Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-05-01

to HIM; but this proviso shall not
be construed to require delay of
two years from the date of the said
entry before the issuing of patent there
for" After making reference to the
state of the law and the facts existing at
the time the present act was passed, and
after quoting section 2 of an act ap-
proved May IA, 1880, the secretary says:
ut thus appears that, if the statute of
March Sd were to be construed to inval-
idate all the the contests or protests not
filed within two years after date of final
receipt and before this statute took eff
feet, the result would be that many thou
! sands of fraudulent claims would go to
patent without further question being
possible, although the contests or pro-
tests were legally pending at the date of
this act and with great loss to
many citizens who, relying upon
the statute of May IA, 1880, have
invested their money and spent
their time in an honorable purpose to
obtain home against those who had
fraudulently seized upon the land. 1t is
true that if the language of the act clear
ly and distinctly expressed this purpose,
there is nothing in the nature of con-
test or protest that would protect it from
the effect of the law intended to destroy
it. 1t is admitted, as has often been de-
cided in this department, that the pref
erence right of the contestant rests upon
procuring tho cance' lation of the entry;
that after such preference right is ac-
quired, it cannot be assigned; that it
does not operate to reserve the land from
the control of congress during the period
allowed for the exercise of such right;
that the right is personal and that it is
terminated by the death of the
contestant. But the contest has
been, as it still is, proceeding
not only allowed but invited by congress.
1t is a statutory means of acquiring
homestead or other claim against illegal
entry and is thus rewarded, if successful,
to preserve public domain for honest
settlers. 10 so construe the present act
as to annul and as it were wipe out all
those contests and protests existing be-
fore March 3D., 1891, not filed within two
years from the issuance of final certif-
cate, would amount substantially to re-
peal pro tanto Of the statute of May IA,
1880. But the statute cannot be legally
held to be repealed by implication and
least of all, it may be added, where it
would allow patents to issue in so many
cases where the experience of the depart
ment leaves no reason to doubt that
fraud has been practiced upon the laws
regulating land entries and which can be
proven if the contests and protests are
allowed to proceed to hearing. IT it
had been the purpose of congress to pro-
vide that a contest or protest must be
pending within two years after the re-
ceiver's receipt upon final entry in all
cases before the statute of March Sd,
1891, as we'll as after, it certainly would
not have used SO ambiguous term as
we here find. Indeed, the language is SO
loose that 1t requires liberal construc-
ton to give it effect even upon subse-
quent contests, for, saying that, after two
years from issuance of final certificates,
when there shall be no contest pending,
a patent shall be issued. does not declare
that the contest must be pending
within two years. Such is not
the language of the statutes of
limitation usually. But no dispute ex-
lists that if there is no pending contest
filed within two years from the date of
the receivers receipt upon final entry,
where the the limited period expires after
the date of the act, the entryman will be
entitled to his patent, although the peri
cd may elapse within a day after that on
which the act was approved.