(2) that a cause of action which has passed in rem judicatam is not open In any view of this case the requests made should be denied. First Comptroller's Office, December 24, 1883. IN THE MATTER OF THE RIGHT OF REGISTERS AND RECEIVERS OF DISTRICT LAND-OFFICES TO FEES FOR THE SELECTION OF SWAMP LANDS FOR ANY STATE.-SWAMP-LAND-FEE CASE. 1. Under the act of September 28, 1850 (9 Stat., 519), the selection of swamp lands, to which any State may be entitled, is to be made, not by the State, but under the authority of the Department of the Interior. 2. Under section 2238 of the Revised Statutes neither registers nor receivers of district land-offices are entitled to any fee for an original selection of a tract of swamp land for any State; but they are each entitled to "a fee of one dollar for each" indemnity-location of 160 acres by any State.* The following opinion of the honorable Secretary of the Interior is published for information, and its conclusions in relation to the right The above syllabus was prepared by the First Comptroller. of registers and receivers of district land-offices to fees in cases of original swamp-land-selections for States are concurred in. The question of jurisdiction, referred to in the Nebraska Five-per-cent. case (ante, 247), is now immaterial. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D. C., December 28, 1883. The COMMISSIONER OF THE GENERAL LAND OFFICE: SIR: I have considered the appeal by the Secretary of State of the State of Wisconsin from your decision of February 8, 1883, which holds that registers and receivers are each entitled to a fee of one dollar for each selection of 160 acres of swamp land by the State, to be paid when the lists of selections have been examined by them for approval, and that said lists must not be approved and posted until said fees are paid. This decision is based on section 2238 of the Revised Statutes, which reads as follows: "Registers and receivers, in addition to their salaries, shall be allowed each the following fees and commissions, namely:" "SEVENTH. In the location of lands by States and corporations under grants from Congress for railroads and other purposes (except for agricultural colleges), a fee of one dollar for each final location of 160 acres, to be paid by the State or corporation making such location." First.-It is to be observed of this section, that it contemplates an act done by the State, namely, locating the land under the grant. If, therefore, the State is required by law to locate swamp land, and does locate it, one condition arises upon which the said fee is due and payable. But there is no law requiring swamp land to be located by the State. The granting act of September 28, 1850, requires the Secretary of the Interior to make out and transmit to the governor of the State accurate lists and plats of the swamp lands to which it is entitled, and to issue patents therefor on his request. Consequently any act to be done, by way of ascertaining or locating said lands, is to be done by the Land Department, and the State is entirely passive in the matter. In French v. Fyan (93 U. S., 171), the court says: "We are of opinion that this section devolved upon the Secretary, as the head of the department which administered the affairs of the public lands, the duty, and conferred on him the power, of determining what lands were of the description granted by that act, and made his office the tribunal whose decision on that subject was to be controlling." It follows that the State has neither duty nor power in the premises, and that locations of swamp lands are not made "by States," as they must be in order to come within the purview of section 2238, Revised Statutes. Second. It is to be observed that, under said section, the payment to be made by the State is a fee, which contemplates some service rendered to, or in behalf of, the State by the register and receiver. This is plainly set forth in the act of July 1, 1864 (13 Stat., 335), from which the seventh subdivision of section 2238 is taken, and therein the fee is expressed to be "for their services therein," i. e., in "the location of lands by States." In the appeal now before me, the State of Wisconsin disclaims all request or receipt of such service. She says: "The State has not asked them to do anything, and they have done nothing for the State." The regulations of your office sustain this disclaimer, and show that any services they render in the premises, are rendered to and in behalf of the Land Department. After the Secretary has approved the lists of swamp lands made by your office, duplicate copies are made, of which one is sent to the governor, and "the other list is transmitted to the register and receiver of the land office in which the lands are situated, and they are requested to examine the same with the records of their office and report any conflicts found" (Regulations, April 18, 1882). Their examination and approval, or disapproval, therefore, are for the purpose of advising the Land Department and for its benefit, and are not made by way of service to the State; they are in aid of the selection by the Secretary, which, as has been shown, is the only selection or location authorized by law. Hence, there would appear to be no more propriety in requiring the State to pay for said services than there would be in requiring her to pay for their services in the multifarious questions in relation to swamp lands that may be the subject of correspondence between the local officers and the Land Department. In this matter they are the hands by which the Land Department executes the law, and there are therefore no "fees" due them "to be paid by the State," under section 2238 of the Revised Statutes. Third. It is to be observed of this section that the act done by the State is described as a location, whilst the bill rendered by the local office is for certain State selections. It is true that the swamp lands certified to a State are usually termed "State selections," and that in fact the States do make a selection of them, based on the reports of their own agents or of the surveyor-general of the United States. The State of Wisconsin elected to adopt the latter method. It is well settled, however, that these acts of the States are done by request of and in aid of the Secretary of the Interior, and, with the exception of the case of the State of Louisiana, "at the expense of the United States." (Oregon v. United States, 7 [Copp's] Land Owner, 53.) If so, it would seem that these selections are not the locations contemplated by the statute under consideration, because they are not made "by States," but by the Land Department. The said statute was under review by the Supreme Court in Hunnewell v. Cass County (22 Wall., 477), in connection with a grant of lands for railroad purposes, and they say of it: "These fees are to be paid on all the lands located, which may fairly be construed to be all the lands ascertained to belong to the company, under a grant." The force of this language is to be determined by a reference to the subject matter under discussion. By the act of July 2, 1864, the Burlington and Missouri River Railroad Company were required to pay "the cost of surveying, selecting, and conveying" the lands granted to them, and it was said in argument that the cost of these "selections" were the fees to be paid on "locations" under the act of July 1, 1864. The court below had expressly decided that "these fees are for location, not for selecting the land;" and the Supreme Court, pointing out the difficulty in the way of holding otherwise, says that it is "extremely uncertain" that these were the costs of selecting, and finally do not decide the point raised. But it had been shown in argument that "the process of locating railroad grants" was, in the first instance, a selection by the company, which appeared on their original lists filed with the local officers, which were next corrected and certified by these officers, and which were finally approved by the Commissioner and Secretary. It was with reference to these facts, as may fairly be presumed, that the court used the language above quoted; and it therefore means that the "locations", referred to are the lands ascertained to belong to the company on their application to the local officers. Here then is an act done by the company, an application to the register and receiver and a service performed by them, for which fees may properly be due; and there appears to be no reason to infer that the court intended to apply the statute to a case where there is no such act, application, or service. At common law a location is "the act of selecting and designating lands which the person making the location is authorized by law to select" (Bouvier). Manifestly the definition does not include the case of swamp lands, for the States were not authorized by law to designate or select such lands, and in fact never did designate or select them. Fourth.-If the fees are to be paid on selections of swamp lands, the only manner of enforcing their payment by the Department is to withhold approval and patent until payment is made. This is substantially your decision in the case at bar, as above recited. But here we are met by the fact that the payment of the fees becomes a condition precedent to the enjoyment of the grant, and that it is a condition precedent which is prescribed by an act passed subsequently to the date of the granting act. In Railroad Company . Smith (9 Wall., 99), in referring to the act of 1850, the court says: "All the lands of that description [swamp land] were granted, and they have remained so granted ever since;" whilst they have uniformly held that said act was a grant in præsenti, and vested full title in the States. In Railway Company v. Prescott (16 Wall., 603), the court upheld the power of Congress to attach such a condition to the Pacific Railroad grants by subsequent legislation; but it was expressly on the ground that, as there had been no definite location of the road, "no right had been vested in any tracts of land" at date of the subsequent legislation. I do not think that Congress could, nor do I think that they intended to, attach any condition precedent to the swamp-land grant of 1850, by the act of July 2, 1864. A similar opinion was maintained by Mr. Secretary Schurz, in the State of Oregon v. The United States (7 [Copp's] Land Owner, 53), in relation to the act of March 12, 1860. Fifth. It is to be observed, that Congress may be supposed to have had the swamp-land acts in view when enacting the statute now under consideration, and if there is any provision in the former acts to which the latter act refers in terms, a proper construction of it requires that its operation shall be limited to that provision. An inspection of the granting acts makes it clear that there is such provision. In the original act of 1850 a location by the States was not required or authorized, but in the amending act of March 2, 1855, it is provided that "where the lands have been located by warrant or scrip, the said State or States shall be authorized to locate a quantity of like amount, upon any of the public lands subject to entry." It is plain therefore that the swampland act as amended provided for the selection of swamp lands by the Secretary of the Interior, and for the location of indemnity lands by the States.* So it stood at date of the passage of the act of July 1, 1864, and I am therefore of opinion that said act required the payment of a fee only on the location of indemnity land by the States. *NOTE BY THE FIRST COMPTROLLER.-The State swamp-land indemnity selections ar e made under the acts of March 2, 1855 (10 Stat., 634), and March 3, 1857 (11 Stat., 251)— Rev. Stat. 3689, page 728. The State selections, on which fees are allowed registers and receivers, are made under the acts of February 26, 1859 (11 Stat., 385), and June 22. 1874 (18 Stat., 202)-Rev. Stat., 2275. The fee bill as to State selections, found on page 430, 2 Lawrence, Compt. Dec. (2d ed.), is modified accordingly. The final homestead commissions, as found on page 429, 2 Lawrence, Compt. Dec. (2d ed.), are so modified, that "When the area of a homestead entry is less than even 80 acres, or does not amount to 160 acres, the commissions payable thereon are to be computed at three per centum on the cash value of the land as fixed by law.". (Act July 1, 1864, 13 Stat., 335; act March 21, 1864, Id., 36—Rev. Stat., 2238, cls. seventh and twelfth.) Sixth. It is to be observed that for some nineteen years, or since the act of 1864, its provisions have never been held to apply to original selections. This same question was presented to this Department by the State of Wisconsin many years ago, and Mr. Secretary Browning then reached the conclusion herein stated. In deciding the case, he said, though without stating his reasons: "The swamp lands on which these fees are claimed were original, not indemnity, selections; and I am of opinion that the act of 1864 had no reference to such cases." (See opinion of February 22, 1867.) For these reasons your decision is reversed. Herewith are returned the papers accompanying your letter of April 3, 1883. Very respectfully, H. M. TELLER, Secretary. IN THE MATTER OF THE AUTHORITY OF THE ACCOUNTING OFFICERS OF THE TREASURY DEPARTMENT TO DECIDE UPON THE VALIDITY OF THE PROCLAMATION OF THE GOVERNOR OF A STATE, ORDERING A SPECIAL ELECTION FOR A REPRESENTATIVE IN CONGRESS.-ELECTIONPROCLAMATION CASE. 1. The House of Representatives of the United States is made by the Constitution the sole "Judge of the Elections, Returns, and Qualifications of its own Members." 2. This includes the right to decide upon the validity of the proclamation of the governor of a State, ordering a special election for a Representative in Congress. 3. The interest, which one or more electors in a Congressional district have in the election of a Representative in Congress, is too remote to authorize the accounting officers, on the application of such elector or electors, to decide whether a person claiming to be elected as such Representative is entitled to the payment of salary. 4. The United States, in such case, is sufficiently protected by the settlement of the accounts of the proper disbursing officer. December 20, 1883, certain electors of Louisiana represented to the First Comptroller that they had prepared a petition to be presented to the House of Representatives at the present session of Congress, stating that, at the regular election held in November, 1882, in the sixth Congressional district of that State for a Representative in the Forty-eighth Congress, Andrew S. Herron received 8,052 votes, and was duly declared elected over his competitor, Louis Frazer, by 4,037 majority; that said Herron died November 27, 1882; that, on 30th November, 1882, Samuel D. McEnery, Governor of the State, issued his writ of election to fill the vacancy caused by said death, naming Thursday, February 8, 1883, as the day on which the election should be held; that, subsequently, said Governor changed the time for holding said election and postponed it to Thursday, February 15, 1883; that no election was held February 8th, but a so-called election was held February 15th, at which E. T. Lewis claims to have been elected; that the Governor could not lawfully change the time for holding the election; and that, therefore, said Lewis was not duly elected; and said citizens asked the Comptroller to so decide and to allow no payment of salary to said Lewis as a Represent |