, 1891-04-26
CALLS A SHARP HALT.
The Land Law Wasn't Intended
to Expedite Business.
This is the View Expressed Of
il by Secretary Noble.
Cases Will Not be Rushed to
Patent Unless Investigated

WASHINGTON, April 25.-Secretary
Noble today communicated to Commits
sioner Carter his views as to the proper
construction to be placed upon the pro-
vision in Section 7 of the repeal OF the
timber culture act. The opinion is of
great importance to the public land states
inasmuch as it determines the question as
to what point OF time the words when
there shall be no pending contest or pro-
test against the validity of such entry"
apply, whether a contest or protest to
prevent the issuance of u patent until dis
posed of must rave been pending before
the lapse OF two years iron the date of
the suanc Of the receivers receipt upon
the final entry, in cases existing and
where two years bad elapsed before the
act of March 3 took effect as well as in
those afterwards. Many thousand home
stead, desert land. pre-emption and
timber culture entries are involved in the
opinion.
The secretary SAYS, in part: I'll the
statute of March 3 were to be construed
to invalidate all contests or protests not
filed within two years after the date of
final receipt aud before this statute took
effect, the result would be that many
thousands of fraudulent daims would go
to patent without tm ther question being
possible, although the contests or protests
were legally pending at the date Of the
act aud with great loss to many citizens.
A contest is a statutory means of acquiring
a homestead or other claim against lille
gal entry aud is thus regarded, ii
successful, to preserve the public domain
for the honest settlers. To so construe
the present act as to aunul and, as it
were, wipe out all those contests and pro-
tests existing before March 3, 1891, if not
filed within two years from the issuance
of final certificate, would amount sub.
stanfially 10 the repeal pro tdRt0 of the
statute of May IA, 1880. But the
statute cannot be legally held to be re-
pealed by implication and. least OF all,
where 1t would allow patents to issue in
so many cases where the experience of the
department leaves no reason to doubt
that fraud has been practised upon the
laws regulating lana entries, and which
can be proven it contests and protests
are allowed to proceed to hearing.
Ii it had been the purpose OF congress
to provide that the contest or protest
must be pending within two years after
the receivers receipt upon final entry in
all cases before the statute of March 8,
1891, as well as after, it certainly would
not have used SO ambiguous a term as we
here find The makers OF this law were
well acquainted with the situation of
affairs, the lard laws had been a subject
of great discussion for many years in and
out of congress; the committees on public
lands are distin guished for industry and
-. 49, 800. E,1lu II
all of the facts stated. Had they desired
to accomplish the purpose claimed
by some thst this act does accomplish
as it reads they should and,
doubtless would have used language too
plain and direct in construction. On the
contrary. they use the present participle
in this clause aud say, when there shall
be no pending contest or protest -mean-
ing thereby clearly, | think, pending
then, presently, at the date OF the act,
as it was not intended to be limited TO
contests pending within two years after
date of the final receipt when the case
had arisen before the present act
took effect and two wears had
elapsed. The statute thus be-
comes one OF limitation as 10 the
future without oyerthrJwiHg pending con
tests or prospects. When the W years
did not terminate before the date OF the
act. a contest or protest to be valid must
be filed within the two years. There IL
no force. | think, In the point that the
statute en-merates cases arising under the
timber culture and presumption laws, for
these laws, although repealed by its
present act. had been eficacious TO
enumerate entries which either proceeded
to final entry or may yet do SO.
No new cases can arise under the tim
Der culture or presumption laws, but it
was necessary hat thus act should notice
them to cover the whole ground. Neither
does the proposition seem a sound one
that by this statute it was intended to
to expedite public business. The way
congress must expect to have patents Is
sued is by furnishing a sufficient clerical
force to accomplish the work. and
not by suddenly rushing great
masses of cases to patent, although
contests legally instituted are pending,
and in which experience leaves no reason
to doubt that fraud exists. To thus re
gard fraud and squander tie public lands
could not have been the purpose of our
national legislature. These are my vie VS.
unon the law presented, and all of the
points deem 1t necessary to discuss.
Decrease IN Customs Receipts.