A-29875, JANUARY 29, 1930, 9 COMP. GEN. 318

A-29875: Jan 29, 1930

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PUBLIC LANDS - COAL ENTRIES - REFUNDS - FRAUD REFUND OF THE PURCHASE PRICE PAID UPON A COAL-LAND ENTRY IS NOT AUTHORIZED UNDER SECTION 2 OF THE ACT OF JUNE 16. WHERE CANCELED AS THE RESULT OF CHARGES THAT IT AND OTHER ADJOINING CLAIMS WERE MADE WITH AN UNLAWFUL PURPOSE AND INTENT. WHERE THERE ARE DEFECTS APPARENT UPON THE FACE OF THE PAPERS. THE ADMINISTRATIVE REPORT ACCOMPANYING THE CLAIM IS TO THE EFFECT THAT IT APPEARS THAT THE ENTRY WAS ERRONEOUSLY ALLOWED AND COULD NOT BE CONFIRMED "BECAUSE OF FATAL DEFECTS APPARENT ON THE FACE OF THE PAPERS.'. THIS CLAIM IS ONE OF A GROUP OF 33 CLAIMS. WITH RESPECT TO WHICH THE ENTRIES WERE CANCELED AUGUST 29. ARE AS FOLLOWS: THE CHARGES THE GOVERNMENT CHARGED BRIEFLY: FIRST.

A-29875, JANUARY 29, 1930, 9 COMP. GEN. 318

PUBLIC LANDS - COAL ENTRIES - REFUNDS - FRAUD REFUND OF THE PURCHASE PRICE PAID UPON A COAL-LAND ENTRY IS NOT AUTHORIZED UNDER SECTION 2 OF THE ACT OF JUNE 16, 1880, 21 STAT. 287, WHERE CANCELED AS THE RESULT OF CHARGES THAT IT AND OTHER ADJOINING CLAIMS WERE MADE WITH AN UNLAWFUL PURPOSE AND INTENT, AND WHERE THERE ARE DEFECTS APPARENT UPON THE FACE OF THE PAPERS.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 29, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF JOHN G. CUNNINGHAM FOR REFUND UNDER THE ACT OF JUNE 16, 1880, OF $1,592.01, PAID AS THE PURCHASE PRICE UPON A COAL LAND ENTRY IN ALASKA, JUNEAU NO. 11, OTHERWISE KNOWN AS THE OCTOPUS COAL CLAIM, UNITED STATES COAL LAND SURVEY NO. 42, IN THE KAYAK RECORDING DISTRICT. THE ADMINISTRATIVE REPORT ACCOMPANYING THE CLAIM IS TO THE EFFECT THAT IT APPEARS THAT THE ENTRY WAS ERRONEOUSLY ALLOWED AND COULD NOT BE CONFIRMED "BECAUSE OF FATAL DEFECTS APPARENT ON THE FACE OF THE PAPERS.'

THIS CLAIM IS ONE OF A GROUP OF 33 CLAIMS, KNOWN AS THE CUNNINGHAM CLAIMS, WITH RESPECT TO WHICH THE ENTRIES WERE CANCELED AUGUST 29, 1912, PURSUANT TO DECISION OF THE GENERAL LAND OFFICE OF JUNE 21, 1911, CONCURRED IN BY THE SECRETARY OF THE INTERIOR ON THE SAME DATE, IN THE CASE OF THE UNITED STATES V. ANDREW L. SCHOFIELD, ET AL., 41 L.D., 176; ID. 240. THE PERTINENT PORTIONS OF THE DECISION OF JUNE 21, 1911, ARE AS FOLLOWS:

THE CHARGES

THE GOVERNMENT CHARGED BRIEFLY: FIRST, THAT THE SEVERAL LOCATIONS, FILINGS, AND ENTRIES WERE MADE PURSUANT TO AN UNDERSTANDING AND AGREEMENT ENTERED INTO BY ALL THE CLAIMANTS PRIOR TO LOCATION TO COMBINE THE SEVERAL CLAIMS FOR THE JOINT USE AND BENEFIT OF ALL THE CLAIMANTS; SECOND, THAT EACH LOCATION, FILING, AND ENTRY WAS MADE WITH THE UNLAWFUL PURPOSE AND INTENT THAT THE TITLES ACQUIRED THEREUNDER SHOULD INURE TO THE USE AND BENEFIT OF AN ASSOCIATION OR A CORPORATION FORMED OR TO BE FORMED BY THE SEVERAL CLAIMANTS; THIRD, THAT NO MINE OF COAL WAS OPENED OR IMPROVED ON ANY OF THE SEVERAL TRACTS LOCATED AND ENTERED.

MATTERS DISCLOSED BY THE RECORD CONCERNING TWO OF THE ENTRIES AND DEFECTS APPARENT UPON THE FACE OF THE PAPERS AFFECTING ALL OF THEM ARE CONSIDERED IN THEIR ORDER.

DEFECTS APPARENT ON THE FACE OF THE PAPERS

THE LOCATIONS WERE ALL MADE DURING THE MONTHS OF JULY AND AUGUST 1904, AND NO NOTICES THEREOF WERE FILED IN THE LOCAL OFFICE AT JUNEAU UNTIL OCTOBER 10, 1905. THEREFORE, NOT ONE OF THE NOTICES WAS FILED WITHIN THE PERIOD OF ONE YEAR FIXED BY THE ACT OF APRIL 28, 1904. IT IS TRUE THAT THE LOCATIONS OF SWEENEY, JOHNSON, SCOFIELD, MULLEN, WHITE, RIBLET, HENRY, NELSON, AND FRANK MOORE WERE FALSELY DATED, AS NONE OF THE GENTLEMEN MENTIONED HAD JOINED THE ASSOCIATION PRIOR TO THE DATE OF THE ALLEGED LOCATION, BUT HAVING THROUGH THEIR AGENT, AND MULLEN IN PERSON AS WELL, GIVEN A FALSE DATE TO THEIR LOCATIONS, THEY ARE IN NO POSITION TO SAY THAT AS A MATTER OF FACT SAID LOCATIONS WERE MADE AT A LATER DATE OR AT A TIME WITHIN THE YEAR PRECEDING THE FILING OF THEIR DECLARATORY STATEMENTS AND NOTICES OF CLAIM WITH THE REGISTER AND RECEIVER AT JUNEAU. FURTHERMORE, THERE IS NOTHING TO INDICATE THAT SAID CLAIMS WERE ACTUALLY LOCATED AT ALL, IF NOT AT THE DATE FIXED.

NOVEMBER 12, 1906, THE PRESIDENT WITHDREW ALL THE COAL LANDS IN ALASKA FROM LOCATION, FILING, AND ENTRY, AND BY SUNDRY OTHER ORDERS WITHDREW VARIOUS BODIES OF COAL LANDS FROM FILING AND ENTRY IN THE UNITED STATES; JANUARY 15, 1907, HE MODIFIED THE PREVIOUS WITHDRAWALS WITHOUT SPECIFICALLY MENTIONING ALASKA, AS FOLLOWS:

"NOTHING IN ANY WITHDRAWAL OF LANDS FROM COAL ENTRY HERETOFORE MADE SHALL IMPAIR ANY RIGHT ACQUIRED IN GOOD FAITH UNDER THE COAL-LAND LAWS AND EXISTENT AT THE DATE OF SUCH WITHDRAWAL.'

"THE SECRETARY OF THE INTERIOR, UNDER DATE OF JANUARY 21, 1907, PROMULGATED THE ABOVE ORDER OF PRESIDENT ROOSEVELT AND ISSUED INSTRUCTIONS THEREUNDER (35 L.D. 395) PROVIDING:

"ANY PERSON SEEKING TO PERFECT A RIGHT ALLEGED TO HAVE BEEN EXISTENT AT THE DATE OF THE WITHDRAWAL MUST, IN ADDITION TO THE SHOWING NOW REQUIRED BY THE REGULATIONS, SUBMIT HIS AFFIDAVIT OR THAT OF HIS DULY AUTHORIZED AGENT, SETTING FORTH SPECIFICALLY THE CONDITIONS UNDER WHICH THE CLAIM WAS MADE AND THE DIFFERENT STEPS TAKEN TO PERFECT THE SAME.'

UNDER DATE OF MAY 16, 1907, THE COMMISSIONER OF THE GENERAL LAND OFFICE, WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, ISSUED INSTRUCTIONS TO THE REGISTER AND RECEIVER AT JUNEAU, ALASKA, FOR THE DISPOSITION OF CLAIMS IN THAT OFFICE. ALL THE CERTIFICATES EXCEPT THOSE OF FRANK MOORE, NELSON, AND WARNER WERE ISSUED PRIOR TO THE PROMULGATION OF SAID INSTRUCTIONS, AND WHILE THE REGISTER AND RECEIVER PRESUMABLY ACTED UNDER THE PRESIDENT'S ORDER OF JANUARY 15, AS EXPLAINED IN THE SECRETARY'S INSTRUCTIONS OF JANUARY 21, THEY DID NOT REQUIRE THE AFFIDAVIT SHOWING THE SEVERAL STEPS TAKEN PROVIDED IN SAID INSTRUCTIONS. AS THE NOTICES OF LOCATION AND DECLARATORY STATEMENTS WERE NOT FILED IN THE LOCAL LAND OFFICE WITHIN THE TIME FIXED BY THE ACT OF 1904, AS A CLAIM COULD NOT BE INITIATED IN ALASKA UNDER THE PROVISIONS OF SAID ACT BY APPLICATION TO PURCHASE, AND AS THE PURCHASE MONEY WAS NOT TENDERED ON ANY OF THE APPLICATIONS PRIOR TO THE PRESIDENT'S WITHDRAWAL, NOT ONE OF THESE APPLICATIONS WAS LAWFULLY ALLOWED, WITHOUT REFERENCE TO ANY CHARGES FORMALLY PREFERRED.

TWO OF THE ENTRIES INVOLVED HEREIN, THOSE OF SWEENEY AND BAKER, ARE AS DISCLOSED BY THE RECORD, ILLEGAL FOR REASONS NOT AFFECTING THE OTHERS. EACH OF THE 33 ENTRIES WAS IMPROPERLY ALLOWED BECAUSE OF FATAL DEFECTS APPARENT ON THE FACE OF THE PAPERS; AND THE GOVERNMENT HAS CONCLUSIVELY ESTABLISHED THE SEVERAL CHARGES BROUGHT AGAINST THEM. THEREFORE, COAL ENTRIES NOS. 1 TO 33, INCLUSIVE, YOUR SERIES, ARE HELD FOR CANCELLATION SUBJECT TO THE RIGHTS OF THE SEVERAL ENTRYMEN TO APPEAL TO THE DEPARTMENT AS PROVIDED IN THE RULES OF PRACTICE.

SECTION 2 OF THE ACT OF JUNE 16, 1880, 21 STAT. 287, AUTHORIZES REPAYMENT UNDER THE FOLLOWING CONDITIONS:

IN ALL CASES WHERE HOMESTEAD OR TIMBER-CULTURE OR DESERT-LAND ENTRIES OR OTHER ENTRIES OF PUBLIC LANDS HAVE HERETOFORE OR SHALL HEREAFTER BE CANCELED FOR CONFLICT, OR WHERE, FROM ANY CAUSE, THE ENTRY HAS BEEN ERRONEOUSLY ALLOWED, AND CAN NOT BE CONFIRMED, THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE REPAID TO THE PERSON WHO MADE SUCH ENTRY, OR TO HIS HEIRS OR ASSIGNS, THE FEES AND COMMISSIONS, AMOUNT OF PURCHASE MONEY, AND EXCESSES PAID UPON THE SAME UPON THE SURRENDER OF THE DUPLICATE RECEIPT AND THE EXECUTION OF A PROPER RELINQUISHMENT OF ALL CLAIMS TO SAID LAND, WHENEVER SUCH ENTRY SHALL HAVE BEEN DULY CANCELED BY THE COMMISSIONER OF THE GENERAL LAND OFFICE, * * *.

THE ABOVE CITED ACT OF 1880 WAS NOT REPEALED OR SUPERSEDED BY THE ACT OF MARCH 26, 1908, 35 STAT. 48, AS AMENDED BY THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, AND CASES COMING WITHIN THE PURVIEW OF THE 1880 ACT ARE NOT NECESSARILY BARRED, THEREFORE, BY THE LAPSE OF TIME AS IN THE LATER ACTS. SEE 3 COMP. GEN. 896 AND CASES THEREIN CITED. THE LATER ACTS OF 1908 AND 1919, SUPRA, ALSO EXPRESSLY BAR REFUNDS THEREUNDER IN ALL CASES WHERE THE APPLICANT OR HIS LEGAL REPRESENTATIVE HAS BEEN GUILTY OF FRAUD OR ATTEMPTED FRAUD. NO SPECIFIC PROVISION FOUND IN THE 1880 ACT COVERING FRAUD OR ATTEMPTED FRAUD. IN THIS CONNECTION, HOWEVER, IT WAS HELD BY THE UNITED STATES SUPREME COURT IN THE CASE OF THE UNITED STATES V. COLORADO ANTHRACITE COMPANY, 225 U.S. 224, THAT---

* * * THE RIGHT TO REPAYMENT IS RESTRICTED BY THE ACT TO INSTANCES IN WHICH THE ENTRY HAS BEEN ,ERRONEOUSLY ALLOWED," AN EXPRESSION WHICH DENOTES SOME MISTAKE OR ERROR ON THE PART OF THE LAND OFFICERS WHEREBY AN ENTRY IS ALLOWED WHEN IT SHOULD BE DISALLOWED AND NOT SOME FRAUD OR FALSE PRETENSE PRACTICED ON THEM WHEREBY AN APPLICANT APPEARS TO BE ENTITLED TO THE ALLOWANCE OF AN ENTRY WHEN IN TRUTH HE IS NOT. OF THIS EXPRESSION IT IS SAID, CORRECTLY, WE THINK, IN THE REGULATIONS OF THE LAND DEPARTMENT, ADOPTED UNDER SEC. 4 OF THE ACT SOON AFTER ITS ENACTMENT AND EVER SINCE IN FORCE:

"THIS CAN NOT BE GIVEN AN INTERPRETATION OF SUCH LATITUDE AS WOULD COUNTENANCE FRAUD. IF THE RECORDS OF THE LAND OFFICE OR THE PROOFS FURNISHED SHOULD SHOW THAT THE ENTRY OUGHT NOT TO BE PERMITTED, AND YET IT WERE PERMITTED, THEN IT WOULD BE "ERRONEOUSLY ALLOWED.' BUT IF A TRACT OF LAND WERE SUBJECT TO ENTRY AND THE PROOFS SHOWED A COMPLIANCE WITH LAW, AND THE ENTRY SHOULD BE CANCELED BECAUSE THE PROOFS WERE SHOWN TO BE FALSE, IT COULD NOT BE HELD THAT THE ENTRY WAS ,ERRONEOUSLY ALLOWED; " AND IN SUCH CASE REPAYMENT WOULD NOT BE AUTHORIZED.'

SEE ALSO FRACKELTON V. UNITED STATES, 54 CT.CLS. 152.

THE CHARGES AGAINST THE ENTRY OF THIS CLAIMANT AND THE ENTRIES OF THOSE ASSOCIATED WITH HIM INCLUDED A CHARGE OF ILLEGALITY AND FRAUD. IN THE DECISION OF THE COMMISSIONER OF THE GENERAL LAND OFFICE, AS CONCURRED IN BY THE SECRETARY OF THE INTERIOR, IT WAS FOUND THAT THE CHARGES HAD BEEN SUSTAINED. IN VIEW THEREOF, THE CLAIM FOR REFUND MUST BE AND IS DISALLOWED.