The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-09-16
THE ALGER CONTEST.
An Opinion Rendered in Favor
Of the C0ntestees.
a RESUME or THE CONTEST.


uexistsr Reed says the Order for the
CanssiIssion Of ths Entriss
Should be Ksseinded.
Register I. N. Reed. Of the land ofics,
oas handed down an opinion In the
famous Alger cass. holding that the order
for the cancellation Of the entries should
be rescindsd and the entries passed to
patent. The opinion in full follows:
In the United states Land 0nics, Seattle Land
District, State Of Warrington.
The United States. contestant, ~ stephen ..
Bailey. Rayaud x. Hawley and Russell A. Al
eer. trsnsferees, and Henry Mcbride. T. Z G.
Entry No. 1858: William Gilmore. 7. = 2; Z.
No 7.Ioa; Edward L Chalcfoft, T. L G. =. No
&93o: Edward Crome. 7. L c. = No. 6.036;
Henry Brandon, I. L G. +. No. s,oa6; Henry =.
STANLEY. 4. L. c. T. No 6075: winfield VII
eou. +. /. C. T. No. 1850: Wayne w. Holcomb.
Thee. No 7,O71; Henry G. Hackley, 7. L
G. X No 7.os1; John =. Brandon. = L 2. E.
No 6,9S7; william Rogeu, Z. L G. Z. No 6,Sss;
John l. Leslie, r. l. G. 3. No 7.l24, contestcea
OPINION or THE RE0rsTER
This case involves some twelve timber land
in Tp SIN. r Sew. NJ, Washington, and conn
prises about .So6 acres
BY hip lettor sP'' OF ---, the commissioners
Of the general land ONCE held these several en-
tries for cancelletion upon the report OF Special
Agent J. r. Carson. which said report charged
that In each Of the entries the land embraced
therein were agricultural land and not timber
land within the purview Of the act OF
June q, 1878; also that said entries were
fraudulent in that the same were made as the
instance and request Of Stephen g. Bailey ana
J. Theodore Lohr, transferees thereof
Due notice was given the transfefees OF the
commissionei's decision aforesaid. and they
were allowed sixty days from the date OF
notice and ten days additional for mailing. 70
show cause why such entries should not be can.
cclled. Within the sixty days from the date OF
said notice the trArsferees appeared BY their
attorneys and moved to dismiss the order hold
ing said entries for cancellation and asked that
the same be reinstated and that patents be
1nsued for the same, which motion was based
On the ground that the land department OF the
United States had no jurisdiction TO hear or
determine the truth or fa1sehood Of the allega-
tions contained in the special agents reports;
together with said motion the attorneys at the
same time fled an application for hearing TO
show cause why the entries should not be can
celled. reserving their rights under the motion
aforesaid.
commissioner OF the general land ONCE ovei-
ruled the motion 20 dismiss and reinstate said
entries. and. considering that sufficient cause
had been shown In the application for hearing
ordered that hearing be had to determine
whether said entries should be finally cancelled
or pass TO patent. Accordingly on August a,
1859. in pursuance 70 the notice issued from this
ONCE, the parties appeared and submitted testi-
mony upon the allegations Of the special agent
above stated. Special Agent G. n. Ogden ct said
hearing appeared for the United States and
Messrs. Jacobs 4 Jenner and Eben Smith, ESQ.,,
representing Hawle, and Alger. transferses, and
Messu. 0strander 4 Gregory appeared for 9. 6.
Bailey.
The Issues In the case are based upon the
special agents report. above set forth. and pre-
sent only two questions for US to consider.
First-The question Of fraud, In that agricult-
urnl land was entered under an act Of congress
which expressly limited the lands TO be entered
Hereunder to lands unfit for cultivation.
Secondhand, In that the entry-man en-
tered the lands for the use and benefit Of an
other.
1t was my intention to consider those two
points only In discussing this case, but, mas
much q counsel for transferees have with much
insistence urged the point that after final GER
tihcatc has issued the land department has no
Jurisdiction to hear, try or legally cancel an
entry: and e the receiver bases his separate
upluOu I1fHey upon tulB pOtnts nave uHQet.
taken to consider II briefly with others In imme-
diate connection herewith. The trausferees
maintain three propositions (see page Of the
bricf). which are. in effect, that the land de-
partment. after final certificate and before pat
ent, has no authority to cancel an entry This
proposition il and has been for NAVY years
debstable one. The land department has been
consistent In uniformly ruling that It has juris-
diction, and We are unable to fnd any decision
INA ~ hat av,fh IA
any other view, and none from any of the fed
eral courts, except that rendered by Mr.. Justice
Deadly, In the case of Wilson VS. Fine, 10th
Federal Reporter. pages so to 50. The views Of
Justice Deadly are we'll known In this regard
and he is considered to hold extreme views. In
the case Of Montgomery ct al W. The United
States, he held that an action may be brought
against the United States to enforce the issue of
spafent under the act of March 8. 1887.
The supreme court in reversing him say: "tI
10 argued, however. that the new law has ex-
tended the jurisdiction of the court of claims
and the concurrent Jurisdiction Of the circuit
and district courts. or at least the latter so al
to embrace every kind Of claim, equitable as
well Is legal. and specific relief or recovery OF
property. as well ~ q recovery of money II
such IL the legislative will, Of course the courts
must conform TO it. although the management
and disposal Of the public domain. in which the
newly claimed jurisdiction would probably be
most frequently called into exercise. has ALWAYS
been regarded a. more appropriately belonging
to the political Departments of the government
Than to the courts, and moro matter OF admin.
stration than judicature. - OF course
bur province IL construction only: the policy OF
The law is the preErogative of the legislative de.
partment. But Notwithstanding the glowinp
terms in which able jurists have spoken of the
progress OF civilization and enlightened govern.
ment has exhibited In subjecting government,
tself. equally with individuals, to the jurisdic.
don OF its own courts, we should have been
somewhat surprised to find that the admin stra.
Non of vast public interests. like that of the
,ublc lands. which belong 30 appropriately "a
he political department. had been cast upou
he courts-which IL surely would have been. II
mch wide door had been opened for sninp the
government to obtain patents and establish land
claims. as the counsel for the appellees In these
Eases seems to imagine. We are satisfied tina,
he door has not yet been thrown open TINS
vide The DEGREES OF the court are reversed in
III the cases. aud the causes are respectively re-
handed. with instructions to dismiss the orig.
nal petitions or bills"
The supreme court in said case evidently con-
ridered that the executive department. in a
coordinate branch of government, and tina,
here should be preserved to IL the right In
manage its affairs until IL loses entire iuris.
fiction by the issuance of patent In the case
II Wilson vs. Fine above referred to, Justice
)eady cites the supreme court in the case OF
scrnelius VS.. Kessel. los g. s.. 49, in suppo,.
u his decision and quotes from the syllabus AS
ollows; The power of supervision possessed
" the commissioner of the general land ONCE
wer the acts OF the register and receiver In 10,
unlimited or arbitrary and can only be exertetl
vhen the entry is made upon false testimonv
nd without authority of law, and cannot be
xercised so rs TO deprive person of land law