St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-04-26
NOBLE DEFINES 1T.
A Knotty Point in the Homestead
Law Explained.

WASHINGTON, April 25.-Secretary
Noble to-day communicated to Com
missioner Carter his views as to the
proper construction to be placed upon
the provision section of the act entitled
IAN act to repeal the timber culture
laws and TOR other purposes" approved
March 8, 1891. This opinion is of great
Importance to the public land states. in
asmuch as it determines the question
as to what point of time the words
"when there shall be no pending con-
test or protest against the validity of
such entry" apply; whether the contest
or protest to prevent 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 the final entry in cases existing.
and where the two years had elapsed
before the act of March 8 took effect, as
we'll as iE those afterwards. Many thou
sand homestead, desert land. pre-emp-
tiOn and timber culture entries are in
VolVed in this opinion. The proviSO in
question is as follows:
provided that after the lapse of two
years from the date of the insurance of the
tract of land under the homestead, timber
culture. desert land or Dre-emptiOn laws or
under this act. and when there shall be no
pending contest or protest against the valid
lty of such entry. the entryman shall be en-
Titled 10 patent conveying the land bv him
entered, and the same shall he issued to him:
but this prOYiSo shall not be construed TO re.
Qure the delay of two years from the date of
said entry before the issuing of a patent
therefor
After making reference to the state of
the law and facts existing at the time
the present act was passed. and after
quoting section , of the act approved
May "A, 1850, the secretary saws: at
thus appears that if the statute of March
were TO be construed 10 invalidate ali
contests or protests not filed within two
years after the date of
The Final Receipt
and before this statute took effect. the
result would be that many thousands of
fraudulent claims would 20 to patent
without further question being possible,
although contests or protests were
legally pending at the date of this act.
and with a great loss to many citi zenS
who. relying upon the statute of May
4, 1850, have invested their money and
spent their time in an honorable pur-
pose to obtain home, against
those who had fradulently seized
upon the land. 1t is true that if the
language Of the act clearly and distinct
~ expressed this purpose there is moth
ing in the nature of a contest or protest
that would protect it from the effect of
the law intended to destroy it. 1t is adj
mitted as has often been decided in this
department, that the preference right
OF contestant rests upon procuring
the cancellation of the entry; that after
such preference right is acquired,
II cannot be assigned; that ii does not
operate to reserve the land from con-
troll OF congress during the period al
lowed for the exercise of such right:
that the right is personal, and that it
terminates with the death of the con-
teStant. But a contest has been as it
still is. proceeding not only allowed
but invited by congress. 1t is stat
utory means of acquiring homestead
or otheE claim against all illegal
entry and is thus rewarded, if
successful, to preserve the public do
main for honest settlers. To so con-
strue the present act as to annul, and,
as 1t were, wipe out all those contests
and protests existing before March ,.
1891, not filed within two years from the
issuance of final certificate. would
amount substantially 10 d repeal pro
tanto of the statute of May II, 1850. But
statute cannot be legally held to be
repealed by implication, and least of
alt, ii may be added, where it would
allow patents to issue III 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
ana protests are allowed to proceed to
hearing. If 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 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 a
term as we here find. Indeed the
language is so loose that 1t requires a
liberal construction to give it effect.
even upon subsequent contests, for say
ing that after two years from issuance
OF mai certificates, when there shall be
no contest pending a patent shall issue
does not declare thai the contest must
be pending within the two years. Such
IS not the language of statutes of linn
ltatlon usually. But no dispute exists.
mat II there is no pending contest filed
Wlthln the two years from the date of
the receiver receipt upon the final en-
Try Where the limited period expires
aIteT the GATE OF the act. the entryman
VIII be entitled to his patent. although
the period may elapse within a dav
after that on WHICH the act was an
proved. AS TO such cases it must be
held to be a statute of Limitation,
although carelessly worded. The
language is, when there shall be no
pending contest or protest AGAINST