A-17905, APRIL 26, 1927, 6 COMP. GEN. 695

A-17905: Apr 26, 1927

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NO ADDITIONAL COMMISSIONS ARE CHARGEABLE ON THE INTEREST PAID ON DEFERRED INSTALLMENTS OF THE PURCHASE PRICE IN CONNECTION WITH SUCH HOMESTEAD ENTRIES. ARE GOVERNED BY THE GENERAL LAW FOUND IN SECTION 2238 OF THE REVISED STATUTES FOR COMMISSIONS ON CASH ENTRIES. SUCH COMMISSIONS ARE ACCORDINGLY DEDUCTIBLE FROM THE TOTAL AMOUNTS RECEIVED AS THE BID PRICE OF THE LAND. 1927: THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER THE REGISTER OF THE LOCAL LAND OFFICE IS ENTITLED TO COMMISSIONS ON MONEYS RECEIVED AS INTEREST ON DEFERRED PAYMENTS FOR LANDS ENTERED UNDER THE PUBLIC LAND LAWS IN THE CEDED CHEYENNE RIVER AND STANDING ROCK INDIAN RESERVATIONS IN NORTH AND SOUTH DAKOTA. A LIKE COMMISSION WHEN THE CLAIM IS FINALLY ESTABLISHED.

A-17905, APRIL 26, 1927, 6 COMP. GEN. 695

GENERAL LAND OFFICE - COMMISSIONS ON THE INTEREST ON DEFERRED PAYMENTS FOR INDIAN LANDS THE ACT OF MAY 29, 1908, 35 STAT. 460, HAVING PRESCRIBED THE FEES AND COMMISSIONS CHARGEABLE ON HOMESTEAD ENTRIES FOR CHEYENNE RIVER AND STANDING ROCK INDIAN LANDS, NO ADDITIONAL COMMISSIONS ARE CHARGEABLE ON THE INTEREST PAID ON DEFERRED INSTALLMENTS OF THE PURCHASE PRICE IN CONNECTION WITH SUCH HOMESTEAD ENTRIES. THE COMMISSIONS ON CASH SALES OF CHEYENNE RIVER AND STANDING ROCK INDIAN LANDS, NOT BEING FIXED BY THE ACT OF MAY 29, 1908, 35 STAT. 460, ARE GOVERNED BY THE GENERAL LAW FOUND IN SECTION 2238 OF THE REVISED STATUTES FOR COMMISSIONS ON CASH ENTRIES, AND SUCH COMMISSIONS ARE ACCORDINGLY DEDUCTIBLE FROM THE TOTAL AMOUNTS RECEIVED AS THE BID PRICE OF THE LAND, INCLUDING THE INTEREST ON DEFERRED PAYMENTS ON SUCH CASH SALES.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 26, 1927:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER THE REGISTER OF THE LOCAL LAND OFFICE IS ENTITLED TO COMMISSIONS ON MONEYS RECEIVED AS INTEREST ON DEFERRED PAYMENTS FOR LANDS ENTERED UNDER THE PUBLIC LAND LAWS IN THE CEDED CHEYENNE RIVER AND STANDING ROCK INDIAN RESERVATIONS IN NORTH AND SOUTH DAKOTA; AND IF SO, WHETHER SUCH COMMISSIONS SHOULD BE DEDUCTED FROM THE AMOUNTS RECEIVED OR SHOULD BE PAID FROM THE APPROPRIATION FOR SALARIES AND COMMISSIONS OF REGISTERS, 1927.

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 OF 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.

BY DECISION OF MAY 28, 1926, A-13776, IT WAS HELD THAT THE SECOND PARAGRAPH OF SECTION 2238, REVISED STATUTES, HAD NO APPLICATION TO HOMESTEAD ENTRIES AND DID NOT ENTITLE THE REGISTER TO COMMISSIONS ON THE CASH PRICE PAID FOR CEDED INDIAN LANDS ENTERED UNDER THE HOMESTEAD LAWS WHERE THE COMMISSIONS TO BE CHARGED WERE LIMITED BY THE STATUTE OPENING THE LANDS TO ENTRY TO THE SAME COMMISSIONS AS PAID UPON ORDINARY FREE HOMESTEAD ENTRIES OF $1.25 LANDS.

THE CHEYENNE RIVER AND STANDING ROCK INDIAN LANDS WERE OPENED UNDER THE ACT OF MAY 29, 1908, 35 STAT. 460, WHICH PROVIDED IN SECTIONS 3 AND 4 THEREOF FOR THE APPRAISAL OF THE LANDS AND THEIR ENTRY UNDER THE HOMESTEAD LAWS, ONE-FIFTH OF THE PURCHASE PRICE TO BE PAID IN CASH AT DATE OF ENTRY AND THE BALANCE IN FIVE EQUAL ANNUAL INSTALLMENTS TO BE PAID IN ONE, TWO, THREE, FOUR, AND FIVE YEARS, RESPECTIVELY, FROM AND AFTER DATE OF ENTRY. SAID ACT PROVIDED FOR THE PAYMENT OF COMMISSIONS AS FOLLOWS:

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

THE ACT OF APRIL 13, 1912, 37 STAT. 84, AUTHORIZED AN EXTENSION OF ONE YEAR FOR PAYMENTS OF INSTALLMENTS DUE ON HOMESTEAD ENTRIES FOR THESE LANDS CONDITIONED UPON THE PAYMENT OF INTEREST FOR ONE YEAR IN ADVANCE AT 5 PERCENT OF THE AMOUNT DUE AND PROVIDED "THAT ALL MONEYS PAID FOR INTEREST AS HEREIN PROVIDED SHALL BE DEPOSITED IN THE TREASURY TO THE CREDIT OF THE INDIANS AS A PART OF THE PROCEEDS RECEIVED FOR THE LAND.'

AS THE ACT OF MAY 29, 1908, SUPRA, PRESCRIBED THE FEES AND COMMISSIONS TO BE PAID BY HOMESTEAD ENTRYMEN, IN THE SAID DECISION OF MAY 28, 1926, IT WAS HELD BY THIS OFFICE THAT THIS PROVISION FOR FEES AND COMMISSIONS WAS EXCLUSIVE AND THAT NO FEES OR COMMISSIONS WERE TO BE COLLECTED UPON THE APPRAISED PRICE OF THE LAND. THE ACT AUTHORIZING AN EXTENSION OF TIME FOR THE PAYMENT OF INSTALLMENTS WHILE REQUIRING THE PAYMENT OF INTEREST AS A CONDITION PRECEDENT FOR SUCH EXTENSIONS DID NOT AUTHORIZE OR REQUIRE THE COLLECTION OR PAYMENT OF ANY ADDITIONAL FEES OR COMMISSIONS, BUT EXPLICITLY REQUIRED THAT ALL OF THE INTEREST MONEY SHOULD BE DEPOSITED TO THE CREDIT TO THE INDIANS. IT MUST BE HELD, THEREFORE, THAT THERE IS NO AUTHORITY FOR ALLOWING THE REGISTER COMMISSIONS UPON THE AMOUNT OF INTEREST COLLECTED UPON DEFERRED INSTALLMENTS PAID IN CONNECTION WITH HOMESTEAD ENTRIES FOR SUCH LANDS.

IT APPEARS IN THE PRESENT CASE, HOWEVER, THAT THE INTEREST IN QUESTION WAS NOT PAID IN CONNECTION WITH A HOMESTEAD ENTRY BUT IN CONNECTION WITH CASH SALES OF THE INDIAN LANDS IN QUESTION, WHICH SALES WERE HELD UNDER THE AUTHORITY IN THE ACT OF MAY 29, 1908, 35 STAT. 463, AS FOLLOWS:

* * * AND IT IS FURTHER PROVIDED THAT ANY LANDS REMAINING UNSOLD AFTER SAID LANDS HAVE BEEN OPENED TO ENTRY FOR SEVEN YEARS MAY BE SOLD TO THE HIGHEST BIDDER FOR CASH WITHOUT REGARD TO THE PRESCRIBED PRICE THEREOF FIXED UNDER THE PROVISIONS OF THIS ACT, UNDER SUCH RULES AND REGULATIONS AS THE SECRETARY OF THE INTERIOR MAY PRESCRIBE.

BY CIRCULAR 670 OF FEBRUARY 27, 1920, 47 L.D. 430, THE SECRETARY OF THE INTERIOR DIRECTED THAT THE REMAINING UNDISPOSED OF LANDS BE OFFERED AT PUBLIC OUTCRY AND THAT THE PURCHASERS MIGHT PAY ALL CASH AT THE TIME OF PURCHASE OR ONE-THIRD DOWN AND THE BALANCE IN TWO EQUAL ANNUAL INSTALLMENTS DUE ONE AND TWO YEARS FROM DATE OF PURCHASE, INTEREST TO BE PAID ON THE DEFERRED INSTALLMENTS AT THE RATE OF 5 PERCENT PER ANNUM. THE ACT OF MAY 29, 1908, SUPRA, IN SECTION 6 PROVIDES THAT ALL SUMS ARISING FROM THE SALE AND DISPOSITION OF THE LANDS,"EXCLUSIVE OF THE CUSTOMARY FEES AND COMMISSIONS," SHALL BE DEPOSITED TO THE CREDIT OF THE RESPECTIVE TRIBES. WITH RESPECT TO THESE CASH SALES THE PROVISION FOR FEES AND COMMISSIONS ON HOMESTEAD ENTRIES IN THE ACT OF MAY 29, 1908, SUPRA, DID NOT APPLY, AND THE REGISTER WAS ACCORDINGLY ENTITLED TO COMMISSIONS COMPUTED UPON AND DEDUCTED FROM THE BID PRICE, IF AND WHEN RECEIVED, IN ACCORDANCE WITH THE SECOND PARAGRAPH OF SECTION 2238, REVISED STATUTES.

THE INTEREST UPON THE EXTENDED PAYMENTS FOR CASH ENTRIES IS NOT A STATUTORY REQUIREMENT, BUT IS UNDER THE REGULATIONS ISSUED BY THE SECRETARY OF THE INTERIOR AND CONSTITUTES A PART OF THE CONSIDERATION FOR THE PURCHASE ON THE DEFERRED PAYMENT BASIS. AS THERE IS NO STATUTE REQUIRING ALL OF THE INTEREST TO BE DEPOSITED TO THE CREDIT OF THE INDIANS, AS IS THE CASE WHERE HOMESTEAD ENTRIES ARE INVOLVED AND THE COMMISSIONS ARE GOVERNED BY THE GENERAL LAW RATHER THAN BY THE SPECIAL PROVISIONS OF THE ACT OF MAY 29, 1908, IT MUST BE CONCLUDED THAT THE INTEREST RECEIVED IN CONNECTION WITH THE EXTENSION OF TIME FOR PAYMENTS UNDER THE CASH SALES IS A PART OF THE MONEYS RECEIVED AT THE RECEIVER'S OFFICE WITHIN THE PURVIEW OF PARAGRAPH 2 OF SECTION 2238, REVISED STATUTES, AND UPON WHICH THE LOCAL OFFICERS ARE ENTITLED TO COMMISSIONS, SUCH COMMISSIONS ARE TO BE DEDUCTED FROM THE AMOUNTS SO RECEIVED BEFORE THEIR DEPOSIT TO THE CREDIT OF THE INDIANS. ANY SUSPENSIONS IN CURRENT ACCOUNTS WILL BE ADJUSTED IN ACCORDANCE WITH THE FOREGOING.