alleged he was entitled to as a passed assist- | law. It has been applied by ruling of the ant surgeon in the Navy, with the rank of Comptroller of the Treasury to passed aslieutenant, for mounted pay from December sistant surgeons. 26, 1900, to July 27, 1901, with 10 per cent increase for service outside of the limits of the United States. He was given judgment for $141.33. The 10 per cent increase was not allowed. A statement of the case is well expressed in the findings and conclusion of the court, as follows: "The claimant, Ammen Farenholt, entered the naval service as an assistant surgeon May 29, 1894, and was promoted to the grade of passed assistant surgeon May 29, 1897. He attained the rank of lieutenant on December 26, 1900, and was a passed assistant surgeon in the Navy with the rank of lieutenant during all of the time covered by this petition. "From December 26, 1900, to April 12, 1901, he was on sea duty attached to the U. S. S. 'Concord.' From April 12, 1901, to July 27, 1901, he was on sea duty attached to the U. S. S. 'Oregon.' "The claimant has already received pay at mounted rates for the periods before December 26, 1900, and after July 27, 1901, under the decisions of the court of claims in Richardson v. United States, 38 Ct. Cl. 182, as applied by the Comptroller of the Treasury in Brownell's Case (9 Comp. Dec. | 676), but the Treasury Department declines to allow him mounted pay between these dates only because it considers that it is deprived of jurisdiction over the claim therefor by reason of a prior allowance and settlement of pay for the same period. "If entitled to Army pay at mounted rates for this period the amount due would be as follows: Pay of a lieutenant of the Navy, which corresponds in rank with a captain in the Army, mounted, from December 26, 1900, to July 27, 1901, with increased pay for length of service, 7 months and 2 days, at $2,400.00 per annum $1,413.33 Less amount received for same period, at $2,160.00 per annum.. Difference.. "All officers of the medical corps in grades for which there is in the Army pay table a distinction between 'mounted' and 'not mounted' pay, have ever since been paid at mounted rates of pay for their service from the date the personnel act took effect, July 1, 1899, to the present time. Conclusion of Law. "Upon the foregoing findings of fact, the court decides as a conclusion of law, on the authority of Richardson v. United States, supra, that the claimant is entitled to recover against the United States the sum one hundred and forty-one dollars and thirtythree cents ($141.33). "By a majority of the court." Section 13 of the act of March 3, 1899 (30 Stat. at L. 1007, chap. 413, U. S. Comp. Stat. 1901, p. 1072), called the Navy personnel act, provides "that after June 30, 1899, commissioned officers of the line of the Navy and of the medical and pay corps shall receive the same pay and allowances except forage, as are or may be provided by or in pursuance of law for the officers of corresponding rank in the Army." Section 1466, Revised Statutes (U. S. Comp. Stat. 1901, p. 1029), assimiliates in rank lieutenants in the Navy with captains in the Army. And § 1261 (U. S. Comp. Stat. 1901, p. 893) fixes the pay of a captain, mounted, at $2,000 a year and a captain not mounted at $1,800 a year. Section 1262 (U. S. Comp. Stat. 1901, p. 896) gives 10 per cent increase for each term of five years' service. The appellee is a lieutenant in the Navy; he ranks with a captain in the Army, but the question is, of which class, mounted or not mounted? The government contends, with captains not mounted. Its argument is that the extra pay that mounted officers receive is not compensation, but reimbursement for expenses incurred; and to give it to a naval officer who does not bear such expenses would produce the inequality that the Navy 1,272.00 personnel act was passed to prevent. United States v. Crosley, 196 U. S. 332, 49 L. $141.33 ed. 499, 25 Sup. Ct. Rep. 261. Counsel, however, concedes that Richardson v. United States, supra, was correctly decided, and that the rule has been extended by the Comptroller of the Treasury to passed assistant surgeons, but attacks the practice of the Comptroller, and rejects the application of the Richardson Case upon the distinction between an assistant surgeon, which Richardson was, and a passed assistant surgeon, which appellee is. "Before the date of the decision of this court in the case of Richardson v. United States, supra, January 5, 1903, assistant surgeons in the Navy received only the pay of an officer of corresponding rank in the Army 'not mounted.' By that decision it was held that they are entitled to the pay of such an officer 'mounted.' This decision was not appealed from and has been accepted as the proper interpretation of the The act of June 7, 1900 (31 Stat. at L terior, acting through the Commissioner of various registers and receivers with the duty the General Land Office, had charged the of selling such lands, and had limited their annual compensation for this and all other services to the existing legal maximum. Claims - against United States statute permitting presentation as admission of merit. 697, chap. 859, U. S. Comp. Stat. 1901, p. | register of the land office who received his 990), provides that "the active list of sur- appointment after the Secretary of the Ingeons shall hereafter consist of fifty-five, and that of passed assistant and assistant surgeons of one hundred and ten. Assistant surgeons shall rank with assistant surgeons in the Army." Commenting on this statute the government says: "Assistant surgeons in the Army being mounted, the court very justly granted mounted pay to Richardson, who ranked with assistant surgeons in the Army." In other words, the government contends it was the purpose of Congress to give the inferior officer the better pay. The Assistant Attorney General ventures on no explanation of this anomaly, but insists up on the written word. A court is not always confined to the written word. Construction sometimes is to be exercised as well as interpretation. And "construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text, from elements known from and Argued April 12, 1907. Decided May 13, given in the text,-conclusions which are in the spirit, though not within the letter, provision of the Indian appropriation act of 3. The enactment by Congress of the March 3, 1903 (32 Stat. at L. 1010, 1011), § 13, for the presentation to, and decision on the merits by, the court of claims of a claim by a register of the land office for the Osage Indians to the United States by commissions for selling the lands ceded by the treaty of September 29, 1865, to be sold for their benefit, does not imply any admission that there is anything due the claimant. of the text." Lieber, 56. The application A of this rule is clear. Consideration of the provisions relative to the rank and pay of officers of the Army and Navy make it evident that Congress used the words "assistant surgeon" as descriptive of the whole class of assistant surgeons, passed as well as those not passed. Judgment affirmed. [No. 256.] 1907. PPEAL from the Court of Claims to review a judgment dismissing the petition of a register of the land office for commissions for selling the lands ceded by the Osage Indians to the United States, to be sold for their benefit. Affirmed. See same case below, 39 Ct. Cl. 321. Statement by Mr. Justice Peckham: Mr. Justice Moody took no part in the de- the court of claims to obtain compensation cision of this case. WATSON STEWART, Appt., V. for services performed by him while a register of the United States land office at Humboldt, in the state of Kansas, during the time from May 12, 1869, until November 20, 1871. His petition to recover for such services UNITED STATES and the Osage Nation of was filed in the court of claims pursuant to Indians. the provisions of § 13 of the Indian appropriation act (chapter 994), approved March 1903 (32 Stat. at L. 1010, 1011). The section reads as follows: Fublic lands-regulations of Land Depart-3, ment-compensation of registers and re ceivers. 1. The Secretary of the Interior, acting through the Commissioner of the General Land Office, had the right to charge the various registers and receivers with the duty to sell the lands ceded by the Osage Indians to the United States by the treaty of September 29, 1865 (14 Stat. at L. 687), to be sold for their benefit, and to limit the annual compensation of such officers for this and all other services to the existing legal maximum of $2,500. Officers-compensation of register of land office. 2. No commissions for selling the lands ceded by the Osage Indians to the United States by the treaty of September 29, 1865, to be sold for their benefit, beyond' what brings his annual compensation to the legal maximum of $2,500, can be claimed by a registers and receivers of the United States "Sec. 13. That any one or more of the land offices in the state of Kansas upon whom was imposed the responsibility of making sale and disposal of the Osage ceded, Osage trust, and Osage diminished reserve. land in said state under the treaty of September twenty-ninth, eighteen hundred and sixty-five [14 Stat. at L. 687], between the United States and the Osage Indians, and the acts of Congress for carrying said treaty into effect, may bring suit in the court of claims against the Osage Nation and the United States to determine the claim of the plaintiff or plaintiffs for commissions or compensation for the sale of said lands or any service or duty connected therewith. and sold. Provision was then made in the article for the proceeds arising from the sale. And the said court shall have jurisdiction to | Land Office, as other lands are surveyed hear and determine said cause and to render judgment thereon on the merits; and the Attorney General shall appear on behalf of the United States and the Osage Nation, and either party feeling aggrieved at the decision of the court of claims may appeal to the Supreme Court of the United States, and the final judgment in such case shall determine the rights of all such registers and receivers similarly situated. Said Osage Nation may also appear in said suit by an attorney employed with the authority of said nation. The court of claims shall have full authority, by proper orders and process, to make parties to any such suit all persons whose presence in the litigation it may deem necessary or proper to the final determination of the matter in controversy." By article 16 it was provided that, if the Indians should remove from the state of Kansas and settle upon lands to be provided for them by the United States in the Indian territory on terms to be agreed upon, then the diminished reservation should be disposed of by the United States in the same manner and for the same purposes as therein before provided in relation to said trust lands, with exceptions not material to be noticed. (The Indians did subsequently remove from Kansas.) It was also provided by the 13th article that, as the Indians had no annuities from which the expenses for carrying the treaty into effect could be taken, the United States should appropriate $20,000, or so much thereof as might be necessary, for the pur The petition was dismissed on its merits by the court of claims (39 Ct. Cl. 321), and from such dismissal the appellant was allowed an appeal to this court. The follow-pose of surveying and selling the land thereing facts were found by the court: The United States and the Great and Little Osage Indians entered into a treaty September 29, 1865, which was proclaimed January 21, 1867. (14 Stat. at L. 687.) In the first article it was stated that the tribe of the Great and Little Osage Indians, having more land than was necessary for their occupation, and all payments by the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus land, they therefore granted and sold to the United States the lands described in that article, and, in consideration of the grant and sale to them of such lands, the United States agreed to pay the Indians the sum of $300,000, which sum was to be placed to the credit of such Indians and interest thereon paid. The lands were to be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, and, after reimbursing the United States for the cost of such survey and sale and the said sum of $300,000 advanced to the Indians, the remaining proceeds of sales were to be placed in the Treasury of the United States to the credit of the "civilization fund," to be used under the direction of the Secretary of the Interior. By article 2 of the treaty the Indians also ceded to the United States the tract of land therein described, in trust for the Indians, to be surveyed and sold for their benefit by the Secretary of the Interior under such rules and regulations as he might from time to time prescribe, under the direction of the Commissioner of the General by ceded in trust, which amount so expended was to be reimbursed to the Treasury of the United States from the proceeds of the first sales of the lands. On the 23d of November, and again on the 19th of December, 1867, the Commissioner of the General Land Office, by authority of the Secretary of the Interior, issued instructions to the registers and receivers in the state of Kansas for the rendition of services in the sale of land ceded to the United States by article 1 of the treaty above mentioned, and the lands agreed to be held in trust by the United States and surveyed and sold for the benefit of the said Indians by article 2 of that treaty. Among other instructions, under date of December 19, 1867, it was provided that the registers and receivers were to be "allowed a commission of 1 per cent each on the proceeds of the sales of these lands, with limitations, as a matter of course, to the legal maximum of $2,500, inclusive of commissions and fees, etc., on the disposal of the public lands, the payment of which is to be made by the receiver, in his capacity of disbursing agent, and to be debited in a special account, together with such other expenses incident to the sale of the lands alluded to as may be authorized by law and instructions." On the 28th of March, 1871, further instructions were given in regard to the performance of services, in which was the further statement that "nothing, however, shall be herein construed as authorizing the register and receiver to receive more than the maximum of $2,500 per annum, now allowed by law, and the receiver, in adjusting his accounts, will take care to first ascertain how much short of the maximum the receipt from public lands, including the fees received from declaratory statements on the Osage lands, will bring their fees and commissions, and will then charge to the Indian fund only so much commissions as will bring their compensation to the maximum." In accordance with these instructions claimant performed services in the sale of lands ceded by the Osage Indians under article 1, and of lands held in trust by the United States under article 2 of the treaty, and of lands included within the diminished reservation of the Indians under article 16 of the treaty. The claimant was paid for each year of his service the full maximum amount due him, in accordance with the instructions from the General Land Office. This full maximum would not, in some cases, have 'been reached without resort to the sales of land under the treaty. This suit has been brought by claimant to recover a commission of 1 per cent on the amount of the sales of the land, and the filing fees on the lands mentioned in the treaty and now in the Treasury, as a reasonable compensation for his services in the sale of these lands as outside of and in addition to his regular official duties in the sale of public lands. The total amount received on the sale of Osage ceded lands was $1,055.162.01; and the total amount received on sale of Osage trust and diminished reserve lands was $9,608,156.27; and the total amount of money held in trust by the government for said Osage Indians under said treaty of September 29, 1865, is $8,327,439.07. on which interest at 5 per cent is paid by the United States, amounting annually to $416,371.95. to be sold for the benefit of the Indians. by the Secretary of the Interior, under. such rules and regulations as he might, from time to time, prescribe, under the direction of the Commissioner of the General Land Office, as other lands are surveyed and sold; and, under article 16, in case of the removal of the Indians, the diminished reserve was to be disposed of by the United States in the same manner and for the same purposes as provided in relation to the so-called trust lands. Thus power was given to the Secretary of the Interior, acting through the Commissioner of Public Lands, to make the same rules and regulations for the sale of the treaty lands as applied to the survey and sale of "public lands," and to that end he had power to provide for their sale by the various receivers and registers of the land office in the state of Kansas, in whose jurisdiction such lands lay. Although the treaty provided the sum of $20,000 to pay the expense of carrying out its provisions, yet it is evident that the purpose of the treaty was that these lands should be sold at the least expense to the Indians in their sale, and we think that the Secretary of the Interior, acting through the Commissioner of the General Land Office, had the right to provide, as was done in this case, that the various registers and receivers should sell the lands and should not receive more than the maximum compensation for their services per annum otherwise allowed by law. In cases where the maximum amount would not be received without resorting to the treaty fund, such resort was permitted, and the fund was in fact resorted to in this case in order to reach the Messrs. George A. King, William B. King, maximum for the fractional years of claimand R. V. Belt for appellant. ant's service. The Secretary of the Interior Assistant Attorney General Van Orsdel having made this rule, and the instructions for appellee the United States. of December 19, 1867, being in existence Mr. Lorenzo A. Bailey for appellee the when the claimant herein received his apOsage Nation. Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: Except for the treaty between the United States and the Osage Indians, relative to the lands in question, and the passage of appropriate legislation by the United States, the lands would never have been sold, as they were not public lands of the United States for the sale of which Congress had already provided under its general legislation. The treaty, however, provided that the lands described in article 1 were to be surveyed and sold under the direction of the Secretary of the Interior on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws; and under article 2 the lands were pointment as register, he took it subject to the provision that his maximum compensation for all services rendered should not exceed the sum named by law. See §§ 2237, 2238, 2240, and 2241, U. S. Rev. Stat., U. S. Comp. Stat. 1901, pp. 1366, 1367, 1369, prescribing, among other things, the compensation of registers and receivers. This compensation the claimant was paid thirty years since, without objection or protest from him that he was entitled to any further payment on account of services in the sales of these treaty lands. The case of United States v. Brindle. 110 U. S. 688, 28 L. ed. 286, 4 Sup. Ct. Rep. 180, does not aid claimant. In that case Brindle was, on the 28th day of October, 1856, " duly appointed special receiver and superintendent to assist the special commissioner to dispose of the Delaware Indian services of such registers and receivers in the sale of those lands. Such implication was specially negatived before the claimant took office. He received his pay under the provision of law already stated, without any entitled to anything further or other than the amount he from time to time received. More than thirty years after the last payment, Congress passed the act of March 3, 1903, the 13th section of which is contained in the foregoing statement of facts. The passage of the act did not imply any admission that there was anything due the claimant. It simply provided for the presentation of his claim to the court and for a decision on the merits, without assuming to say that he had any claim of a meritorious nature. We agree with the Court of Claims that the claimant has failed to make out a case, and the judgment dismissing his petition is affirmed. Mr. Justice Moody took no part in the decision of this case. trust lands at Fort Leavenworth, in the territory of Kansas, under the treaty with the Delaware tribe of Indians.' On the 18th of February, 1857, he was appointed and commissioned for four years as receiver of public moneys for the district of lands sub-protest or claim on his part that he was ject to sale at Lecompton, Kansas, and on the 15th day of May, 1857, he was duly appointed as special receiver and superintendent to assist the special commissioner to dispose of the trust lands of the Kaskaskia and Peoria, Piankeshaw and Wea Indian confederated tribes of Indians at Paoli, Kansas territory." Brindle was thus appointed special receiver and superintendent of the Delaware Indian trust lands before he was made receiver of public money, and while he was receiver of public money he was duly appointed as special receiver of the other Indian tribes, as above stated. The duties of the positions (special receiver, etc., and receiver of the public moneys) were thus kept separate and apart. As receiver he was to receive public moneys for land subject to sale at Lecompton, Kansas, while his duties in regard to the other positions to which he had been specially appointed referred to the disposition of the Indian lands, in one case at Fort Leavenworth and in the other case at Paoli, both in the territory of Kansas. This court held that when, subsequent to his appointment as receiver of the public moneys, Brindle was appointed special receiver and superintendent to assist the special commissioner "in disposing of the trust lands, he was employed to render a service in no way connected with the office he held. He was not appointed to any office known to the law. No new duty was imposed on him as receiver of the Land Office. The President was, both by the treaties and the act of 1855 [10 Stat. at L. 700, chap. 204], charged with the duty of selling the lands, and, under his instructions, Brindle was ployed to assist in the work. By express provisions in the treaties the expenses incurred by the United States in making the sales were to be paid from the proceeds. This clearly implied the payment of a reasonable compensation for the service of those Argued April 18, 1907. Decided May 13, employed to carry the trust into effect." em In the case at bar the duty had already, GOAT & SHEEPSKIN IMPORT COM- V. UNITED STATES. free list. A growth on skins of Mocha sheep imported from Arabia which is commercially known, designated, and dealt in as Mocha wool, and which would not be accepted by hair, having none of the characteristics of dealers therein as a good delivery of wool, is not dutiable under the tariff act of July 24, 1897 (30 Stat. at L. 151, 183, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1666), par. 360, as wool on the skin, but is entitled to free entry under par. 664, placing on the free list "skins of all kinds, raw (except sheepskins with the wool on), and hides not specially provided for in this act." [No. 261.] 1907. prior to claimant's appointment, been im-ON WRIT of Certiorari to the United posed on the various receivers and registers, as such, of attending to the sale of these lands within their various districts, and express provision had been made that in no case was their compensation to exceed the maximum sum already provided by law. When such provision had been made in regard to compensation there is no room for any implication of a promise to pay an additional reasonable compensation for the States Circuit Court of Appeals for the Second Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Southern District of New York, sustaining the ruling of the Board of General Appraisers and the collector in classifying a growth upon skins of Mocha sheep as wool on the skin and dutiable as such. Reversed and remanded for further proceedings. |
