Omaha daily bee., 1902-12-21
NOTICES NOT NECESSARY
Colonel Mosby Declares the Law Contains
No Sixty Days Provision.
FENCES REMOVABLE on DEMAND
Notice IL Merely n Department ReRu-
l~ation, May he Oral or written,
with No Prescribed Form. and
Not Binding on a Court.
(From a Stan Correspondent

WASHINGTON, Dec. 2O.-(spccial)-
Colonel John S, Mosby, special agent of
the Interior department has sent the fol-
lowing letter to District Attorney Summers
regarding the fencing of public lands by
cattlemen:
ALLIANCE, Neb., Dec. S.-Mr. w. s.
Summers, District Attorney, Omaha: l OBJ
coin Journal Of today saying: Nothing
will result from Colonel Mosby's attack
because the colonel has not served legal
notices. The Cattlemen who have received
his orders are ignoring them. The sixty
days given them to take down their fences
have expired, or will expire by the end of
next week" Per contra, you told me that
you understood that the cattlemen who had
received such notices had complied with
them The law requires no such notice.
notice to remove a fence in sixty days
Is a mere department regulation. But such
a notice Is not binding on the judicial de-
notice to remove a fence in sixty days and
a grand jury might indlct the party who
has the fence the next day, and he might
be tried and convicted before the sixty
days expired; or the district attorney might
file a bill in equity based on the affidavit
fence removed before the sixty days given
by the special agent has expired.
ReasOnab Notice Required.
The instructions of February 6, 1902, d.
rect special agents to give such notices
either orally or in writing. No form is
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that IT require. is for the party to have
reasonable notice as to the fence he is ex-
land ONCE Copies Of the iieu notices ces / fei have
given and they are considered sufficient.
No such notice is required by the statute;
they are a mere indulgence given to cattle
men by the land office, but are not binding
on the Department of Justice. Neither the
president nor any executive. department
can control the judgments of the courts.
or make any regulations inconsistent with
a positive law. If he could the. president
sian car. The executive can only make
regulations to carry the laws into effect.
There are three methods of procedure for
removing a fence prescribed by the stat
ute:
/. Section 5 authorizes the president, with
out the Intervention of a court, to employ
the civil or military force of the country
to do 1t. In Wyoming Mr.. Cleveland sent
a company of cavalry to cut down a fence.
R Rs did to not Te5 gtys t his EPssnTttsy; 5 bs SrS Says If #
to come down Immediately, just as he or
dered CoXey's army to keep off the grass
on the public grounds.
Not Binding on Courts.
Thu sixty days now given by the land
office is simply a promise that the presi-
dent will not use force If the fence comes
down in sixty days. But the president has
no authority to say that the courts Will
2. on section of the act makes 1t the
duty of the district attorney, when an aft
davlt has been filed showing a description
VI hAS ANAA0 ANANs NANA ~
tainty, not necessarily by metes and
pounds, but only so that the enclosure may
be Identified" etc, to institute a suit to
remove the fence. The statute Is manda-
tory. The defendant in such a case could
not plead that he received no notice pre-
vious to the suit to pull down his fence,
or that a special agent had given him no.
tice that he must pull 1t down in sixty
days, and that the sixty days had not ex-
pired. The law requires no such notice.
3. Section 4 makes the fencing of public
land a misdemeanor and prescribes a fine
of $1,000 and twelve months Imprisonment.
A party indicted could not plead in court
in defense that he had not received notice
from the Interior department. to pull down
his fence. The only legal notice to which
he Is entitled Is a mmon served by a
marshal to answer a charge in a civil suit,
or an indictment for a breach of the law.
A man indicted for stealing a COW might
as well plead that he had not received no
tice to bring back the COW. A suit to re-
move a fence and an indictment for erect
ing It can proceed at the same time.
Neither is a bar to the other. / infer from
questions asked me by the grand jury that
they were under the Impression that the
law prescribes some notice to be given by
a special agent before a party can be in
dlcted for the unlawful fence. Respect
fully, JOHN S. MOSBY,
Special Agent.