The Hope pioneer., 1886-03-26
coMaIUTNa HoMEsrEADs.
Full Text of Secretary Lamar's Deoision
in the Brittin Case, Which Has Given Joy
to Dakota.

= uAA A0AI Va S0SA0ASky 1>esA~As-~
in the Brittin Case, Which Has Given Joy
to Dakota.
Washington, Special Telegram, March
The decision in the Brittin case meets
with universal rejoicing and commenda- \
tion among western men here great va
riety OF interests clustered around the rlsnt /
to commute q, 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.71, Dec. 81, 1883,
OF the southeast quarter section ~, town
154, north range 64 west. 5th p. M, Devils
Lake, Oak Feb. 8, 1884, Britton also made ].
homestead entry No. 1876, OF lots l and -
and F, one-half of northwest quarter of I
section 80, town 1853, north range 66west,
5th p. M, DEVILS Lake, OAK, and com com
muted the same to cash entry No. 669,
Sept. 8, 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: 669.
was therefore illegal. The effect OF
your decision is that the commu-
tation OF homestead entry 10
virtually change OF such entry to pre-
emption, and as the applicant is only en-:
titled to one pre-emption right he cannot
secure the benefit OF another by making en-
try under the homestead law. Two ques-
tions are presented by the issue made in
this case.
First-Whethera a person who has avalled
himself OF the benefit OF the pre-emption
act and has received the full number OF
acres allowed under that act can also Sc
cure an additional 1G0 acres under the
homestead law, admitting that a person
,,l,. lie <~f kl,oh roEf Oh
the pre-emption act may also be entitled
to the benefit OF the homestead act.
Second-Whether q commutati OF the
homestead entry to cash entry under
section 23O1, Revised Statutes, is 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 pre-emption
right. In his report OF 1866, Commissioner
person who commutes a homestead en-
try can afterward enter other land under
the pre-emption act. says: con this point
it has been ruled that when party legally
entitled makes an entity under the home
stead law OF May 20, 1862, and thereafter
at any time after the expiration of five
years shall come forward, make proof ofhis
actual settlement and cultivation to a CIV
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 substitution for the continuous labor
the law would otherwise exact from his
hands. A claim OF this character is
NOT PRE.EA1PTIoN,
but a homestead, and as such will be no
bar to this same party acquiring u pre-
emption right providing he can legally
show his right by virtue Of actual settle
ment and cultivation on another tract at
q period subsequent to the contamination
Of his home tead." 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 and
ing the disposition OF the public lands under
the homestead act, and even If this statute
would bear n different construction l do
not think it would be in accordance with
sound policy or the exercise OF legal dis.
rretion to give to this law different inter-
probation in the decision OF a case in which
the conduct OF the parties affected thereby
was evidently controllt d by the interpreta-
tlon 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 the laws and resolutions of
congress under which they act But indie
pendent OF this view, concur with the con-
struction Of the statute as given by my
predecessors. Section 6 OF the homestead
act 2299, Revised Statutes provided that
constructed as to impair or interfere in
any manner whatever with existing
pre-elnption rights, and provided fur
ther that all persons who have fled their
applications for pre.emption right prior
to the passage OF this act shall be entitled