From a comparison of the foregoing with the report of a year ago, a marked decrease in the amount of work pending in this division will be noticed, and it is gratifying to observe that the work is practically up to date and is being handled as current work, with the exception of the contest cases pending on appeal from local officers' decisions, or docket cases, and in that branch of cases, although there were 1,083 new cases received during the year, a comparison as above will show a reduction of 321 in the balance on hand over the report for the fiscal year ending June 30, 1890, and when it is considered that in the neighborhood of 100 of these appeal cases per month are received, many of them accompanied by hundreds of pages of closely written and contradictory testimony, and about one-third of them sooner or later burdened with motions for review, new trial, or to dismiss, the amount of decrease can be better appreciated. The unappealed contests pending have been reduced from 4,186 on hand June 30, 1890, to 874 on hand June 30, 1891, of which latter number a large percentage has been examined and reports or additional evidence called for. In order that the large accumulation of unappealed cases on hand at date of the last report might be speedily disposed of, an early adoption of an amendment to rule 48 of practice proposed by the head of the bureau was recommended. Such proposed amendment has not been adopted, and although the division by strenuous effort in concentratINT 91-VOL I-13 ing all the available force on that class of cases has reduced the accumulation, the recommendation for the adoption of the proposed amendment is renewed in order that the work may be easily kept in its present state, and a portion of the force now engaged thereon may be used to advantage on other and equally important work. While the foregoing demonstrates the progress and proficiency of the division in the more important classes of work, it does not include the miscellaneous work incident thereto, and which, from its nature, it is not possible to tabulate. This work embraces the sorting and distribution of the daily mail, preparation of withdrawal cards, status blanks, and caveats; answering attorneys' cards; and work upon the dockets, letter record, and upon the files, all of which requires the constant and sole attention of a number of clerks, upon the prompt and accurate performance of whose work depends, to a great extent, the successful and rapid disposal of the more important work. CONTESTS-ACT OF MARCH 3, 1891, SECTION 7. INSTRUCTIONS. The proviso to section 7, act of March 3, 1891, is one of limitation upon contests initiated after the passage of said act, but does not relieve entries from the effect of contests that were pending at the date of said enactment. [Secretary Noble to the Commissioner of the General Land Office, April 25, 1891.] By means of a proposed letter to chiefs of divisions formulated by the Acting Commissioner of your bureau and presented before your installment in office; by the several opinions of the Assistant Attorney-General and First Assistant Secretary, and a letter from yourself dated April 9, there has come before me a question as to the construction to be given to the proviso of section 7 of the act of Congress entitled "An act to repeal the timber-culture laws, and for other purposes," approved March 3, 1891 (26 Stat., 1095). That proviso is in the following words: "Provided, That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-land, or preëmption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him; but this proviso shall not be construed to require the delay of two years from the date of said entry before the issuing of a patent therefor." That the business of your Burean may be conducted with regularity and uniformity it is necessary that it should now be determined as to what point of time the words "when there shall be no pending contest or protest against the validity of such entry" apply; whether the contest or protest, to prevent the issuance of the patent until disposed of, must have been pending before the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry in cases existing and where the two years had elapsed before the act of March 3 took effect, as well as in those afterwards. A brief reference to the state of the law and acts existing at the time the present act was passed will aid the solution of this question. The second section of the act entitled "An act for the relief of settlers on the public lands," approved May 14, 1880 (21 Stat., 140), is as follows: "In all cases where any person has contested, paid the land-office fees, and procured the cancellation of any preemption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from the date of such notice to enter such lands: Provided, That said register shall be entitled to a fee of one dollar for the giving of such notices, to be paid by the contestant and not to be recorded." The right granted by this statute and the reward thereby promised had induced many thousands of contests and protests as to the good faith and legality of entries for vast numbers of acres of the public domain. Many of these contests and protests had been legally filed under the law and regulations then in force, after more than two years had elapsed from the date of final receipt, and were still pending when the act of March 3, 1891, took effect. There was no limit of time within which these might be filed before patent. The contestants had each paid out, for persons in their circumstances, very considerable sums of money for fees and expenses. Of this general class of contests and protests inade against alleged fraudulent or illegal entries very many had been decided before the act of 1891 was passed, and more than 50 per cent. were decided in favor of the contestants and protestants, notwithstanding the most liberal construction of laws and facts in support of the entry. Contests and protests have, since first allowed by law, been encouraged, and are not now discouraged by the law under discussion. It is true that in many cases these contests or protests have been malicious and inaugurated for the purpose of exacting from honest settlers payments to avoid litigation; but there has been no such development of this evil purpose as has even now convinced either the department or Congress that such proceeding should be discountenanced. They have resulted in aiding the government to protect its public domain by the vigilance of those who, desiring the lands, have detected fraudulent entries and brought them to the knowledge of the General Land Office. The contestant if successful must, if he seeks any benefit under the law, enter the tract of land in dispute under the same conditions and limitations as though he were an entryman under any other circumstances; and it has thus resulted, to the extent above specified, that upon bona fide contests or protests lauds have been prevented from falling into the hands of the fraudulent. This Congress recognizes by authorizing such proceedings under the present act. It thus appears that if the statute of March 3 were to be construed to invalidate all contests or protests not filed within two years after the date of the final receipt, and before this statute took effect, the result would be that many fraudulent claims would go to patent without further question being possible, although contests or protests were legally pending at the date of the act, and with a great loss to many citizens, who, relying upon the statute of May 14, 1880, have invested their money and spent their time in an honorable purpose to obtain a home against those who had fraudulently seized upon their land. It is true that if the language of the act clearly and distinctly expressed this purpose there is nothing in the nature of a contest or protest that would protect it from the effect of the law intended to destroy it. It is admitted, as has often been decided in this department, that the preference right of a contestant rests upon procuring the cancellation of the entry; that after such a preference right is acquired it cannot be assigned; that it does not operate to reserve the land from control of Cougress during the period allowed for the exercise of such right; that the right is personal and that it terminates with the death of the contestant. But a contest has been, as it still is, a proceeding not only allowed but invited by Congress. It is statutory means of acquiring a homestead or other claim against an illegal entry, and is thus rewarded, if 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 3, 1891. not filed within two years from the issuance of final certificate, would amount substantially to a repeal pro tanto of the statute of May 14, 1880. But a statute can not be legally held to be repealed by implication, and least of all, it may be added, where it would allow patents to issue in so many cases where the experience of the department leaves no reason to doubt fraud has been practiced upon the laws regulating land entries, and which can be proven if the contests and protests are allowed to proceed to a hearing. If it had been the purpose of Congress to provide that the contest or protest must be pending within two years after the receiver's 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 a term as we here find. Indeed, the language is so loose that it requires a liberal construction to give it effect even upon subsequent contests, for saying that after two years from issuance of final certificate, when there shall be no contest pending, a patent shall issue, does not declare that the contest must be pending within the two years. Such is not the language of statutes of limitation usually. But no dispute exists that, if there is no pending contest filed within the two years from the date of the receiver's receipt upon the final entry where the limited period expires after the date of the act, the entryman will be entitled to his patent, although the period may elapse within a day after that on which the act was approved. As to such cases it must be held to be a statute of limitation, although carelessly worded. The language is, "when there shall be no pending contest or protest against the validity of such entry." There is no sufficient reason to say that this means pending before the lapse of two years. It would affect, as we have already seen, many meritori ous cases and many innocent parties. It should not be held that as to the past it was intended to be a statute of repose, when the records of the department prove that a vast number of frauds upon the United States would be smothered by the construction. To do so would favor fraud much more than secure repose to honest men. The makers of this law were well acquainted with the situation of affairs; the land laws have been the subject of great discussion for many years in and out of Congress; the committees on the public lands are distinguished for their industry and intelligence, and they were fully aware of all the facts that have been stated here. Had they desired to accomplish the purpose that is claimed by some 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 no pending contest or protest,' meaning thereby clearly, I think, pending then presently at the date of this act. It was not intended to be limited to contests or protests pending within 2 years after the date of the final receipt, when the case had arisen before the present act took effect and the 2 years had elapsed. The statute thus becomes one of limitation as to the future, without overthrowing the pending contests or protests. When the 2 years did not terminate before the date of the act the contest or protest to be valid must be filed within the 2 years. There is no force, I think, in the point that the statute enumerates cases arising under timber-culture or preemption laws, for these laws, although repealed by the present act, have been efficacious to inaugurate entries which either have proceeded to final entry or may yet do so. No new cases can arise under the timber-culture or preemption laws, but it was necessary that this act should notice them to cover the whole ground. Neither does the proposition seem a sound one that by this statute it was intended to expedite the public business and issue of patents long held back by contests. In my judgment, the way Congress must expect to have patents issue is by furnishing a sufficient clerical force to accomplish the work, and not by suddenly rushing great masses of cases to patent, although contests legally instituted are pending and in which experience leaves no reason to doubt fraud exists. To thus reward the fraud and squander the public lands could not have been the purpose of our national legislature. These are my views upon the law presented and all of the points that I deem it necessary to discuss. The letter of the Acting Commissioner is returned without my approval and in order that you may have it rewritten, and, if you choose, extended to conform to this opinion. ! K.-DIVISION OF STATE AND TERRITORIAL GRANTS. This division, which is composed of two sections, (1) the section of swamp lands and (2) the section of school lands, has charge of all cases arising under the swamp-land grants and the swamp-land indemnity laws, and of all cases arising under the grants for school lands and school-land indemnity, internal improvements, agricultural colleges, seminaries and universities, penitentiaries, public buildings, and saline lands in the public-lands States and Territories. There were employed in this division during the last fiscal year 1 chief of division and 14 clerks and copyists. There were also attached to this division 6 special agents and a part of the time 9 such agents, who were employed examining swamp lands in the field. The number of 41 exemplifications of documents on file in this division were prepared and furnished to applicants, for which the sum of $455.57 was received as legal fees. The following is a summary of the most important work performed in the division during the fiscal year ended June 30, 1891: Letters and reports pending July 1, 1890.... Letters and reports received during the year.. Total.... Letters answered, filed, and referred.... Number not acted upon Other letters written... Lists of swamp and school lands prepared for approval 436 4,752 5, 188 4,710 478 1,618 77 Certified copies of lists prepared and transmitted to governors of the several 154 Tracts upon which claims for swamp-land indemnity have been adjusted upon testimony submitted ... 187 Tracts examined with plats and field-notes of survey to determine their character 11 644 Certified copies prepared for individuals Amount of legal fees received for such certified copies Entries and locations canceled for conflict with claims under the swamp grant. Claims under railroad grants held for rejection for conflict with claims under the swamp grant...... 38 $455.57 57 5 |