The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-04-26
Ruling by Secretary Noble as to the
Effect Of the Late
Law.
Contests Pending but Not Filed
Within Two Years After
Final Entry.
Not Thrown Out by tho Law of Last
March--Harrisons Quest In
the South.

w AhHiNbION, hpEll -O.-~ioeCTebhFy NODlG
to-day communicated to Commissioner
| Carter his views rs to the proper constrnc-
tion to be placed upon tho provision in
section seven in the repeal of the timber
culture act. The opinion is OF great i'm
portance to public land states, inasmucl as
it determines the question as to what point
of time the words when there shall be no
pending contest Or protest against the
validity of such entry" apply; whether a
contest or protest to prevent the issuance
of patent until disposed of must have been
pending before the lapse Of two years from
the date Of the issuance of the receiver 4
| receipt upon final entry, in cases existing,
and where two years had elapsed before the
act Of March took effect, as we'll as in
those afterwards. Many thousands of
homestead, desert land. pre-emp-
tion and timber culture entries
are involved in the opinion. The
secretary says, in part: "If the statute of
March 3 were to be construed to invalidate
all contests or protests not fled within two
years after the final receipt and before this
statute took effect, the result would be that
many Thousand fraudulent claims would go
to patent without further question being
possible, although contests or protests were
legally pending at the date of the act, and
with great loss to many citizens. A con-
test is the statutory means of acquiring
homestead or other claim against illegal
entry, and it thus initiates. il successful,
to preserve the public domain for honest
settlers. To SO construe the present act to
annul and, as it were, wipe out all those
contests and protests existing before March
3, 1891, not filed within two years from the
issuance of final certificate. would amount
substantially to repeal 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cannot be legally held to be repealed by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, where it would
allow patents to issue in so many cases
where the experiences of the department
leaves no reason to doubt that fraud had
been perpetrated upon the laws regulating
land entries, and which can be proved. if
the contests and protests are allowed to
proceed to a hearing.
'lf 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 entrv in all
cases before the statute of March 8, 1891,
as we'll as after, it certainly would not
have used 30 ambiguous terms as
we here find. The makers of this
lawl were we'll acquainted with the sit
subject of great discussion for many years
in and out of congress. Committees on
public lands are distinguished for industry
and intelligence, and the were fully aware
of all of the facts stated. Had they de-
sired to accomplish the purpose claimed by
reads, they should, and doubtless would
have used language too plain and direct to
require construction. On the contrary,
they use the present participle in this
clause and say when there shall no pend
ing contest OF protest. meaning thereby
clearly, think, pending. then, presently,
at the date of the act as it was not intend
ed to be limited to contests pending with
in two years after the date of final receipt
when case had arisen before the
present act took effect and two years had
elapsed. The statute thus becomes one of
limitation as to the future without over
throwing pending contests or protests.
When the two years did not terminate be-
fore the date of the act the contest or pro-
test, to be valid, must be filed within the
two wears.
There is no force | think in the point
tn t the statute enumerates suits arising
under timber culture or presumption laws.
for these laws. although repealed by the
present act have been effioacious to inaug-
urate entries which either proceeded to
final entry or may yet do so. No new cases
can arise under the timber culture
or pre-emptlon laws, but it was
necessary that this uct should notice
them to cover the whole ground Neither
does the proposition seem sound one that
by this statute it was intended to expedite
public business. The way congress must
expect to have patents issued is by furnish
ing q 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 fraud exists. To thus reward fraud
and squander public lands could not have
been the purpose of our national legislature.
These are my views upon the law presented
and are all of the points deem it necessary
to discuss"