The Colfax chronicle., 1891-05-09
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within the two years after the date
of the final receipt and before this
statute took effect, the result would
be that many thousands of fraudu-
lent claims would 60 to patent with
out further question being possible,
although contests and protests 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 in
vested their money and spent their
time in an honorable purpose to
obtain q home against those who
had fraudulently seized upon the
land. It is true that if the language
of the act clearly and distinctly
expressed this purpose there Is
nothing in the nature of q contest
or protest that would protect it
from the effect Of the law intended
to destroy it.
It is admitted and has often been
decided in this department that
the preference right of contest
ant rests upon procuring the can
collation. of the entry; that after
such preference right is aquired
it cannot be assigned; that it does
not operate to reserve the land
from control of Congress during
the period allowed for the exercise
of such; that the right is.personal,
and that it terminates with the
death of the contestant But q
contest has been, as it is still, a
proceeding not only allowed, but
invited by Congress. It is the
statutory means of acquiring q
homestead or their claim against
an illegal entry is thus rewarded,
if successful, to preserve the public
domain for honest settlers. To SO
construe the present act as to annul
and, as it were, wipe out all tfose
contests and protests existing be-
fore March 3, 1891, not filed within
two years from the issuance of final
certificates, would amount substan-
tally to repealed pro tanto of the
statute of May IA, 1880.
But a 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held to be repealed by implication,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 department leaves
no reason to doubt 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 a hearing.
If it had been the purpose of Con-
gress to provide that the contestor's
protest must must be pending with
in two years after the receivers re-
ceipt upon the final entry in all
cases before the statute of March
3, 1891, as well as after, it certainly
would not have used SO ambiguous
term as we here find. Indeed,
the language is go loose that it re-
quires a liberal construction to give
the effect, even upon subsequent
contests, for saying that after two
years issuance of final certificates,
when there shall be no contest pend
ing, patent shall issue, does not
declare that the contest must be
pending within the two years.
Such is not the language of stat
utes of limitation usually, but no
dispute exists, that if there is no
pending contest fled within two
years from the date of the receivers
receipt upon the final entry, where
the limited period expires after the
date of the act, the entry man will
be entitled to his patent, although
the period may elapse within q day |
after that on which the act was ap-
proved As to such cases it must
be held to be statute of Limitation, |
carelessly worded. The
language is, when there shall be
no pending contest or protest |
against the validity of such entry"
There is no sufficient reason to say |
that this means pending before the |
lapse of two years. 1t should af-
feet, as we have already seen. many |
meritorious cases and many in
nocent parties. It should not be
held that as to the past it was in
tended to be q statute of repose |
when the records of the depart
ment prove that q vast number of |
frauds upon the United States
would be smothered by the con-
To do go would favor
fraud much more than secure re-
pose by honest men. The makers
Of this law were we'll acquainted
with the situation of affairs; the
land laws have boon the auhioct Of |