a legislative declaration that the reservation of lands by Indians is a sale by the Government, and that therefore the value of these lands is to be added or included as net proceeds. The word "other" in the act was not necessary, for the words "as in case of sales" would more clearly have expressed the whole intent had it been as claimed, and it is not to be presumed that Congress intended, by the use of an unnecessary word in an act temporary in its character, to define that as a sale which was not a sale, and to make the definition permanent. The acts are both loosely drawn, and hence words unnecessarily used ought not to have effect after the object immediately under consideration had been accomplished. Both acts directed the Commissioner to "pay" the sums found due. If the reasoning as to the legislative interpretation of the word "sales" be correct, we have an equally forcible interpretation of the powers of the Commissioner to step into the Treasury and "pay" the money without the intervention and against the judgment of the officers of the Treasury. Words loosely and unneces sarily used cannot change the true nature of a transaction nor alter the meaning of other words properly used. Yet the words "other sales" in the cases of the States of Alabama and Mississippi, may have been used without seeming impropriety, so far as concerned those States, for what were termed reservations in those States were in fact grants made to individual Indians, who chose to become citizens instead of removing west with their tribe or tribes, and constituted a part of the consideration of the cession of the whole body of their lands by the tribe, as set forth in the treaty or treaties. For the lands thus granted the Government was to issue patents, so that in those cases there were the forms and substance of sales. It is also claimed that the act of 1857, being without expressed local application, its provisions are extended to Nebraska by section 13 of the enabling act. That section enacts that "the laws of the United States, not locally inapplicable, shall have the same force and effect within the said State as elsewhere within the United States." That provision cannot, it seems to me, have so broad an application as is elaimed for it. It was intended to provide simply that "within the said State" the rights of persons and the rights of property, as also the forms of judicial procedure, should be preserved and followed in the State as prescribed by the laws of the United States [Smith v. Cockerell 6 Wall., 756; United States v. McBratney, 104 U. S., 623]. It certainly could not have been intended thereby to increase the specific grant contained in the section immediately preceding, nor to oblige the Government at Washington to pay money from the Treasury in excess of the specific and limited sum granted. Whatever may be the construction given to section 13 that section cannot be made to give the act of March 3, 1857, any force within the State of Nebraska, for in effect it was limited to the then existing States, and to the then condition of their accounts and claims. The Commissioner was directed to ascertain and to "allow and pay" the moneys due to the State, and "heretofore unsettled." Congress was dealing with past transactions, and with then existing claims arising out of such transactions not theretofore settled. No provision was made for the allowance of claims which might subsequently arise nor in favor of States which might thereafter be created and admitted into the Union. And there was no need for considering the case of future States at that time. The whole subject remained within the powers of Congress, to be acted upon and decided as might seem proper when occasion arose. In the case of Nebraska, Congress granted five per cent. upon the net proceeds of actual sales, of all public lands lying within said State, whether made before or after the admission of the State. Indian lands are not public lands, nor do they constitute any portion of the territory legally within the boundaries of the State [United States v. McBratney, 104 U. S., 621; Harkness v. Hyde, 98 U. S., 476]. The second section of the act of February 9, 1867, 14 Stat., 391, declared "the said State of Nebraska to be entitled to all the rights, privi leges, grants, and immunities, and to be subject to all the conditions and restrictions" of the enabling act of April 19, 1864. To admit the present claim would be to enlarge the "grants" without authority, and I am therefore constrained to disallow it. Respectfully, R. W. TAYLER, IN THE MATTER OF THE AUTHORITY OF THE ACCOUNTING OFFICERS OF THE TREASURY DEPARTMENT TO SETTLE AND ADJUST CLAIMS "BROUGHT BEFORE THEM" MORE THAN FIVE YEARS AFTER THE BALANCES OF APPROPRIATIONS ORIGINALLY APPLICABLE TO THEIR PAYMENT "HAVE BEEN EXHAUSTED OR CARRIED TO THE SURPLUS FUND." ACT OF JUNE 14, 1878 (20 STAT., 130).-FIVE-YEAR CLAIMS' CASE. 1. The principal change made by the enactment of the 4th section of the act of June 14, 1878 (20 Stat., 130), related to the mode of presenting deficiency estimates to Congress. 2. By implication it charged the accounting officers with the duty of reporting to the Secretary of the Treasury the balances found due, but it conferred no other new power on them. 3. As to claims not presented within the five years mentioned in the section, the duties of the accounting officers are the same as were enjoined upon them by pre-existing laws.* 4. A paymaster's clerk in the U. S. Navy, having an unpaid claim for mileage under the law as laid down by the United States Supreme Court, presented it to the Fourth Auditor for settlement: Held: That the claim is a just and lawful account against the Government which accrued in the Navy Department, within the meaning of section 277 of the Revised Statutes, which requires "the Fourth Auditor to receive and examine all accounts accruing in the Navy Department," and that if there were no money in the Treasury or if Congress should fail for a time to make appropriation to pay it, that would not be a sufficient reason for failing to certify the balance of the account. 5. One of the objects in auditing accounts is to aid the heads of Departments in pre senting to Congress proper estimates of deficiencies. TREASURY DEPARTMENT, SECOND COMPTROLLER'S OFFICE, SIR: I have the honor to acknowledge the receipt of your letter of the 27th instant, submitting a question as to the effect of the expira * See 1 Lawrence, Compt. Dec. (2d ed.), Appendix, ch. XIV, pp. 579-592; Keasbey's Case, 1 Lawrence, Compt. Dec. (2d ed.), 181; Crocker's Case, id., 301 and note. tion of the five years mentioned in the 4th section of the act of June 14, 1878 (20 Stat., 130), which section is as follows: "That so much of section five of the act approved June twentieth, eighteen hundred and seventy-four, as directs the Secretary of the Treasury, at the beginning of each session, to report to Congress, with his annual estimates, any balances of appropriations for specific objects affected by said section that may need to be reappropriated be, and hereby is, repealed. And it shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section that may be brought before them within a period of five years." "And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law." The principal change made by this enactment relates to the mode of presenting deficiency estimates to Congress. It begins by repealing the very important enactment on this subject, passed as a proviso or saving. "clause, in what is known as the covering in provision" of the act of June 20, 1874 (18 Stat., 110). The words repealed by the act now under consideration are: "And the Secretary of the Treasury shall, at the beginning of each session, report to Congress, with his annual estimates, any balances of appropriations for specific objects affected by this section that may be needed to be reappropriated." Many of the balances, which the Secretary of the Treasury was thus required to report, pertained to appropriations for the expenses of the War, Navy, and Interior Departments, and the act under consideration also shows an intent on the part of Congress to provide for much more specific designation of the objects recommended to be appropriated for than was required by the clause repealed. Section 4 of the appropriation act under consideration, after repealing the proviso last above quoted, declares that the accounting officers shall continue to discharge certain duties which they had theretofore discharged, and then provides an entirely new mode of laying their decisions before Congress, and an entirely new mode for reporting certain deficiencies by the Secretary of the Treasury. By implication, the act charges the accounting officers with the duty of reporting to the Secretary of the Treasury the balances certified by them in this class of cases, although previous statutes only require, in this respect, that the balances be certified— "To the Secretary of the Department in which the expenditure has been incurred." (Rev. Stat., 273.) *The act of June 14, 1878, suspended this clause for five years, and it now revives. There is nothing in the act under consideration conferring any other new power on the accounting officers or authorizing them "to continue to receive, examine, and consider the justice and validity" of any claim that they would not have been in duty bound to audit if that section had not been enacted. I am of the opinion that, in regard to all claims of the kind referred to which were not filed within the five years, the pre-existing laws are in force and the duties of the accounting officers are the same that were prescribed before the passage of the act of June 14, 1878. There are many claims in which the claimant's rights are based wholly upon the grant made by an appropriation, and in which the accounting officers are not authorized to allow any balance in excess of the amount appropriated; as where Congress appropriates a definite sum of money to construct a building, to make a survey, or to accomplish some other specific object, there being no other authority to do the work, and the law being silent as to the mode of its performance, no legal claim can arise for a greater amount than is appropriated, and consequently the power or jurisdiction of the accounting officers cannot exceed that limit. But in cases where a legal right has inured to a claimant under other laws and vested in him independently of the ques tion of appropriation, there is no such limit of jurisdiction of the accounting officers. When such legal right has inured and the claimant presents his account to the accounting officers, the law makes it their duty to examine his account, settle the balance, and certify it to the proper Department. If Congress creates an office and declares that the incumbent shall receive a specified salary, the duly elected or appointed incumbent who discharges its duties acquires a legal right to the salary, and if there should be no money in the Treasury to pay him, or if Congress should for a time fail to make appropriation, that would not divest the incumbent's right nor be a sufficient reason for failing to certify the balance due him. One of the objects of auditing accounts is to aid the heads of Departments in presenting to Congress proper estimates of deficiencies. And the statutes that define the jurisdiction of the Auditors and Comptrollers do not make their duty depend upon whether there is money in the Treasury or whether an appropriation has been made for the payment of the legal claim presented to them for audit. The claim of J. H. Wetmore, paymaster's clerk, for mileage in traveling, referred to by you, is one that I think will illustrate the distinction above stated. Under the law, as laid down by the United States Supreme Court, he became lawfully entitled to the balance referred to, Congress made an appropriation to pay it, thus putting his right beyond all possible question, and he has not been paid. His is a just and lawful account against the Government that accrued in the Navy Department. He now presents it to you for settlement, and and the law declares that "The Fourth Auditor shall receive and examine all accounts accruing in the Navy Department," certify the balances to the Second Comptroller for decision. I have, therefore, in pursuance of section 273 of the Revised Statutes, approved the balance of the inclosed account of Mr. Wetmore, as stated by you, and certified the same to the Honorable the Secretary of the Navy, transmitting the certificate to the Honorable Secretary through your office for your information. Hon. CHARLES BEARDSLEY, Fourth Auditor. W. W. UPTON, Comptroller. IN THE MATTER OF THE PROPER MODE OF PAYING CLAIMS DUE TO ESTATES OF PERSONS WHO DIE LEAVING ASSETS SO SMALL A'S NOT TO JUSTIFY THE EXPENSE OF ADMINISTRATION.—DECEASED CLAIMANT'S CASE. 1. Small claims against the United States-usually not exceeding one hundred dollars-due to the estates of decedents, will be paid, without administration, directly to such persons as would be the beneficiaries in case of administration. 2. A long continued usage in an executive department becomes national executive common law, having the force of any other law, and so, a rule of property. DECISION BY WILLIAM LAWRENCE, First Comptroller: Officers and employés of the Government, and other persons having claims against the United States, are generally paid either (1) by Treas ury warrants on balances duly certified by the proper Comptroller, or (2) by disbursing officers, clerks, or agents. Officers, employés, and claimants, so entitled to payments, sometimes die before any balance is certified, and, in other cases, either before a disbursing officer's check or the Treasurer's draft has been issued for the purpose of making payment, or after its issuance but before its delivery. Where the amount in any case is small, the cost of administration would often be greater than the claim. In such cases, when the decedent left no other assets, or none which would justify the cost of administration, a refusal to pay without administration would almost amount to a denial of justice. In cases somewhat similar, a court of equity avoids the necessity of administration. Thus, in 2 Perry on Trusts, 930, it is said: "Where a trustee was to pay a small sum to a wife who had deceased, the court ordered it to be paid to the husband without administration; and so where the trustee was to pay a small sum to a husband, the court ordered it to be paid to his widow, although there was no administration. When the sum is considerable, the court will not hold the trustee justified in paying it over without administration in case the person is deceased to whom it was to be paid. Hinnings v. Hinnings, 2 Hem. & Mil., 32; Lewin, 286." |