The Bad Lands cow boy. [volume] (Little Missouri, Dakota [i.e. N.D.]) 1884-1886, 1886-03-25
COMMITTING HoMEsTEADs.
Full Text Of Secretary Lnmar's ID eois,on
in the Brlttin Case, Which Has Given JOY
to Dakota. sFlJt yS5 ,5{5e ~

Full Text OF SeCreIAry ARmAf'B D0Oio}On
in the Brittin Case, Which Has Given JOY
to Dakota. b 10 5,5 Il +
Washington, Special Telegram, March IL.
The decision in the Brittin case meets
with universal rejoicing and commcula-
ton among western men here. A great va. !.
riety OF interests clustered around the right
to commute u homestead. The money.
lender class, it is said, is especially glad.
Its securities are now relieved OF q serious
cloud. Following is the full text Of the de-;
cision:
To the Commissioner Of the General Land
Office. Sir: James Britton made pre-
emption cash entry No. n, Dec: 81, 1888,
OF the southeast quarter section %, town
1864, north range 81 west. 9th p. M, DEVILS
Lake, Oak. Feb. 8, 1884, Britton; nlso made
homestead entry No. 1916, OF lots 1 and q
and f, one.half OF northwest quarter OF
section 80, town 1853, north range G6 west,
9th p. m, DEVILS Lake, Dak., and COM
muted the same to cash entry No. $50, I;
Sept. 9, 1884. You held this last entry:
for cancellation upon the ground that he
exhausted his pre-. emption right with his
first entry, and that his last entry No. $685.
| was therefore illegal. The effect OF
! your decision is that the commu-5
I! tntion of q, homestead entry is
virtually change OF such entry to pre-
emrtion, and as the applicant IL only en-
| titled to one presumption right he cannot
secure the benefit OF another by making en-
! try under the homestead law. Twoyques.
tions are presented by the Issue made in
| this case. = 55ts t5 x: ":
First hethera personwho has availed
himself Of the benefit OF the presumption.
act and has received the full number Of
acres allowed under that act can also se-i
cure IN additional 16o acres under the
homestead law, admitting that q person;
who had awaited himself OF the benefit Of
the presumption act may also be entitled
to the benefit OF the homestead net.
Second-Whether communication OF the
homestead entry to cash entry under
section 23O1, Revised Statutes, is not an
exercise OF the presumption right,
an entry ia not practically awarding
to such applicant second presumption
right. In his report OIL S6G, Commissioner
Wilson, in speaking ofthe question, whether
n person who commutes a homestead en-
try can afterward enter other land under
the presumption net. says: ION this point
it has been ruled that when party legally
i entitled makes an entity under the home
stead law OF May 20, 1862, and thereafter
Mt any time after the expiration OF five
years shall come forward, make proof OF his
en- day. and then pay for the tract, the pro-
ceedings merely consummate his homestead
right as the act allows, the payment being
a legal suhBtitutionf for the continuous labor
the law would otherwise exact from his
hands. A claim OF this character is
- NOT PRE.EMPTIoN,
1 but a homestead, and as such will be no
bar to this same party acquiring 81 pre-
emption right providing he can legally
Il, L. - 1.
| ment and cultivation on another tract at
o period subsequent to the contamination
Of his homestead" The only limitation
upon his right under this Interpretation is,
that he shall not be permitted to consum.
| mate both entries at the same time. This
construction OF the law has been uniformly
followed ever since by the land office aud
| Department. in administering the law govern
Ing the disposition OF the public lands under
the homestead act, and even if this statute
would bear different construction, do
not think it would be in accordance with
sound policy or the exercise of legal dis
| tretion to give to this lava different inter-
probation in the decision Of q case in which
the conduct OF the parties affected thereby
was evidently controlled by the interpreta.
bon OF that law as then pronounced by
The department. The official duties Of the
head OF departments are not merely minis.
terlai, puC tney arc required TO eXpound
and interpret the laws and resolutions pf
congress under which they act. But indie
pendent OF this view, I concur with the con-
struction OF the statute as given by my
predecessor Section 6 OF the homestead
act 2209i Revised STATUTES provided that
! nothing 4ifs. this act should be 40.
constructed as to impair or interfere in
any manner whatever with existing
pre-. emption rights, and provided fur
thcr that NIL persons who have filed their
applications for a presumption right prior
to the passage OF this act shall be entitled
to all the privileges Of this act" Clearly
The first part OF the provision tended, to
secure to those who mightavail themselves
Of the benefits Of this net tho existing right
81 entry under the presumption laws, and
the second part OF this provision was! in
tended to secure those who have therefore
awaited themselves OF the pre-. emption
right. the benefit OF the homestead law in
addition thereto. For these reasons / re-
verse your decision and herewith return tie
papers transmitted with your office letter
OF Jan. rs, 1885. Very respectfully, &
.5 L. @. c. LAMAR,
- r.Ft Sncraf ri Tho II o,;r,r