delivered the opinion of the Court:
Every point advanced by appellant in this case is, in our view, settled by the following very recent decisions: 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; United States ex rel. McKenzie v. Fisher, ante, 7. In Fisher v. United States, which involved the interpretation of the very statute upon which appellant here relies, this court, speaking through Mr. Justice Yan Orsdel, said: “While it is true that arbitrary power resides nowhere in our system of government, and while the supervisory authority vested in the Secretary of the Interior and the Commissioner of the General Land Office over the disposition of the public lauds is neither unlimited nor arbitrary, yet the question here presented as to whether or not the communication and order amounted to a protest, which we regard as exceedingly close, was one clearly within the power of the Commissioner to decide. To say that he was mistaken would require us to review a matter exclusively confided by law to his discretion and judgment. This proceeding will not admit of such a review.”
The communications of special agent Hammer respecting this entry were made within the two years contemplated by said act of March 3, 1891, as was the communication of June 18, 1894, from the Commissioner to said agent. It is apparent that these communications resulted in the withholding of a patent; in other words, that the Commissioner regarded the right to that patent as dependent upon the outcome of the investigation which was to ensue. The subsequent decision of *162the Secretary, that what was done within the two-year period constituted a protest against the patenting of the entry, was not arbitrary or capricious, but was based'upon evidence; and the sufficiency of that evidence was for his, and not our, determination.
Upon the authority of the above cases, therefore, the judgment will be affirmed, with costs. Affirmed.
On November 16, 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 U. S. ex rel. Red River Lumber Co. v. Fisher, post, 186.