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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 as. lieutenant, for mounted pay from December sistant surgeons. 26, 1900, to July 27, 1901, with 10 per cent "All officers of the medical corps in grades increase for service outside of the limits for which there is in the Army pay table of the United States. He was given judg- a distinction between 'mounted' and 'not ment for $141.33. The 10 per cent increase mounted' pay, have ever since been paid was not allowed.
at mounted rates of pay for their service A statement of the case is well expressed from the date the personnel act took effect, in the findings and conclusion of the court, July 1, 1899, to the present time. as follows:
Conclusion of Law. "The claimant, Ammen Farenholt, entered "Upon the foregoing findings of fact, the the naval service as an assistant surgeon court decides as a conclusion of law, on the May 29, 1894, and was promoted to the authority of Richardson v. United States, grade of passed assistant surgeon May 29, supra, that the claimant is entitled to re1897. He attained the rank of lieutenant cover against the United States the sum one on December 26, 1900, and was a passed hundred and forty-one dollars and thirtyassistant surgeon in the Navy with the three cents ($141.33). rank of lieutenant during all of the time "By a majority of the court." covered by this petition.
Section 13 of the act of March 3, 1899 "From December 26, 1900, to April 12, (30 Stat. at L. 1007, chap. 413, U. S. Comp. 1901, he was on sea duty attached to the Stat. 1901, p. 1072), called the Navy personU. S. S. 'Concord.' From April 12, 1901, to nel act, provides “that after June 30, 1899, July 27, 1901, he was on sea duty attached commissioned officers of the line of the Navy to the U. S. S. 'Oregon.'
and of the medical and pay corps shall re“The claimant has already received pay ceive the same pay and allowances except at mounted rates for the periods before De forage, as are or may be provided by or in cember 26, 1900, and after July 27, 1901, pursuance of law for the officers of corunder the decisions of the court of claims responding rank in the Army." in Richardson v. United States, 38 Ct. Cl. Section 1466, Revised Statutes (U. S. 182, as applied by the Comptroller of the Comp. Stat. 1901, p. 1029), assimiliates in Treasury in Brownell's Case (9 Comp. Dec. rank lieutenants in the Navy with captains 876), but the Treasury Department declines in the Army. And § 1261 (U. S. Comp. Stat. to allow him mounted pay between these 1901, p. 893) fixes the pay of a captain, dates only because it considers that it is mounted, at $2,000 a year and a captain deprived of jurisdiction over the claim there. not mounted at $1,800 a year. Section for by reason of a prior allowance and 1262 (U. S. Comp. Stat. 1901, p. 896) gives settlement of pay for the same period. 10 per cent increase for each term of five
"If entitled to Army pay at mounted years' service. rates for this period the amount due would The appellee is a lieutenant in the Navy; be as follows:
he ranks with a captain in the Army, but
the question is, Of which class, mounted Pay of a lieutenant of the Navy,
or not mounted ? which corresponds in rank with
The government contends, with captains a captain in the Army, mounted,
not mounted. Its argument is that the exfrom December 26, 1900, to July
tra pay that mounted officers receive is not 27, 1901, with increased pay for
compensation, but reimbursement for exlength of service, 7 months and
penses incurred; and to give it to a naval 2 days, at $2,400.00 per annum $1,413.33 officer who does not bear such expenses Less amount received for same
would produce the inequality that the Navy period, at $2,160.00 per annum.. 1,272.00 personnel act was passed to prevent. United
States v. Crosley, 196 U. S. 332, 49 L. Difference..
$141.33 ed. 499, 25 Sup. Ct. Rep. 261. Counsel, how
ever, concedes that Richardson v. United “Before the date of the decision of this states, supra, was correctly decided, and court in the case of Richardson v. United that the rule has been extended by the States, supra, January 5, 1903, assistant Comptroller of the Treasury to passed assurgeons in the Navy received only the pay sistant surgeons, but attacks the practice of an officer of corresponding rank in the of the Comptroller, and rejects the applicaArmy 'not mounted.' By that decision it tion of the Richardson Case upon the diswas held that they are entitled to the pay tinction between an assistant surgeon, which of such an officer ‘mounted.' This decision Richardson was, and a passed assistant surwas not appealed from and has been ac- geon, which appellee is. cepted as the proper interpretation of the The act of June 7, 1900 (31 Stat. at L 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, terior, acting through the Commissioner of and that of passed assistant and assistant various registers and receivers with the duty
the General Land Office, had charged the surgeons of one hundred and ten. Assistant of selling such lands, and had limited their surgeons shall rank with assistant surgeons annual compensation for this and all other in the Army." Commenting on this statute services to the existing legal maximum. the government says: “Assistant surgeons Claims — against United States - statute in the Army being mounted, the court very
permitting presentation as admission of
merit. justly granted mounted pay to Richardson, who ranked with assistant surgeons in the provision of the Indian appropriation act of
3. The enactment by Congress of the Army.” In other words, the government March 3, 1903 (32 Stat. at İ. 1010, 1011), contends it was the purpose of Congress to $ 13, for the presentation to, and decision give the inferior officer the better pay. The on the merits by, the court of claims of a Assistant Attorney General ventures on no claim by a register of the land office for explanation of this anomaly, but insists up- the Osage Indians to the United States by
commissions for selling the lands ceded by on the written word. A court is not al- the treaty of September 29, 1865, to be ways confined to the written word. Con- sold for their benefit, does not imply any struction sometimes is to be exercised as admission that there is anything due the well as interpretation. And "construction claimant. is the drawing of conclusions respecting sub
[No. 256.) jects 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
1907. of the text." Lieber, 56. The application A view a judgment dismissing the petition in the spirit, though not within the letter,
PPEAL from the Court of Claims to reof this rule is clear. Consideration of the provisions relative to the rank and pay of of a register of the land office for commisofficers of the Army and Navy make it evi-sions for selling the lands ceded by the dent that Congress used the words "assist- Osage Indians to the United States, to be ant surgeon” as descriptive of the whole sold for their benefit. Affirmed. class of assistant surgeons, passed as well See same case below, 39 Ct. Cl. 321. as those not passed. Judgment affirmed.
Statement by Mr. Justice Peckham:
The appellant herein filed his petition in Mr. Justice Moody took no part in the de- the court of claims to obtain compensation cision of this case.
for services performed by him while a reg. ister of the United States land office at Humboldt, in the state of Kansas, during
the time from May 12, 1869, until November WATSON STEWART, Appt.,
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 g 13 of the Indian appro
priation act (chapter 994), approved March Fublic lands-regulations of Land Depart-3, 1903 (32 Stat. at L. 1010, 1011). The ment-compensation of registers and re- section reads as follows: ceivers.
“Sec. 13. That any one or more of the 1. The Secretary of the Interior, acting through the Commissioner of the General registers and receivers of the United States Land Office, had the right to charge the vari- land offices in the state of Kansas upon ous registers and receivers with the duty to whom was imposed the responsibility of sell the lands ceded by the Osage Indians to making sale and disposal of the Osage ceded, the United States by the treaty of Septem- Osage trust, and Osage diminished reserve ber 29, 1865 (14 Stat. at L. 687), to be sold land in said state under the treaty of Sepcompensation of such officers for this and all tember twenty-ninth, eighteen hundred and other services to the existing legal max- sixty-five [14 Stat. at L. 687], between the imum of $2,500.
United States and the Osage Indians, and Officers—compensation of register of land the acts of Congress for carrying said treaty office.
into effect, may bring suit in the court of 2. No commissions for selling the lands claims against the Osage Nation and the ceded by the Osage Indians to the United United States to determine the claim of the States by the treaty of September 29, 1865: plaintiff or plaintiffs for commissions or to be sold for their benefit, beyond what brings his annual compensation to the legal compensation for the sale of said lands or maximum of $2,500, can be claimed by a'any service or duty connected therewith.
And the said court shall have jurisdiction to Land Office, as other lands are surveyed hear and determine said cause and to render and sold. Provision was then made in the judgment thereon on the merits; and the article for the proceeds arising from the Attorney General shall appear on behalf of sale. the United States and the Osage Nation, By article 16 it was provided that, if the and either party feeling aggrieved at the Indians should remove from the state of decision of the court of claims may appeal Kansas and settle upon lands to be proto the Supreme Court of the United States, vided for them by the United States in the and the final judgment in such case shall Indian territory on terms to be agreed updetermine the rights of all such registers on, then the diminished reservation should and receivers similarly situated. Said Osage be disposed of by the United States in the Nation may also appear in said suit by an same manner and for the same purposes as attorney employed with the authority of thereinbefore provided in relation to said said nation. The court of claims shall have trust lands, with exceptions not material to full authority, by proper orders and process, be noticed. (The Indians did subsequently to make parties to any such suit all persons remove from Kansas.) whose presence in the litigation it may deem It was also provided by the 13th article necessary or proper to the final determina that, as the Indians had no annuities from tion of the matter in controversy." which the expenses for carrying the treaty
The petition was dismissed on its merits into effect could be taken, the United States by the court of claims (39 Ct. Cl. 321), and should appropriate $20,000, or so much from such dismissal the appellant was al- thereof as might be necessary, for the purlowed an appeal to this court. The follow-pose of surveying and selling the land thereing facts were found by the court:
by ceded in trust, which amount so exThe United States and the Great and pended was to be reimbursed to the TreasLittle Osage Indians entered into a treaty ury of the United States from the proceeds September 29, 1865, which was proclaimed of the first sales of the lands. January 21, 1867. (14 Stat. at L. 687.) In On the 23d of November, and again on the first article it was stated that the tribe the 19th of December, 1867, the Commisof the Great and Little Osage Indians, hav- sioner of the General Land Office, by authoring more land than was necessary for their ity of the Secretary of the Interior, issued occupation, and all payments by the govern- instructions to the registers and receivers in ment to them under former treaties hav- the state of Kansas for the rendition of ing ceased, leaving them greatly impover- services in the sale of land ceded to the ished, and being desirous of improving their United States by article 1 of the treaty condition by disposing of their surplus land, above mentioned, and the lands agreed to be they therefore granted and sold to the Unit- held in trust by the United States and sured States the lands described in that ar- veyed and sold for the benefit of the said ticle, and, in consideration of the grant and Indians by article 2 of that treaty. Among sale to them of such lands, the United other instructions, under date of December States agreed to pay the Indians the sum 19, 1867, it was provided that the registers of $300,000, which sum was to be placed to and receivers were to be "allowed a comthe credit of such Indians and interest there- mission of 1 per cent each on the proceeds on paid. The lands were to be surveyed of the sales of these lands, with limitations, and sold, under the direction of the Secre- as a matter of course, to the legal maxitary of the Interior, on the most advan- mum of $2,500, inclusive of commissions and tageous terms, for cash, as public lands are fees, etc., on the disposal of the public lands, surveyed and sold under existing laws, and, the payment of which is to be made by the after reimbursing the United States for the receiver, in his capacity of disbursing agent, cost of such survey and sale and the said and to be debited in a special account, tosum of $300,000 advanced to the Indians, gether with such other expenses incident the remaining proceeds of sales were to be to the sale of the lands alluded to as may placed in the Treasury of the United States be authorized by law and instructions." to the credit of the "civilization fund," to On the 28th of March, 1871, further inbe used under the direction of the Secretary structions were given in regard to the perof the Interior.
formance of services, in which was the furBy article 2 of the treaty the Indians also ther statement that "nothing, however, shall ceded to the United States the tract of be herein construed as authorizing the regland therein described, in trust for the In-ister and receiver to receive more than the dians, to be surveyed and sold for their maximum of $2,500 per annum, now allowed benefit by the Secretary of the Interior un- by law, and the receiver, in adjusting his der such rules and regulations as he might accounts, will take care to first ascertain from time to time prescribe, under the di- how much short of the maximum the rerection of the Commissioner of the General | ceipt from public lands, including the fees received from declaratory statements on the to be sold for the benefit of the Indians Osage lands, will bring their fees and com- by the Secretary of the Interior, under, such missions, and will then charge to the In- rules and regulations as he might, from time dian fund only so much commissions as to time, prescribe, under the direction of will bring their compensation to the maxi- the Commissioner of the General Land Office, mum.” In accordance with these instruc- as other lands are surveyed and sold; and, tions claimant performed services in the under article 16, in case of the removal of sale of lands ceded by the Osage Indians the Indians, the diminished reserve was to under article 1, and of lands held in trust be disposed of by the United States in the by the United States under article 2 of the same manner and for the same purposes as treaty, and of lands included within the provided in relation to the so-called trust diminished reservation of the Indians un- lands. Thus power was given to the Secreder article 16 of the treaty.
tary of the Interior, acting through the The claimant was paid for each year of Commissioner of Public Lands, to make his service the full maximum amount due the same rules and regulations for the sale him, in accordance with the instructions of the treaty lands as applied to the surfrom the General Land Office. This full rey and sale of “public lands," and to that maximum would not, in some cases, have end he had power to provide for their sale been reached without resort to the sales by the various receivers and registers of of land under the treaty. This suit has the land office in the state of Kansas, in been brought by claimant to recover a com- whose jurisdiction such lands lay. Although mission of 1 per cent on the amount of the the treaty provided the sum of $20,000 to sales of the land, and the filing fees on the pay the expense of carrying out its provilands mentioned in the treaty and now in sions, yet it is evident that the purpose of the Treasury, as a reasonable compensation the treaty was that these lands should be for his services in the sale of these lands sold at the least expense to the Indians in as outside of and in addition to his regular their sale, and we think that the Secretary official duties in the sale of public lands. of the Interior, acting through the Commis
The total amount received on the sale sioner of the General Land Office, had the of Osage ceded lands was $1,055,162.01; and right to provide, as was done in this case, the total amount received on sale of Osage that the various registers and receivers trust and diminished reserve lands was $9,- should sell the lands and should not receive 608,156.27; and the total amount of money more than the maximum compensation for held in trust by the government for said their services per annum otherwise allowed Osage Indians under said treaty of Septem- by law. In cases where the maximum ber 29, 1865, is $8,327,439.07, on which in amount would not be received without reterest at 5 per cent is paid by the United sorting to the treaty fund, such resort was States, amounting annually to $116,371.95. permitted, and the fund was in fact re
sorted 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.
pointment as register, he took it subject to
the provision that his maximum compenMr. Justice Peckham, after making the sation for all services rendered should not foregoing statement, delivered the opinion exceed the sum named by law. See $$ of the court:
2237, 2238, 2240, and 2241, U. S. Rev. Stat., Except for the treaty between the United U. S. Comp. Stat. 1901, pp. 1366, 1367, 1369, States and the Osage Indians, relative to prescribing, among other things, the comthe lands in question, and the passage of pensation of registers and receivers. This appropriate legislation by the United States, compensation the claimant was paid thirty the lands would never have been sold, as years since, without objection or protest they were not public lands of the United from him that he was entitled to any furStates for the sale of which Congress had ther payment on account of services in the already provided under its general legisla- sales of these treaty lands. tion. The treaty, however, provided that The case of United States v. Brindle, 110 the lands described in article 1 were to be U. S. 688, 28 L. ed. 286, 4 Sup. Ct. Rep. surveyed and sold under the direction of 180, does not aid claimant. In that case the Secretary of the Interior on the most Brindle was, on the 28th day of October, advantageous terms, for cash, as public 1856, “ 'duly appointed special receiver and lands are surveyed and sold under existing superintendent to assist the special commislaws; and under article 2 the lands were sioner to dispose of the Delaware Indian trust lands at Fort Leavenworth, in the services of such registers and receivers in territory of Kansas, under the treaty with the sale of those lands. Such implication the Delaware tribe of Indians.' On the 18th was specially negatived before the claimant of February, 1857, he was appointed and took office. He received his pay under the commissioned for four years as receiver of provision of law already stated, without any 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 entitled to anything further or other than the 15th day of May, 1857, he was duly the amount he from time to time received. appointed as special receiver and superin- More than thirty years after the last pay. tendent to assist the special commissioner ment, Congress passed the act of March 3, to dispose of the trust lands of the Kas- 1903, the 13th section of which is contained kaskia and Peoria, Piankeshaw and Wea in the foregoing statement of facts. The Indian confederated tribes of Indians at passage of the act did not imply any adPaoli, Kansas territory.” Brindle was thus mission that there was anything due the appointed special receiver and superintend claimant. It simply provided for the preent of the Delaware Indian trust lands besentation of his claim to the court and for fore he was made receiver of public money, a decision on the merits, without assuming and while he was receiver of public money to say that he had any claim of a meritorihe was duly appointed as special receiver ous nature. of the other Indian tribes, as above stated. We agree with the Court of Claims that The duties of the positions (special receiver, the claimant has failed to make out a case, etc., and receiver of the public moneys) and the judgment dismissing his petition is were thus kept separate and a part. As re- affirmed. ceiver he was to receive public moneys for land subject to sale at Lecompton, Kansas, Mr. Justice Moody took no part in the dewhile his duties in regard to the other cision of this case. positions to which he had been specially appointed referred to the disposition of the Indian lands, in one case at Fort Leaven-GOAT & SHEEPSKIN IMPORT COMworth and in the other case at Paoli, both
PANY, Petitioner, in the territory of Kansas. This court held
v. that when, subsequent to his appointment
UNITED STATES. as receiver of the public moneys, Brindle was appointed special receiver and superin. Duties-growth on skin of Mocha sheeptendent to assist the special commissioner free list. “in disposing of the trust lands, he was A growth on skins of Mocha sheep employed to render a service in no way imported from Arabia which is commercially connected with the office he held.
known, designated, and dealt in as Mocha not appointed to any office known to the hair, having none of the characteristics of
wool, and which would not be accepted by law. No new duty was imposed on him as dealers therein as a good delivery of wool, receiver of the Land Office. The President is not dutiable under the tariff act of July was, both by the treaties and the act of 24, 1897 (30 Stat. at L. 151, 183, chap. 11, 1855 [10 Stat. at L. 700, chap. 204], charged U. S. Comp. Stat. 1901, pp. 1626, 1666), with the duty of selling the lands, and, par. 360, as wool on the skin, but is enunder his instructions, Brindle was
titled to free entry under par. 664, placing
employed to assist in the work. By express
on the free list "skins of all kinds, raw provisions in the treaties the expenses in (except sheepskins with the wool on), and
hides not specially provided for in this curred by the United States in making the
act." sales were to be paid from the proceeds.
[No. 261.] This clearly implied the payment of a reasonable compensation for the service of those Argued April 18, 1907.
Argued April 18, 1907. Decided May 13, employed to carry the trust into effect.”
1907. In the case at bar the duty had already,
Circuit as such, of attending to the sale of these Second Circuit to review a judgment which lands within their various districts, and ex- affirmed a judgment of the Circuit Court press provision had been made that in no for the Southern District of New York, suscase was their compensation to exceed the taining the ruling of the Board of Genmaximum sum already provided by law. eral Appraisers and the collector in classifyWhen such provision had been made in re- ing a growth upon skins of Mocha sheep gard to compensation there is no room for as wool on the skin and dutiable as such. any implication of a promise to pay an ad-Reversed and remanded for further proditional reasonable compensation for the 'ceedings.
prior to thaimant's appointment, been tim: ONS WRIT of Certiorari to the United