
    UNITED STATES EX REL. RED RIVER LUMBER COMPANY v. FISHER.
    Public Lands; Mandamus.
    The determination by the Secretary of the Interior that the commencement of an investigation, as to the entryman’s compliance with the homestead, law, before the expiration of the two-year period, constituted a “pending contest or protest” within the meaning of the act of Congress of March 3, 1891, 26 Stat. at L. 1095, chap. 561, U. S. Comp. Stat. 1901, p. 1535, is a possible construction of the act, and will not be reviewed on mandamus. (Following Fisher v. United States, 37 App. D. C. 436; and United States ex rel. McKenzie v. Fisher, ante, 7.)
    No. 2439.
    Submitted October 9, 1912.
    Decided November 4, 1912.
    Hearing on an appeal by tbe relator from a judgment of tbe Supreme Court of the District of Columbia dismissing appellant’s petition for a writ of mandamus, to compel appellees, tbe Secretary of tbe Interior and tbe Commissioner of tbe General Land Office, to revoke tbe cancelation of tbe entry to certain public lands and to issue a patent tberefor.
    
      Affirmed.
    
    Tbe facts are stated in tbe opinion.
    
      Mr. William C,. Prentiss and Mr. Jdim B. Ciarle, for tbe appellant.
    
      Mr. Charles W. Cobb, Assistant Attorney General, Mr. F. W. Clements, First Assistant Attorney, and Mr. C. Edward Wright, Assistant Attorney, for tbe appellees.
   Mr. Justice Van Oesdel

delivered tbe opinion of tbe Court:

This is an appeal from a judgment of tbe supreme court of tbe District of Columbia dismissing appellant’s petition for a writ of mandamus to require tbe Secretary of the Interior and tbe Commissioner of tbe General Land Office to revoke tbe cancelation-of tbe entry to certain public lands, and to issue a patent tberefor.

Appellant claims tbe right to mandatory relief under the provisions of tbe 7th section of tbe act of Congress of March 3,. 1891, 26 Stat. at L. 1095, chap. 561, U. S. Comp. Stat. 1901, p. 1535, which provides: “That after tbe lapse of two years from the date of the issuance of the receiver’s receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall he issued to him.”

It appears that the homestead entry in question was made on June 11,1900; that final proof and payment were made on February 28, 1906, when a final certificate was issued to the entry-man by the register of the local land office. The Commissioner of the General Land Office, by letter dated June 29, 1907, called the attention of the acting chief of field division at Oakland, California, within whose jurisdiction the land was situated, to certain statements contained in the entryman’s final proof, and stated that, in view of said statements, the office desired an investigation made as to the entryman’s compliance with the homestead law. This appears to be all tbat was done by the Department within the two-year period provided by the statute, but on August 27, 1908, tbe special agent wbo had made the investigation reported: “(1) That claimant has failed to establish and maintain residence on the land in question; (2) that claimant has never cultivated or improved the land in question, except to construct a small frame house 16 x 24 feet in dimensions; (3) that claimant has cut and removed, for the purpose of sale, about 327,000 feet of timber from the land in question.” This report was made tbe basis of the proceedings which led to the cancelation of the entry.

The sole question presented turns upon the interpretation placed upon the act of Congress by the Secretary of the Interi- or. It is manifest that in the disposition of the case he was called upon to interpret the statute. That he may have wrongfully construed it will not authorize the issuance of the writ. The letter to the chief of field division, calling for an investigation, instigated by disclosures made in entryman’s own testimony, opened the investigation, which was pending at the expiration of the two-year period, and which ultimately led to the cancelation of the entry. It was for the Secretary to determine whether or not this constituted a protest or contest within the statute. He held that it did. His construction of the act was a possible one, and will not, therefore, be reviewed in mandamus. Fisher v. United States, 37 App. D. C. 436; United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356, affirming 33 App. D. C. 302; United States ex rel. McKenzie v. Fisher, ante, 7.

The judgment dismissing the petition is affirmed, with costs.

Affirmed.

On November 12, 1912, the appellant applied for the allowance of a writ of error from the Supreme Court of the United States.

The application was denied November 18, 1912, Mr. Chief Justice Shepard delivering the opinion of the Court:

On consideration of the motion for the allowance of a writ of error to remove the above-entitled cause to the Supreme Court of the United States, it is by the court this day ordered that said motion be, and the same is hereby, denied on the authority of United States ex rel. Jones v. Fisher, 225 U. S. 708, 56 L. ed. 1267, 32 Sup. Ct. Rep. 839, and United States ex rel. Jones v. Fisher, 38 App. D. C. 46.  