MAY 26, 1924, 3 COMP. GEN. 896

MAY 26, 1924, 3 COMP. GEN. 896

REFUNDS OF MONEY PAID AS FEES AND COMMISSIONS ON PUBLIC-LAND ENTRIES UNDER THE ACT OF JUNE 16, 1880, 21 STAT. 287, AN ENTRYMAN IS ENTITLED TO REFUND OF FEES AND COMMISSIONS PAID BY HIM UPON AN ENTRY OF PUBLIC LAND WHERE THE ENTRY HAD BEEN ERRONEOUSLY ALLOWED AND WAS SUBSEQUENTLY CANCELED WITHOUT REGARD TO THE TIME ELAPSING BETWEEN THE CANCELLATION OF THE ENTRY AND THE FILING OF THE APPLICATION FOR REFUND.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 26, 1924:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF A. F. SEEFELD FOR THE AMOUNT OF $34 PAID BY HIM ON JUNE 2, 1914, FOR FEES AND COMMISSIONS ON HOMESTEAD ENTRY, DENVER, COLO., 019972.

IT APPEARS THAT THE ENTRY UNDER CONSIDERATION WAS MADE JUNE 2, 1914, FOR LAND WHICH WAS INCLUDED IN COAL LAND WITHDRAWAL COLORADO 9, BY EXECUTIVE ORDER OF DECEMBER 16, 1911.

NOTWITHSTANDING THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 22, 1910, 36 STAT. 583, THAT

* * * ANY PERSON DESIRING TO MAKE ENTRY UNDER THE HOMESTEAD LAWS OR THE DESERT-LAND LAW, ANY STATE DESIRING TO MAKE SELECTION UNDER SECTION FOUR OF THE ACT OF AUGUST EIGHTEENTH, EIGHTEEN HUNDRED AND NINETY-FOUR, KNOWN AS THE CAREY ACT, AND THE SECRETARY OF THE INTERIOR IN WITHDRAWING UNDER THE RECLAMATION ACT LANDS CLASSIFIED AS COAL LANDS, OR VALUABLE FOR COAL, WITH A VIEW OF SECURING OR PASSING TITLE TO THE SAME IN ACCORDANCE WITH THE PROVISIONS OF SAID ACTS, SHALL STATE IN THE APPLICATION FOR ENTRY, SELECTION, OR NOTICE OF WITHDRAWAL THAT THE SAME IS MADE IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS AND RESERVATIONS OF THIS ACT.

AND ALTHOUGH THE LAND WAS CLASSIFIED AS COAL LAND WHEN THE APPLICATION TO MAKE ENTRY WAS FILED, SUCH APPLICATION MADE NO STATEMENT THAT IT WAS MADE IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS AND REGULATIONS OF THE ACT OF JUNE 22, 1910. THE ENTRY WAS THEREFORE ERRONEOUSLY ALLOWED AND COULD NOT BE CONFIRMED WITHOUT THE CLAIMANT'S CONSENT TO THE RESERVATION OF THE COAL IN THE LAND. HE HAVING REFUSED TO CONSENT TO SUCH RESERVATION, THE ENTRY WAS CANCELED BY LETTER ,C" DATED MARCH 25, 1915.

THE APPLICATION FOR REFUND OF THE AMOUNT PAID AS FEES AND COMMISSIONS WAS SIGNED AUGUST 2, 1923, AND APPEARS TO HAVE BEEN APPROVED BY THE INTERIOR DEPARTMENT FOR PAYMENT UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1880, 21 STAT. 287, WHICH IS AS FOLLOWS:

SEC. 2. 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, * * *.

PROVISION WAS ALSO MADE BY CONGRESS FOR "THE REPAYMENT OF CERTAIN COMMISSIONS, EXCESS PAYMENTS, AND PURCHASE MONEYS PAID UNDER THE PUBLIC LAND LAWS" BY THE ACT APPROVED MARCH 26, 1908, 35 STAT. 48, AS AMENDED BY THE ACT APPROVED DECEMBER 11, 1919, 41 STAT. 366, AS FOLLOWS:

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.

INASMUCH AS THE APPLICATION FOR REFUND HERE UNDER CONSIDERATION WAS NOT FILED WITHIN TWO YEARS FROM THE CANCELLATION OF THE ENTRY OR FROM THE PASSAGE OF THE ACT OF DECEMBER 11, 1919, THE QUESTION HAS ARISEN AS TO WHETHER SUCH CLAIM IS BARRED BY THE LIMITATION OF TIME STIPULATED THEREIN.

THE ACT OF JUNE 16, 1880, WAS NOT REPEALED OR SUPERSEDED BY THE ACTS OF MARCH 26, 1908, AND OF DECEMBER 11, 1919, AND HAS BEEN CONSTRUED BY THE COURTS TO BE IN FULL FORCE AND EFFECT AFTER THE ENACTMENT OF THE LATTER STATUTES. SEE BILLINGS V. UNITED STATES, 50 CT.CLS. 328; FRACKLETON V. UNITED STATES, 54 ID. 153; UNITED STATES V. POLAND, 251 U.S. 221.

THE ACT OF JUNE 16, 1880, IS APPLICABLE TO CASES WHERE THE ENTRIES HAVE BEEN CANCELED OR WHERE FROM ANY CAUSE SUCH ENTRIES HAVE BEEN ERRONEOUSLY ALLOWED WHILE THE ACT OF MARCH 26, 1908, AS AMENDED BY THE ACT OF DECEMBER 11, 1919, COVERS CASES WHERE THE APPLICATIONS FOR ENTRY HAVE BEEN REJECTED.

IN DISCUSSING THE ACT OF MARCH 26, 1908, THE COURT OF CLAIMS IN THE CASE OF BILLINGS V. UNITED STATES, SUPRA, SAID,

THE LAND OFFICE, IN ITS ADMINISTRATION OF LAND AFFAIRS, HAS CONTINUALLY MAINTAINED A TECHNICAL DISTINCTION BETWEEN A "REJECTION" OF A CLAIM AND THE "CANCELLATION" OF ONE. IN THE FORMER INSTANCE THE OFFICERS TREAT A CLAIM AS REJECTED WHERE A DISPUTED RECORD IS BEFORE THEM AND ISSUE RAISED AS TO THE ENTRYMAN'S RIGHTS. THE CANCELLATION OF A CLAIM IN THE SENSE IN WHICH THE OFFICERS CHARACTERIZE THIS PROCEEDING IS THE EX PARTE ACT OF THE OFFICIALS UPON DISCOVERING A FAILURE TO COMPLY WITH THE LAW WITHIN THE TIME STATED. A CANCELLATION OF AN ENTRY, IT IS TRUE, FOLLOWS THE REJECTION OF THE SAME, BUT THE DUAL CHARACTER OF THE ONE PROCEEDING DOES NOT OF ITSELF DESTROY THE TECHNICAL DISTINCTION ATTRIBUTED TO IT WHEN APPLIED TO A CONTROVERSY OVER A LAND ENTRY.

IN THE INSTANT CASE IT APPEARS FROM THE RECORD THAT THERE WAS NO AUTHORITY FOR THE ALLOWANCE OF ENTRY WITHOUT THE EXECUTION OF A WAIVER TO THE COAL IN THE LAND AND THEREFORE SUCH ENTRY WAS ERRONEOUSLY GRANTED. THE STATUTE APPLICABLE TO THE REFUND OF THE AMOUNT PAID AS FEES AND COMMISSIONS IN SUCH A CASE IS THAT OF JUNE 16, 1880, SUPRA, AND AS NO TIME LIMIT IS FIXED THEREIN DURING WHICH CLAIMS FOR REFUND THEREUNDER MUST BE FILED THE CLAIM IN QUESTION IS PROPERLY FOR CONSIDERATION AT THIS TIME.

PAYMENT OF THE SUM FOUND DUE BY THE INTERIOR DEPARTMENT, $34, IS AUTHORIZED.