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When we recall the fact that the only lands open to settlement on May 14, 1890, were those opened by proclamation of the President on April 22, 1889, and the Public Land strip opened to settlement on May 2, 1890, it will be seen that the jurisdiction of said trustees was limited to these two bodies of land.

By the wording of the act of May 2, 1890, Congress gave probate judges, or judges of the county, jurisdiction in townsite entries, so far as the Public Land strip was concerned, and the granting of similar or concurrent jurisdiction to trustees by the act of May 14, 1890, did not deprive the probate judges of the authority to thus act, but as has been before stated, this authority was not extended to probate judges within the limits of the lands opened to settlement on April 22, 1889.

If authority has been given to any officer or person, other than the trustees above provided for, within the limits of the lands last mentioned, to act in the matter of entering townsites, it has been accomplished wholly by the proviso to section 17 of the act of March 3, 1891, above cited, and to accomplish this it must be held that the portion of the act of May 2, 1890, which provided, in effect, that probate judges cannot thus act, and the act of May 14, 1890, providing that such entries could be made by trustees only, have been repealed.

There is no reference in the act of March 3, 1891, to the act of May 2, 1890, or the act of May 14, 1890; there are no words of repeal employed, and if repeal is accomplished, it is wholly by implication.

The supreme court, in the case of McCool v. Smith (1 Black, 459) says: A repeal by implication is not favored. The leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of the legislature together.

Endlich in his Commentary on the interpretation of statutes, page 280, thus states the rule:

It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments in the statute-book, or to effect so important a measure as the repeal of a law, without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. Hence it is, a rule founded in reason as well as in abundant authority, that, in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal, construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving, at the same time, the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject.

Is there an irreconcilable repugnancy between the act of March 3, 1891, and the acts of May 2, 1890, and May 14, 1890?

We must recall the fact that the organic act of May 2, 1890, recog nizes the office of probate judge, and extended the federal townsite laws to all lands opened, or to be opened, to settlement in that Terri tory, except those opened to settlement April 22, 1889; also that the

authority of probate judges to act in townsite matters was conferred by the act of the territorial legislature, which took effect December 25, 1890. We must also recall the fact that by the act of March 3, 1891, other vast tracts of land in said Territory were to be opened to settlement, and that the Public Land strip had already been opened. It was entirely competent for Congress to extend, or to change the manner in which the jurisdiction of the probate judges should be exercised, and to ratify the acts of the Territorial Legislature granting jurisdiction to said officers.

It is true that the first section of chapter 85 of the Statutes of Oklahoma (page 1170) provides that:

Whenever any portion of the public lands of the United States have been, or shall be, settled upon and occupied as a townsite . . . . if not incorporated, then for the judge of the probate court of the county in which such town may be situated to enter at the proper land office the land so settled upon and occupied, etc.

But it cannot be presumed that the territorial legislature intended its act to extend to, or to embrace, lands which had been, by express act of Congress, excepted from the jurisdiction of the officers named, but if such was the intention of the legislature, it would have no effect as against the positive enactment of Congress, excluding the jurisdiction of said officers from the lands in question; there were, however, lands upon which the legislation by the territorial legislature could take effect, and it was competent for Congress to ratify such legislation, but if this legislation could not, by reason of existing law, extend to certain lands, it will not do to assume that the ratifying act of Congress imparted life to the same, unless such intention was clearly expressed in the language used in said act. There was no such intention expressed.

Various tracts of the lands opened to settlement April 22, 1889, having been occupied as townsites, and there being no law under which they could be entered, in view of the act of May 2, 1890, Congress, by act of May 14, 1890, provided a board of trustees as a medium through which entries could be made; this was a special act, applicable only to a limited area of land, and the later act of March 3, 1891, recognizing and extending the jurisdiction of probate judges in townsite matters over other and different bodies of land, is perfectly consistent and harmonious with said special act, and the act of May 2, 1890. All three remain in full force and effect within the respective limits so clearly defined in said acts.

It must, therefore, be held that there has been no change or repeal of the acts of May 2, 1890, and May 14, 1890, so far as relates to townsite entries within the limits of the lands opened to settlement on April 22, 1889, and that the only manner in which townsites can be entered therein, is through the medium of a board of trustees.

Your decision is therefore affirmed.

GRAY v. WHITEHOUSE.

Motion for review of departmental decision of October 10, 1892, 15 L. D., 352, denied by Secretary Noble, February 1, 1893.

CONFIRMATION SECTION 7, ACT OF MARCH 3, 1891.

UNITED STATES v. BULLEN.

The pendency of an application to contest an entry at the date of the passage of the act of March 3, 1891, does not defeat confirmation of said entry for the benefit of a transferee.

A claim of prior Indian occupancy set up to defeat confirmation under the body of said section can not be entertained for such purpose, where the entry was not made in violation of any departmental regulation, and such claim is not asserted for a term of years, and then, not until after the passage of said confirmatory act.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 1, 1893.

The land involved in this controversy is lots 1 and 2, Sec. 28, and lot 1, Sec. 29, T. 49, R. 13, Ashland, Wisconsin, land district.

Joseph A. Bullen made pre-emption cash entry of said tract, Feb. ruary 9, 1854, and on February 18, following, sold and transferred the same to one George L. Becker, who, on December 19, 1854, sold and transferred it to William W. Corcoran and others. I shall go into the history of the case only so far as it is necessary to present the question before me. The case has been before the department before. (Joseph A. Bullen, 8 L. D., 301.) By that decision it was determined that while the entry was under investigation by the government at the instance of the Hon. Secretary of War, the contests offered by John A. Bardon and Frank W. Gage should not be entertained, but my predecessor directed

that you cause a special agent of the government to make thorough inquiry and examination into all the facts and take such steps to protect the public interests, as appear to be requisite and proper. The special agent should be directed to make full report to your office, in regard to the present value of the land, its situation and circumstances and all material facts.

On January 10, 1891, Frank Lemiux presented an "Indian allotment application," under the act of February 8, 1887 (24 Stat., 388), for lots 1 and 2 of said tract alleging residence thereon for "thirty years and more." It is shown by affidavits that Lemiux is a member of the Fond du Lac band of Chippewa Indians; that he settled upon said land in 1849 and has lived there ever since. His application was rejected because of "cash entry made by J. A. Bullen, February 9,1854." Lemiux appealed.

On May 16, 1891, one of your special agents reported that he had been unable to find any evidence of fraud and from an examination of

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the exhibits accompanying his report, I am satisfied as to the correctness of his conclusion. It is also shown by his report that the land in controversy is now a part of the city of Superior, Wisconsin, that it has been platted into lots and blocks, streets and alleys, and the lots been sold to about 400 purchasers."

On July 3, 1891, the acting Secretary of War, in reply to your letter of May 21, 1891, advised you that after further examination of the case, his department "has no evidence or argument to submit in the premises, or objection to the issue of a patent in due course to the land in dispute."

On May 1, 1891, counsel " for estate of W. W. Corcoran et al. lot owners" in the city of Superior, filed a motion for the confirmation of the Bullen entry under the act of March 3, 1891.

By letter of September 22, 1891, you considered the case in all its features and decided that the entry of Bullen should be approved for patent in accordance with section 7, of said act. Both Lemiux and Bardon appealed; the former assigning as error your action in not considering his rights under his said application; error in some of your findings of fact, and finally in not ordering a hearing to determine whether Lemiux occupied the land prior to the initiation of Bullen's claim; while the latter in a number of specifications, alleges, substantially, that you erred in holding that the Bullen entry should be confirmed for patent under said act of March 3, 1891.

It is unnecessary to discuss many of the alleged errors raised by the appeals, for the reason that the Bullen entry is unquestionably confirmed by the act of March 3, 1891 (26 Stat., 1095). The seventh section of said act provides, among other things, that-

all entries made under the pre-emption, homestead, desert-land, or timber-culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers or incumbrancers, for a valuable consideration, shall, unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the land department of such sale or incumbrance.

Prior to the final entry by Bullen there were no adverse claims existing; it was sold prior to March, 1888, and after final entry for valuable consideration, and upon an investigation ordered by the government, no fraud upon the part of the purchaser has been found. Under these circumstances the entry of Bullen must be confirmed. (Witcher v. Conklin, 14 L. B., 349; United States v. Gilbert et al., id. 651).

This being the fact, it was not error on your part to refuse to consider the alleged rights of either of the appellants. (Sheppard v. Ekdahl, 13 L. D., 537.)

It is insisted by counsel for Lemiux that his alleged prior occupancy of a part of said land should give him the right now to enter it under

the said act of February 3, 1887, supra. It will be observed that he comes here with an application to enter land that had passed to a cash entry about thirty-seven years before. The most that could be done under ordinary circumstances would be to allow him to contest the entry. But in view of the act of March 3, 1891, he would not be in any better condition to contest the entry than other persons. In other words he would have been required to establish his right to the land by a contest, but inasmuch as the entry is confirmed under the act of Con-. gress a contest can not now be ordered.

The case of Tom and Louis v. McCarthy (13 L. D., 578), is cited as an authority by counsel for not allowing this entry. There is a wide distinction between the two cases. There McCarty made his homestead entry on the land occupied by the Indians after the issuance of the circular of October 26, 1887 (6 L. D., 341). By that circular local officers were directed not to permit entries upon lands occupied by Indian inhabitants. No such regulation existed when the entry of Bullen was made. Again, the Indians Tom and Louis, proceeded at once to assert their rights, while in the case at bar the Indian has rested for thirtyseven years, suffered an entry to be made; the land to be transferred to innocent purchasers and a thriving city to be located thereon years before he attempted to make any claim. His laches is great. I see no error in your judgment, it is therefore affirmed and you will pass the entry to patent, under the rule.

RAILROAD GRANT-SETTLEMENT RIGHT.

NORTHERN PACIFIC R. R. Co. v. PLUMB.

The possession of land, accompanied with valuable improvements thereon, at date of definite location, by one duly qualified to assert a right thereto under the settlement laws, operates to defeat the grant, and the fact that the claim subsequently set up by such occupant is not under said laws, in no manner affects his rights in the premises.

Secretary Noble to the Commissioner of the General Land Office, February 1, 1893.

I have considered the appeal by the Northern Pacific Railroad Company, from your decision of November 6, 1891, rejecting its claim to the NW. of the NW. 1, Sec. 17, T. 2 S., R. 5 E., Bozeman land district, Montana, included in the desert land entry No. 159 by Byron Plumb, made May 4, 1883, upon which he made proof and final certificate No. 71 issued July 6, 1886.

This tract is within the primary limits of the grant for said company as shown by the map of definite location filed July 6, 1882, and was also included within the limits of the withdrawal of February 21, 1872, upon the filing of the map of general route.

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