be allowed; therefore the commissions charged by you against the cash value of lands entered under the timber-culture act, in addition to the legal commissions, are contrary to law."* OPINION BY WILLIAM LAWRENCE, First Comptroller. I. The Revised Statutes provide as follow: SEC. 2238. Registers and receivers, in addition to their salaries, shall be allowed each the following fees and commissions, namely: First. A fee of one dollar for each declaratory statement filed and for services in acting on pre-emption claims. Second. A commission of one per centum on all moneys received at each receiver's office. Third. A commission to be paid by the homestead applicant, at the time of entry, of one per centum on the cash price, as fixed by law, of the land applied for; and a like commission when the claim is finally established, and the certificate therefor issued as the basis of a patent. Fourth. The same commission on lands entered under any law to encourage the growth of timber on western prairies, as allowed when the like quantity of land is entered with money. The fourth and last paragraph above quoted is taken from the socalled "Timber-Culture act" of March 3, 1873 (17 Stat., 606, sec. 6),† entitled "An Act to encourage the Growth of Timber on western Prairies." The reference to "land * entered with money" is to land pre-empted at the "minimum price," which is $1.25 per acre (Rev. Stat., 2259, 2357). II. If the fourth paragraph of section 2238 of the Revised Statutes remains in force, it is clear, that, by virtue of this and the second and third paragraphs of said section, registers and receivers are each entitled to be paid by the United States a commission of one per cent., or four dollars, on each quarter section of land entered under the "Timber-Culture acts." III. But the fourth paragraph of section 2238 of the Revised Statutes is entirely superseded. The act of March 13, 1874 (18 Stat., 21), entitled "An act to amend the act [March 3, 1873, 17 Stat., 605] entitled ‘An act to encourage the growth of timber on western prairies,"" after the usual enacting clause, provides: *For the "table of fees and commissions" above referred to, see District LandOffice Case, 2 Lawrence, Compt. Dec., 2d ed., 426. The provisions of this act, excepting the seventh section, are carried into the Revised Statutes thus: Sec. 1 of the act into sec. 2464 of the Revised Statutes; sec. 2 of the act into secs. 2465, 2466 of the Revised Statutes; sec. 3 of the act into sec. 2467 of the Revised Statutes; sec. 4 of the act into sec. 2317 of the Revised Statutes; sec. 5 of the act into sec. 2468 of the Revised Statutes, and sec. 6 of the act into the fourth paragraph of sec. 2238 of the Revised Statutes; and the provisions of sec. 7 of the act, omitted from the Revised Statutes, were re-enacted in sec. 7 of the act of March 13, 1874 (18 Stat., 21). The sections 2317, 2464, 2465, 2466, 2467, 2468, and the fourth paragraph of section 2238 of the Revised Statutes are superseded by the repeal of the act of March 3, 1873. "That the act entitled 'An act to encourage the growth of timber on 'western prairies,' approved March third, eighteen hundred and seventythree, be, and the same is hereby, amended so as to read as follows:" Then follow the eight sections of the new act. Its provisions indicate a purpose to give additional inducements to make entries of lands and to cultivate timber thereon. Section 2 of the later act requires each person applying for the benefit of the act to pay to the proper register and receiver ten dollars (which is for the Government and not the officer), as did the act of March 3, 1873, and section six provides "that the registers and receivers of the several [district] land-offices shall each be entitled to receive [from the applicants] two dollars at the time of entry, and the same sum when the claim is finally established and the final certificate issued." These sums are called "commissions" in the "Table of fees and commissions," and belong to the officers. Several considerations show that this act entirely superseded the act of March 3, 1873. 1. The first provision in the act of March 13, 1874, declaring that the act of March 3, 1873, "be, and the same is hereby, amended so as to read as follows," operates per se, and by the necessary effect of the words employed, to supersede the prior act. This is settled in principle in Steamboat Company v. The Collector (18 Wall., 478). 2. The act of March 13, 1874, is perfect in itself, and does not need any provision of the act of March 3, 1873, to execute it. 3. The purpose of the act of March 13, 1874, to supersede that provision of the act of March 3, 1873, which gave to registers and receivers the right to a commission of one per centum each, is shown by the fact that, the said act of March 13, 1874 (1) omits the provision of the act of March 3, 1873, as to commissions, and, (2) in lieu thereof, inserts another provision, not in the act of March 3, 1873, requiring payment by applicants of "two dollars at the time of entry," and of "the same sum when the claim is finally established and the final certificate issued." Thus, under the act of March 3, 1873, the register and receiver each was entitled, both "at the time of entry," and also "when the claim is [was] finally established, and the certificate therefor issued," to a commission of one per cent. on the minimum cash price of lands entered, but under the act of March 13, 1874, each is entitled to four dollars fees, called commissions in the fee bill, and not authorized by the act of March 3, 1873.* 4. The eighth section of the act of March 13, 1874, recognizes the supersedure by providing: *Under the act of March 3, 1872, the compensation of registers and receivers in Washington Territory was one dollar and fifty cents each for each declaratory statement, and five dollars each for final certificates for 160 acres of land, ten dollars each for 320 acres, and fifteen dollars each for 640 acres, and one per centum commissions. Under the act of March 13, 1874, their compensation is two dollars each at the time of entry, irrespective of area, and two dollars each when the claim is finally established. The act of June 14, 1878 (20 Stat., 113), continues the latter compensation. "That parties who have already made entries under the act approved March third, eighteen hundred and seventy-three, of which this is amendatory, shall be permitted to complete the same upon full compliance with the provisions of this act." This assumes that, without this provision, the inchoate rights acquired under the act of March 3, 1873, would be left without authority to perfect them, or be wholly swept away. This provision would be unnecessary, if the act of March 3, 1873, remained in force. 5. The act of March 13, 1874, is a revision of the whole subject of the act of March 3, 1873, and, embracing not only the same subject but also the same objects, works a repeal or supersedure of the prior act. Thus, it was said by the Supreme Court of the United States, in the case of The United States v. Tynen (11 Wall., 92), that "even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." This has been subjected to some criticism, but not affecting the repeal in this case. (Bishop, Written Laws, 158; United States v. Claflin, 97 U. S., 546; Norris v. Crocker et al., 13 How., 429; Henderson's Tobacco, 11 Wall., 657). 6. The rule is fully recognized that, "an affirmative statute giving a new right" does not "of itself of necessity destroy a previously existing right, unless the intention of the legislature be apparent that the two rights should not exist together" (Broom, Legal Maxims, 29, citing O'Flaherty v. M'Dowell, 6 H. L. Cas., 142, 157). But here the intention of Congress to deny the right to a commission of one per centum is entirely clear. 7. The fact that the act of March 3, 1877 (19 Stat., 406, sec. 2), refers to the act of March 3, 1873, "and the acts amendatory thereof," cannot be regarded as evidence that the act of March 3, 1873, is in force. The act of March 3, 1877, is entitled "An act for the relief of certain settlers on the public lands." It permits "homestead and pre-emption settlers, * where crops were destroyed or seriously injured by grasshoppers in the year eighteen hundred and seventy-seven, to leave and be absent from said lands until the first day of October, eighteen hundred and seventy-eight," &c., and then declares, that "all the rights and privileges extended by this act to homestead and pre-emption settlers shall apply to and include the settlers under an act entitled 'An act to encourage the growth of timber on western prairies,' approved March third, eighteen hundred and seventy-three, and the acts amendatory thereof." See acts of March 13, 1874 (18 Stat., 21), May 20, 1876 (19 Stat., 54), June 19, 1876 (19 Stat., 59), and July 1, 1879 (21 Stat., 48, sec. 2). This provision may have been supposed necessary, as there were settlers under the act of March 3, 1873. But such reference to a superseded act does not revive or give it effect for any other purpose than the benefit therein mentioned. (Steamboat Company v. The Collector, 18 Wall., 491). It is thus shown, that the act of March 3, 1873, was superseded by the act of March 13, 1874. 8. Most of the provisions of the act of March 3, 1873, as shown, were carried into the Revised Statutes. The Revised Statutes, which passed June 22, 1874, "embrace the statutes of the United States, general and permanent in their nature, in force on the 1st day of December, one thousand eight hundred and seventy-three," with a provision repealing all acts passed prior to the latter date, any portion of which is embraced in the revision, but with another provision, that "the enactment of the revision is not to affect or repeal any act of Congress passed since the first day of December, one thousand eight hundred and seventy-three, and all acts passed since that date are to have full effect." (Rev. Stat., 5595, 5596, 5601.) As the revision was not adopted until June 22, 1874, it was not possible for the act of March 13, 1874, to refer in terms to, or by number supersede, sections of the Revised Statutes. But, as the revision declares that all acts passed since December 1, 1873, up to June 22, 1874, "are to have full effect," and as the act of March 13, 1874, is one of such acts, it must have the effect, in superseding the act of March 3, 1873, to supersede those sections of the Revised Statutes which were taken from this last-mentioned act. Hence, no question is presented as to what would be the effect of an act passed since June 22, 1874, purporting to amend an act passed prior to December 1, 1873, which had been in whole or in part carried into the Revised Statutes, but which had been repealed by the revision. IV. The act of March 13, 1874, was superseded by the act of June 14, 1878 (20 Stat., 113.) This latter act amends the former "so as to read as follows:" and then revives the whole subject by provisions having the same general objects, and so effects a supersedure. It continues in force the provision requiring each applicant to file an affidavit, and the other provision, that, "upon filing said affidavit with said register and said receiver and on payment of ten dollars, if the tract applied for is more than eighty acres; and five dollars if it is eighty acres or less, he or she shall thereupon be permitted to enter the quantity of land specified;" and the other provision, "that the registers and receivers of the several land-offices shall each be entitled to receive [from the applicant] two dollars at the time of entry, and the like sum when the claim is finally established and the final certificate issued." It then declares that "all acts and parts of acts in conflict with this act are hereby repealed." This latter repealing provision, though usual, was wholly unnecessary. The repeal was equally operative without itThis has already been shown.* V. It is urged, that the policy and provisions of other acts giving fees and commissions to registers and receivers require, that such reg Judge Richardson's valuable "Supplement to the Revised Statutes of the United States" (vol. 1, 1874-1881) treats (see pages 8, 348) the act of March 13, 1874, as superseded by the act of June 14, 1878. isters and receivers should be accorded the same rights under the "timber-culture acts." Statutes having similar objects should generally be construed alike. (Sedgwick, Construction Stat. and Const. L., 2d ed., 230; Receivers, &c., v. Paterson Savings Bank, 2 Stock., 13.) If the provisions of the "timber-culture acts" were ambiguous, or of doubtful import, there might be some force in this claim. But the provisions in force are perfectly clear and free from all doubt. These provisions cannot be enlarged by any general policy apparent in other statutes as to other public lands. Thus, it is said, that, in construing a statute, "we cannot, to bring it to our views, import into it words not used by the law-makers; or control it, when unambiguous, though we think it is not what it should be." (Bishop, Written Laws, 80.) When the words of a statute are clear and unambiguous, there is no room for construction. It is not allowed to construe that which has no need of construction. (L., L., & G. R. R. Co. v. United States, 92 U. S., 733, 751; Bishop, Written Laws, 80, 81, 145.) Thus, it is said, "it would be dangerous to give scope to make a construction in any case against the express words, when the meaning of the makers doth not appear to the contrary, and when no inconvenience will thereupon follow; and therefore in such cases a verbis legis non est recedendum." (Edrich's Case, 3 Coke, Part V, 118; Bishop, Written Laws, 145.) Lord Bacon has said that, "judges ought to remember that their office is jus dicere, and not jus dare, to interpret law, not to make or give law." (Osage-Land Case, 3 Lawrence, Compt. Dec., 368.) The fourth paragraph of section 2238 of the Revised Statutes is so clearly repealed, or, more properly, superseded, that it is impossible to declare it in force, without violating the plain meaning of language, the clear purpose of Congress, well-established rules, as already shown, for determining when a repeal or supersedure of a statute occurs, and the undoubted principles established by authorities cited. The result is, that, such fourth paragraph of section 2238 of the Revised Statutes not being in force, registers and receivers of local district landoffices are not entitled to the commission of one per centum each, originally authorized by it on the minimum cash value of lands entered under the timber culture acts." TREASURY DEPARTMENT, First Comptroller's Office, January 8, 1883. |