtue of mesne conveyances, based upon an administrator's sale.

The fourth section of said act of September 27, 1850, provides:

That no alien shall be entitled to a patent to land granted by this act until he shall produce to the surveyor-general of Oregon record evidence that his naturalization as a citizen of the United States has been completed; but if any alien, having made his declaration of intention to become a citizen of the United States after the passage of this act, shall die before his naturalization shall be completed, the possessory right acquired by him under the provisions of this act shall descend to his heirs at law, or pass to his devisees, to whom, as the case may be, the patent shall issue.

The proof in this case shows that James Tucker was an alien; had declared his intention to become a citizen of the United States; died intestate, without having completed his naturalization as the law directs; and, consequently, while the facts remain in this condition this office cannot grant the relief asked, and therefore declines to cancel said patent, and refuses to issue a new patent in favor of said James Tucker.

Said patent is herewith returned subject to former instructions as to its delivery.

NOTICE-FORFEITURE-EXEMPTION.

NORTHERN PACIFIC RAILROAD COMPANY v. PEONE.

Provisions of law relating to notifications by donation claimants considered. Peone settled on unsurveyed land, survey of which was made August 12 and filed in local office October 7, 1880. He gave the required notice March 16, 1881. The railroad company made definite location October 4, 1880. Held,

That the act of June 25, 1864, exempted from forfeiture for failure to give notice, absolutely, all donation claims, otherwise regular, until the time limited by law for giving notice (in case of Peone, three months after survey), during which time his claim was in reserve, and therefore excepted from the grant to the railroad company upon general principles and by the express provisions of the granting act of July 2, 1864.

Secretary Teller to Commissioner McFarland, September 19, 1883.

SIR: I have considered the case of the Northern Pacific Railroad Company v. Baptiste Peone, involving Sec. 13, T. 26 N., R. 43 E., Colfax, Wash., on appeal by the railroad company from your decision of June 6, 1882, adverse to their claim.

Peone's claim is made under section 4 of the Oregon donation act of 1850 and supplementary legislation. The amending act of 1853 required him to file notice of his claim with the proper officer prior to December 1, 1853 (which limitation the act of 1854 extended to December 1, 1855), upon penalty of a forfeiture of all rights as donee in the event of failure to so file; and the act of 1864 remitted this penalty in all cases ex

cept those where "adverse rights intervene before the filing of the required notification." Peone settled on an unsurveyed tract between 1848 and 1853, and the public surveys embracing it were approved August 12, 1880, and filed in the local office October 7, 1880. Some five months afterwards, namely, on March 16, 1881, he filed the first and only notice of his claim with the local officers, and at the same time submitted his final proofs, which show him to be entitled to patent, provided no adverse rights have intervened. The railroad company contend that such adverse rights did intervene by the withdrawal of February 21, 1872, for their benefit, and by the definite location of their line October 4, 1880; that for this reason the act of 1864 did not remit the penalty in this particular case; and that title to the tract in question, which is within the limits of the land grant, has vested in them. A determination of the rights of the parties will require consideration of the several provisions of law relating to the said notice.

By section 4, act of September 27, 1850 (9 Stat., 496), there was granted to a married settler on the public lands in Oregon Territory, resident therein on or before December 1, 1850, the section of land embracing the tract actually occupied and cultivated by him for four consecutive years, without limitation as to the date when such settlement or occupation and cultivation should commence (see also section 12), the grant taking effect upon his conforming to the provisions of the act (Hall v. Russell, 101 U. S., 503). Section 5 granted certain lands, on similar conditions, to certain settlers coming of age or emigrating to the Territory between December 1, 1850, and December 1, 1853, which limitation was extended to December 1, 1855, by section 5, act of Feb. ruary 14, 1853. Section 6 provided that

Within three months after the survey has been made, or where the survey has been made before the settlement, then within three months from the commencement of such settlement, each of said settlers shall notify the surveyor-general of the precise tract or tracts claimed by them respectively under this law.

So the law stood for some three years prior to or during which Peone's settlement was made, he having resided in the Territory before December 1, 1850, and being otherwise qualified.

By section 6, act of February 14, 1853 (10 Stat., 158), it was provided that

Every person entitled to the benefit of the fourth section of the act of which this is amendatory, who was resident in said Territory on or prior to the 1st of December, 1850, shall be and hereby is required to file with the surveyor-general of said Territory, in advance of the time when the public surveys shall be extended over the particular land claimed by him, where those surveys shall not have been made previous to the date of this act, a notice in writing, setting forth his claim to the benefits of said section, and citing all required particulars in reference to such settlement claim; and all persons failing to give such notice on or prior to the 1st of December, 1853, shall be thereafter debarred from ever receiving any benefit under said fourth section. And all persons

who, on the 1st December, 1853, shall have settled on surveyed lands in said Territory, in virtue of the provisions of the fifth section of the act of which this is amendatory, who shall fail to give notice in writing of such settlement, specifying the particulars thereof, to the surveyorgeneral of said Territory, on or prior to the 1st of April, 1855, shall be thereafter debarred from ever receiving the benefits of said fifth section.

First. It is to be observed of this section that its latter part applies only to settlers under section 5, act of 1850, and to such of said settlers as had occupied "surveyed lands." Whereas by the former act they were required to give notice of their claims "within three months after such settlement," by the latter act the time was extended to April 1, 1855, after which their rights were to be forfeited. This appears to amount to a legislative declaration that the rights of settlers were not to be forfeited by a failure to give the notice required by the act of 1850. Second. The latter part of said section applies only to settlers who had become of age or emigrated to the Territory between December 1, 1850, and December 1, 1853; consequently it does not apply to those who may have emigrated and settled between December 1, 1853, and December 1, 1855, to which time the privileges of section 5, act of 1850, were extended by section 5, act of 1853, for their benefit. Therefore such settlers on surveyed land were still required to give notice of their claims within three months after settlement, and those on unsurveyed land within three months after survey.

Third. The former part of said section evidently applies only to settlers under section 4, act of 1850 (those resident in the Territory prior to December 1, 1850), who might locate on unsurveyed land; wherefore, as to those who might locate on surveyed land, the requirement of a notice within three months after settlement remained in force.

Fourth. Residents in the Territory prior to December 1, 1850, who might locate on land still unsurveyed, were required to file notice of their claims prior to its survey, and on failure to file such notice prior to December 1, 1853, were to forfeit their rights. The former of these requirements is necessarily limited by the latter, and the obvious meaning of the provision is that, whether the survey were made before or after said date, such settlers must file notice of their claims on or before December 1, 1853, and that they could receive no benefits under the donation act if they filed notice after December 1, 1853.

Fifth. Since no notice after December 1, 1853, could benefit such settlers, it follows that no future notice by them was contemplated; wherefore the requirement of notice within three months after survey, provided for in section 6, act of 1850, was not contemplated. The earlier and the later provisions are irreconcilably antagonistic, and hence the earlier provision was repealed. From and after February 14, 1853, the only provision in force concerning notice by claimants on unsurveyed land, under said fourth section, required the notice to be filed on or be

fore December 1, 1853; for the earlier law did not revive at the expiration of the time limited in the latter (Sedgwick on Construction, 107). Section 3, act July 17, 1854 (10 Stat., 305), extends pre-emption privileges under the act of 1841 to surveyed and unsurveyed lands in Oregon and Washington Territories, and requires notice of pre-emption claims on unsurveyed lands to be filed with the proper officer "within six months after the survey of such lands is made and returned;"

And all persons claiming donations under this act, or the acts of which it is amendatory, shall in like manner give notice to the surveyor-general, or other duly authorized officer, of the particular lands claimed as such donations within thirty days after being requested to do so by said officer; and failing such notice in either case, the claimant or claimants shall forfeit all right and claim thereto : Provided, however, That the time limited in the sixth section of the act of 1853, in which claimants under the act of 1850 are required to give notice of their claims, shall be, and is hereby, extended to the 1st of December, 1855, except in cases where the surveyor-general shall request them so to do, as above provided.

The proviso to this section evidently extends to December 1, 1855, the time of filing notice by the two classes above referred to, namely, those on surveyed land, before limited to April 1, 1855, and those on unsurveyed land, before limited to December 1, 1853. And the section requires the filing of notice by all claimants under the donation acts within thirty days after request by the proper officer upon pain of forfeiture of all right and claim thereafter. Thus the law stood until 1864. On June 25, 1864, an amending act was passed (13 Stat., 184), which provides "that in all cases under the act of Congress approved September 27, 1850, entitled "An act," &c., and the several acts amendatory and supplemental thereto, in which the actual settlement may be shown to be bona fide, and the claim in all respects to be fully within the requirements of existing laws, except as to the failure of the party to file notice within the time fixed by statute, such failure shall not work forfeiture when no adverse rights intervene before the filing of the required noti fication by the claimant."

While the language of this act is somewhat obscure, its purpose is quite clear. It was intended to place donation claimants upon the same footing as claimants under the pre-emption laws; that is, to give them a preferred right to the land upon which they had settled until the time fixed for filing their notices, and afterwards to extend such preferred right to the time at which they actually filed the required notices, provided no adverse rights intervened after the time fixed by law. In other words, a notice is required, and the date of filing it is fixed; but a failure to file it by the time fixed does not forfeit the right of any claimant, and it is only barred by an adverse right intervening between the required and the actual time of filing. This is the construction given by the Supreme Court in Johnson v. Towsley (13 Wall., 72) to section 5, act March 3, 1843, which declares a forfeiture of the pre-empt.

or's right to the land on failure to file notice within the required period. But in the case of the donation acts legislative action was important, because donations are not simply preferred rights of purchase, to be acquired by settlement and improvement, but actual grants of land, which, as above remarked, take effect only upon the settler's compliance with all the conditions attached to them. One of these conditions is the filing of a notice of his claim, which, it has been said by the Supreme Court in Hall v. Russell, is a condition precedent (this, however, without reference to the effect of the requirement of a fixed time of filing), and a failure to file as required might imperil the donee's claim in the event of settlement by another qualified person on the same tract before the fixed time of filing. The act of 1864 removes all difficulties of this kind, and absolutely reserves the land to the claimant until the time fixed for filing, and thus harmonizes the donation and pre-emption laws in this respect.

With regard to the forfeitures already incurred under the acts of 1853 and 1854, the act of 1864 unquestionably remitted the penalty. And, though the language is not clear, I am of opinion that it also removed the limitation of time expressed in those acts, and restored the provisions of section 6, act of 1850. It is a maxim that "a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter," and it is evident that in this act Congress regarded a future filing of the required notice as essential in all donation claims, because it provided that such a filing after the time fixed should be regarded as a compliance with the law. If the limita tions of the acts of 1853 and 1854 are regarded as still in force, then, as no notice after December 1, 1855, was required by them, the act of 1864 does not operate on that class of claimants as to notice after survey; they are not required to give notice at all; no adverse rights can intervene after said date, and they are thus distinguished from all other classes. There appears to be no reason why they should be accorded this preference, and, in fact, the acts of 1853 and 1854, by shortening the time of filing, rather indicate the purpose of Congress to discriminate against them. Wherefore the object of the act of 1864 may be reasonably regarded as a restoration of their privileges under the act of 1850, and as placing them upon the same footing as other classes of donation claimants.

Applying these conclusions to the facts of the case at bar, it appears that Baptiste Peone failed to file the required notice on or before December 1, 1855, but that any forfeiture thereby incurred was remitted, and his claim was absolutely reserved to him until three months after survey, and thereafter conditionally reserved until he filed the required notice. It appears also that he did not file within three months after survey, but as no adverse right intervened between date of survey and the date of actual filing, March 16, 1881, such failure did not work a forfeiture. And since his claim was reserved until three months after sur