cient to satisfy the requirements of the Federal Range Code, and upon which grazing privileges have been granted over a period of years, will not be canceled unless there is convincing evidence that the base property upon which such privileges were predicated was not qualified and that the action in granting the permit was clearly erroneous. 60-290

It is proper to cancel a 10-year grazing permit upon discovery that the permit was issued on the erroneous assumption that the waters controlled by the permittee were full-time waters, it being established that the permittee has no valid claim to other waters that qualify as full-time or prior waters. 60-290

IX. HEARINGS

While, when appealing to an examiner, an applicant may not restrict the issues, fairness requires that if additional issues are considered the examiner so state, in accordance with 43 CFR 501.9 (g), so that, unless the issues are specifically widened, questions involving the impropriety of an existing 10-year permit may not form the basis of a decision concerning the grant of additional grazing privileges. 59-528

X. HEARINGS EXAMINER

Under the regulations in force in March, 1946 (43 CFR 501.9 (i)), the examiner either had to make findings of fact and render a decision himself, or could submit a proposed decision to the Secretary upon whose approval it would become the decision of the Department; and if the examiner resigned before issuing a decision, the Director of the Grazing Service, who had no function in the appellate process involving grazing matters, had no right to issue a decision on the basis of the hearing before the examiner. 59-528

XI. SPECIAL DISTRICT RULES Rules for Administration of Grazing Districts were promulgated by the Department on Mar. 2, 1936, pursuant to the Taylor Grazing Act (act of June 28, 1934, 48 Stat. 1269). They provide for the order of preferences in which grazing licenses are to be isued. Class 1 consists of those qualified applicants with dependent commensurate property with priority of use; Class 2, of qualified applicants with such

property but without priority of use. Priority of use is defined as such use of the public range before June 28, 1934, as local custom recognized and acknowledged as a proper use of both the public range and the lands or water used in connection therewith. The rules further provide for boards of district advisors for each of the grazing districts and empower them to make recommendations with regard to enumerated matters, among them, the date before which the range must have been used by an applicant in order to constitute priority of use.

A board of district advisors adopted a priority "rule" for its district which provided that in order to establish a prior right to graze, the applicant for a license must have used the range for two consecutive years between Jan. 1, 1928, and June 28, 1934. An application for a license was then denied. The applicants in this case were denied a Class 1 rating because of insufficient priority as defined by this "rule"; the capacity of the range was held to be exhausted by Class 1, and a license was denied them. Held: 1. No evidence of any local custom which conceivably might support the so-called "rule" of the board of district advisors is found in the record. 2. A board of district adIts visors is powerless to make rules. function is entirely advisory. The "rule" promulgated by the board in this case is merely a recommendation to the Division of Grazing. No local custom to support the recommendation having been proven, it presents no obstacle to the grant of a Class 1 rating. 3. The rules which must be followed are the rules promulgated by the Department. 4. The use of the public range which comes within the definition of priority of use contained in those rules must have been before June 28, 1934, in connection with some private property, and proper according to local custom. Before it may be said that a use in compliance with the first two requirements is not proper according to some local custom it must be determined that a local custom existed which recognized and acknowledged a particular kind or length of use to be proper, and that the use made by the applicant was not of that particular kind or length. 5. The evidence in this

case supports a finding that four of the applicant's properties had some use in connection with the public range prior to June 28, 1934. Such use cannot be considered improper according to local custom when the record fails to prove any local custom by which that use might have been judged proper or improper. These properties are therefore entitled to a Class 1 rating and a license to the extent of their commensurability should be issued. 6. The preference class ratings for properties defined by the rules promulgated by the Department are not mutually exclusive. As the facts warrant, a qualified applicant should receive one or more ratings, each for a fixed number of livestock. Ratings should be allowed qualified applicants as follows: Class 1, for no more than the number of livestock for which the applicant's dependent property, which has been used in connection with the public range within the meaning of the priority of use definition, is commensurate. Class 2, for no more than the number of livestock for which his dependent property, which has not been so used, is commensurate. Class 3, for no more than the number of livestock, with which the applicant grazed the public range within the definition of priority of use, exceeds the commensurability of all his dependent commensurate properties, on the basis of which he has received a Class 1 and/or Class 2 rating. Class 4, for the number of livestock for which an applicant does not bring himself within the requirements of any of the first three classes.

GUAM

I. GENERALLY

56-92

A released-time program under which pupils are released from public schools for purposes of religious instruction is not per se unconstitutional as violative of the First Amendment. A released-time program under which public-school pupils would be released during one period in the school day for religious instruction under the auspices of churches designated by their parents or guardians, but under which the religious instruction would be given at places provided by the churches and the public-school authorities would assume no responsibility for the recruitment of pupils

for religious instruction, would keep no attendance records, would give no school credits, and would not approve or supervise the religious teachers, could be conducted without violating the First Amendment. The First Amendment does not apply to Guam. A released-time program for Guam, which would not involve the use to any extent, either directly or indirectly, of public money or property, could be conducted without violating section 5(p) of the Guam Organic Act (64 Stat. 384). 60-510

HAWAII

Section 91 of the Hawaiian Organic Act creating the Territory of Hawaii gives to the Territorial Government possession, use, and control of public lands in Hawaii but retains the fee thereof in the United States, providing specific methods however for joinder of title and use at the will of the Federal Government. Held, That in the absence of formal transfer of title in any such lands by the Government of the United States to that of the Territory the latter has no estate therein and no interest which it can convey or reserve. 56-263

The act of Aug. 1, 1916 (39 Stat. 432) terminates Territorial privileges on public lands taken thereby for a national park. As to lands to be delimited by the Secretary of the Interior, the Secretary's approval of the survey and blueprint thereof restores to the Federal Government full dominion thereover and makes applicable thereto all statutes and rules governing national parks. Held, 1. That a deed whereby the Territory of Hawaii attempts to convey to the United States portions of the "Government" lands of Kapapala and Humuula for Hawaii National Park is unnecessary and void, the absolute fee to said lands having been vested in the United States of America by cession from the Republic of Hawaii and never since having been transferred by the United States to the Territory of Hawaii. 2. That a clause in such deed attempting to reserve to the Territory perpetual grazing rights on such lands is void and inoperative, the Territorial Government having no estate therein to reserve. 3. That an assignment or lease of grazing rights on park lands made by the Territorial Government in exercise of its pre

sumed right under such reservation is ineffective and void and gives no rights on park lands to the Hawaiian Agricultural Company as assignee or lessee thereunder. 56-263

Under the Congressional Joint Resolution of July 7, 1898 (30 Stat. 750), accepting from the Republic of Hawaii sovereignty over the Hawaiian Islands and the absolute fee and ownership of all public properties therein, Hawaiian lands known as "Crown, Government, or public lands" are public lands of the United States, controlled not by the general public land laws but by special enactments. 56-263

That the action of the Military Governor of Hawaii in closing the civil courts and requiring that all persons accused of crimes be tried by military tribunals is not conclusive of the necessity therefor and in the light of such facts as are of public record does not appear to have been justified. Hence the trials of two civilians by military tribunal are probably illegal. 57-570 Employees of the Office of Civilian Defense in the Territory of Hawaii, paid from funds allocated to the Secretary of the Interior from a special emergency appropriation made to the President, to provide for emergencies affecting the national security and defense (55 Stat. 92, 94), are employees of the executive branch of the Federal Government and accordingly are prohibited by section 9(a) of the Hatch Political Activity Act (act of Aug. 2, 1939, 53 Stat. 1147; 18 U.S.C. 61h), as amended, from taking any active part in political management or in political campaigns. Consequently, they may neither seek nor hold elective office in the Government of the Territory of Hawaii.

58-146

Since the Governor and the Secretary of the Territory of Hawaii are appointed by the President, by and with the advice and consent of the Senate, and since their salaries are paid from the Federal Treasury, they must be regarded as employed in "administrative" positions "by the United States" and hence subject to the prohibition in section 2 of the Hatch Act (53 Stat. 1147, as amended) against the use of "official authority for the purpose of interfering with, or affecting, the election or the nomination of any candidate for the office of President, Vice President, Presidential

elector, Member of the Senate, Member of the House of Representatives, or Delegate or Resident Commissioner from any Territory or insular possession." 58-390

No officers or employees of the Territory of Hawaii, other than the Governor, the Secretary, and the Director of the Territorial Social Security Department, are subject to any of the provisions of the Hatch Act (53 Stat. 1147, as amended) unless shown to be employed in connection with a federally financed activity. 58-391

The Director of the Territorial Social Security Department, by reason of his identity with the program of the Federal Social Security Act, and the definition of "State" to include "Territory" in section 19 of the Hatch Act (53 Stat. 1147, as amended by 54 Stat. 767) is subject to all of the prohibitions in sections 2 and 12(a) of the act against political activities on the part of officers and employees "of any State or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency." 58-391

The Governor and the Secretary of the Territory of Hawaii, while employed in the executive branch, are not to be regarded as employed in the executive branch of the Federal Government, within the meaning of section 9(a) of the Hatch Act (53 Stat. 1147, as amended) forbidding officers and employees thereof to use "official authority or influence for the purpose of interfering with an election or affecting the result thereof," or to take "any active part in political management or in political campaigns," since (1) the context of the entire section reflects an intention to exclude policy-making positions, and (2) reference to subsequent enactments indicates a legislative recognition that Territorial officers theretofore had been unaffected by the act. 58-391

Under section 2(a) (7) of the Philippine Independence Act (48 Stat. 456, 48 U.S.C. 1232 (a) (7)) and section 1(7) of the Ordinance appended to the constitution of the Philippines, the government of the Commonwealth of the Philippines is made responsible for the obligations of the Manila Railroad Company because it was an instrumentality of the Philippine govern

Archaeological ruins and other objects within the purview of the act of June 8, 1906 (34 Stat. 225), which may be located on lands occupied by a homesteader continue to be property of the United States until the vesting of equitable title in the entryman, and until then the Government has authority under that act to issue permits or licenses for the examination, excavation, and recovery thereof. 52-269

An original entryman who, after the unauthorized cancellation of his entry, acquires from the patentee an undivided half interest in the land, becomes seized with an interest in the whole of the prem

ises and is, therefore, estopped from invoking the relief which the act of Jan. 27, 1922 (42 Stat. 359), would have afforded him had the title remained in another. 52-411

The Land Department has no means of enforcing its decisions and restoring to an entryman in whose favor it has decided possession to the land unlawfully detained from him by another, but his remedy is in the local courts. 52-519

Regulations of Apr. 5, 1930, timber cutting by settlers and entrymen on unperfected claims (Cir. No. 1211). 53-73

Equities cannot prevail to defeat a plain legal right, and the officers of the Land Department are without discretionary authority to deprive one of a right conferred upon him by Congress after he has done everything essential exacted by law and the lawful regulations.

53-76

Regulations of Aug. 22, 1933, extensions of time for homestead and desert-land proofs (Cir. No. 1311, superseding Cir. Nos. 1269 (May 20, 1932, 53 I.D. 663) and 1288 (Aug. 24, 1932, 54 I.D. 139)). 54-274

Instructions of Aug. 20, 1934, to govern extensions of time for payments on homestead entries of ceded Indian lands (Cir. No. 1334, supplementing Cir. No. 1326, 54 I.D. 515). 54-587

Divorce terminates a wife's rights in the homestead of her former husband. 55-471

The wife of an entryman who has obtained a divorce from him for other cause than voluntary abandonment or desertion is not qualified as a deserted or abandoned wife within the terms of the act of Oct. 22, 1914 (38 Stat. 766), and accordingly is not entitled, under the provisions of said act, to submit proof upon and obtain patent to such an entry. 55-471

Where it is established that an entryman's wife supplied the money by which the relinquishment of a former entryman was obtained, and later, in reliance upon assurance from the entryman (at the time

serving a term in the penitentiary for commission of crime, and a divorce being contemplated by both parties) that the entry was hers, returned to the land, improved it and has since maintained residence thereon, in the meantime obtaining a divorce from the entryman, her title to the land will be held superior to the entryman's although not derived from the marriage relation. 55-471

Instructions of July 6, 1936, absences from homestead lands because of economic conditions (act of Apr. 20, 1936, 49 Stat. 1235). (Cir. No. 1396).

55-569

Where a homestead entryman marries a homestead entrywoman and they elect to and are permitted to perform the residence requirements on his entry, upon final decision holding the entryman's entry for cancellation for failure to comply with the residence requirements, the entrywoman should be required to show cause why her entry should not also be canceled. 56-320 The fact that under the community property law of Arizona the husband is the statutory agent to manage and control the property does not, in the opinion of the Department, affect the character of the interest of the wife as an owner of community property. 57-1

By virtue of the Taylor Grazing Act of 1934 (48 Stat. 1269), rights of settlement may no longer be initiated. 58-557

Where a homestead entry is made on the basis of a patented survey plat, the redesignation of the land in a subsequent survey plat, approved between the date of the entry and the date of the patent, will not necessarily control in the interpretation of the patent; and the patent, where governed by the plat of earlier survey, is subject to reformation. (Secretary's Instructions, M-33711, June 20, 1946.)

private riparian lands, and its title partially beclouded by the invalid claim of another alleged riparian owner, the entry will be suspended pending a segregative survey and the quieting of title to the Government's lands. 59 416

Two years from the date of the issuance of the register's receipt upon the final entry of any tract of land under the homestead laws, the entryman is entitled to receive a patent without regard to whether a final certificate has been issued. The running of the 2-year period may be tolled, however, if within that time the entryman has received notice of a protest and appeared to seek its dismissal, even though the trial of the protest is not commenced within the 2-year period. 59-458

A previous homestead entry, canceled more than 10 years ago for failure to comply with the homestead law, cannot be reinstated and its statutory life extended in order to permit compliance with the law. 60-217

When an Alaska homestead entry is allowed prior to Aug. 10, 1949 (Public Land Order 601, 14 F.R. 5048) in justifiable ignorance of the fact that it is bisected by a highway right-of-way reservation, the entryman, when he submits final proof, should not be required to select one of the two portions of land into which the tract is divided, and relinquish the other, but should be issued a patent to the entire tract, exclusive only of the land covered by the highway reservation. 60-447

Where 2 years have elasped after the issuance of a receipt upon a final homestead entry and no contest or protest was pending against the validity of the entry at the end of the 2-year period, the entryman is entitled to the issuance of a patent on the entry, even though after the 2-year period has run, a mining claimant asserts the existence of valid conflicting mining claims located prior to the initiation of any rights to the land by the homestead entryman. 61-374

The Department cannot infer bad faith on the part of a homestead entryman from the mere fact that he knew several buildings belonging to a third party were on the land at the time he applied for entry.

61-379