The Livingston enterprise. [volume] (Livingston, Mont.) 1883-1914, 1891-05-02
The Timber Culture Act

+ oooie eoal. Noole has communicated tI
Commissioner Carter his views as to the
proper construction to be placed upon
| the provision IN section Z in the repea]
OF the timber culture act. The opinion
is or great Importance to public land
states, lnasmuch as it determines the
question AS to what point of time the
words 'when there shall be no pendino
contest or protest against the validity Of
such entry apply; whether contest or
protest to prevent the issuance of nat
ent until disposed of must have been
pending before the lapse of two years
from The date OF the issuance of the re-
celvers receipt upon final entry, in cases
existing, and where two years had
elapsed before the act of March 3 took
effect. as we'll as in those afterwards.
Many thousands of homestead, desert
land, pre-emption 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 in
validate all contests or protests not filed
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 le-
gally 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, if success
full, to preserve the public domain for
honest settlers. TO SO construe the
present act to annul and. as 1t we're,
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 substan-
TALLY to a repeal pro tanto of the statute
of May IA, 1880. But the statute can
not be legally held to be repealed by i'm
plication and, least of ALL where it would
allow patents to issue in so many cases
where the experiences of the depart
ment 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 pro-
tests are allowed to proceed to hearing.
'If it had been the purpose of con-
gress to provide that the contest or pro
test must be pending within two years
after the receivers receipt upon final en-
Ill oil CdoCo DClOlO UhO SeuOueO Va
March 3, 1891, as we'll as after, it GER
tainly would not have used so amblgu-
Gus terms as we here find. The makers
of this law were well acquainted with
the situation of affairs. Land laws have
been the subject of great discussion for
many years in and out of congress.
Committees on public lands are distin-
guished for industry and intelligence,
and they were fully aware of all the
facts stated. Had they desired to ac-
complish the purpose claimed by some
that this act does accomplish as it reads,
they should, and doubtless would, have
used language too plain and direct to re-
quire construction. On the contrary,
they use the present particlple in this
clause and say when there shall be no
pending contest or protest, meaning
thereby, clearly, think, pending then,
presently, at the date of the act, as it
was not intended to be limited to con-
tests pending within 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 overthrowing pending
contests or protests. When the two
years did not terminate before the date
of the act the contest or protest, to be
valid, must be filed within two years.
"There is no force, I think, in the
point that the statute enumerates suits
arising under timber culture or pre-
emption laws, for these laws, although
by the present act, have been
to inaugurate entries which
either proceeded to final entry or may
yet do SO. No new cases can arise un-
der the timber culture or pre-emption
laws, but it was necessary that this act
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 busi-
ness. The way congress must expect to
have patents issued 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 fraud exists. To thus reward
fraud and squander public lands could
not have been the purpose OF our ma
tional legislature. These are my views
upon the law presented and are all OF
The points I deem it necessary TO dls-
cuss'