Opinion of the Court. requirement, first introduced by the act of June 8, 1872, that the additional lands entered should be contiguous to those entered under the act of 1862, or under the first section of the act of June 8, 1872. If, then, Congress did not burden the right to additional lands with the condition that they should be contiguous to those originally entered, it would seem necessarily to follow that the grant of additional lands was without restrictions, and, consequently, there was no purpose to interfere with the disposition by the homesteader of such additional lands, or of his interest in them, in any mode he deemed proper or that might be adopted in respect of other property owned by him. Any other construction of section 2306 would, we apprehend, defeat the purpose that Congress had in view when it gave additional lands to those who had made entries under the homestead laws of less than one hundred and sixty acres. We cannot see that. any sound policy could have been subserved by restricting the bounty of Congress to those who were able to find additional lands contiguous to those previously entered by them; and we entirely concur in the views expressed by the Supreme Court of Minnesota. Speaking by Chief Justice Gilfillan, in the present case, it said: "There being nothing in the terms of the section requiring the things specified in the act of 1862, to wit, the making of proofs, affidavits, etc., is there anything in the policy of the government in respect to the subject-matters of the various acts referred to which raises the presumption that Congress intended any of the requirements of the act of 1862 to apply to the 'additional right?' or intended the feature of inalienability impressed on the homestead entered under the act of 1862, or the first section of the act of 1872, should attach to the additional right?' The purpose of Congress in giving the right to enter and acquire a homestead under the act of 1862, and the first section of the act of 1872, was not merely to confer a benefaction on the citizen, or discharged soldier. or sailor. There was also the purpose to secure, so far as possible, a bona fide settler on the public lands, to promote the peopling and cultivation of those lands. Opinion of the Court. It was to prevent the evasion of this result that the person applying to enter a homestead is required to make affidavit that the application is made for his or her exclusive use and benefit, for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person, and on applying for the patent to make proof of residence on, and cultivation of, the land for five years, and an affidavit that no part of the land has been alienated; and it is provided that the land shall not be taken for debts, and that upon any change of residence or abandonment of the land for more than six months the land shall revert. The end in view was the peopling of vacant public lands with settlers owning and cultivating their own homes. To secure settlers or require residence or cultivation was no part of the end in view in giving the additional right under the section as amended in 1872. No residence on or cultivation of the land as a condition of securing the additional right was intended. It was a mere gratuity. There was no other purpose but to give it as a sort of compensation for the person's failure to get the full quota of one hundred and sixty acres by his first homestead entry. There is no reason to suppose it was intended to hamper the gift with conditions that would lessen its value, nor that it was intended to be made in any but the most advantageous form to the donee. After the right was conferred it was immaterial to the government whether the original donee should continue to hold it, or should transfer it to another. Or, rather, as policy requires the peopling of the vacant public lands, and as it could not be expected or desired that the homesteader should abandon his first entry to settle upon the additional land, it would be more for the interest of the government that he should be able to assign his additional right, so that it might come to be held by some one who would settle upon the lands." 50 Minnesota, 77, 83. Subsequently, the same questions were carefully examined in the Circuit Court of Appeals for the Eighth Circuit in Barnes v. Poirier, 27 U. S. App. 500. In that case it was held that the right given by section 2306 of the Revised Opinion of the Court. Statutes to a soldier who had theretofore entered, under the homestead laws, less than one hundred and sixty acres to enter enough more to make up that quantity, was assignable before entry, there being no restriction as in the homestead act. The judgment of the Circuit Court for the District of Minnesota, delivered by Judge Nelson, 57 Fed. Rep. 956, was affirmed. Judge Sanborn, speaking for the Circuit Court of Appeals, well said: "The beneficiary was left free to select this additional land from any portion of the vast public domain described in the act, and free to apply it to any beneficial use that he chose. It was an unfettered gift in the nature of compensation for past services. It vested a property right in the donee. The presumption is that Congress intended to make this right as valuable as possible. Its real value was measured by the price that could be obtained by its sale. The prohibition of its sale or disposition would have made it nearly, if not quite, valueless to a beneficiary who had already established his home on the public domain. Any restriction upon its alienation must decrease its value. We are unable to find anything in the acts of Congress or in the dictates of an enlightened public policy that requires the imposition of any such restraint. On the other hand, the general rule of law which discourages all restraints upon alienation, the marked contrast between the purpose and the provisions of the grant of the right to the original homestead, and the purposes and provisions of the grant of the right to the additional land, and the history of the legislation which is codified in the existing homestead law, leave us without doubt that the assignment before entry of the right to this additional land granted by section 2306 of the Revised Statutes contravenes no public policy of the nation, violates no statute, and is valid as against the assignor, his heirs and assigns." To the same effect were the following cases: Knight v. Leary, 54 Wisconsin, 459; Mullen v. Wine, 26 Fed. Rep. 206; Rose v. Nevada &c. Wood & Lumber Co., 73 California, 385; Montgomery v. Pacific Coast Land Bureau, 94 California, 284. Much stress is placed by the plaintiff in error upon the Syllabus. practice of the land department during a certain period, based upon the idea that the right of entry given by the statute of additional lands was entirely personal, and not assignable or transferable. We cannot give to this practice in the land office the effect claimed for it by the plaintiff in error. The practical construction given to an act of Congress, fairly susceptible of different constructions, by one of the Executive Departments of the government, is always entitled to the highest respect, and in doubtful cases should be followed by the courts, especially when important interests have grown up under the practice adopted. Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1, 34; United States v. Healey, 160 U. S. 136, 141. But this court has often said that it will not permit the practice of an Executive Department to defeat the obvious purpose of a statute. In the present case it is our duty to adjudge that the right given by the statute in question to enter "additional" lands was assignable and transferable; consequently the instrument of writing given by Mary J. Robertson to Boggs was not forbidden by any act of Congress. It results that the judgment below must be and is Affirmed. HILBORN v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 267. Submitted May 1, 1896.- Decided May 18, 1996. Fees allowed by the court to the district attorney for his services in defending habeas corpus cases, brought to release from the custody of masters of vessels Chinese emigrants, whom the collector of the port had ordered detained, should be accounted for by him in the returns made by him to the government, of the fees and emoluments of his office. It would require a strong case to show that services, for which the district attorney is entitled to charge the government a fee, are not also services for the earnings of which he should make return to the government in his emolument account. Counsel for Appellant. THIS was a petition by the district attorney for the District of California for certain fees for services rendered by direction of the Attorney General, in connection with various habeas corpus cases of Chinamen desiring to enter this country; the total amount of disallowances in this connection being in the vicinity of $7000. Defendants filed a counterclaim for moneys claimed to be erroneously and illegally allowed and paid by the accounting officers of the Treasury Department in the sum of $930, in excess of the fees and compensation prescribed by law. In this connection the Court of Claims made a finding of facts to the effect that the claimant appeared and resisted certain proceedings in cases prosecuted in the proper court of the United States, wherein writs of habeas corpus had been issued on behalf of subjects of the Emperor of China, to masters of certain vessels arriving at the port of San Francisco, by whom persons were detained by order of the collector of said port, acting under color of the authority of the act of Congress of May 6, 1882, c. 126, 22 Stat. 58, and of July 5, 1884, c. 220, 23 Stat. 115. Judgment was rendered without a jury in each case. For these services, the judge, upon approving claimant's accounts under the act of February 22, 1875, taxed and allowed him an assimilated fee of $10 in each case, certified it to be a just and reasonable compensation, and that it had been assimilated to such fee as is prescribed by section 824 of the Revised Statutes for similar services in cases in which the United States are a party, and where judgment is rendered without a jury. The case involved several other points, not questioned upon this appeal, and resulted in a judgment in favor of the petitioner for $594.60 and a dismissal of the counterclaim. From this judgment petitioner appealed, assigning as error that the Court of Claims erred in holding that the assimilated fees, earned by him in resisting the habeas corpus proceedings, were to be included in his emolument return or counted in making up his maximum compensation, and that the judgment of the court should have been for the sum of $8230. Mr. Charles King and Mr. William B. King for appellant. |