The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1903-01-29
Average daily circulation of
The Journal for Dec, 1902.
Mr.. Walkers Defense of the Timber
raJ and Stone Act.

.a5 and Stone Act.
Elsewhere on this page to-day will be
found the third of a series of letters Mr..
T. B. Walker, the great lumber operator,
has written in defense of the timber and
stone act, in response to 7 h e Jour
n rs demand that the act be repealed.
This letter is mainly taken up with a
defense Of the legality of wholesale ac-
uuirements of timber lands under the tim
Der and stone act, adopted by congress
on June 8, 1873.
A careful reading Of the communication
serves only to strengthen our belief that
the act should be repealed. The law, if
It had been designed, to encourage fraud
and perjury, could hardly have been
more effectively framed than it is; and
the technical construction the supreme
court has put on it in the case Mr.
Walker cites makes almost insuperable
the difficulties Of enforcing the law ac-
cording to the intention Of congress. For
with all due respect for Mr.. Walker we
must say that the decision he quotes does
not reflect the intention of congress In
merely gives the courts conclusions as to
the way the law must work out in actual
practice. 1t substantially ignores the
intentions Of a person, when he takes
a claim, implicitly assuming that his in
tentions, as we'll as any direct agreement,
are disposed Of by the oath the entryman
takes, in the absence of more than mere
preponderating evidence to the contrary
The case Mr.. Walker refers to is
United States VS.. Budd which came before
the supreme court in 1892, fourteen years
after the act was passed, during which
time a vast quantity Of land had passed
from federal to private ownership through
the operations of the act. The court
divided on the issue, Justices Harlan and
Brown dissenting from the finding Mr.
Walker quotes. The majority opinion
clearly shows that the court was animated
by a general rule that only as a last resort
must it ever make a decision that invali-
dates a government patent. It seems to
have proceeded on the theory that it were
better to give legality to much fraud
against the government than that the gov
eminent should be on record as revoking
q land patent. The issue in the particu-
lar case before it was as to whether the
defendant Budd had actually made an
agreement with one Montgomery to trans
fer to the latter a particular timber claim
In Washington after Budd should have Sc
cured it from the government. The cir
cumstantial evidence made 1t morally GER
tain that there was an agreement,
but even the counsel for the government
admitted that proof as to such an agree
ment was not absolute. There is not a
word In the majority opinion Of the court
as to the intention Of congress in passing
the act.
In the dissenting opinion Justice Brown
does clearly state the intention of congress
in passing the law, in these words: -.'
The object Of the act in question was to
authorize the sale of tin1bered lands in
lots not exceeding 100 acres to any one
person at a minimum price of $3.50 per
was provided in section 2 that the appli-
cant must make oath that he has made
no other application under the act; that
he does not apply to purchase the same
on speculation, but in good faith to ap-
propriate it to his own exclusive use and
benefit; and that he has not directly or
Indirectly made any agreement or con-
tract In any way or manner with any per-
son or persons whatsoever, by which the
title he might acquire from the govern
ment Of the United States should enure
in whole or in part to the benefit Of any
person except himself.
The evidence In this case tends to show
that defendant Montgomery had by this
and other devices appropriated to himself
over 10000 acres of land in and about this
neighborhood. It Is unnecessary to say
that, however, this may have been done,
1t Is practical defeat Of the Intention
OF congress. 1t certainly demands and in
this instance seems to have received, a
searching investigation. When we see
the most valuable portion of an immense
domain, which has been reserved by the
beneficIence OF congress, for the benefit of
actual settlers or small proprletors, being
. we are forced to inquire whether there is
not a limit beyond which even land pat
ent of the United States begins to lose
something of it sanctity.
There IS plainly stated the intention Of
Of the court In this case has largely In
validated; decision made as the minor
ity opinion clearly indicates, through a
general reluctance to detract in the
slightest degree from the sanctity. Of a
United States land patent. The majority,
evidently thinks that the intention of a
person when he takes sup timber and
stone claim is such a7nebulous thing and
so easily disposed OF by an oath that for.
practical purposes the only question for