B-7631, JANUARY 20, 1940, 19 COMP. GEN. 668

B-7631, JANUARY 20, 1940, 19 COMP. GEN. 668

STATUTES OF LIMITATIONS - GRAZING FEE REFUNDS - APPLICABILITY OF TERM STATUTES MAKING "DISPOSITION OF THE PUBLIC LANDS" TO SUBSEQUENTLY ENACTED GRAZING STATUTES THE 2-YEAR LIMITATION IN THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, AS AMENDED BY THE ACT OF JUNE 27, 1930, 46 STAT. 822, UPON FILING REQUESTS FOR REFUNDS OF "PAYMENTS IN EXCESS OF LAWFUL REQUIREMENTS MADE UNDER * * * ANY STATUTE RELATING TO THE SALE, ENTRY, LEASE, OR OTHER DISPOSITION OF THE PUBLIC LANDS," IS APPLICABLE TO THE REPAYMENT OR REFUND OF FEES WHICH ARE NOT REQUIRED BY LAW, OR OF FEES PAID IN EXCESS OF LAWFUL REQUIREMENTS, FOR GRAZING LICENSES OR PERMITS ISSUED PURSUANT TO THE SUBSEQUENTLY ENACTED TAYLOR GRAZING ACT OF JUNE 28, 1934, 48 STAT. 1269, AS AMENDED BY THE ACT OF JUNE 26, 1936, 49 STAT. 1976, BOTH OF WHICH LATTER ACTS ARE ACTS MAKING "OTHER DISPOSITION OF THE PUBLIC LANDS" WITHIN THE MEANING OF THE 1930 ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JANUARY 20, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1939, AS FOLLOWS:

THE RULES PROMULGATED BY THIS DEPARTMENT FOR THE ADMINISTRATION OF GRAZING DISTRICTS UNDER THE ACT OF JUNE 28, 1934 (48 STAT. 1269), AS AMENDED, COMMONLY KNOWN AS THE TAYLOR GRAZING ACT, ARE INCLUDED IN THE FEDERAL RANGE CODE, REVISED TO AUGUST 31, 1938. IN ACCORDANCE WITH THE AUTHORITY CONFERRED BY SECTION 3 OF THE SAID ACT, PROVISION IS MADE IN SECTION 8 OF THE CODE FOR THE PAYMENT OF CERTAIN PRESCRIBED FEES FOR GRAZING LICENSES ISSUED IN ACCORDANCE WITH OTHER PROVISIONS OF THE CODE. PARAGRAPH (F) OF SAID SECTION 8 PROVIDES FOR REFUNDS OF FEES PAID IN CASES WITHIN THE PURVIEW OF THE RELIEF PROVISIONS CONTAINED IN SAID SECTION 3 OF THE ACT AND FURTHER, THAT "WHEN FEES HAVE BEEN PAID WHICH ARE NOT REQUIRED BY LAW OR IN EXCESS OF LAWFUL REQUIREMENTS, AN APPLICATION FOR REFUND MAY BE MADE UNDER THE PROVISIONS OF THE ACT OF JUNE 27, 1930 (46 STAT. 822)," WHICH AMENDED THE ACT OF DECEMBER 11, 1919 (41 STAT. 366), RELATING TO THE REPAYMENT OF COMMISSIONS, EXCESS PAYMENT, AND PURCHASE MONEYS PAID IN CERTAIN CASES UNDER THE PUBLIC LAND LAWS, SO AS TO MAKE SAME APPLICABLE TO ALL PAYMENTS IN EXCESS OF LAWFUL REQUIREMENTS "UNDER ANY STATUTE RELATING TO THE SALE, ENTRY, LEASE, OR OTHER DISPOSITION OF THE PUBLIC LANDS.'

GRAZING LICENSES HAVE BEEN ISSUED AND FEES HAVE BEEN CHARGED AND COLLECTED DURING THE YEARS 1936, 1937, 1938, AND 1939. A NUMBER OF APPLICATIONS FOR REPAYMENT OF PART OR ALL OF THE FEES PAID HAVE BEEN FILED WITH THE GRAZING SERVICE IN WHICH IT IS REPRESENTED THAT THE FEES PAID OR SOME PART THEREOF WERE NOT REQUIRED BY LAW OR WERE IN EXCESS OF LAWFUL REQUIREMENTS DURING SAID YEARS. IN CONNECTION WITH SEVERAL APPLICATIONS FILED RECENTLY REQUESTING REPAYMENT OF ALL OR PART OR THE GRAZING FEES PAID DURING THE YEAR 1936, THE QUESTION HAS ARISEN AS TO WHETHER SUCH REPAYMENTS ARE NOW BARRED BY LEGAL LIMITATION.

SECTION 1 OF THE ACT OF DECEMBER 11, 1919, SUPRA, REQUIRES THAT THE REQUEST FOR REPAYMENT OF PURCHASE MONEYS AND COMMISSIONS PAID IN CONNECTION WITH REJECTED APPLICATIONS, ENTRIES, OR PROOFS, MUST BE FILED WITHIN TWO YEARS FROM THE DATE OF REJECTION OR WITHIN TWO YEARS FROM THE DATE OF THE PASSAGE OF THE ACT. SECTION 2 OF THE SAME ACT PROVIDES THAT A REQUEST FOR PAYMENT OF EXCESS FEES MUST BE FILED WITHIN TWO YEARS AFTER PATENT HAS ISSUED FOR LAND EMBRACED IN SUCH PAYMENT, OR WITHIN TWO YEARS FROM THE PASSAGE OF THE ACT, AS TO EXCESS PAYMENTS WHICH THERETOFORE HAD BEEN MADE.

NEITHER OF THE LIMITATIONS PRESCRIBED IN SECTIONS 1 AND 2 OF THE ACT OF 1919 ARE IN EXPRESS TERMS APPLICABLE TO APPLICATIONS FOR REPAYMENT OF GRAZING FEES PAID BY LICENSEES IN ACCORDANCE WITH THE PROVISIONS OF THE CODE. LICENSES HAVE BEEN ISSUED FOR PERIODS NOT EXCEEDING ONE YEAR AND ALL THOSE ISSUED DURING 1936, 1937, AND 1938 HAVE EXPIRED.

THE GRAZING SERVICE HAS BEFORE IT FOR CONSIDERATION SEVERAL APPLICATIONS FOR REPAYMENT OF FEES PAID IN CONNECTION WITH LICENSES ISSUED IN 1936 AND 1937. YOUR ADVICE IS RESPECTFULLY REQUESTED AS TO WHETHER REPAYMENT OF FEES WHICH ARE NOT REQUIRED BY LAW OR OF FEES PAID IN EXCESS OF LAWFUL REQUIREMENTS, IS SUBJECT TO THE LIMITATION PRESCRIBED IN THE ACT OF DECEMBER 11, 1919 (41 STAT. 366), OR OTHER APPLICABLE STATUTE.

THE STATUTORY PROVISIONS RELATING TO REFUNDS OR REIMBURSEMENTS FOR EITHER REPAYMENTS IN REJECTED ENTRY CASES, OR ANY EXCESSIVE PAYMENTS UNDER THE PUBLIC LAND LAW, IN THE ACT OF MARCH 26, 1908, 35 STAT. 48, WERE SILENT AS TO ANY LIMITATION OF TIME WITHIN WHICH APPLICATIONS OR REFUNDS COULD BE MADE, SECTION 3 OF THE SAID ACT MERELY PROVIDING:

THAT WHEN THE COMMISSIONER OF THE GENERAL LAND OFFICE SHALL ASCERTAIN THE AMOUNT OF ANY EXCESS MONEYS, PURCHASE MONEYS, OR COMMISSIONS IN ANY CASE WHERE REPAYMENT IS AUTHORIZED BY THIS STATUTE, THE SECRETARY OF THE INTERIOR SHALL AT ONCE CERTIFY SUCH AMOUNTS TO THE SECRETARY OF THE TREASURY, WHO IS HEREBY AUTHORIZED AND DIRECTED TO MAKE REPAYMENT OF ALL AMOUNTS SO CERTIFIED OUT OF ANY MONEYS NOT OTHERWISE APPROPRIATED AND ISSUE HIS WARRANT IN SETTLEMENT THEREOF. HOWEVER, BY THE ACT OF DECEMBER 11, 1919, 41 STAT. 366, IT WAS PROVIDED:

SEC. 1. 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 REPRESENTATIVES SHALL HAVE BEEN GUILTY OF ANY FRAUD OR ATTEMPTED FRAUD IN CONNECTION WITH SUCH APPLICATION: PROVIDED, THAT SUCH PERSON OR HIS LEGAL REPRESENTATIVES SHALL FILE A REQUEST FOR THE REPAYMENT OF SUCH PURCHASE MONEYS AND COMMISSIONS WITHIN TWO YEARS FROM THE REJECTION OF SUCH APPLICATION, ENTRY, OR PROOF, OR WITHIN TWO YEARS FROM THE PASSAGE OF THIS ACT AS TO SUCH APPLICATIONS, PROOFS, OR ENTRIES, AS HAVE BEEN HERETOFORE REJECTED. ( ITALICS SUPPLIED.)

SEC. 2. THAT IN ALL CASES WHERE IT SHALL APPEAR TO THE SATISFACTION OF THE SECRETARY OF THE INTERIOR THAT ANY PERSON HAS HERETOFORE OR SHALL HEREAFTER MAKE ANY PAYMENTS TO THE UNITED STATES UNDER THE PUBLIC LAND LAWS IN EXCESS OF THE AMOUNT HE WAS LAWFULLY REQUIRED TO PAY UNDER SUCH LAWS, SUCH EXCESS SHALL BE REPAID TO SUCH PERSON OR TO HIS LEGAL REPRESENTATIVES: PROVIDED, THAT SUCH PERSON OR HIS LEGAL REPRESENTATIVES SHALL FILE A REQUEST FOR THE REPAYMENT OF SUCH EXCESS WITHIN TWO YEARS AFTER THE PATENT HAS ISSUED FOR THE LAND EMBRACED IN SUCH PAYMENT, OR WITHIN TWO YEARS FROM THE PASSAGE OF THIS ACT AS TO SUCH EXCESS PAYMENTS AS HAVE HERETOFORE BEEN MADE. ( ITALICS SUPPLIED.)

IT IS CLEAR FROM THE FOREGOING THAT SUBSEQUENT TO THE ENACTMENT OF THE ABOVE QUOTED LAW OF 1919 THE CONGRESS INTENDED TO AND DID PRESCRIBE A TIME LIMITATION UPON REQUESTS FOR REFUNDS OF PURCHASE MONEYS IN THE CASE OF REJECTED SELECTIONS OR ENTRIES, AND EXCESS PAYMENTS OTHERWISE UNDER THE PUBLIC LAND LAWS, AND BY THE ACT OF JUNE 27, 1930, 46 STAT. 822, THE PROVISIONS OF SAID ACT OF 1919 WERE MADE APPLICABLE TO REFUNDS OR REPAYMENTS UNDER OTHER LAWS, THE ACT PROVIDING AS FOLLOWS:

THAT THE PROVISIONS OF THE ACT OF CONGRESS APPROVED DECEMBER 11, 1919 (41 STAT. L. 366), ENTITLED "AN ACT TO AMEND AN ACT APPROVED MARCH 26, 1908, ENTITLED " AN ACT TO PROVIDE FOR THE REPAYMENT OF CERTAIN COMMISSIONS, EXCESS PAYMENTS, AND PURCHASE MONEYS PAID UNDER THE PUBLIC LAND LAWS," " IS HEREBY MADE APPLICABLE TO ALL PAYMENTS IN EXCESS OF LAWFUL REQUIREMENTS MADE UNDER THE ACT OF CONGRESS APPROVED FEBRUARY 25, 1920 (41 STAT. L. 437), AND UNDER ANY STATUTE RELATING TO THE SALE, ENTRY, LEASE, OR OTHER DISPOSITION OF THE PUBLIC LANDS. (THE ACT OF FEBRUARY 25, 1920, REFERRED TO, RELATES TO THE DISPOSITION OF NONMETALLIC MINERALS, OIL AND GAS DEPOSITS ON THE PUBLIC DOMAIN.)

BY SECTION 3 OF THE ACT OF JUNE 28, 1934, 48 STAT. 1270, ENTITLED "AN ACT TO STOP INJURY TO THE PUBLIC GRAZING LANDS BY PREVENTING OVERGRAZING AND SOIL DETERIORATION," ETC., AUTHORITY WAS GIVEN TO THE SECRETARY OF THE INTERIOR AS FOLLOWS:

THAT THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED TO ISSUE OR CAUSE TO BE ISSUED PERMITS TO GRAZE LIVESTOCK ON SUCH GRAZING DISTRICTS TO SUCH BONA FIDE SETTLERS, RESIDENTS, AND OTHER STOCK OWNERS AS UNDER HIS RULES AND REGULATIONS ARE ENTITLED TO PARTICIPATE IN THE USE OF THE RANGE, UPON THE PAYMENT ANNUALLY OF REASONABLE FEES IN EACH CASE TO BE FIXED OR DETERMINED FROM TIME TO TIME: * * *

SAID ACT WAS AMENDED BY THE ACT OF JUNE 26, 1936, 49 STAT. 1976, BROADENING THE POWERS AND AUTHORITY OF THE SECRETARY OF THE INTERIOR WITH RESPECT TO GRAZING LANDS. NEITHER OF SAID ACTS ATTEMPTS TO FIX THE FEES FOR GRAZING PERMITS AND NO PROVISION IS MADE IN THE STATUTES FOR THE REFUND OF ANY EXCESS FEES. IT APPEARS, HOWEVER, THAT PURSUANT TO THE PROVISIONS OF SECTION 3, SUPRA, RULES AND REGULATIONS HAVE BEEN PROMULGATED BY THE SECRETARY OF THE INTERIOR IN THE FEDERAL RANGE CODE, A COPY OF WHICH WAS TRANSMITTED WITH YOUR SUBMISSION. SECTION 8 OF SUCH CODE RELATES TO FEES, TIME OF PAYMENT, AND REFUNDS, AND PARAGRAPH (F) THEREOF, ENTITLED " REFUNDS," PROVIDES IN PERTINENT PART:

* * * WHEN FEES HAVE BEEN PAID WHICH ARE NOT REQUIRED BY LAW, OR IN EXCESS OF LAWFUL REQUIREMENTS, AN APPLICATION FOR REFUND MAY BE MADE UNDER THE PROVISIONS OF THE ACT OF JUNE 27, 1930, 46 STAT. 822.

THESE REGULATIONS, WHICH HAVE THE FORCE AND EFFECT OF LAW, WOULD APPEAR TO BE SUFFICIENT TO DISPOSE OF THE QUESTION SUBMITTED FOR THE REASON THAT THEY MAKE THE PROVISIONS OF THE ACT OF JUNE 27, 1930--- WHICH NECESSARILY INCLUDE THE TIME LIMITATION WITHIN WHICH A REQUEST FOR REFUND MUST BE FILED--- APPLICABLE TO ANY REFUND OF EXCESS GRAZING FEES. AS TO THE EFFECT OF REGULATIONS SUCH AS HERE INVOLVED, SEE 21 COMP. DEC. 483. FURTHERMORE, IT MAY BE SAID THAT, IN VIEW OF THE PROVISIONS OF THE ACT OF JUNE 27, 1930, THE QUOTED PROVISION OF SECTION 8 (F) OF THE REGULATIONS IS NOT ONLY PROPER BUT REQUIRED. THE LAST CLAUSE OF SAID ACT OF 1930 MAKES THE PROVISIONS OF THE PRIOR ACT OF 1919 APPLICABLE TO ALL PAYMENTS MADE IN EXCESS OF LAWFUL REQUIREMENTS "UNDER ANY STATUTE RELATING TO THE SALE, ENTRY, LEASE, OR OTHER DISPOSITION OF PUBLIC LANDS.' WHILE THE GRAZING LAWS HERE UNDER CONSIDERATION WERE NOT ENACTED UNTIL AFTER THE ABOVE REFERRED-TO STATUTES BECAME LAW, THEY APPEAR TO BE STATUTES MAKING "OTHER DISPOSITION OF THE PUBLIC LANDS" WITHIN THE MEANING OF SAID ACT OF 1930.

ACCORDINGLY, YOU ARE ADVISED THAT THE 2-YEAR LIMITATION IN THE ACT OF 1919 IS APPLICABLE TO THE REPAYMENT OR REFUND OF FEES WHICH ARE NOT REQUIRED BY LAW OR OF FEES PAID IN EXCESS OF LAWFUL REQUIREMENTS FOR THE GRAZING LICENSES OR PERMITS ISSUED BY THE GRAZING SERVICE OF THE DEPARTMENT OF THE INTERIOR.