The McCook tribune., 1891-05-01
Timber culture Act. Repeal.

NOul6 OLuIiuuiCdtcu W SOhihiASoAOASA
Carter his views as to the proper con-
struction to be placed upon the provi-
sion of section z of the law for the re-
peal of the timber culture act. The
opinion is of great Importance to pub
lie land states, inasmuch as it deter
mined 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 the contest or protest to pre-
vent the issuance of the patent until
disposed 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 exist
ing, and where two years had elapsed
before the act of March 3 took effect
as well as in those afterwards. Many
thousand homestead, desert land, pre-
emption ana timbcr culture entries are
involved in the opinion. The secretary
says, in part: '.If the statue of March
8 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 would be that many thou
sands of 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 citi-
Zens. A contest is a statutory means
of acquiring a homestead or other
claim against illegal entry, and 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
those contests and protests existing be-
| fore March 3. 1891, not filed within two
years from the issuance of final certifi-
cate, would amount substantially to q
repeal pro tanto of the statute of May
IA, 1880. But the statute cannot be
legally held to be repealed by implica-
| tion, and least of all. 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 contests and protests
are allowed to proceed to q hearing.
If it had been the purpose OF congress
to provide that contest or protest
must be pending within two years
after the statute OF March 3, 1891. as
we'll as after, it certainly would not
have used so ambiguous term as we
here find. The makers of
this law were well acquainted with the
situation of affairs. The lard laws
had been the subject of great discus
sion for many years in and out OF con-
gress. Committees on public lands
are distinguished for industry and in
telligence. and they were fully aware
of all the facts stated. Had they de-
sired to accomplish 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 require construction. On
the contrary they use the present par
| ticiple in this clause and say, when
there shall be no pending contest or
protest. meaning thereby clearly, l
think, pending then presently at
the date of the act as it was not in
tended to be limited to contests pend
ing within two years after the date of
the final receipt when case has 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 pend
ing contests or protests. When the
two years did not terminate before the
date OF the act contest or protest to
be valid must be filed within the two
years. There is no force, think, in
the point that the statute enumerates
cases arising under the timber culture
or pre-emption laws, but it was neces-
sary that the act should notice them
to cover the whole ground. Neither
does the proposition seem a sound one
that by this statute 1t was intended to
expedite public business and the issue
of patents long held back by contests.
In my judgment the way congress must
expect to have patents issued is by
furnishing sufficient clerical force to
accomplish the work and not by sud-
denly rushing great masses OF cases to
patent, although contests legally insti-
tuted are pending and in which ex-
;perience leaves no reason to doubt
fraud exists. TO thus reward fraud
and squander public lands could not
Ehave been the purpose of our national
Legislature. These are my views upon
the law presented, and all OF the points
l deem it necessary to discuss"