(dissenting). Sections 1 and 2 of the act of congress of March 3, 1877, are as follows:
“Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the existence or incorporation of any town upon the public lands of the United States shall not. he held to exclude from pre-emption or homestead entry a greater quantity than twenty-live hundred and sixty acres of land, or the maximum area which may be entered as a town-site under existing laws, unless the entire tract claimed or incorporated as such town-site shall, including and in excess of the area above specified, lie actually settled upon, inhabited, improved, and used for business and municipal purposes.
‘‘Sec. 2. That where entries have been heretofore allowed upon lands afterwards ascertained to have been embraced in the corporate limits of any town, but which entries are or shall be shown, to the satisfaction of the commissioner of the general land office, to include only vacant unoccupied lands of the United States, not settled upon or used for municipal purposes, nor devoted to any public use of such town, said entries, if regular in all respects, are hereby confirmed and may be carried into patent: provided, that this confirmation shall not operate to restrict the entry of any town-site to a smaller urea than the maximum quantity of land which, by reason of present population, it may he entitled to enter under section twenty-three hundred and eighty-nine of the Revised Statutes.” 19 Stat. 392.
Although Minnick’s entry was allowed by the register and receiver of the local land office, their action was afterwards annulled by the commissioner of the general land office, and at the time of the passage of Hie act of March 3, 1877, the entry stood disallowed and canceled of record. I am unable to understand how such an entry can be held to meet the first requirement of section 2 of the curative act. The act does not purport to cure any entry theretofore and at the time of its passage disallowed, which was the status of Minnick’s entry. In my opinion, there must, of necessity, be a live, subsisting entry for the act to operate upon, the defects of which, pointed out in the statute, are thereby cured. But, without a subsisting entry, there is nothing calling for the application of the statute in question. I therefore respectfully dissent.