The DeSmet leader. (DeSmet, Kingsbury Co., Dakota [S.D.]) 1883-1891, 1885-07-25
Land Patents.
r. 10 sioux cry journal.

Dakota feeling uneasy as To the lSSu-
ance of patents, where they hold re-
ceiver's certificates of proof aud pay
mcnt of the government price for the
land they have entered and made final
proof upon. While it is true that the
register and receiver may refuse to ac-
cept Il final proof, and decline toreceiNe
the purchase money, IL Is equally true
where they do receive the proof and ac-
Ccpt thp money aud issue a receiver
receipt or certificate. the land depart
mcnt or the interior department cannot
refuse to issue the patent This cannot
and does not deprive the government
of redress in the courts. but il does have
the effect 10 compel the government to
90 to tie courts to annul the patent.
After certificate has ISSUED the duties
of the department are simply minister
ial and must be performed. The reason
for this is Obvious. Tie claimant has
complied with the law: he has published
notice ut his intention TO offer his proof
on a certain date, and in addition has
giVCnnOtice at the same time in the same
manner, that certain designated persons
VIII testify as to his residence and Cui-
tivation of the land. In fact thus far
he has complied with the law. If there
be such Il thing rs notice 10y publication
being of force and effect, then due no
tiCe has been given to the government,
and they must take CuguiZanCc of IL
just the same as IN individual is com
pcllcd to do. No objection is made on
the da! the final proof is rendered. the
local officers receive il, take the money
and issue a receipt for the same. From
that day the claimant is the owner of
the real estate. and hy tie decisions of
the state courts Of iowa, Wisconsin.
Minnesota. Illinois and Indiana, and
these decisions affirmed hN the supreme
court Of the United States. is compelled
to pay tax upon the land. Nor do these
decisions stop here They also affirm
that the title thu. acquired is in all res
poets similar L. that Of Il title given by
ON ItlNtIil IT, higO(Ii'l anu NuIl 'IilN w
contrOycrtrd in the same manner Fin
al proofs are Of course, Hs Il rule. made
eX paltr. ana there is an opportunity
for perjury. The local officers may sus-
pici0n thatperiur} ha> been committed,
bat suspicion is not proof, and there
appearing no proof OF fraud thtt must
issue the certificates This act passes
the legal tile to the land, aud IN the
language of the statute the patent
must issue. The executive depart
mcnt 0l tie government thus loses all
control over the title. II wrong has
been done to The United States, the
coult, of Justice are open 10 II. as IN
the ease Of an individual. 10 have re-
dress hy cancellation OF the patent or
rrcuuypyauce of the land. In Perry VS..
O1ianlan, II No. 5Sj, the supreme
court of Missouri held that a canceIla-
/ ton of a certificate by the commission
/ or was Il nuiity. Similar decisions are
recorded i'm Ilinsds and Wisconsin.
/ That this is sound law there can he no
question because while the commlSSion-
er and thc secretary possess powers III
themselves judicial, they possess only
I the powers. To adjudicate IN cases OF
/ coutesting claimants. and III these cases
stranger To the record. that Is, an III
nocemt purchaser, cannot appear as an
jutervenor in his own behalf. THIS
class of interycnor are entitled TO Il
hearing. and court of justice IS The
only source from which they can OBTAIN
relief or cven secure hearing. The
constitution of the United States does
not confer obScldc power upon the eX-
ccutiyr in cases where the rights of one
or more individuals are III conflict with
those of the government, and the Wis
dom of Leaning such cases 10 the court
cannot be questioned. Having thus
reviewed the law and court decisions
we come 81 the sweeping order OF Com
missioner Sparks IN SuSpcndlng patents
i'm this Territory and other States and
Territories. Wcdo not desire to attack
the commissioner. Tut simply to con-
trast his action with the law as cNpound-
ed by the courts. Thai the order was
premature is evidenced hy its being Is
sued within less than Thirty days after
the commissioner took charge OF tAt
Office. and before he could possibly have
rrxamincd into the powers and duties o'
the commissioner of the general ldn'
office. In the first place, had he exam
ined the law he would have discovered
, the fact that from the acceptance OF th'
final proof of the claimant by the loca
land Offices the whole duty Of the Ian,
. department is simply ministerial liz
would have discovered that his duty
I. was SIMPLY 10 certify that tle proof haC
{ been received 10y him without command
/ ON the part of the office accepting il
: and that they Lad ISSUED a certificate
, for the same. lie would have observe,
that he simply CcrtilieS 10 the status %
e. the case. and that the law has beer
- complied with as 10 ali the details
and hc would have observed that th
, name OF the commissioner does not ap
| pear upon patent. lie is not callt'
. upon to certify that the claimant swOr
[ uuthfully OF falsely. In the absence O
prucf 70 tie contrary he must aSsum
{ that the testimony is truthful and pas
: the papers in their regular course an