A-22025, APRIL 18, 1928, 7 COMP. GEN. 675

A-22025: Apr 18, 1928

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OR PROOF HAS BEEN REJECTED AND NEITHER THE ENTRYMAN NOR HIS LEGAL REPRESENTATIVE SHALL HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH THE APPLICATION. THERE WAS NO REJECTION OF THE ENTRY WITHIN THE MEANING OF THE ACT OF DECEMBER 11. WAS MADE BY RICHARD L. THAT THE FIRST PAYMENT OF $415 WAS MADE ON SAID LAND ON APRIL 16. PROCEEDINGS WERE INSTITUTED BY THE GENERAL LAND OFFICE TO CANCEL THE ENTRY ON THE GROUND THAT BIRD DID NOT LOCATE AND FILE UPON THE LANDS IN GOOD FAITH WITH THE INTENT THAT THE LEGAL TITLE SHOULD BE ACQUIRED PURSUANT TO THE LAWS OF THE UNITED STATES GOVERNING THE ENTRY. SUCH LOCATION AND FILING WAS MADE PURSUANT TO THE UNLAWFUL PURPOSE AND INTENT THAT THE TITLE ACQUIRED MIGHT INURE TO THE USE AND BENEFIT OF THE CEDAR MESA FARMS CO.

A-22025, APRIL 18, 1928, 7 COMP. GEN. 675

PUBLIC-LAND ENTRIES - REFUNDS ON VOLUNTARY RELINQUISHMENT THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, AUTHORIZES THE REFUND OF PURCHASE MONEYS OR COMMISSIONS PAID ON PUBLIC-LAND ENTRIES ONLY IN THE EVENT THE APPLICATION, ENTRY, OR PROOF HAS BEEN REJECTED AND NEITHER THE ENTRYMAN NOR HIS LEGAL REPRESENTATIVE SHALL HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH THE APPLICATION. WHERE, UPON THE FILING BY THE GENERAL LAND OFFICE OF PROCEEDINGS TO CANCEL AN ENTRY ON THE GROUNDS OF FRAUD, THE ENTRYMAN VOLUNTARILY CONSENTED TO THE CANCELLATION OF THE ENTRY, THERE WAS NO REJECTION OF THE ENTRY WITHIN THE MEANING OF THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, AUTHORIZING REFUNDS OF THE PURCHASE PRICE PAID ON PUBLIC LAND ENTRIES.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 18, 1928:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF THE GREAT WESTERN COAL MINES CO. FOR REPAYMENT OF THE SUM OF $16,600 PAID BY RICHARD L. BIRD AS PURCHASE MONEY ON CERTAIN COAL LANDS IN THE STATE OF UTAH, ENTRY SERIAL 025342, THE CLAIM BEING BASED ON A STATEMENT OF FACTS AS FOLLOWS:

IT APPEARS THAT AN APPLICATION FOR ENTRY OF TRACTS OF LAND, DESCRIBED AS THE NE. 1/4 SE. 1/4, S. 1/2 SE. 1/4, SEC. 20, AND NE. 1/4 NE. 1/4, SEC. 29, TOWNSHIP 13 S., RANGE 8 E., SALT LAKE MERIDIAN, COMPRISING 160 ACRES, WAS MADE BY RICHARD L. BIRD ON FEBRUARY 6, 1920; THAT THE FIRST PAYMENT OF $415 WAS MADE ON SAID LAND ON APRIL 16, 1921, THE SECOND PAYMENT OF $83 ON MAY 12, 1912, AND THE THIRD AND LAST PAYMENT OF $16,102 ON SEPTEMBER 15, 1921, FINAL CERTIFICATE BEING ISSUED SEPTEMBER 15, 1921; AND THAT ON OCTOBER 29, 1921, BIRD AND WIFE DEEDED SAID PROPERTY TO THE GREAT WESTERN COAL MINES CO., A CORPORATION, WHICH, BY DEED OF TRUST DATED OCTOBER 29, 1921, AND BY AMENDED DEED OF TRUST DATED FEBRUARY 29, 1922, TRANSFERRED THE TITLE TO SAID LANDS, TOGETHER WITH OTHER LANDS, IN TRUST TO THE HALLORAN JUDGE TRUST CO. TO SECURE THE PAYMENT OF AN ISSUE OF $600,000 OF BONDS BEARING DATE OF NOVEMBER 1, 1921. ALSO THAT UNDER DATE OF MARCH 19, 1923, PROCEEDINGS WERE INSTITUTED BY THE GENERAL LAND OFFICE TO CANCEL THE ENTRY ON THE GROUND THAT BIRD DID NOT LOCATE AND FILE UPON THE LANDS IN GOOD FAITH WITH THE INTENT THAT THE LEGAL TITLE SHOULD BE ACQUIRED PURSUANT TO THE LAWS OF THE UNITED STATES GOVERNING THE ENTRY, SALE, OR DISPOSITION OF PUBLIC LANDS VALUABLE FOR THE COAL DEPOSITS CONTAINED THEREIN, BUT SUCH LOCATION AND FILING WAS MADE PURSUANT TO THE UNLAWFUL PURPOSE AND INTENT THAT THE TITLE ACQUIRED MIGHT INURE TO THE USE AND BENEFIT OF THE CEDAR MESA FARMS CO., A CORPORATION, OR TO THE BENEFIT OF THE CLAIMANT COMPANY, BUT THAT, AFTER HEARINGS HAD BEEN ORDERED AND SOME TESTIMONY TAKEN BEFORE A CLERK OF A DISTRICT COURT BUT BEFORE A DECISION WAS RENDERED, A RELINQUISHMENT WAS FILED BY BIRD ON APRIL 28, 1923, WHICH WAS ACCEPTED AND THE ENTRY CANCELED ON JUNE 29, 1923; THAT UPON CANCELLATION OF THE ENTRY THE SAID LANDS WERE LEASED UNDER THE 1920 COAL LEASING LAW TO THE GREAT WESTERN COAL MINES CO. UNDER COAL LEASE, SERIAL NO. 032039; THAT BIRD'S CLAIM FOR REPAYMENT OF THE AMOUNT PAID ON SAID LANDS WAS REJECTED BY THE COMMISSIONER OF THE GENERAL LAND OFFICE ON OCTOBER 2, 1923, ON THE GROUND THAT THE ABSENCE OF FRAUD IN THE ATTEMPT TO GAIN TITLE TO THE LAND HAD NOT BEEN ESTABLISHED, AND FURTHERMORE, THAT IT HAD NOT BEEN SHOWN THAT HE WAS THE PERSON ENTITLED TO REPAYMENT AS THE ABSTRACT OF TITLE SHOWED TITLE IN THE GREAT WESTERN COAL MINES CO.; AND THAT ON NOVEMBER 3, 1923, AFTER BIRD'S CLAIM HAD BEEN REJECTED, THE GREAT WESTERN COAL MINES CO. FILED A CLAIM FOR REPAYMENT OF SAID AMOUNT, WHICH CLAIM WAS ALSO REJECTED BY THE COMMISSIONER ON JANUARY 25, 1924, AFFIRMED BY DEPARTMENTAL DECISION OF AUGUST 6, 1924, 50 L.D. 602, AND AGAIN REJECTED BY THE COMMISSIONER AFTER A REHEARING ON JUNE 7, 1927. THE CLAIM IS NOW HERE FOR CONSIDERATION AFTER REVERSAL BY THE INTERIOR DEPARTMENT ON OCTOBER 11, 1927, OF ITS FINDINGS OF AUGUST 6, 1924, SUPRA, IN THE MATTER.

UNDER DATE OF NOVEMBER 9, 1927, REPAYMENT OF THE PURCHASE PRICE WAS RECOMMENDED BY THE GENERAL LAND OFFICE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, AMENDING AND SUPERSEDING THE ACT OF MARCH 26, 1908, 35 STAT. 48, IN ACCORDANCE WITH DEPARTMENTAL DECISION OF OCTOBER 11, 1927, SUPRA, ON THE GROUND THAT IT APPEARED THAT UPON REPORT OF AN INSPECTOR OF THAT OFFICE, ADVERSE PROCEEDINGS WERE DIRECTED AGAINST THE ENTRY ON MARCH 29, 1923, AND THE CHARGE HAVING BEEN DENIED BY THE ENTRYMAN, HEARING WAS ORDERED; THAT DURING THE TIME DEPOSITIONS WERE BEING TAKEN THE GOVERNMENT INSPECTOR SUGGESTED THAT THE PROPER COURSE TO PURSUE WOULD BE TO FILE RELINQUISHMENT AND THEN MAKE APPLICATION TO LEASE THE LAND UNDER THE ACT OF FEBRUARY 21, 1920, 41 STAT. 437; AND THAT RELINQUISHMENT WAS FILED APRIL 28, 1923, AND THE LAND INVOLVED IS INCLUDED IN A COAL LEASE OF THE APPLICANT COMPANY, IT ALSO BEING STATED "NO FRAUD APPEARS.'

THE EVIDENCE OF RECORD SHOWS THAT THE ENTRY TO THE LANDS UNDER CONSIDERATION HAS BEEN RELINQUISHED TO THE GOVERNMENT BY THE ENTRYMAN AND HIS ASSIGNEES, AND THAT THE TRUSTEE COMPANY, UNDER THE DEEDS OF TRUST PLACED UPON SAID LANDS BY CLAIMANT COMPANY, HAS RELEASED TO THE GOVERNMENT ANY RIGHT, TITLE, OR INTEREST THEREIN WHICH MIGHT OR COULD HAVE BEEN OBTAINED BY OR THROUGH SAID COAL ENTRY AND BECAUSE OF THE DEEDS OF TRUST.

IN DECISION OF THE DEPARTMENT OF THE INTERIOR OF OCTOBER 11, 1927, TO WHICH REFERENCE IS MADE BY THE GENERAL LAND OFFICE IN ITS RECOMMENDATION FOR REPAYMENT, WHICH WAS RENDERED ON APPEAL FROM THE DECISION OF THE COMMISSIONER OF THE GENERAL LAND OFFICE DATED JUNE 7, 1927, DENYING REPAYMENT OF THE AMOUNT NOW CLAIMED AND IN WHICH ITS DECISION OF AUGUST 6, 1924, WAS REVERSED, AFTER SETTING FORTH IN DETAIL THE FACTS AS SUBSTANTIALLY OUTLINED ABOVE AND STATING THAT AFTER THE CLAIMANT COMPANY HAD REQUESTED A REHEARING OF THE PRIOR DECISION IN THE MATTER, A REHEARING WAS ORDERED AND HELD WHEN TESTIMONY WAS SUBMITTED AND NUMEROUS DEPOSITIONS TAKEN AT VARIOUS TIMES AND PLACES BETWEEN FEBRUARY 4, 1927, AND APRIL 20, 1927, AND MANY EXHIBITS FILED IN CONNECTION WITH THE TESTIMONY, IT WAS STATED AS A CONCLUSION THAT THE TESTIMONY IN THE CASE, AS A WHOLE, CONVINCINGLY SHOWED THAT NO FRAUD OR ATTEMPTED FRAUD HAD BEEN SHOWN AND THE DEPARTMENT BELIEVED, AS A MATTER OF JUSTICE AND EQUITY, THAT REPAYMENT SHOULD BE ALLOWED.

SECTION 1 OF THE ACT OF DECEMBER 11, 1919, SUPRA, UNDER WHICH REPAYMENT IS REQUESTED, PROVIDES:

THAT WHERE PURCHASE MONEYS AND COMMISSIONS PAID UNDER ANY PUBLIC LAND LAW HAVE BEEN OR SHALL HEREAFTER BE COVERED INTO THE TREASURY OF THE UNITED STATES UNDER ANY APPLICATION TO MAKE ANY FILING, LOCATION, SELECTION, ENTRY, OR PROOF, SUCH PURCHASE MONEYS AND COMMISSIONS SHALL BE REPAID, TO THE PERSON WHO MADE SUCH APPLICATION, ENTRY, OR PROOF, OR TO HIS LEGAL REPRESENTATIVES, IN ALL CASES WHERE SUCH APPLICATION, ENTRY, OR PROOF HAS BEEN OR SHALL HEREAFTER BE REJECTED, AND NEITHER SUCH APPLICANT NOR HIS LEGAL REPRESENTATIVE SHALL HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH SUCH APPLICATION; * * *.

IT WILL BE NOTED THAT THIS LAW AUTHORIZES THE MAKING OF REPAYMENTS OF AMOUNTS PAID AS PURCHASE MONEY AND COMMISSIONS UNDER ANY PUBLIC LAND LAW ONLY WHEN THE APPLICATION, ENTRY, OR PROOF HAD BEEN OR SHOULD THEREAFTER BE REJECTED AND NEITHER THE APPLICANT NOR HIS LEGAL REPRESENTATIVES HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH THE APPLICATION. THE MATTER HERE IS ONE THAT CONCERNS THE MANNER IN WHICH THE RIGHT TO A FEE SIMPLE TITLE TO THE LANDS WAS SURRENDERED RATHER THAN TO ANY QUESTION OF FRAUD OR FRAUDULENT INTENT IN CONNECTION WITH THE FILING OF THE APPLICATION BY THE ENTRYMAN. THERE WAS NO REJECTION OF THE APPLICATION, ENTRY, OR PROOF BY THE GOVERNMENT WITHIN THE MEANING OF THE ACT BUT A RELINQUISHMENT BY THE ENTRYMAN AND HIS ASSIGNESS AND SUBSEQUENT CANCELLATION OF TITLE.

THE REPAYMENT OF PURCHASE MONEYS PAID FOR LANDS AS AUTHORIZED BY THE ACT OF DECEMBER 11, 1919, BEING CONDITIONED UPON THE "REJECTION" OF APPLICATIONS, ENTRIES, OR PROOFS, AND THE FAILURE OF THE ENTRYMEN IN THIS MATTER TO TAKE OR RETAIN TITLE TO THE LANDS, NOT HAVING BEEN DUE TO A REJECTION BY THE GOVERNMENT WITHIN THE MEANING OF SAID ACT BUT TO A RELINQUISHMENT OF THE ENTRY WHICH UNDER THE CIRCUMSTANCES, NO FRAUD HAVING BEEN ESTABLISHED, MUST BE CONSIDERED VOLUNTARY. WHEN THE CONGRESS HAS BY LAW STIPULATED THE CONDITION UNDER WHICH A PAYMENT MAY BE MADE, REFUND OR OTHERWISE, SUCH CONDITION MUST BE SHOWN TO HAVE BEEN MET TO JUSTIFY PAYMENT. AS THE FACT OF REJECTION BY THE UNITED STATES, THE CONDITION STIPULATED BY LAW AS THE BASIS FOR REFUNDMENT, HAS NOT BEEN AND, APPARENTLY, CAN NOT BE ESTABLISHED, THE ONLY COURSE OPEN TO THIS OFFICE IS DISALLOWANCE OF THE CLAIM. IT IS, THEREFORE, DISALLOWED.