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).

Under section 2297, Revised Statutes, as amended by the act of June 6, 1912 (37 Stat. 123) an entry is subject to contest on the first day following the expiration of the six months' period, where the entryman fails to establish residence within six months after the date of the entry. 52-185

The contest or protest mentioned in the proviso to section 7 of the act of Mar. 3, 1891 (26 Stat. 1095), has reference to a proceeding initiated against the entry, and a mere communication of protest is not sufficient to stop the running of the statute.

52-648

Where the rights of non-Indian claimants to lands within Indian Pueblo grants in New Mexico have become fixed in the manner provided by the act of June 7, 1924 (43 Stat. 636), that is, either by the uncontested action of the Pueblo Lands Board, or by determination of title by a court of competent jurisdiction in an independent suit instituted by the Indians, or a like determination by the department of any contest instituted, heard, and decided in the manner provided for in the statute, the showing of title to be required in connection with the purchase of such lands by the Government for the Indians need not go beyond the proceedings in which the rights of the claimants were so fixed and determined.

52-694

Where the question of prior possessory rights to public lands has been relegated by law to the courts a protest based upon allegations of prior and superior rights to the possession will not lie. 53-58

A clerical error by a postmaster in a registry return receipt will not be ground for the abatement of a contest where the contestant had acted diligently in all the various steps prescribed by the Rules of Practice in the prosecution of the contest and had complied with the letter of the requirement relating to proof of the mailing of the notice. 53-226

Service of notice by a railroad company upon an entryman of intention to enter an appeal to the rejection of the company's selection list does not constitute a contest against the entry. 53-265

In a contest by a mining claimant against a regularly allowed stock-raising homestead entry, illegality of the entry is not proved by merely establishing that the land is mineral in character, but it must be shown that there existed either a prior perfected location under the mining law, or a mining location, though not perfected by discovery, yet in the actual possession of the locator who is diligently engaged in the search for mineral. 53-382

When a homestead entry is allowed upon the faith of an affidavit by the homesteader that the land is not occupied or appropriated under the mining laws, the burden of proof will be upon one claiming adversely under an alleged mining location to show that the entry was not rightfully allowed.

54-47

If a mineral claimant brings a contest against a regularly allowed homestead entry and uses an official mineral survey of his claim as evidence of the existence of conflict, the survey is not conclusive as to the location of his claim and the entryman has the right to impeach it in the Land Department, if not made in accordance with the law and regulations or if it is fraudulent or erroneous. 54-48

Where, following contest duly allowed, an entryman with notice of such contest does not meet and respond to its allegations, but relinquishes to the United States, such action must be taken as a confession of the truth of the charges, and the contestant is under no burden to prove such

It is a rule of the Department that a protest will not be entertained during the pendency of adverse judicial proceedings under Section 2326, Revised Statutes, in which the protestant is a party, especially when the matter of protest may be the subject of legitimate inquiry in the proceedings. 56-40

Henshaw filed a protest against a timber and stone application filed in 1933, alleging prior purchase in 1908 of the land from the State of California by his ancestor and continuous possession and use thereof since by his ancestor or his heirs for grazing, that the land had no commercial timber upon it, that the selection of the land by the State had been rejected in 1917. The Commissioner of the General Land Office dismissed the protest for the reason that the selection of the land by the State had been rejected in 1917. Protestant, after due notice of this dismissal, took no action in that proceeding but thereafter filed a contest affidavit alleging substantially the same facts as alleged in the former protest, which the Commissioner dismissed on the grounds (1) that the charge stated nothing that was not known to his office and was subject to dismissal, therefore, under Rule 1 of Practice, and (2) that the charges in the former protest and present contest were the same. (1) That the contest affidavit did not allege causes of invalidity in the timber and stone application shown by the records, but extraneous matter, and that the first ground for dismissal was unsound; (2) that the contest affidavit raised the same

Held:

issues between the same parties concerning the same subject matter that was raised in the previous protest and the matter was res judicata, although in the decision on the previous protest no consideration was given to the question of the value of the land for timber, which was not a basis of contest but of protest. 56-241

Where the record of a State selection shows that notice of cancellation thereof was served on the Surveyor General and Register of the State Land Office, and that no action was taken by the State to substitute valid base and make good the selection, and claimant of the land under the State selection admits in his protest and subsequent contest against a later timber and stone application for the land that he knew of the cancellation and does not allege that his predecessors in title had no timely notice therof, and official notices issued by the State Land Office show service of such notice of cancellation on his ancestor in title, those who held the asserted title from the State and their successors in interest must be charged with notice that the certificate of purchase from the State and any deeds purporting to convey rights thereunder did not convey title to the land and that henceforth occupancy of the land was without claim in good faith under such a title. 56-241

Where an entryman makes a second stock-raising entry, his qualifications must be determined, not as of the date when he made his first entry, but as of the date of his second entry, and it is therefore no defense to contest proceedings, instituted on the ground that he was disqualified by ownership of more than 160 acres of land in violation of the act of Mar. 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. 2289, 43 U.S.C. 161), that he was not so disqualified at the time he made his first entry. 57-169

A charge to the effect that a sodium borate deposit prevented a location being made under the mining laws, necessarily meant that the deposit was of the type contemplated by the Mineral Leasing Act. Findings and conclusions based on contest charges are to be read together in a reasonable manner. 58-427

Under departmental rules of practice each party to a contest is liable for payment of the costs of the record he makes

and must make a deposit to cover such costs before the contest hearing is held. A contestee who refuses to make such deposit is not entitled to offer evidence, to participate in the hearing or even to introduce into the record any papers which require notation (43 CFR, 1940, 216.18, 221.53, 221.57). 58-670 A finding by the head of a district land office in a contest proceeding between private parties, in which the Government has intervened, is subject to review by the Director of the Bureau of Land Management even though no appeal from the finding has been taken by either party to the contest or by the Government. 60-342

In a contest initiated by one individual against another, the Government should not attack the validity of the contestant's claim on grounds other than those disclosed by the application to contest without first notifying the contestant of its charges and allowing him an opportunity to meet such charges.

61-161

The Land Department does not have the power to cancel an entry upon evidence presented in contest proceedings against the entry and at the same time to deny to the contestant the preference right accorded him by the act of May 14, 1880 (21 Stat. 140). 52-177

A contestant does not gain a preference right where the entry under attack is canceled not as the result of the contest but upon adverse proceedings previously instituted by the Land Department upon a charge substantially the same as that upon which the contest was predicated. 52-462

Instructions of Aug. 10, 1928, stock-raising homesteads; driveways for stock. Paragraph 15, Cir. No. 523 (51 L.D. 1), amended. (Cir. No. 1160). 52-474

An application for a tract of land presumptively passing under a school-land grant, in the absence of statute or departmental regulations to the contrary, confers the legal status of a contestant of the State's title without preference right, and is no obstacle to a withdrawal of the land by the United States. 52-503

Where in a contest proceeding a decision is rendered holding the entry for cancellation but denying a preference right to the contestant, an appeal by the contestee from that part of the decision affecting his rights will not entitle the contestant, who failed to appeal within due time, thereafter to assert a preference right in the presence of an adverse claim even though the decision as to him may have been 52-529

erroneous.

Successful contestant who tendered the full costs of contest is entitled to his preference right of entry, even though the register under a misconception of contestant's rights refused to so apply the costs tendered and returned part of the costs to contestant, provided contestant thereafter pays the full costs of contest.

56-22

Where a contest against a stock-raising homestead entry includes a charge that the entry is invalid by reason of conflict with prior valid mining claims and also, by subsequent amendment, a charge that the entryman failed to comply with the residence requirements, if the entry is canceled on proof of the latter charge, the contestant is entitled to a preference right

of entry although he may not have claimed such right in his original or amended contest affidavits.

56-22 Successful contest of an entry confers upon the successful contestant as against the Government no substantive right to enter lands not subject to entry but only a procedural right of priority over third parties when lands become subject to entry. 56-295 Contestant alleging intent to acquire title to the land contested under the act of June 28, 1934 (48 Stat. 1269), may be qualified under section 7 of said act, as amended by the act of June 26, 1936 (49 Stat. 1976), to make entry under some applicable public land law. There is no ground, therefore, for dismissing the contest for failure of the contestant to show that he is qualified to acquire title to the land. The question whether contestant may exercise a preference right is not properly before the Department until it is attempted to be exercised.

57-1

Where contestant establishes that contestee was disqualified as a homestead entryman by reason of ownership of more than 160 acres of land acquired by devise or from one whose estate has not been partitioned or probated, to impose upon the contestant the burden of further proving that there is no possibility of the proof of debts against the estate to which the land might be subject is an onerous requirement and unnecessary to establish prima facie the entryman's disqualifications. The existence of such debts should be peculiarly within the knowledge of the contestee, and if they are such that affect the title and estate of contestee, the burden should be on contestee to allege and prove them. 57-1

Where an entryman makes a second stock-raising entry, his qualifications must be determined, not as of the date when he made his first entry, but as of the date of his second entry, and it is therefore no defense to contest proceedings, instituted on the ground that he was disqualified by ownership of more than 160 acres of land in violation of the act of Mar. 3, 1891 (26 Stat. 1095, 1098, Rev. Stat. 2289, 43 U.S.C. 161), that he was not so disqualified at the time he made his first entry. 57-169

CONTRACTS

(See also Labor; Delegation of Authority; Rules of Practice)

I. Generally..

II. Acts of Government... III. Additional Compensation. IV. Advertising.. V. Appeals....

VI. Assignment of Claims.... VII. Authority to Make VIII. Bids.

IX. Bonds

X. Breach_ _ _ _

XI. Changed Conditions... XII. Changes and Extras. XIII. Contracting OfficerXIV. Cost-Plus___ XV. Damages.. XVI. Delays of Contractor_ - __ XVII. Delays of Government. XVIII. Eight-Hour Law_XIX. Interpretation___ XX. Modification_. XXI. Payments.. XXII. Performance_. XXIII. Protests-XXIV. Specifications...

XXV. Subcontractors and Suppliers....

XXVI. Suspension and Termination_..

XXVII. Unforeseeable Causes ---XXVIII. Waiver and Estoppel_ _ _ _

I. GENERALLY

recourse

A paper and pulp company's contract with Indians to purchase timber from them contained a provision affording the company administrative against economically unreasonable stumpage prices, by price reduction, which provision formed a substantial consideration for the company's contractual promises. Quaere: Whether a later statute if construed to deprive the company of such administrative recourse for a price reduction would not violate the "due process" Iclause of the Fifth Amendment to the Federal Constitution. 54-401

An agreement between the Soil Erosion Service of the United States and a State forest commission whereby, for a consideration, the latter is to produce and supply trees for the former, possesses the essen

In the construction of public works, a contract by the Government for an entire structure is valid, even though funds are not at the time available for its completion, if in the contract it is provided that in the event the necessary allotment or appropriation of funds for completion of the structure should not be made, the Government is to be released from all liability due to such failure of allotment or appropriation. 54-432

The United States is as much bound by its contracts as are individuals. 57-233

Departmental approval of a form of contract is not approval of a contract subsequently executed under such form. 58-638

Article 15 of the standard form of construction contract does not preclude the head of the Department from deciding an issue as to both the facts and the law. A decision as to the facts is final and conclusive. A decision as to the law may be reviewed by the courts. United States v. Moorman, 338 U.S. 457, 463 (1950), distinguished. 60-499

The purpose of an escalation provision in a contract is to make available a means of adjusting the contract price to cover the fluctuations in costs during the performance period of the contract. 60-507

A contest will not be allowed where the grounds for an alleged contest are shown by the records of the Department. 61-368

The minimum-wage provision in a Government contract is not a representation or warranty to the contractor that such wages are those actually prevailing in the area. The Davis-Bacon Act is not for the benefit of contractors but for the protection of their employees against substandard earnings. 61-423

II. ACTS OF GOVERNMENT A Government construction contractor claimed additional compensation over the agreed contract price because delay in the supplying of timber piling by the Government allegedly disrupted his work program and increased costs for labor, materials, and overhead. Held, (1) that the Government is not obligated, in the absence of an express provision in the contract, to do any act so that work contracted for should at all events be completed within the contract time, or so that

it can be carried on in the most efficient and least costly manner, (2) that where a contractor performs within the time specified only the work contracted for, no claim for damages because of alleged extra work may be administratively considered, (3) that even where a contractor shows that he has in fact performed extra work under a contract with the Government, recovery therefor cannot be had unless such work was ordered in the manner prescribed by the contract, (4) that a claim for additional compensation, calculated after the completion of the work under a contract, cannot be allowed in any event, since it is in form a claim for unliquidated damages which administrative officers of the Government are without authority to consider. Wm. Cramp & Sons v. United States, 216 U.S. 494, 500. 58-313

Where the operations of a contractor under a construction contract were halted for 128 days due to a "stop order" from the Government, the granting of an extension of 10 days in the time for performance, to cover the delay incident to the reassembling of its labor force by the contractor, would be proper. 60-480

III. ADDITIONAL COMPENSATION

An adjustment of prices on completed contracts has not been provided for in the National Industrial Recovery Act, or by other legislation, and only by legislation could administrative officers be clothed with powers to increase the price for which goods are sold to the Government, after the sale has been completed. 54-271

There is no authority of law under which an administrative officer of the United States may grant relief from the terms of the undertaking of a successful bidder upon a contract to furnish supplies to the United States, by increasing the price for which the supplies are sold, after the sale to the Government has been completed.

54-271

A Government construction contractor claimed additional compensation over the agreed contract price because delay in the supplying of timber piling by the Government allegedly disrupted his work program and increased costs for labor, materials, and overhead: Held, (1) that the Government is not obligated, in the absence of an