The record-union., 1891-04-26
PUBLIC LANDS.
SECRETARY NOBLE RENDERS AN
IMPORTANT OPINION.
The Repeal of the Timber Culture Act
Made Clear-Fraudulent
Land Entries.
Special to the SUNDAY UNION.

WASHINGTON, April 25. Secretary
Noble to-day communicated to Commits
sioner Carter his views as to the proper
construction to be placed upon the provi-
sion in Section in the repealed Timber
Culture Act.
The opinion is of great Importance to
public land States, inasmuch as it deter
mines the question as to what point OF
time the words, "W-hen there shall be no
pending contest or protest against the
validity of such entry" apply-whether
contest or protest to prevent the issu-
ance Of patent, until disposed Of must
have been pending before the lapse of two
years from date of issuance of the Re-
ceiver's receipt, upon final entry in the
cases existing, and where two years had
elapsed before the Act of March Sd took
effect, as well as IN those afterwards.
Many thousand homesteads, desert land,
pre-emption and timber culture entries
are involved in the opinion.
The Secretary says in part: ''1f the
statute of March Sd were to be construed
to invalidate all contests or protests not
filed within two years after the date OF
final receipt and before this statute took
effect, the result would be that many
thousands of fraudulent claims would 90
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 a statutory means of acquir-
ing homestead or other claim against
an illegal entry and is thus rewarded, il
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 before March Sd, 1891, not filed
within two years from the issuance of the
final certificate, would amount substan-
TALLY to repeal pro td1lto of the statute
of May IA, 1885, But that statute cannot
be legally held to be repealed by the i'm
plication, and, least of all where it would
allow patents to issue in so many cases
where the experience of the Department
leaves no reason to doubt that fraud has
been practiced upon the laws regulating
land entries, and which can be proven il
the contests and protests are allowed to
proceed to a hearing.
IF it had been the purpose of Congress
to provide that 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 Il term as we
here find. The makers of this law were
WSll w ltu IQ0 SlLldLlOn OF al
fairs. The land laws have been the sub
ject of great discussion for many years,
in and out of Congress; the committees
on public lands are distinguished for
their industry and intelligence, and they
were fully aware of all of the facts stated.
Had they desired to accomplish the pur-
pose 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
participle in this clause and say: When
there shall be pending contest or protest. ,
meaning thereby, clearly l think, pend
ing there presently at the date of the
Act, as it was not intended to be
limited to contests pending within
two years after the date of final receipt,
when a case had arisen before the present
Act took effect and two years had elapsed.
''The statute thus becomes one of linn
itation as to future, without overthrow
ing 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 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 for these laws, although
repealed by the present Act, have been
efficacious to inaugurate entries which
either proceeded to final entry or may yet
do so. No new cases can rise under the
timber culture or presumption laws, but
it was necessary that this Act should no.
tice them to cover the whole ground.
Neither does the proposition seem a
sound one that by this statute it was in
tended to expedite public business. The
way Congress must expect to have pat
ents issued is by furnishing sufficient
clerical force to accomplish the work,
and not by suddenly rushing great
masses of cases to patent, although con-
tests legally instituted are pending, and
in which experience leaves no reason to
doubt that fraud exists, To thus reward
fraud and squander public lands could
not have been the purpose of our Ma
tiona1 Legislature. These are my views
upon the law presented, and all the points
deem it necessary to discuss"