Reporter and farmer. [volume] (Webster, Day County, Dakota [S.D.]) 188?-1946, 1886-03-25


F.., 3exs of secretary LaHIar's DeeisissN
iuthe Brittin Case, Which Has Given %.
tc, Dakota.
Washington, Special Telegram, March ! 9.
srgbo decision in the Brfttin case meets
fith universal rejoicing and eomuleh,la'
l;,,, q moug western men here. A great w
ir;ety al interests clustered around the risle
10 Commute n homestead. Inc money
lender class, it is said, is especially giaa.
It's securities are now renewed u 49, ~
cloud. Following is the iuli tehe oi tlo az,
cision: ,1,...,,I r =, nd
To 4he Commissioner ofthe General Lahu
oaice Sir: James Britton made pre-
emption cash entry No. III, Dec. 81, 1000,
~ fha southeast quarter section 20, to"h
M north, ra1gc I'd west. 5th .. M, DeNii
faIe max Feb. 8, 1854, Britton also aaae
homestead entry No. 1856, oil lois 4 anu
and +, one-half Of northwest quarter "a
section 30, tcwn los, north range 90 "eas'
5th p. m, DEVILS Lake, pnk., Anu Mo Geo
muted the same to cash entry no oo',
sent o. 1884. You held this last entry
for cancellation upon the ground tnat ne
exhausted his pre-. enption right WITH n n1S
first entry. and that his last entry NO. oo",
was therefore Illegal. The effect oil
your decision is that the comma-
tation OF a homestead entry
virtually a change OF such entry 10 pre-
emption, and as the applicant IL ohIy en-.
titled TO one pre-emption right he cannot
secnre the benefit OF another by making en-
try under the homestead law. Two ques-
tions are presented by the issue MADE IN
First-Whether a person who has awaited
b;r,self of the benefit of the presumption
act and has received the full number oil
acres allowed under that act can also Sc
cure an additional 160 acres ander Tue
homestead law, admitting thai person
,xbn had awaited himself OF the benefit OF
The ure-emption act may also ne ehtitiea
TO the benefit of the homestead act.
Second-W Whether a Communication oil the
homestead entry to IL cash entry under
section 230l, Revised Statutes, Is not an
exercise OF the prt -emptlon rlght,
and whether the allowance oil snch
an entry is not practically AWARDING
to such applicant n second presumption
right. In his report OF 1865, COMMISSIONS
Wilson, in speaking oIthe question, "heIher
n person who commutes n homestead en-
try can afterward enter other land under
the pre-cmption act, says: "On this point
IL has been ruled that when party legally
entitled makes an entity under the nome
stead law of May 90, 1862, and thereafter
at any time after the expiration OF hye
wears shall come forward, make proof oil his
actual settlement and cultivation to CIV
en- dav. and then pay for the tract, the pro
ceedings merely consummate his homestead
right as the act allows, the payment being
n legal substitution for the continuousIa labor
the law would otherwise exact from nus
hands claim of this character Is
NOT PRE.EMPTroN,
Int n homestead. and as ouch will be no
bar to this same party acquiring a pre-
emption right providing be can legally
show his right by virtue OF actual settle
ment and cultivation on another tract at
a period subsequent to the contamination
Of his homestead" The only limitation
npon his right under this interpretation Is,
that he shall not be permitted to consam-
mate both entries at the same time. ms
construction OF the law has been uniformly
followed ever since by the land office and
departmenti in administering the law govern
ing the disposition OF the public lands under
the homestead act, and even il this statute
would bear different construction, DO
not think it would be in accordance with
sound policy or the exercise oil a legal dis.
cretion to give to this law different inter
probation in the decision OF case III which
the conduct of the parties affected thereby
was evidently controlled by the interprcta-
ton of that law as then pronounced by
the department. The official duties of the
head Of departments are not merely minis
terial, but they are required to expound
and interpret tie laws and resolutions uf
congress under which they act. But indie
pendent OF this view. j concur withthe con,
struction of the statute as given by my
predecessors. Section OF the homestead
act 2299, Revised Statutes provided that
nothing in this act should be so
constructed as to impair or interfere in
any manner whatever with existing
presumption rights, and provided fur-
Their "that all persons who have fled their
applications for IA 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 nigh ava 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 have therefore
awaited themselves of the presumption
right, the benefit OF the homestead law i'll
addition thereto. For these reasons | re
verse your decision and herewith return the
papers transmitted with your Office letter
of Jan. 70, 1885, Very respectfully, 4
l.. Q. C. LAMAR,
Secretary of the Interior.