CHAPTER V. REGISTERS AND RECEIVERS. § 626. Relative duties of register and receiver considered and discussed - Their appointment. 627. In respect to facts, they act in a judicial capacity, not controlled by the courts. 628. Must in general do business at the regular land office. § 626. Relative duties of register and receiver considered and discussed-Their appointment.- Registers and receivers are appointed by the president. The term of office is nominally four years, but really during the pleasure of the president. They are required to reside at the place where the land office is kept," and are paid a salary of $500 a year and certain fees. As intimated in previous sections, they are under the control of the commissioner of the general land office and the secretary of the interior. The duties of register and receiver are necessarily distinct. They are expected, and indeed it is their duty, to co-act and pass upon all matters brought before them in an official way." Neither can act for the other' without express authority, but may do so then. But their acts and duties are so interdependent that a vacancy disqualifies the remaining incumbent for the duties of his own office during the vacancy.9 1R. S. U. S., § 2234. 2 R. S. U. S., § 2235. 4 Floyd v. Montgomery, 26 L D. 122, 128; Knight v. United Land Ass'n, 142 U. S. 162. 5 Paris Meadows, 9 L. D. 41, 45. C. F. Ebinger, 1 L. D. 150; Dean Richmond Lode, id. 545. 7 Christian F. Ebinger, supra; Instructions, 5 L. D. 368. 8 Dean Richmond Lode, 1 L. D. 545; Graham v. Carpenter, 9 L. D. 365, 368; Armstrong v. Moranda, 14 L. D. 133. 9 Armstrong v. Moranda, supra; Williams v. Loew, 12 L. D. 297; Smith v. McCarrecher, 20 L. D. 276; Paris Meadows, supra. By this it is not meant, however, that they are required to sit together at the same time, and concurrently to pass upon matters brought before them; it is sufficient that the matter is brought to the attention of each, and each may perform the functions of his own office without consulting the other.2 § 627. In respect to facts, they act in a judicial capacity, not controlled by the courts.- All evidence in contested cases before the register and receiver is required by the rules of the department, which is the manual of procedure for their guidance, to be taken down by question and answer in the form of a deposition. Objections made to evidence are likewise required to be taken down; and while they are nominally passed upon by the register and receiver, in making up their decision all evidence, including that objected to, is allowed to go in the record and held for the consideration of higher officers in case of an appeal. In passing upon matters before them, from the very nature of things they are vested with the right to exercise judg ment and discretion, from which it follows that courts may not direct how and in what manner they shall exercise it. Being agents of the department, they must obey the law and instructions laid down for their guidance, in respect to which they cannot be interfered with by the courts. Their decisions are open to review and to be set aside by the commissioner or the secretary of the interior, but are final and conclusive if not appealed from." -1 Potter v. United States, 107 U. S. Cranch, 504; McClung v. Silliman, 126. 6 Wheat. 598; Koehler v. Berrin, 2 Id. See also Smith v. McCarre- 25 Fed. Rep. 161. cher, 20 L D. 276. 3 Litchfield v. Register & Receiver, 1 Woolw. 299, 15 Fed. Cas., p. 592, No. 8,388, citing Marbury v. Madison, 1 Cranch, 137; Kendall v. United States, 12 Pet. 608; State of Mississippi v. Johnson, 4 Wall. 475. See also McIntire v. Wood, 7 4 Floyd v. Montgomery, 26 L. D. 122; Knight v. United Land Ass'n, 142 U. S. 162; Hosmer v. Wallace, 47 Cal. 461; Barnard's Heirs v. Ashley's Heirs, 18 How. 45; Rush v. Valentine, 12 Neb. 513. 5 United States v. Marshall S. M. Co., 129 U. S. 579; Craig v. Leidens 3 § 628. Must in general do business at the regular land office. An orderly and seasonable attention to business requires that they have regular office hours and perform the duties of their office thereat. But it does not follow that business done elsewhere is invalid or illegal, or that they may not receive an application at another place. The department has furnished certain rules of practice and the register and receiver may not waive them, but manifestly these rules are for the general guidance of the register and receiver, and, as we have already seen, they cannot deprive an applicant of a statutory right. Thus, for instance, the statute allows an adverse claim to be filed within the sixty days' period of publication. This does not mean the office hours of sixty days, but just what it says - sixty full days; and in respect to this particular right we apprehend that it would not only be lawful, but it would be the duty of the register to receive and file, at any place he might be found, an adverse claim on the last day of the notice." dorfer, 123 U. S. 189; Seymour v. Fisher, 16 Colo. 188, 27 Pac. Rep. 240; Chas. Hoffman, 4 L. D. 92; Phillip Mannheim, id. 197. 1 See ante, § 597, p. 535, note 6. See also Richard L. Burgess, 18 L. D. 14. 2 Sears v. Almy, 6 L. D. 1; John W. Nicholson, 9 L. D. 54; Clewell & 3 Warren v. Field, 6 L. D. 236. See post, Part X, ch. II, art. B. See also Stubblefield v. Honeyfield, supra. PART X. OF THE APPLICATION FOR PATENT, ADVERSE CHAPTER I. OF THE SURVEY; AND HEREIN OF THE APPLICATION THEREFOR, THE GUIDING RULES AS TO SURVEY, AND THE RETURN OF THE SURVEYOR § 635. Application for survey-Contents of - Copy of location notice. 636. Deposit in surveyor-general's office. 637. Employment of surveyor. 638. Rules governing survey - Conflicting surveys and claims-Particulars to be observed - Parallel end lines. 629. Mistakes of surveyor, effect of. 640. New survey — When will be required. 641. Not void for excess. 642. The surveyor's return-Identity of the claim-Boundaries changed. 643. Same-Five hundred dollars' improvements. 644. Approval certificate of surveyor-general. 645. Survey of placer. 646. Group applications and surveys. 647. Summary - The doctrine of this chapter restated. § 635. Application for survey - Contents of- Copy of location notice.-The first step in the proceedings to obtain a United States patent for mining ground is the application for a survey. This must be prepared and signed by the claimant or claimants or his or their attorney, or any one of several claimants on behalf of all, and addressed to the surveyor-general of the land district in which the ground is situated. Each application should contain 1. The name or names of the claimant or claimants in full, as it is desired to appear in the application for patent. 2. The name of each location embraced in the application. 3. The names of the mining district, state and county in which the claim is located. 4. The name of the United States deputy mineral surveyor to whom it is desired the order shall be issued.1 The applicant must also furnish with the application a certified copy of the location notice; or, in case more than one claim is embraced in the application, then a copy of each location notice; likewise with copies of all addenda or amendments for the guidance of the surveyor making the survey. And the official survey must be in accordance with the record of the claim as thus appearing.' § 636. Deposit in surveyor-general's office. At the time of receiving and filing the application for a survey, the surveyor-general may require a deposit sufficient to cover the expense of preparing plats and other office work under the rules. He must, if required by the applicant, furnish an estimate of such expenses; the applicant must thereupon deposit this amount with such United States depositary as may be designated, for which he is given receipts executed in triplicate. The amount of such deposit, of course, should be reasonable, and an applicant will not be required to deposit as large an amount in case of an amend 1 Regulations of General Land Office, June 1, 1892, revised to July 26, 1901. Upon filing application substantially as above outlined, the claimant is entitled to have the claim surveyed and platted under the direction of the surveyor-general. Com'r to Reg. & Rec. Sacramento, July 27, 1880, Copp's Min. Lands, 281. And he is entitled to as many orders for survey as he applies and pays for. Com'r McFarland to Surveyor-General Mason, October 3, 1881, Copp's Min. Lands, 307, 308. 2 Lincoln Placer, 7 L. D. 81; Sulphur Mine, 5 C. L. O. 100; Philip Dephanger, 1 L. D. 581; Rose Lodes Nos. 1 and 2, 22 L. D. 83; Com'r to Surv. Gen. of Idaho, Nov. 24, 1891; Com'r to Surv. Gen. of Arizona, Oct. 31, 1891; Cir. Nov. 20, 1873, Copp's Min. Lands, 58; Com'r to Surv. Gen. of Colorado, Aug. 31, 1877, Copp's Min. Lands, 220; Sec'y Schurz to Com'r, Copp's Min. Lands, 230. Land Office Cir., June 24, 1899, sec. 93. |