"occupancy" do not necessarily imply residence. According to the ordinary signification of the word, an "occupant" of a tract of land is the one who has the actual use and possession of it whether he resides upon it or not.

Is the word used in its ordinary meaning in the act of January 18, 1897, or do the context and subject matter import the additional idea of residence?

To satisfactorily answer this question we must look, not only to the act itself, but also to the circumstances of its enactment and the evils it was intended to remedy.

For many years there was a dispute between the United States and the State of Texas as to the ownership of the territory now known as Greer county, Oklahoma. Up to March 16, 1896, the State of Texas exercised jurisdiction over Greer county, and the laws of that State were administered there. Persons seeking to acquire title to portions of the public lands looked to the State for title. On March 16, 1896, however, the United States supreme court decided that Greer county was not within the limits nor under the jurisdiction of the State of Texas, but was subject to the exclusive jurisdiction of the United States (162 U. S., 1).

On the same day that this decision was rendered the President, for the purpose of preserving intact the status of lands in Greer county until Congress could take action in regard thereto, issued a proclamation declaring these lands to be in a state of reservation (29 Stat., 878).

By act of May 4, 1896 (29 Stat., 113), Greer county was annexed to Oklahoma and all proceedings and actions of the Texas courts and officers in Greer county up to March 16, 1896, were validated. Nothing was said in this act as to the disposition of the public lands and the reservation created by the President's proclamation continued in force up to the passage of the act of January 18, 1897. This act established a land office at Mangum, in said county, and provided for the entry of said lands. So much of the first section of the act as we are immediately concerned with has already been quoted.

By act approved June 23, 1897 (30 Stat., 105), the time for the exercise of the preference right of entry given by the act of January 18, 1897, to bona fide occupants of public lands in Greer county was extended to January 1, 1898, and by act approved March 1, 1899 (30) Stat., 966), this preference right of entry was extended to those who had had the benefit of the homestead laws of the United States and who had purchased lands in Greer county from the State of Texas prior to March 16, 1896.

Up to March 16, 1896, occupants of public lands in Greer county looked to the State of Texas for title to the tracts claimed by them. It becomes necessary, therefore, in construing the first section of the act of January 18, 1897, to examine the public land laws of Texas so far as they affected lands in Greer county.

By chapter 19, Texas Acts of 1879, "all vacant and unappropriated public domain" in Greer county was appropriated, the even numbered sections for the public free schools, and the odd numbered sections for the payment of the State debt.

By chapter 99, Acts of 1887, it was provided that the State lands set apart for the public free schools should be examined and classified into agricultural, pasture, and timber lands. Accurate plats of each section were to be prepared and filed with the Commissioner of the General Land Office, showing the relative proportions of timber and open land on such section, the quality of the soil, the topography of the land, the quality and kind of timber, and the streams and other sources of water supply.. When any portion of the free school land had thus been classified to the satisfaction of the Commissioner, it became subject to sale, to actual settlers only, in quantities of not less than one hundred and sixty acres nor more than six hundred and forty acres, except that lands classified as purely pasture lands, and without permanent water thereon, might be sold in quantities not to exceed four sections to the same settler. The purchaser was required to reside upon the land purchased by him for a period of three years from the date of his purchase and after proof of such residence and payment in full of the govern ment price, he was entitled to a patent.

It does not appear that any provision was made, up to March 16, 1896, for the classification and sale of the lands set apart for the payment of the State debt.

It is stated in the supplemental brief filed by the attorneys for Johnson that the classification of school lands provided for in chapter 99 of the Acts of 1887, was never made in Greer county and as these lands could not be purchased until after the classification was made, there was no means, prior to March 16, 1896, by which persons could acquire title to them. There was likewise no means by which persons could acquire title to the lands reserved for the payment of the State debt as no provision had been made for the disposition of these lands. Prior to 1879, land certificates had been issued, under an act of the legislature, to Mexican war veterans. The land department of Texas for a while construed this legislative enactment as vesting in the holder of such land certificates the right to locate them upon any land that was public domain at the date of the act, regardless of such subsequent legislative appropriation as the act of 1879 above referred to. Considerable land in Greer county was located under these certificates and in a number of instances patent was duly issued, but for several years prior to March 16, 1896, the State authorities took a different view of the matter and refused to issue patent in such cases.

Up to March 16, 1896, persons desiring lands in Greer county either purchased from patentees or simply took possession of so much vacant public land (generally a section) as they reasonably expected to be able to acquire from the State when the land was offered for sale. Pending

this offering, the possession of land in Greer county was protected by the district courts against all intruders, it being held that the person in possession had the highest and best evidence of right to the land.

It is stated by the attorneys for Johnson that on March 16, 1896, there were about sixteen hundred persons residing on and claiming portions of the public lands in Greer county and about one-fourth as many had selected, improved and cultivated land upon which they intended to make a permanent home, but for various reasons they were temporarily residing elsewhere at that date. In some instances these absentees had previously established residence on the land claimed by them, but had been forced by successive drouths and crop failures to leave their homes and seek work elsewhere. Some, unable to erect dwellings, were residing in dugouts made in the side of a hill in the neighborhood of their claims, and others were residing with relatives on adjoining tracts.

These claimants believed that Texas owned the lands and all their acts were with a view to eventually obtaining title from the State. If the decision of the United States supreme court had been in favor of Texas, these claimants could have acquired title from the State without regard to whether they were residing upon the land on March 16, 1896, for those claiming land in even or school sections could have purchased as "settlers" when the land became subject to purchase, and those located on odd sections could have put themselves in compliance with whatever new law the State legislature might have passed for the disposition of these lands.

It is to be presumed that Congress had knowledge of these facts and conditions when it passed the act of January 18, 1897. The Congressional Record shows that the act in question was drawn by Judge G. A. Brown of Texas, in whose judicial district Greer county was located up to March 16, 1896, and who had been sent to Washington by the people of Greer county for the purpose of explaining to Congress the condition of affairs existing there.

The act, then, was a remedial one. It was passed for the purpose of meeting a very peculiar and unusual state of affairs. Like all remedial acts it is to be construed liberally and

if there be any doubt or ambiguity, that construction should be adopted which will best advance the remedy provided and help to suppress the mischief against which it was aimed. Black on Interpretation of Laws, p. 307.

It is believed that the purpose of the statute will be best effectuated by giving to the word "occupant," as used in said act, its ordinary meaning of "one who has the actual use and possession of a thing." To hold that the benefits of the first section of the act of January 18, 1897, are confined to those who were actually residing upon their respective claims on March 16, 1896, would be unjust to a large number of claimants who were as honest in their efforts to comply with law and obtain title to their claims as were those who had actually established residence.

It is said, in paragraph 248 of Sutherland on Statutory Construction: "The words of a statute are to be read in their ordinary sense unless so construing them will lead to some incongruity or manifest absurdity." We have seen that the word occupant, as ordinarily used, does not necessarily imply residence. Its ordinary meaning is "one who has the actual use and possession of a thing." Independent of any equitable considerations, this word must be read in its ordinary sense in the act of January 18, 1897, unless so construing it will lead to incongruity or manifest absurdity; but when it is considered that this statute is a remedial one, that its purpose will be best effectuated by giving to the word occupant its ordinary meaning, and that no incongruity or manifest absurdity follows from this construction, the conclusion is irresistible that the word must be taken in its ordinary meaning.

The view taken by your office is, that the clause in said act, "shall be entitled to perfect title thereto under the provisions of the homestead law," clearly implies a compliance with all the terms of the general homestead law, including residence. This is probably true so far as regards the time after entry, but it does not necessarily imply that the claimant should have been residing on the land on March 16, 1896. In the clause directly after this it is provided that "such person shall receive credit for all time during which he or those under whom he claims shall have continuously occupied the same prior to March sixteenth, eighteen hundred and ninety-six." Here is a striking innovation and exception to the general homestead law, for an ordinary homestead claimant can not take advantage of the occupancy or residence of a former claimant from whom he has purchased. It is incredible that Congress should have been so considerate of those claimants who happened to be residing on their respective claims on March 16, 1896, and at the same time have been harshly indifferent to those who were as honest in their endeavors to comply with law and obtain title, but who for various reasons, in many cases reasons beyond their control, were not actually residing on the land at that date.

To sum up, then, the conclusions to which we come are, that the word "occupant," as ordinarily used, is synonymous with "use and possession" and does not necessarily imply residence; that Congress used the word in the act under consideration in its ordinary meaning; and that consequently any qualified claimant who, on March 16, 1896, was in the actual use and possession of the land claimed by him, is entitled to the benefits of the first section of said act whether he was actually residing upon the land at that date or not.

In the present case it clearly appears that Johnson was on March 16, 1896, in the actual use and possession of the tract covered by his homestead entry, and that he is a qualified entryman.

Your office decision is accordingly reversed, Johnson's homestead and cash entries are held intact, and unless some further objection appears his final proof will be approved.

PRIVATE CLAIMS-HOMESTEAD ENTRY-ACT OF MARCH 3, 1891.

JUAN DE LA CRUZ TRUJILLO.

The phrase "disposed of by the United States," as employed in section 8, act of March 3, 1891, to define the lands excepted from the confirmatory provisions of said act, must be construed to mean a final and permanent divestiture of whatever title the United States may have had, or an obligation to convey such a title. A homestead entry, under which title had not been earned, at the time when a decree of confirmation was entered by the court, under said act, is not a disposition of the land embraced therein that excepts the same from the operative effect of the decree.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V.D.) June 23, 1899.

(E. F. B.) The land in controversy, to wit: the SW. of the NE. 4, the NW. 4 of the SE., the NE. 4 of the SW. 4, and the SE. of the NW. 1, Sec. 1, T. 21 N., R. 5 E., Santa Fe, New Mexico, is within the limits of the grant to Juan Jose Lobato, which was confirmed by decree of the court of private land claims, at the November term, 1893, of said court.

August 29, 1890, Juan de la Cruz Trujillo made homestead entry of said tract, upon which he submitted final proof October 31, 1895, and thereupon final certificate issued.

By letter of December 10, 1896, you held said entry for cancellation because of conflict with said private land claim, from which decision Trujillo has appealed, alleging error in not holding that said entry was confirmed by the 14th section of the act of March 3, 1891 (26 Stat., 854), establishing the court of private land claims and providing for the settlement and confirmation of private land claims in certain states and territories.

The 8th section of said act gave to all persons claiming lands in the states and territories therein named, under titles derived from the Spanish or Mexican government that were complete and perfect at the date the United States acquired sovereignty therein, the right (but were not bound) to apply to said court for confirmation of such title, and

if in any such case a title so claimed to be perfect shall be established and confirmed, such confirmation shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been disposed of by the United States, and always subject to and not to affect any conflicting private interests, rights, or claims held or claimed adversely to any such claim or title, or adversely to the holder of any such claim or title.

By the 14th section of said act, it was provided:

That if in any case it shall appear that the lands or any part thereof decreed to any claimant under the provisions of this act shall have been sold or granted by the United States to any other person, such title from the United States to such other person shall remain valid, notwithstanding such decree, and upon proof being made to the satisfaction of said court of such sale or grant, and the value of the land so sold or granted, such court shall render judgment in favor of such claimant