The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-04-26
LAND ENTRY CONTEST
Secretary Noble CONSTITUTES Sec
ton Seven
OF the Act Of March 8, 1891-Protests Not
Limited to Two Years After the Date
Of the Final Receipt.

WASHINGTON, April 25.-Secretary Noble
to-day communicated to Commissioner
Carter his views as to the proper construc-
ton to be placed upon the provision in sec
ton of repeal of timber culture act. The
opinion is of great importance to 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
protest against the validity of such entry"
apply, and whether contest or protest to
prevent the issuance of patent until dis
posed of must have been pending before
the lapse of two years from the date of the
issuance of the receivers receipt upon final
entry, in cases existing and where two
years have elapsed before the act of March
took effect as well as in those afterwards.
Many thousand homestead, desert land,
presumption and timber culture entries are
involved in the opinion. O
The secretary says, IN part: IF the
statute OF March were to be construed to
invalidate all contests or protests not filed
within two years after the date of final re-
ceipt and before this statute took effect
the result will be many thousands offraud-
| uleut claims will 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 contest is q
statutory means of acquiring a
homestead or other claim against
illegal entry and is thus rewarded, if sue
cessful, to preserve the public domain for
honest settlers. To so construe the present
act as to aunul 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 the final certificate,
would amount substantially to the repeal
pro tdnto of the, statute of May Il, 1880. But
| the statute cannot be legally held to be re-
pealed by implication and, least of all,
where it would allow patents to issue in SO
many cases where the experience of the de-
partment leaves no reason to doubt fraud
has been practiced upon the laws regulating
land entries, and which can be proven If
contests and protests are allowed to pro,
coed to hearing. II it had been the pur-
pose of Congress to provide that contest
or protest must be pending within two
years after the receivers receiptupon final
entry in all cases before the statute Of
| March 8, 1891, as well as after, it certainly
would not have used so ambiguous term
as we here find. The makers of this law
were acquainted with the situation of at
fairst the land laws had been the subject OF
great discussion for many years in and out
of Congress committees on public lands are
distinguished for industry and intelligence
and they were fully aware of all the facts
stated. Had they desired to accomplish
the purpose claimed by some this act does
not accomplish as it reads, they should
and doubtless would, have used Language
too plain and direct to require construc
ton. On the contrary, they use the pres
ent participle in this clause and say 'wher
there shall be no pending contest or pro
test meaning thereby clearly, | think
pending then presently at the date of the
act as it was not intended to be limited tt
contests pending within two years after
the date of the final receipt when the
case had arisen before the present act tool
effect and two years had elapsed. The
statute thus becomes one of limitation as II
the future without overthrowing pendin!
contests or protests. When the two year!
did not terminate before the date, the
action or protest to be valid must be filet
within the two years. There is no force,
think, in the point that the statute enumer
ates cases arising under the timber culture
or presumption laws, for these laws
although repeated by the present act, hav
been efficacious to inaEgurate entries which
either proceeded to final entry or may We
do so. No new cases can arise under tn
timber culture or pre- emption laws, but
: was necessary that this act should motto
them to cover the whole ground. Neithe
does the proposition seem sound one tina
by this statute it was intended t
exredite public business. The way con
gress must expect to have patents issued i
by furnishing sufficient clerical force t
accomplish the work, and not by suddenl,
rushing a great mass of cases to paten
although contests legally instituted ar
peLding and in which experience leave
no reason to doubt fraud exists. To thu
reward fraud and squander the publ
lands could not have been the purpose O
our national legislature. These are m
views upon the law presented and all O
the points I deem it necessary to discuss.