The following opinion was filed February 1, 1901:
Pee CuRIAm.Motion for rehearing granted, provided, however, that reargument'shall be confined to the following questions, viz.: First, whether, as conditions precedent to the confirmation of Jacobus’s certificate of entry under the act of June 3, 1896, application to the commissioner of the general land office, proof of the necessary facts before him, and finding thereon by him, or either of those proceedings, was made essential; second, whether the six-months actual residence in good faith by the homestead entryman prior to the commutation, required by said act of June 8, 1896, was required to be subsequent to the date of entry; third, whether at the date of said act, June 3, 1896, Jacobus’s entry had been canceled, and the land in question had been re-entered by the homestead act; fourth, whether the rights now claimed by the respondent are such that he is estopped to set them up against the appellant.
The cause was reargued September 26, 1901.
For the appellant there was a brief by Scmborn, Luse do Powell, and oral argument by A. L. Scmborn and Z. K. Luse.
For the respondent there was a brief by W. F. Bailey, attorney, and W. LL. Stafford, of counsel, and oral argument by 'Mr. Bailey. ' ■
The following opinion was filed October 15, 1901:
*523Dodge, J.1. The first question submitted for reargument, namely, whether, as conditions precedent to the confirmation, under the act of June 3, 1896, of Jacobus’s previous commuted pre-emption entry, there was necessary an application to the commissioner of the general land office and proof of the necessary facts before him and finding thereon by him, is predicated upon the first clause of the act of June 3,1896, “ Whenever it shall appear to the commissioner of the general land office that,” etc.-, The doubt suggested by these words, as pressed upon us in the motion for rehearing, was whether the purpose of Congress was to create the commissioner of the general land, office a special tribunal to pass upon the existence of the necessary facts for relieving certain applicants for public lands from the effect of the act of March 3,1891, or whether it was intended merely to provide, wbjxM'i materia with the other land laws, for an examination and decision of these questions by the land department, presided over by the secretary of the interior, and in which the commissioner of the general land office and all other officers are but subordinates of the secretary of the interior, and exercising one or another of the functions of that department, subject to direction, control, and supervision by the secretary. It is well known that in 1820 Congress for the first time attempted something like general legislation which should affect and regulate the management and disposal of the then considerable public domain, which had been derived from various sources and was obviously to increase vastly in extent and value. Since then legislation has been almost as frequent as the sessions of Congress; some of it scientific and deliberate, but much of it seemingly accidental and aimed at special details. Many of these acts, if construed according to their exact words, would have been subversive of certain phases of the obvious general policy of Congress with reference to this important subject; and in this field, perhaps more than almost any other of con*524gressional legislation, the construction placed upon the land laws from time to time enacted both by the department and by the courts has been that- they were intended merely to be added to and become a part of a consistent system of legislation, and as enacted one by one were, so far as possible, to fall under and be controlled by those general provisions and regulations evidently intended to cover the whole field. A comparatively late illustration of this view is presented in the case of U. S. v. Healey, 160 U. S. 136, but there are many others which might be cited.
Since the incorporation of the land department into the interior department, whereby the whole business of the former was placed under the • supervision and control of the secretary of the interior, there has been no element of the policy of Congress and of the public land system more prominent than that the secretary of the department of the interior should be the responsible head thereof; that through and by him spoke and acted the government of the United States with reference to the public domain; and an act which substituted some subordinate of his as the responsible and final representative of the government, free and independent of the secretary’s control, would be a most startling innovation. It is therefore not surprising that we find that the act of 1896 under discussion was promptly assumed by the interior department to be but one more of the many laws directing the conduct of the land department, to be controlled in its execution by the general policy above outlined, whereby the commissioner exercised no more absolute power or discretion than he did generally with reference to the conduct of the land business. On July 9, 1896,— about one month after the enactment of the law,— we find the commissionér, having first obtained the approval of the secretary, promulgating regulations for the execution of this act by a circular published in 26 Land Dec. Dep. Int. 544. This circular provided that in certain cases then pending no *525application to any officers need be made, but that tbe general land office would at once take them up for consideration without application. As to other cases it'was provided that application should be made, not to the commissioner as a responsible and special tribunal, but, as in the case of all other land matters, to the local land officers, who should examine and report thereon, as upon other applications, not to the commissioner, but to the general land office. This circular, while emanating from the commissioner of the general land office, did not purport to emanate from him as the source of authority, but, in accordance with the usual practice of the land department, bore upon its face the sanction of the approval of the secretary. It was wholly inconsistent with the understanding that the establishment of rights under the act of 1896 was intended to be treated otherwise than the rights of other applicants under the general system of public land laws. Two instances are cited to us by counsel of the treatment of applications under this law in exactly th¿ same manner as other applications for lánd, in that the. power of the secretary of the interior to supervise, regula,te, and control is recognized and exercised. In re Hasselquist, 24 Land Dec. Dep. Int. 351; Kuepper v. Tripp, 26 id. 561. To these may be added Jacobus’s own application, over which the secretary unhesitatingly took jurisdiction without a thought that a new tribunal exclusive of himself had been vested with that authority. We find nothing to indicate that the line of construction thus adopted in the depart-' ment has ever been varied, and these decisions, commencing at about the time of the passage of the act, and continuing thereafter, are, of course, very cogent in- its construction. U. S. v. Healey, 160 U. S. 136.
In the case of Buena Vista Co. v. I. F. & S. C. R. Co. 112 U. S. 165, an act of Congress provided “ that the commissioner of the general land office is hereby authorized and required to receive and examine the selections of swamp *526lands, . . . and allow or disallow said selections and indemnity provided for,” etc. A decision by him under such act was reversed by the secretary of the interior, and in the suit it was contended — as by the respondent here — that the decision of the commissioner was intended to be final' and not appealable to the secretary. This contention was overruled, the court saying:
“ There is nothing in the act which alters the relation between the two officers as otherwise established, or puts the decisions of the commissioner under that act upon a footing different from his other decisions.”
In Knight v. U. S. L. Asso. 142 U. S. 161, the question of the relation of the secretary to the execution of the land laws — not only those existing at the time his general authority was defined, but such as might be thereafter enacted — was exhaustively discussed by Lamae, J., who shortly before had been secretary of the interior. This discussion is so exhaustive, and the citation of statutes, precedents, and illustrations so complete, as to render further enlargement now unnecessary. The views there expressed are further supported by Orchard v. Alexander, 157 U. S. 372; Parsons v. Venzke, 164 U. S. 89; Warner Valley S. Co. v. Smith, 165 U. S. 28; In re Sweayze, 5 Land Dec. Dep. Int. 570; 17 Op. Att’ys Gen. 205.
In the light of the rules for construction of the land laws promulgated by these decisions of the supreme court of the United States and the practical construction given to the act of 1896 by the executive officers, we cannot doubt that it was intended to be carried out under the direction and supervision of the secretary of the interior. While he might, and generally did, require that rights claimed under it should first be submitted to the officers of the general land office, he did not thereby preclude himself from assuming direction and supervision upon direct application to himself, waiving such preliminary steps. In such case his decision *527was the ultimate and final one of the executive branch of the government.
2. The second question submitted for argument was whether the words, ^Whenever it shall be made to appear . . . that there was at least six months’ actual residence in good faith by the homestead entryman prior to such confirmation,” etc., required that such residence should be after the entry. Obviously, there is nothing in the words themselves to express such requirement, unless it lurks in the word “ entryman.” The suggested argument is that residence by an entryman can only exist after entry; before that claimant is not an entryman. This contention gives to that single word extraordinary force as a limitation, and we should be slow to believe that statute makers used it for that purpose, unless such intention were confirmed by context or other considerations. The word “entryman” may quite as naturally have been used merely to describe •such person as was entitled to the benefit under the act of 1896. To be entitled to confirmation thereunder, one must have been a homestead entryman. We find the word thus used elsewhere in the same statute more than once; that is, .as merely descriptive of the persons to whom'that act applies. If used in the same sense in the clause under consideration, it would only require six months’ residence by that person. That the same word is used in the same sense when repeated in a law is ordinarily to be presumed,, unless a different purpose is plain. We can discover no reason, either in context or in the purpose of the legislation, to avert that presumption. On the contrary, we think that it is merely an adoption into this particular statute of a rule of the general land office which for many years had been applied to pre-emptors, whereby, in excess of the statutory conditions for acquiring title, they were required to have resided in good faith upon the land for at least six months before preemption certificate could issue. Since this requirement was *528not statutory, the act of 1896, giving to homestead entrymen the same rights to pre-emption prescribed by law for those originally applying as pre-emptors, might have been construed as waiving this requirement for six months’ residence in good faith prescribed only by regulation. It seems obvious that the clause in question was interpolated merely to avoid this result, and to require of homestead entry, as a condition of commutation into pre-emption, the same six months’ residence in good faith as the regulation had previously imposed on all others; which residence had never been required to be subsequent to entry, but merely prior to final proof.
Another reason is now urged by appellant why the clause making right to confirmation under the act of 1896 dependent on six months’ actual residence should not exclude the plaintiff, even if such residence must be subsequent to entry. That reason is that, as appellant now claims,'his entry took place when he filed the necessary papers and paid the fee in February, 1891. He cites authorities seeming to sustain the position that the date of an entry of land is when the applicant having the right to enter completes all of the acts required of him to effect that result; that delay of the land officers to note on their books such entry cannot affect his rights, whether such delay results from hearing and deciding a contest or from any other cause. Chotard v. Pope, 12 Wheat. 586; Lytle v. Arkansas, 9 How. 333; Shepley v. Cowen, 91 U. S. 330; Postle v. Strickler, 3 Land Dec. Dep. Int. 42; Gilbert v. Spearing, 4 id. 463; Goodale v. Olney, 12 id. 324; Coder v. Lotridge, id. 643; Bomgardner v. Kittleman, 17 id. 209; McDonald v. Hartman, 19 id. 562. Since we have decided that the six-months residence is not required to be subsequent to entry, we do not need to pass upon this contention of appellant. If we should adopt this view, it would not change the result. We therefore consider that we ought not to pass on it, for its decision might sustain plaintiff’s *529right to the land independently of the acts of 1891 or 1896. In that respect it is an entirely new proposition, presented for the first time upon a rehearing limited by our order so as not to fairly include it, so that respondent cannot be said to have had reasonable opportunity to meet it. On the original argument of this- case no question was raised as to the correctness of the commissioner’s ruling that Jacobus’s entry was of date July 6, 1892, and our consideration of the case proceeded upon assumption of such correctness. As the question was not raised or argued by counsel, so it was not 'considered or decided by the court. The several references in the former opinion to July 6, 1892, as the date of entry are to be construed, not as a decision of that fact, but merely as assumption of a premise from which the discussion of other questions proceeded.
3. The first part of the third question reargued we deem unnecessary of decision for the purposes of this case. Examination of various decisions of the land department of the United States and of federal courts leaves much confusion and doubt whether an order of the commissioner of the general land office that an entry be “held for cancellation ” effectively cancels it if an appeal is taken therefrom, or whether its efficacy as a judgment of cancellation is complete only upon the expiration of the time for appeal without that right being exercised, or, if exercised, upon final affirmance by the secretary of the interior and communication thereof to the commissioner, followed by formal order of cancellation. There seem to be decisions and dicta supporting the different theories. Johnson v. Walton, 11 Land Dec. Dep. Int. 278; McDonald v. Hartman, 19 id. 547; In re Northern Pacific R. Co. 20 id. 191; In re Hasselquist, 24 id. 351; Germania I. Co. v. James, 89 Fed. Rep. 811; S. C. 107 Fed. Rep. 597. Since the effect of such acts must largely be ascertained by the holdings of the department; and ultimately by decision of federal courts, we deem it unadvisable to declare our view *530thereon unnecessarily. We therefore withdraw the statement in our former opinion bearing on completed cancellation, as follows: “The ultimate rendition of judgment, however, had been postponed so that his rights were still un-adjudicated, though decided, when the act of 1896 came in and declared that they should be adjudicated upon the proof made in September, 1892, unless in making such proof fraud had been practiced.” We say that completeness of cancellation of plaintiff’s entry is immaterial and unnecessary of decision because his right to confirmation under the act of 1896 was by the terms of that act defeated only in case there had been both cancellation and re-entry under the homestead act prior to June 3, 1896, or prior to application for confirmation; and the complaint clearly asserts that no reentry had taken place. It not only categorically and in terms negatives such event, but also alleges that HilVs entry did not take place until September 7, 1896. This would seem conclusive upon demurrer that this call of the statute had not been complied with, but counsel for respondent urges that Hill had acquired a “ preference right of entry ” at some earlier date, which should be deemed that of his re-entry. Careful examination of the- complaint discloses no such allegation, but if we should infer from the fact that Jacobus’s attempt to make second commutation was defeated upon HilVs contest, and that the latter afterwards entered, that such entry was allowed by reason of preference right based in his contest, still the existence of such preference right is not an entry nor a re-entry, within the words of the act of 1896. Such right is a mere privilege to enter, and in no sense an entry. Sec. 2, ch. 89, Laws of 1880 (21 Stats, at Large, 140); In re Hendrickson, 13 Land Dec. Dep. Int. 169; In re Davis, 19 id. 489. Hence we conclude that, whether cancellation had or had not taken place, there certainly had been no re-entry, and plaintiff was not within the terms of the proviso to the act of 1896, so as to preclude him from, right to confirmation under it.
*531After full consideration of all the reasons urged, we find none to lead us to recede from the decision formerly declared. It is therefore unnecessary to consider whether, if any of such reasons had been sustained, estoppel might successfully be invoked against respondent in urging them.
By the Court.— Order of the circuit court reversed, and cause remanded with directions to overrule the demurrer.
MaRshall, J., took no part.