A-13776, MAY 28, 1926, 5 COMP. GEN. 942

A-13776: May 28, 1926

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A REGISTER OF THE LOCAL LAND OFFICE IS NOT ENTITLED TO A COMMISSION ALSO ON THE CASH PRICE. IS LIMITED TO CASH SALES. A LIKE COMMISSION WHEN THE CLAIM IS FINALLY ESTABLISHED. EXTRACT FROM WHICH IS QUOTED IN 15 COMP. IS A LITERAL REPRODUCTION OF THE ACT OF APRIL 25. AT THAT PERIOD NO DISPOSALS OF THE PUBLIC LANDS WERE MADE EXCEPT FOR CASH. THE PREEMPTION AND HOMESTEAD SYSTEMS HAVE BEEN ESTABLISHED. THE FEES AND COMMISSIONS ON ALL OTHER CLASSES OF ENTRIES AND LOCATIONS ARE PARTICULARLY SPECIFIED IN THE REMAINING ELEVEN PARAGRAPHS.'. WHICH IS TYPICAL OF THE ACTS OF CONGRESS AUTHORIZING THE SALE AND DISPOSITION OF CEDED INDIAN LANDS. WHERE THE PRICE OF LAND IS ONE DOLLAR AND TWENTY-FIVE CENTS PER ACRE.

A-13776, MAY 28, 1926, 5 COMP. GEN. 942

GENERAL LAND OFFICE - FEES AND COMMISSIONS ON HOMESTEAD ENTRIES OF INDIAN LANDS WHEN AN ACT OPENING INDIAN LANDS TO HOMESTEAD ENTRY SPECIFIES THE FEES AND COMMISSIONS WHICH MAY BE CHARGED THEREON IN ADDITION TO THE CASH PRICE OF THE LAND, A REGISTER OF THE LOCAL LAND OFFICE IS NOT ENTITLED TO A COMMISSION ALSO ON THE CASH PRICE. PARAGRAPH 2 OF SECTION 2238, REVISED STATUTES, IS LIMITED TO CASH SALES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MAY 28, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 1, 1926, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

SECTION 2238 OF THE REVISED STATUTES PRESCRIBES THE FEES AND COMMISSIONS THAT SHALL BE ALLOWED TO REGISTERS AND RECEIVERS OF UNITED STATES DISTRICT LAND OFFICES.

PARAGRAPH 2 OF THAT SECTION PROVIDES THAT THEY SHALL BE ALLOWED "A COMMISSION OF ONE PERCENTUM ON ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE.'

PARAGRAPH 3 PROVIDES THAT THEY SHALL BE ALLOWED "A COMMISSION TO BE PAID BY THE HOMESTEAD APPLICANT, AT THE TIME OF ENTRY, OF ONE PERCENTUM 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.'

AS STATED IN GENERAL LAND OFFICE CIRCULAR OF JANUARY 23, 1880, EXTRACT FROM WHICH IS QUOTED IN 15 COMP. DEC., 520:

"PARAGRAPH 2 OF SECTION 2238, REVISED STATUTES, IS A LITERAL REPRODUCTION OF THE ACT OF APRIL 25, 1818. AT THAT PERIOD NO DISPOSALS OF THE PUBLIC LANDS WERE MADE EXCEPT FOR CASH. HENCE THE LAW APPLIES TO CASH SALES ONLY. SINCE THE PASSAGE OF THE ACT OF 1818, THE PREEMPTION AND HOMESTEAD SYSTEMS HAVE BEEN ESTABLISHED, TOGETHER WITH OTHER METHODS OF ENTERING AND LOCATING THE PUBLIC LANDS, AND A SCHEDULE OF FEES AND COMMISSIONS, ESPECIALLY ADAPTED THERETO, HAS BEEN PROVIDED. THE TWELVE PARAGRAPHS OF SECTION 2238 EMBRACE THE SEVERAL CLASSES OF FEES AND COMMISSIONS ALLOWED TO REGISTERS AND RECEIVERS. PARAGRAPH 2 RELATES TO CASH SALES. THE FEES AND COMMISSIONS ON ALL OTHER CLASSES OF ENTRIES AND LOCATIONS ARE PARTICULARLY SPECIFIED IN THE REMAINING ELEVEN PARAGRAPHS.'

THE ACT OF MAY 29, 1908 (35 STAT. 460), AUTHORIZING THE SALE AND DISPOSITION OF A PORTION OF THE SURPLUS AND UNALLOTTED LANDS IN THE CHEYENNE RIVER AND STANDING ROCK INDIAN RESERVATIONS IN THE STATES OF SOUTH DAKOTA AND NORTH DAKOTA, WHICH IS TYPICAL OF THE ACTS OF CONGRESS AUTHORIZING THE SALE AND DISPOSITION OF CEDED INDIAN LANDS, PROVIDES THAT THE LANDS SHALL BE DISPOSED OF UNDER THE GENERAL PROVISIONS OF THE HOMESTEAD LAWS, AND THAT IN ADDITION TO THE PRICE TO BE PAID FOR THE LAND THE ENTRYMAN SHALL PAY THE SAME FEES AND COMMISSIONS AT THE TIME OF COMMUTATION OR FINAL ENTRY AS NOW PROVIDED BY LAW, WHERE THE PRICE OF LAND IS ONE DOLLAR AND TWENTY-FIVE CENTS PER ACRE.

THE PURCHASE PRICE OF LANDS DISPOSED OF UNDER THE ABOVE ACT IS PAID IN INSTALLMENTS, ONE-FIFTH AT THE TIME OF ENTRY AND THE BALANCE IN FIVE EQUAL ANNUAL INSTALLMENTS. THEREFORE AN ENTRYMAN WHO MAKES ENTRY OF 160 ACRES APPRAISED AT $5 AN ACRE IS REQUIRED TO MAKE PAYMENTS AS FOLLOWS:

TABLE

AT TIME OF ENTRY, FEE --------------------------------------------- $10

COMMISSIONS ------------------------------------- 4

1/2 OF PURCHASE PRICE --------------------------- 160

AT THE END OF 1 YEAR, 1/5 OF BALANCE OF PURCHASE PRICE ------------ 128

AT THE END OF 2 YEARS, 1/5 OF BALANCE OF PURCHASE PRICE ----------- 128

AT THE END OF 3 YEARS, 1/5 OF BALANCE OF PURCHASE PRICE ----------- 128

AT THE END OF 4 YEARS, 1/5 OF BALANCE OF PURCHASE PRICE ----------- 128

AT THE END OF 5 YEARS, 1/5 OF BALANCE OF PURCHASE PRICE ----------- 128

AND COMMISSIONS --------------------------------------------------- 4

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE REGISTER OF THE LAND OFFICE AT WHICH THE ENTRY IS MADE IS ENTITLED TO 2 PERCENT COMMISSION ON THE PURCHASE PRICE IN ADDITION TO THE COMMISSIONS COLLECTED FROM THE ENTRYMAN.

THE APPLICATION OF PARAGRAPHS 2 AND 3 OF SECTION 2238 OF THE REVISED STATUTES TO A SOMEWHAT SIMILAR CASE IS DISCUSSED IN 21 COMP. DEC. 251, BUT THAT DECISION DOES NOT GIVE A DEFINITE ANSWER TO THE QUESTION NOW SUBMITTED.

SECTION 2238, REVISED STATUTES, PROVIDES:

REGISTERS AND RECEIVERS, IN ADDITION TO THEIR SALARIES, SHALL BE ALLOWED EACH THE FOLLOWING FEES AND COMMISSIONS, NAMELY:

SECOND. A COMMISSION OF ONE PERCENTUM 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 PERCENTUM 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.

THE SECOND PARAGRAPH OF SECTION 2238, REVISED STATUTES, SUPRA, IS TAKEN FROM THE ACT OF APRIL 25, 1818, 3 STAT. 466, AT WHICH TIME NO DISPOSALS OF PUBLIC LANDS WERE MADE EXCEPT FOR CASH, AND THIS PARAGRAPH HAS ACCORDINGLY BEEN HELD TO APPLY TO CASH SALES ONLY. 15 COMP. DEC. 519. THE THIRD PARAGRAPH HAD ITS INCEPTION IN THE GENERAL HOMESTEAD ACT OF MAY 20, 1862, 12 STAT. 393, SECTION 6 OF WHICH PROVIDES THAT "THE REGISTERS AND RECEIVERS OF THE SEVERAL LAND OFFICES SHALL BE ENTITLED TO RECEIVE THE SAME COMPENSATION FOR ANY LANDS ENTERED UNDER THE PROVISIONS OF THIS ACT THAT THEY ARE NOW ENTITLED TO RECEIVE WHEN THE SAME QUANTITY OF LAND IS ENTERED WITH MONEY," THAT IS, SAID ACT PROVIDED FOR THE SAME COMMISSIONS ON HOMESTEAD ENTRIES AS HAD BEEN PREVIOUSLY AUTHORIZED ON CASH ENTRIES BY THE ACT OF APRIL 25, 1818, SUPRA. THIS PROVISION IN THE 1862 ACT WAS CLARIFIED AND AMENDED BY SECTION 2 OF THE ACT OF MARCH 21, 1864, WHICH PROVIDED FOR COMMISSIONS IN PRACTICALLY THE SAME LANGUAGE AS THAT NOW FOUND IN THE THIRD PARAGRAPH OF SECTION 2238, REVISED STATUTES. THERE SEEMS TO BE NO ROOM FOR DOUBT, THEREFORE, THAT THE COMMISSIONS AUTHORIZED BY THE THIRD PARAGRAPH OF SECTION 2238, REVISED STATUTES, ON HOMESTEAD ENTRIES GENERALLY ARE IN LIEU OF AND NOT IN ADDITION TO THE COMMISSIONS WHICH WOULD HAVE BEEN DUE HAD THE LAND BEEN DISPOSED OF AT CASH SALE.

THE ACT OF MAY 29, 1908, 35 STAT. 460, AUTHORIZING THE SALE AND DISPOSITION OF A PORTION OF THE SURPLUS AND UNALLOTTED LANDS IN THE CHEYENNE RIVER AND STANDING ROCK INDIAN RESERVATIONS IN THE STATES OF SOUTH DAKOTA AND NORTH DAKOTA, AND WHICH YOU STATE IS TYPICAL OF THE ACTS OF CONGRESS OPENING INDIAN LANDS TO ENTRY, PROVIDES, IN SECTION 4 THEREOF, 35 STAT. 462, THAT---

* * * IN ADDITION TO THE PRICE TO BE PAID FOR THE LAND, THE ENTRYMAN SHALL PAY THE SAME FEES AND COMMISSIONS AT THE TIME OF COMMUTATION OR FINAL ENTRY AS NOW PROVIDED BY LAW, WHERE THE PRICE OF LAND IS ONE DOLLAR AND TWENTY-FIVE CENTS PER ACRE, * * *.

THE ACT OPENING THE LANDS TO ENTRY THUS DEFINITELY FIXED THE FEES AND COMMISSIONS TO BE CHARGED HOMESTEAD ENTRYMEN, BASING THE COMMISSIONS UPON THE NOMINAL PRICE OF PUBLIC LANDS GENERALLY, RATHER THAN UPON THE APPRAISED VALUE OF THE INDIAN LANDS SO ENTERED, WHICH WOULD OTHERWISE HAVE BEEN THE "CASH PRICE, AS FIXED BY LAW" WITHIN THE PURVIEW OF THE THIRD PARAGRAPH OF SAID SECTION 2238. THE OFFICES OF REGISTER AND RECEIVER WERE CONSOLIDATED BY THE ACT OF MARCH 3, 1925, 43 STAT. 1145, EFFECTIVE JULY 1, 1925. YOU ARE ADVISED, THEREFORE, THAT THE REGISTERS OF THE LOCAL LAND OFFICES ARE NOT ENTITLED TO THE COMMISSIONS PROVIDED BY THE SECOND PARAGRAPH OF SECTION 2238, REVISED STATUTES, UPON THE CASH PRICE PAID IN CONNECTION WITH HOMESTEAD ENTRIES UPON CEDED INDIAN LANDS WHEN OPENED TO ENTRY UNDER ACTS OF CONGRESS CONTAINING PROVISIONS SIMILAR TO THAT QUOTED ABOVE FROM THE ACT OF MAY 29, 1908.