The Warner sun. (Warner, Brown Co., Dakota [S.D.]) 1885-1???, 1886-03-26

Fall Text OF Secretary Lamarss Decision
N the Brittin Case, Which Has Given Joy
to akof

Fall Text Of Secretary Lamarss Decision
inthe Brittin Case, Which Has Given Joy
TO Dakota.
Washington, Special Telegram, March17
Tho decision in the Brittin case meets
with universal rejoicing and commenda
ton among western men here. A great VA
riety OF interests clustered around the right
to commute n homestead. The money
lender class, it is said. is especially glad.
It's securities are now relieved OF q serious
cloud. Following is the full text Of the de-
cision:
To the COMMISSIONS ofthe General Land
Office. Sir: James Britton made pre-.
emption cash entry No. III, Dec. 81, 1883,
OF the southeast quarter section 23, town
154, north range GA west. 9Th D. M. Devils
Lake, Oak. Feb. 8, 1SS4. BFitton also made
homestead entry No. 136, Of lots ! and 2
and +, one-half of north west quarter Of
section 80, town I5S, north range 66 west,
9Th p. m, Devils Lake, OAK, and COM
muted the same to- cash entry No. 6G9,
Sept. o, 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. ego.
was therefore illegal. The effect Of
your decision is that che eoMmIl-
tation OF a homestead entry is
virtually a change OF such entry to- a pre-
emption, and as the applicant is onayen-
titled to one pre-emption right he cannot
secure the benefit Of another by inakingen-
try under the homestead law. Two ques-
tons are presented by the issue made Ira
this case.
First-Whether O person who has awaited
himself of the benefit OF the presumption
act and has received the full number OF
acres allowed under that act can also se-
cure an additional 100 acres under the
homestead law, admitting thai u person
who had awaited himself of the benefit OF
the presumption act may also he entitled
to the benefit OF the homestead act.
Second-Whether a communications OF the
homestead entry TO a cash entry under
section 2301, Revised Statutes, IT, not an
exercise OF the pr,-emption right,
and whether the allowance OF such
an entry is not practically awarding
to such applicant a second presumption
right. In his r~eportof1S66, Commissioners
Wilson, in speaking ofthe question, whether
n person who commutes a homestead en-
try can afterward enter other land under
the presumption act, say ION this point
it has been ruled that when a party legally
entitled makes an entity under the home
stead law OF May 90, 1862, and thereafter
at any time after the expiration OF five
years shalt come forward makeproof OF his
actual settlement and cultivation to a Civ
en- day, and then pay for the tract, the pro-
ceedings merely consnmmate his homestead
right as the act allows, the payment being
a legal substitution for the continuous labor
the law would otherwise exact from his
hands. A claim OF this character Is
NOT A PRE.EMPTIoN,
but q homestead, and as suoh will be no
bar to this same party acquiring a pre-
emption right providing he can legally
show his right by virtue oil actual settle
ment and cultivation or another tract at
a 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 consinh-
mate both entries at the same time. This
construction Of the law has been uniformly
followed ever since by the land office and
DEPARTMENT. administering the o govern
ing the disposition ofthe public lands under
the homestead act, and even il this statute
would bear a different construction, / do
not think it would be in accordance with
sound policy or the exercise OF a legal dis
erection to give to this law a different inter
probation in the decision OF a case in which
the conduct OF the parties affected thereby
was evidently controlled by theinterpreta-
ton Of that law as then pronounced by
the department. Tho official duties OF the
head OF departments are not merely minis
terial, but they are required to expound
and interpret the laws and resolutions OF
congress under which they act. But indie
pendent OF this view, / concur with thecon~
~struction Of the statute MS given by my
predecessors. Section 6 Of the homestead
act 2290, Revised Statutes provided that
nothing in this act should be SO
constructed as to impair or interiors In
any manner whatever with existing
presumption rights. and provided fur
ther that all 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 might avail themselves
OF the benefits OF this act the existing right
OF entry under the presumption laws, and
the second part OF this provision was In
tended to secure those who nave therefore
awaited themselves Of the pre-emption
right, tile benefit Of the homestead law in
addition thereto. For these reasons / re-
verse your derision and herewith return the
papers transmitted with your Office letter
Of Jan. 25, 1885. Very respectfully,
i. q. C. LAMAR,
Secretary Of the Interior.