Clack v. Diehl

¶1I assent to the affirmance of the judgment of the district court, but do not agree to a determination of the question as to the homestead qualifications of the *152 appellee in this case. I do not think we have jurisdiction of that question in the manner presented. So long as the title of the land applied for is in the government, the land department has the sole and exclusive jurisdiction of the questions relating to applications to make entry thereof, including the qualifications of the applicant, and so long as the applicant is recognized as a qualified entryman by that department and the land he applied for remains undisposed of, we have no power to hold that he is not qualified, and if we cannot hold him disqualified, equally we cannot hold him qualified. And so long as appellee has the status of a contestant before the land department, we must accord him the same status before the courts, and if he shall be denied the right to make entry of the land in that contest, that determination must bind us until the title to the land passes from the government, no matter whether we may agree with the department in its construction of the law relating to his qualifications as an entryman or not. It is therefore useless, as I think it is improper, for us to pass upon this question until its determination is reached before another tribunal.