A-87293, AUGUST 30, 1937, 17 COMP. GEN. 196

A-87293: Aug 30, 1937

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ARE "MONEYS RECEIVED" WITHIN THE SCOPE OF SECTION 2238. 1937: I HAVE YOUR LETTER OF JUNE 25. AS FOLLOWS: I HAVE RESPECTFULLY TO REQUEST YOUR DECISION AS TO WHETHER REGISTERS OF UNITED STATES DISTRICT LAND OFFICES MAY LAWFULLY CLAIM TWO PERCENTUM OF MONEYS COLLECTED BY THEM AS FEES ON GRAZING LICENSES AUTHORIZED BY SECTION 3 OF THE GRAZING ACT OF JUNE 28. TO AVOID ANY CONFUSION IT SHOULD PERHAPS BE EXPLAINED THAT THE PAYMENTS REFERRED TO AS FEES ARE AMOUNTS PAID AT CERTAIN RATES PER HEAD PER MONTH FOR GRAZING STOCK IN ORGANIZED GRAZING DISTRICTS. THUS PUTTING UPON SOME REGISTERS A RATHER HEAVY BURDEN AND BRINGING ABOUT THAT GRAZING MONEYS ARE "MONEYS RECEIVED AT EACH REGISTER'S OFFICE.'.

A-87293, AUGUST 30, 1937, 17 COMP. GEN. 196

GENERAL LAND OFFICE - REGISTERS - COMMISSIONS ON MONEYS RECEIVED UNDER GRAZING ACT FEES AND RENTALS COLLECTED BY REGISTERS OF DISTRICT LAND OFFICES AT DIRECTION OF THE SECRETARY OF THE INTERIOR, ON LICENSES AND LEASES AUTHORIZED BY THE GRAZING ACT OF JUNE 28, 1934, 48 STAT. 1269, ARE "MONEYS RECEIVED" WITHIN THE SCOPE OF SECTION 2238, REVISED STATUTES, 43 U.S.C. 82, FOR USE IN COMPUTING THE COMMISSIONS DUE REGISTERS UNDER THE SAID SECTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 30, 1937:

I HAVE YOUR LETTER OF JUNE 25, 1937, AS FOLLOWS:

I HAVE RESPECTFULLY TO REQUEST YOUR DECISION AS TO WHETHER REGISTERS OF UNITED STATES DISTRICT LAND OFFICES MAY LAWFULLY CLAIM TWO PERCENTUM OF MONEYS COLLECTED BY THEM AS FEES ON GRAZING LICENSES AUTHORIZED BY SECTION 3 OF THE GRAZING ACT OF JUNE 28, 1934 (48 STAT. 1269) AND RENTALS ON LEASES ISSUED UNDER SECTION 15 OF THE SAME ACT.

TO AVOID ANY CONFUSION IT SHOULD PERHAPS BE EXPLAINED THAT THE PAYMENTS REFERRED TO AS FEES ARE AMOUNTS PAID AT CERTAIN RATES PER HEAD PER MONTH FOR GRAZING STOCK IN ORGANIZED GRAZING DISTRICTS, AS DISTINGUISHED FROM FEES CHARGED FOR ACTING ON APPLICATIONS, PERMITS, LICENSES, OR LEASES.

UNDER AUTHORITY OF SECTION 2 OF THE SAID GRAZING ACT TO "DO ALL THINGS NECESSARY TO ACCOMPLISH THE PURPOSE OF THIS ACT" THE SECRETARY OF THE INTERIOR HAS DIRECTED THE REGISTERS OF THE SEVERAL DISTRICT LAND OFFICES TO HANDLE, ASSIGN SERIAL NUMBERS TO, AND TO COLLECT FEES AND RENTALS ON, ALL PERMITS, LICENSES, AND LEASES UNDER THIS ACT, THUS PUTTING UPON SOME REGISTERS A RATHER HEAVY BURDEN AND BRINGING ABOUT THAT GRAZING MONEYS ARE "MONEYS RECEIVED AT EACH REGISTER'S OFFICE.'

U.S. CODE, TITLE 43, SECTION 82, PARAGRAPH 2, PROVIDES THAT REGISTERS AND RECEIVERS SHALL EACH RECEIVE "A COMMISSION OF 1 PERCENTUM OF ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE," AND THE ACT OF OCTOBER 28, 1921 (42 STAT. 208) UNDER WHICH THE OFFICES OF REGISTER AND RECEIVER WERE CONSOLIDATED PROVIDES THAT THE REGISTER SHALL THEREUPON RECEIVE A CERTAIN SALARY "TOGETHER WITH FEES AND COMMISSIONS OTHERWISE ALLOWABLE TO REGISTER AND RECEIVER.'

THE ACT OF AUGUST 22, 1935 (49 STAT. 680) INCREASED THE SALARY ALLOWED SO THAT AT PRESENT REGISTERS RECEIVE A SALARY OF $2,000 PER ANNUM AND CERTAIN FEES AND COMMISSIONS (INCLUDING "A COMMISSION OF 2 PERCENTUM ON ALL MONEYS RECEIVED AT EACH REGISTER'S OFFICE"), WITH THE MAXIMUM COMPENSATION LIMITED TO $3,600 PER ANNUM.

THE EXPRESSION "ALL MONEYS RECEIVED AT EACH REGISTER'S OFFICE," BROAD AS IT IS, SURELY SHOULD NOT BE CONSTRUED AS INCLUDING FEES AND COMMISSIONS COLLECTED BY REGISTERS FOR RECEIVING AND ACTING ON APPLICATIONS, ENTRIES, ETC., AND USUALLY ENTERING INTO THEIR COMPENSATION, AND SO RESULT IN PAYMENT OF COMMISSIONS ON COMMISSIONS AND FEES, AND SUCH A CONCLUSION WAS REACHED IN A DECISION DATED FEBRUARY 24, 1909 (15 COMP. DEC., 519).

A FEELING HAD BEEN PREVALENT THAT, AS THE ONLY "MONEYS RECEIVED IN EACH RECEIVER'S OFFICE" IN 1818 (WHEN A COMMISSION ON SUCH RECEIPTS WAS AUTHORIZED) WERE MONEYS RECEIVED FROM CASH SALES OF PUBLIC LANDS THE PRESCRIBED COMMISSION MIGHT BE LIMITED TO SUCH SALES. A QUESTION AS TO WHETHER IT SHOULD HAVE A BROADER APPLICATION CAME UP IN 1911 AND THE COMPTROLLER OF THE TREASURY WAS ASKED FOR A DECISION AS TO WHETHER THE STATUTE AUTHORIZED THE PAYMENT OF TWO PERCENTUM OF MONEYS RECEIVED FROM THE SALE OF STANDING TIMBER IN ALASKA.

THE SALE OF TIMBER SEPARATELY FROM THE LAND HAS SELDOM BEEN AUTHORIZED, THE NOTABLE AUTHORIZED CASES BEING THE SALE OF FIRE KILLED TIMBER ON PUBLIC LANDS, STANDING TIMBER IN ALASKA, AND TIMBER FROM THE OREGON AND CALIFORNIA RAILROAD AND THE COOS BAY WAGON ROAD REVESTED LANDS IN THE STATE OF OREGON.

THE ACT UNDER WHICH THE OREGON AND CALIFORNIA RAILROAD LANDS WERE REVESTED LIMITED THE COMPENSATION FOR THE DISPOSAL OF THE TIMBER TO ONE FIFTH OF ONE PERCENT "TO BE DIVIDED EQUALLY BETWEEN THE REGISTER AND RECEIVER" AND, AS SECTION 3 OF THE COOS BAY WAGON ROAD ACT OF FEBRUARY 26, 1919 (40 STAT. 1179), DIRECTED THAT THOSE LANDS "SHALL BE CLASSIFIED AND DISPOSED OF IN THE MANNER PROVIDED" IN THE FORMER ACT, AND AS SECTION 6 OF THE COOS BAY ACT CLOTHED THE SECRETARY WITH AUTHORITY "TO PERFORM ANY AND ALL ACTS AND MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY," THE SECRETARY APPLIED THE LIMITATION OF ONE-FIFTH OF ONE PERCENT TO THE COMMISSIONS FOR SELLING COOS BAY WAGON ROAD TIMBER.

NO SPECIFIC STATUTORY PROVISION AS TO COMMISSIONS HAVING BEEN MADE IN THE STATUTE AUTHORIZING THE SALE OF STANDING TIMBER IN ALASKA, THE SECRETARY OF THE INTERIOR UNDER DATE OF JANUARY 12, 1911, PRESENTED THE MATTER TO THE COMPTROLLER OF THE TREASURY AND ASKED FOR A DECISION AS TO WHETHER THE PROCEEDS OF SUCH STANDING TIMBER WERE PROPERLY TO BE INCLUDED IN "ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE" ON WHICH 2 PERCENT WAS AUTHORIZED TO BE PAID TO THE OFFICERS.

THE COMPTROLLER OF THE TREASURY IN A DECISION DATED JANUARY 31, 1911 (17 COMP. DEC., 563) HELD, QUOTING FROM THE SYLLABUS, THAT THE OFFICERS WERE EACH "ENTITLED TO RECEIVE AS A PART OF THEIR MAXIMUM COMPENSATION 1 PERCENT OF ALL MONEYS RECEIVED AT THE RECEIVER'S OFFICE FROM CASH SALES OF GROWING TIMBER.'

THERE IS SOMEWHAT THE SAME LACK OF LEGISLATIVE EXPRESSION CONCERNING COMMISSIONS ON ROYALTIES, RENTALS AND THE LIKE AS THERE HAD BEEN AS TO COMMISSIONS FOR THE SALE OF TIMBER. SECTION 38 OF THE MINERAL LEASING ACT OF FEBRUARY 25, 1920 (41 STAT. 451) CLOTHED THE SECRETARY WITH TEMPORARY AUTHORITY "TO PRESCRIBE FEES AND COMMISSIONS TO BE PAID REGISTERS AND RECEIVERS OF UNITED STATES LAND OFFICES ON ACCOUNT OF BUSINESS TRANSACTED UNDER THE PROVISION OF THIS ACT.'

IT MAY BE PRESUMED THAT IN THE ABSENCE OF SUCH LEGISLATIVE PRONOUNCEMENT REGISTERS AND RECEIVERS WOULD HAVE CLAIMED 1 PERCENT EACH "OF ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE" FROM BONUSES, RENTALS, AND ROYALTIES UNDER THE ACT. BUT THE UNCERTAINTY OF THE AMOUNTS LIKELY TO BE RECEIVED AND THE LARGE AMOUNTS ANTICIPATED (RECEIPTS HAVE PASSED THE HUNDRED MILLION DOLLAR MARK) PROMPTED THE CONGRESS TO LEAVE THE MATTER OPEN FOR STUDY AND THE SECRETARY, REALIZING RECEIPTS UNDER THE ACT WERE SURE TO BE LARGE, PRESCRIBED--- "A COMMISSION OF 1 PERCENTUM ON ALL MONEYS RECEIVED IN EACH RECEIVER'S OFFICE, TO BE DIVIDED EQUALLY BETWEEN THE REGISTER AND EIVER.'

I SAY THAT THE SECRETARY WAS CLOTHED WITH TEMPORARY AUTHORITY FOR THE REASON THAT THE STATUTE SAYS "UNTIL OTHERWISE PROVIDED," THUS SEEMING TO RESERVE FOR STUDY AND MORE DELIBERATE ACTION THE MATTER OF APPROPRIATE FEES AND COMMISSIONS TO BE ALLOWED.

THERE ARE OTHER LEASING ACTS, INCLUDING THE SO CALLED TAYLOR GRAZING ACT OF JUNE 28, 1934, FIRST ABOVE MENTIONED, THAT NEITHER PRESCRIBE FEES AND COMMISSIONS FOR THE OFFICERS NOR CLOTHE THE HEAD OF THE DEPARTMENT WITH SPECIFIC AUTHORITY TO NAME SUCH COMMISSIONS, UNLESS SUCH AUTHORITY MAY BE FOUND IN SECTION 2 OF THE ACT, WHICH AUTHORIZES THE SECRETARY TO "DO ANY AND ALL THINGS NECESSARY TO ACCOMPLISH THE PURPOSES OF THIS ACT.'

I HAVE THEREFORE RESPECTFULLY TO REQUEST YOUR DECISION AS TO WHETHER UNDER AUTHORITY OF TITLE 43, SECTION 82, OF THE U.S. CODE, THE SECRETARY MAY INSTRUCT THE REGISTERS TO INCLUDE IN THE COMPUTATION OF THEIR EARNINGS 2 PERCENT OF MONEYS RECEIVED FROM GRAZING PERMITS AND LEASES UNDER THE SAID GRAZING ACT, OR, IF NOT BY THAT AUTHORITY, THEN UNDER THE ABOVE QUOTED AUTHORITY FROM THE GRAZING ACT "TO DO ALL THINGS NECESSARY.'

THE COMPENSATION OF REGISTERS OF DISTRICT LAND OFFICES IS FIXED BY THE ACT OF MAY 21, 1928, 45 STAT. 684, AS AMENDED BY THE ACT OF AUGUST 22, 1935, 49 STAT. 680, WHICH PROVIDES THAT SUCH REGISTERS SHALL RECEIVE A SALARY OF $2,000 PER ANNUM EACH, AND ALL FEES AND COMMISSIONS ALLOWED BY LAW TO SUCH REGISTERS, PROVIDED THAT THE SALARY, FEES AND COMMISSIONS COMBINED SHALL NOT EXCEED $3,600 PER ANNUM.

SECTION 82, TITLE 43, U.S.C. PROVIDES THAT REGISTERS AND RECEIVERS SHALL EACH RECEIVE "A COMMISSION OF 1 PERCENTUM OF ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE.'

BY ACT OF OCTOBER 28, 1921, 42 STAT. 208, THE PRESIDENT WAS AUTHORIZED TO CONSOLIDATE THE OFFICES OF REGISTER AND RECEIVER AND ABOLISH THE OFFICE OF RECEIVER IN CERTAIN CASES. IN SUCH CASES, THE COMPENSATION OF THE REGISTER WAS TO INCLUDE THE FEES AND COMMISSIONS OTHERWISE ALLOWABLE TO BOTH. THAT COVERED 2 PERCENT OF ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE.

IT HAS BEEN HELD THAT "ALL MONEYS RECEIVED AT EACH RECEIVER'S OFFICE" COVERS CASH SALES AS DISTINGUISHED FROM "HOMESTEAD" FEES AND COMMISSIONS. 15 COMP. DEC. 519, 17 ID. 563. THESE DECISIONS, HOWEVER, WERE PREDICATED UPON A NECESSITY OF DISTINGUISHING BETWEEN THOSE FORMS OF ENTRY IN WHICH SPECIFIC FEES AND COMMISSIONS WERE PAYABLE DIRECTLY TO THE REGISTERS AND RECEIVERS AND RETAINED BY THEM AS COMPENSATION WITH NOTHING BEING PAID FOR THE LAND, AND THOSE CASES IN WHICH ONLY THE LAND OR SOME INTEREST THEREIN WAS PAID FOR IN CASH. THE ACT OF APRIL 20, 1818, 3 STAT. 466, WHICH WAS THE ORIGINAL PROVISION FOR THE PAYMENT OF THE 2-PERCENT COMMISSION ON ALL MONEYS RECEIVED WAS ENACTED AT A TIME WHEN THE ONLY FORM OF DISPOSITION OF THE PUBLIC LANDS WAS FOR CASH, NEVERTHELESS, THAT STATUTE DID NOT REFER TO CASH SALES OR ANY OTHER FORM OF ENTRY OF PUBLIC LANDS BUT SPECIFICALLY PROVIDED FOR A COMMISSION OF 2 PERCENT ON THE MONEYS RECEIVED AND SPECIFIED THAT THAT COMMISSION WAS AS COMPENSATION FOR CLERK HIRE, RECEIVING, SAFEKEEPING, AND TRANSMITTING SUCH MONEYS TO THE TREASURER OF THE UNITED STATES. WHEN OTHER STATUTES PROVIDE OTHER FORMS OF COMPENSATION FOR THE DUTIES REQUIRED OF THE LOCAL LAND OFFICERS, THE COMMISSION UPON MONEYS RECEIVED IN PAYMENT FOR THE LAND ITSELF IS NOT PAYABLE. 5 COMP. GEN. 942; 6 ID. 695.

WHILE THE GRAZING ACT REQUIRES THE PAYMENT OF CERTAIN FEES AND RENTALS, IT DOES NOT MAKE SUCH FEES OR RENTALS PAYABLE TO THE REGISTER AS A PART OF HIS COMPENSATION, AND ACCORDINGLY THEY ARE NOT EXCLUDED FROM, BUT CONSTITUTE A PART OF,"MONEYS RECEIVED" WHICH PROPERLY MAY BE USED AS A BASIS FOR COMPUTING THE COMMISSION OTHERWISE DUE REGISTERS PURSUANT TO SECTION 2238, REVISED STATUTES, 43 U.S.C. 82.