(dissenting). The application of Robinson filed on January 24,1901, to enter the land in question and to pay for it with the Carroll additional homestead certificate, was noted on the plat by the local land officers on that day. The application and notation did not effect a completed entry; but, so far as the rights of Robinson were concerned, they were equivalent to an entry. They protected his preference right to enter the land against all other parties as effectually as an entry would have done, and they prevented the appropriation of the lands by the Santa Fé Company or any other applicant until the application was finally rejected on May 13, 1907. They differed from a completed entry only in this: That the junior applicant might acquire a preference right of entry against others but not against Robinson during the pendency of his application, while such a junior applicant could not acquire such a preference right after an entry.
The decision of the register and receiver on July 15, 1905, that the Carroll additional certificate was invalid was followed on July 27, 1905, by a petition of Robinson that he might be granted 30 days in which to “rescrip the above-mentioned tract.” This petition is to be read in the light of the rule and practice which will be shown to have existed in the Land Department at that time to permit an applicant whose additional homestead ’certificate proved defective to substitute *239a valid certificate in its place and to support his original application thereby. The petition was not for leave to make another application for the land. It was to substitute another additional homestead certificate as payment for the land in support of his original application. These additional homestead certificates are, like cash, bounty land warrants, Sioux scrip, and agricultural college scrip, mere means by which the government may be paid for the lands sought by the applicants. The Acting Commissioner of the hand Office so understood the petition, for his answer to it was not a cancellation, but a maintenance, of Robinson’s original application on condition that within 30 days after notice to him he should file a substituted additional homestead certificate. The commissioner said in his instruction to the register and receiver:
“You will also notify tlio applicant that he will be allowed 30 days from notice hereof in which to file a proper substitute 1'or the right hereby rejected, and, if at the expiration of said period the applicant has not filed such substitute you are directed to hold the said tract subject to entry from that time by the first: qualified, applicant.”
Within the 30 days after notice and on October 4, 1905, Robinson filed his substitute, the Heath additional homestead certificate, and it was accepted, and Robinson was permitted to enter the land and to pay for it, not on a new, but on his old, application, and a final certificate was issued to him thereon on March 2, 1906.
But on July 11, 1905, before the substituted certificate had been filed, the Santa Pe Company had applied to select this %nd, and it contended and finally persuaded the officers of the Land Office to hold that Robinson’s substitution of a valid for an invalid additional homestead right — in other words, a good for bad payment for the land — was not permissible and to issue the patent to the Santa be Company for that reason. Robinson insists that this decision and act were violative of an established rule and practice of the Land Department to permit such substitutions, which were and had long been in existence on October 5, 1905, when he filed his substituted additional and until after he had completed his entry. This contention presents the decisive question of law in the case in hand.
A rule and a settled practice of the officers of the Land Department relative to the acquisition of the public lands is a rule of property in accordance with which applicants have the legal right to have their rights to these lands which are acquired under such a rule determined, and neither the Secretary of the Interior nor the Commissioner of the Land Office may lawfully deprive them of this right by a subsequent abrogation of the rule or the practice and the promulga • tion of a different one. The new rule and practice may govern rights acquired after its promulgation; but the rule of property in existence at the inception of the rights in question determines their validity and extent. Retroactive decisions and rules of the officers of the Land Department, as well as those of the courts, are as vicious and in • effectual as retroactive laws. Germania Iron Company v. James, 89 Fed. 811, 817, 32 C. C. A. 318, 354.
What, then, was the rule and practice of the Land Department as to the substitution of additional homestead certificates on October *2404, 1905, when Robinson filed his substitute? It was and still is the rule and practice of the Rand Department to permit the substitution of valid bounty land warrants and agricultural college scrip for defective warrants and scrip offered in payment for land, and soldier’s additional homestead certificates are of the same nature. Hussman v. Berry, 6 Land Dec. Dep. Int. 375; Hussman v. Durham, 165 U. S. 144, 17 Sup. Ct. 253, 41 L. Ed. 664; Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963, 41 L. Ed. 179. Robinson alleged in his bill that, when he filed his substituted additional homestead right, a like rule and practice existed, and had existed for many years, to the effect that, when the additional homestead of an applicant proved defective, a valid additional homestead right might be substituted for it in support of the original application so that the substituted additional homestead related back to the date of the original application and prevailed over junior applications which were necessarily made subject to this rule. The defendant answered this averment that prior to March 24, 1906, “there was a rule and practice prevailing in the department that, upon the rejection of a soldier’s additional homestead right to make an entry of public lands, the said applicant might apply for and take and enter said lands with another valid soldier’s additional right; but this defendant alleges that said rule and practice was limited in its application to those cases where no other adverse right was pending at the time the so-called soldier’s substituted additional right was offered at the local land office in lieu of other scrip which had been rejected.”
The fact will be noted that the issue was whether this rule of property existed prior to March 24, 1906. It was immaterial what the rule and practice were after this date, or indeed after October 4, 1905, when Robinson filed his substituted additional homestead certificate, because then all the rights of the parties against each other had become fixed. The defendant admitted by its answer that 'such a rule and practice did exist prior to. March 24, 1906, but averred that this rule of property did not apply to cases in which there was a junior application pending when the substituted additional certificate was presented. This answer was a confession and avoidance, and the burden was upon the defendant under a familiar rule to prove the avoidance, to prove that cases in which a junior application was pending were excepted from this rule and practice prior to March 24, 1906. In support of this allegation he produced no evidence whatever, no rule, no practice, no decision. On the other hand, these facts were established by undisputed evidence: On October 14, 1898, Robeson T. White applied to enter a tract of land upon the additional homestead right of one Carver. Thereupon William Moran applied to enter the same land as a homestead. On October 2, 1899, after the application of Moran had been filed, and while both applications were pending, White applied to substitute the additional homestead right of Pugh for that of Carver which he had reason to fear was defective. The Commissioner of the General Land Office, upon consideration of his right so to do, decided that, “the instant White signified his election to withdraw his application as the assignee of Winifred Carver, the right of any actual bona fide settler upon the land under the home*241stead law would attach,” and he sustained the claim of Moran. In re Robeson T. White, 30 Rand Dec. Dep. Int 61, 63. It is true, as stated in the opinion of the majority, that White had a preference right of entry when he made his original application to enter the land under the homestead right of Carver. But this preference right of entry was nothing but a right to enter the land by paying for it with an additional homestead, or cash, or other admissible means of payment within 30 days after October 13, 1898. His application to enter and pay for the land with the Carver additional gave him no better right after these 30 days expired — that is to say, after November 12, 1898— than Robinson had after lie made his original application. 21 Stat. 141, § 2. The right of each to enter depended upon his payment with his additional homestead rights, and each was an applicant, and not an entryman. Robinson by virtue of his application had as valid a preference right of entry as White had after November 12, 1898.
From the decision of the commissioner in favor of Moran, White appealed to the Secretary of the Interior, and these are the words of Acting Secretary Ryan pertinent to the issue of the rule and practice to substitute a valid for an invalid additional in support of an original "application in the face of a junior application:
“It does not appear that White at any time withdrew, abandoned, or receded from his original application to enter. Being advised that there was infirmity in proofs of the Carver additional right, he offered to substitute the Pugh light. The intention to claim benefit of and attempt to exercise his preference right, earned by his successful contest of MeCrimmon’s entry, was the essential part of the transaction. In what manner or by what consideration the government should be satisfied for the land was only matter of incident to the essential and principal thing — the exercise of his preference right of entry. Had, for instance, the transaction been one of private entry on location of a land warrant, scrip, or payment of money, and it transpired that, innocently a forged warrant, or scrip, or counterfeit money was paid, the entry-man would be allowed to substitute other good warant, scrip, or money, without prejudice to his entry.
“Since it has been decided that soldiers’ additional rights are simply property, and have lost their personal character, the additional right, as it has reference to acquirement of government land, lias, as a logical consequence, become similar in character 1o a land warrant, scrip, or money. It is simply a form of legal consideration to the government for 1he tille 1o ihe land entered. It is not of the substance of the transaction that one right or another right, one piece of scrip or another piece of like scrip be surrendered as the consideration for ¡he entry, so only as a legal consideration some valid additional right is surrendered. ⅛ * *
“The offer to locate the Pugh right on the land was not inconsistent with claiming the land by location of the Carver right thereon. Having two rights. White could claim the land under either. Tf he liad reason -to apprehend infirmity in one right located on the land. White could properly reinforce or cure liis entry by locating another right thereon. As, however, it appears White was moved to locate the second right on the land by errors of the Land Department in the matter of Carver’s entries, he should be permitted to withdraw his Pugh right, if it be true, as appears by the record now. that the Carver right was good.
“Your office decision is therefore reversed, the order for hearing vacated, and White will be permitted to protect his preference right and entry thereunder by location on the land of the Pugh right, or any valid additional right, if it should prove to be necessary so to do.”
Here was a junior application in favor of which the commissioner had decided this case, and here was the decision of the Secretary of *242the Interior that, if the first additional homestead right proved defective, the Pugh additional homestead right which was presented 'subsequent to the junior application might be substituted to sustain the original and to defeat the junior claim. This determination of the secretary seems to me to be proof conclusive that on June 9, 1900, when that decision was rendered, cases wherein there were junior applications pending were not excepted from the rule and practice of substitution which was admitted by the answer to prevail.
But this is not all. On February 8, 1905, the commissioner of the General Land Office, in answer to this question, “Where a person who has a pending soldier’s additional application for a tract of land becomes convinced that the right or scrip is bad, applies to substitute another piece of same kind of scrip, to wit, soldier’s, additional, should we receive and transmit such scrip or reject it?” wrote the register and receiver who asked it: .
“The answer to this question is provided for in the case of Robeson T. White, 30 Land Dec. Dep. Int. 64, where it is held in effect that an applicant under section 2306, Rev. St., may after due notice that a soldier’s additional right, upon which his application is based, is for any reason illegal or invalid, substitute another soldier’s additional application as a basis for his original application without waiving any rights acquired by virtue of such original application.
“Referring to your question as to the proper procedure in the case of a relinquishment of a soldier’s additional application, after the basis has been declared invalid, and the filing of a new application accompanied by a substituted basis, I will state the situation as follows:
“Where the office holds for rejection an application because of a defective base, and the applicant, after due notice thereof, wishes to retain his rights under his original application, he need not file a new application (Robeson T. White, 30 Land Dec. Dep. Int. 61, supra), but all that is required to preserve his rights under his original application is to file within the time allowed under the rules a substituted basis of the same character as that originally presented, which act will be accepted as a waiver by the applicant of all rights asserted under the original basis and be sufficient to warrant you in immediately forwarding said substituted basis to this office after making proper notations upon your records.
“The office will thereupon take up this substituted basis, and consider it in place of the one theretofore filed.”
Let the facts be noted that there was no exception of cases in which there are junior applications pending in these declarations of the established rule and practice, and that the declarations expressly state that they rest on the rule and practice declared in White’s Case in which there was a junior application.
On July 19, 1905, the Commissioner of the General Land Office affirmed and applied this rule of property to another case where the substituted additional homestead right was tendered after a junior application had been filed in the case of Charles P. Maginnis. Ma-ginnis had applied to enter the land on October 24, 1899, upon the additional homestead right of Davis. On January 14, 1905, this homestead right was held to be defective and rejected. On April 14, 1905, the Northern Pacific Railway Company selected the land under its grant. On May 19, 1905, Maginnis applied for an extension of time to file a substitute additional homestead certificate for that of Davis, and the commissioner granted the request, and said:
*243“In the case of Robeson T. White, SO Land Dec. Dep. Int. 01, it is held in effect that an applicant under section 2300, Rev. St., after due notice that a soldier's additional homestead right, upon- which his application is based, is for any reason illegal or invalid, may substitute another soldier’s additional homestead right as a basis for his original application without waiving any rights acquired by virtue of such original application.
"In accordance with the case of Robeson T. White, supra, and the ease of John C. Ferguson (secretary’s decision of October 14, 1904, unreported), the application of iiaginnis serves to protect his rights as against other applicants until such time as the case is closed upon the records of this office, and the tender of the selection of the Northern Pacific Railway Company for said tract can confer no right upon the company as against this applicant, but serves to protect it against others.
“The facts presented as reason for an extension of time in which to file a substituted right are deemed sufficient to warrant granting the request.
“You are therefore directed to notify applicant and also his said attorney that he will be allowed 30 days from this dale in which to file a substituted right.”
The decisions and declarations which have now been recited constitute all the evidence that was produced in this case upon the issue of the prevailing rule and practice on October 4, 1905, when Robinson filed his substituted additional and secured his right to this land. They seem to me to demonstrate the fact that the rule and practice that an original application might be supported by a substituted additional homestead right, and that such an application so supported gave to the applicant a preference right to enter the land over a junior applicant, who presented his application before the substitution had been declared and followed in every case1 and instruction in which the question had arisen for more than five years prior to October 4, 1905, and there had been no decision, declaration, instruction, or suggestion to the contrary. Tn accordance with this rule and practice, Robinson’s substituted additional, that of Heath, which was filed on October 4, 1905, was accepted by the commissioner, and he directed the local land officers to allow him to enter the land on February 15, 1900, and on March 2d of that year he entered the land, paid the final fee and commissions due upon the entry, and the usual final certificate was issued to him. Because these acts and decisions of the officers accorded with the settled rule and practice of the Rand Department in existence when Robinson filed his original application and when he filed his substituted additional homestead right and when he made his final entry and received his final certificate, I am of the opinion ihat he thereby acquired an equitable title to this land superior to that of the Santa Fé Company, that the subsequent acts and decisions of the officers of the Rand Department which deprived him of this equitable title and patented the land to the company constituted a plain error of law, and that he is entitled to a correction of this error and to a decree in his favor to the effect that the defendant below holds the title under the patent in trust for him.
From this conclusion there seems to me to be no logical escape without overruling the decision of this court in Germania Iron Company v. James, 89 Fed. 811, 817, 32 C. C. A. 348, 354, to the effect that the rights of applicants for public lands between themselves are to be determined by the rule of property evidenced by the settled rule and practice of the Rand Department at the time when their rights *244accrue, and not by some new and contrary rule which the officers aft-erwards adopt. It is true that after Robinson had entered his land, paid for it, and received his final certificate in accordance with the established rule of property which had existed for more than five years prior to the entry and on March 24, 1906, upon an appeal from the decision of the commissioner which has been recited in the case of Maginnis, the Acting Secretary of the Interior reversed the rule of property which had theretofore always prevailed, and established the new and contrary rule that a junior application should prevail over a senior application supported by a substituted additional homestead right. But in my opinion that decision and the subsequent rule are not material to this case because it ought to be governed by the rule of property in force when the rights of the respective parties attached. By that rule, when the Santa Fé Company filed its application to select this land on July 11, 1905, it acquired no right to it as against Robinson’s right under his prior application which he had the legal right to sustain and enforce by his substituted additional homestead right of Heath. There was no reversal or suggestion of variation of that rule until the decision in the Maginnis Case on March 24, 1906, after Robinson had entered and paid for the land according to the law and the settled rule and practice as they then and always theretofore existed.
The suggestion is made that the officers of the Rand Department had no power to establish the rule and practice of giving to an applicant a short time after his additional homestead right was found to be defective to provide a valid additional homestead right in lieu of it or to receive the latter in support of his original application in the face of a junior claim. But ample authority to establish and maintain this rule and practice may be found in sections 441, 453 and 2306 of the Revised Statutes (U. S. Comp. St. 1901, pp. 252, 257, 1415), and striking illustrations of the exercise of like powers by those officers in Copp’s Public Land Laws 1875, p. 186; Copp’s Public Land Laws (Ed. 1882) pp. 478-9; General Circular of 1904, p. 238; and Rule 41, Circular of July 20, 1875; cited in Hussman v. Durham, 165 U. S. 144, 146, 17 Sup. Ct. 253, 41 L. Ed. 664.
On the other hand, the officers of the Land Department were without the power to divest Robinson of his title to this land after he had entered it. His filing of his application, his substitution of the Heath additional for the defective Carroll certificate, his entry and payment for the land, and his receipt of his final certificate, were each and all in strict accord with the law and the settled rule and practice of the department which were then in existence, and the power of the officers of the Land Department does not extend to the taking of property lawfully entered by one applicant and the giving of it to another.
“It cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property, and a right to a patent therefor, and can no more be deprived of it by-the order of the commissioner than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way of such interest will be corrected whenever the matter is presented so that the judiciary can act upon it.” Cornelius v. Kessel, 128 U. S. 456, 461, 9 Sup. Ct. 122, 32 L. Ed. 482; Bogan v. Mortgage Co., 11 *245C. C. A. 128, 130, 63 Fed. 192, 195; Germania Iron Company v. James, 89 Fed. 811, 816-818, 32 C. C. A. 348, 353-55; Ballinger v. U. S., 30 Sup. Ct. 338, 54 L. Ed.-, filed Feb. 21, 1910.
For the reasons which have now been stated, perhaps at too great length, it appears to me that the decree below should be reversed, and a decree for the complainant for the relief prayed in his bill should be granted.