DECISIONS

OF

THE FIRST COMPTROLLER (WILLIAM LAWRENCE) IN THE DEPART MENT OF THE TREASURY OF THE UNITED STATES.

1883.

IN THE MATTER OF THE RIGHT OF REGISTERS AND RECEIVERS OF DISTRICT LAND-OFFICES TO RECEIVE A COMMISSION OF ONE PER CENTUM EACH ON THE MINIMUM CASH VALUE OF LANDS ENTERED UNDER THE "TIMBER-CULTURE ACTS."-TIMBER-CULTURE-ACT CASE.

1. The fourth paragraph of section 2238 of the Revised Statutes, taken from the act of March 3, 1873 (17 Stat., 606, sec. 6), was superseded by the act of March 13, 1874 (18 Stat., 21), and this act was in turn superseded by the act of June 14, 1878 (20 Stat.).

2. When a later act revives the whole subject, and provides for all the objects of a former act, such former act is superseded without any express words of repeal.

3. When an act refers to a provision of a former act as in force, and such former act has, in fact, clearly been superseded or repealed, the provision so referred to is not thereby revived, unless an intention to revive it is apparent.

4. Statutes having similar objects should generally be construed alike.

5. The policy and provisions of one class of statutes in relation to public lands may aid in the construction of other statutes in relation to other public lands. But such policy and provisions cannot be allowed to control the plain unambiguous meaning of such other statutes.

6. Sections 2317, 2464, 2465, 2466, 2467, and 2468 of the Revised Statutes are superseded by subsequent legislation..

7. Neither registers nor receivers of local district land-offices are entitled to a commission of one per centum each on the minimum cash value of lands entered under the "timber-culture acts."

November 10, 1882, the Commissioner of the General Land-Office addressed a letter to the Secretary of the Interior, requesting that the First Comptroller be asked for an expression of his opinion on the question, whether registers and receivers of district land-offices are entitled to receive one per centum each on the minimum cash value of lands entered under the "timber-culture acts." November 13, 1882, the acting Secretary of the Interior addressed a letter to the Secretary of the Treasury, inclosing a copy of the aforementioned letter, and other papers on the subject, for an opinion. November 15, 1882, these

were referred to the First Comptroller, for his opinion, by the Secretary of the Treasury.

J. M. Adams, receiver of public moneys, at Yakima, Washington Territory, in a letter of June 30, 1882, to the Commissioner of the General Land-Office, submitted an argument in support of his claim to commissions, an abstract of which is as follows:

I. The right to a commission of one per centum exists under the fourth subdivision of section 2238, Revised Statutes.

The act of June 14, 1878 (20 Stat., 113), section 5, gives a right to fees, and section 8 repeals acts in conflict. This only repeals provisions "in conflict" which had previously existed. Section 2238 is not affected by the act of June 14, 1878. Section 2238 gives commissions to be paid by the Government; the act of June 14, 1878, requires applicants to pay fees. The act of June 14, 1878, was designed to facilitate the growth of forests, by reducing the quantity of land to be plowed, &c., and the only object of the repealing clause was to wipe out the conflicting provisions in the acts of March 3, 1873 (17 Stat., 605), March 13, 1874 (18 Stat., 21), and May 20, 1876 (19 Stat., 54). The law which requires applicants to pay a fee is not "in conflict" with the statute which requires the Government to pay commissions.

II. The "stone and timber land act" of June 3, 1878 (20 Stat., 89), is analogous in principle to the several acts last above mentioned. This requires purchasers to pay registers and receivers a fee, the same as is required of purchasers of mineral lands, and concludes with a repealing clause. Yet the usage is to collect the fee from purchasers, and the commissions from the Government.

2. The fact that a commission is allowed registers and receivers on the money value of homestead lands, pre-emption lands, timber lands, mineral lands, desert lands, as well as of all other classes of lands, is evidence that Congress designed that they should also receive a commission on the money value of timber-culture lands. The act of April 20, 1818 (3 Stat., 466), gave registers and receivers a commission on all moneys received for public lands. When the homestead act of May 20, 1862 (12 Stat., 392), was passed, Congress perceived that the donation of lands to settlers would reduce the compensation of land officers, and provision was made that they should receive a commission on the cash value of lands thus entered. For the same reason the act of March 3, 1873 (17 Stat., 605), gave commissions on timber-culture entries. If Congress had, in the subsequent legislation, designed to repeal this provision for commissions, it would have been so declared in express terms. The fixed policy of commissions referred to cannot be repealed by implication.

Hon. N. C. McFarland, Commissioner of the General Land-Office, in a letter of August 9, 1882, addressed to J. M. Adams, called his attention to the "table of fees and commissions" allowed registers and receivers, and said:

As the act of June 14, 1878 (20 Stat., 113), fixed the amount of commissions allowed registers and receivers, regardless of the area or value of the land, at $4 for each entry made, in place of the commission of one per cent. each on the cash value of the land, as is provided in section 2238, Revised Statutes, and provided further that "all acts and parts of acts in conflict with this act are hereby repealed," the amount of commissions provided for in the later act is the proper amount to

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 offi cer), 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.