You also inclose certain letters upon the same subject from the files of your Department (dated September 12, 1879, September 3, 1880, and October 14, 1880), in the course of which the Solicitor of the Treasury intimates doubt whether section 4751 has not been in effect repealed by the act of April 30, 1878 (chap. 76, sec. 2), such doubt being, as he says, somewhat affected by the circumstance that this section was subsequently (act of June 3, 1878, chap. 151, sec. 5) expressly repealed as to certain States only.

Upon the whole matter you ask how far your powers under section 4751 have been modified by subsequent legislation, the practical question being that as to distribution, presented above, in eastern Michigan.

As my attention has not been called to any subsequent legislation other than the acts of 1878 cited in your letter, I will confine what I have to say to their operation only.

Section 4751 makes a three-fold provision as to its subject-matter, i. e., depredations upon timber standing upon the public lands: (1) Suits therefor shall be under the direction of the Secretary of the Navy; (2) one-half of any penalties, etc., recovered shall be paid to informers and the other half to the Secretary of the Navy, and (3) the Secretary is authorized to mitigate penalties, etc., so incurred.

Thereupon the act of April, 1878, provided "that all moneys heretofore and that shall hereafter be collected for depredations upon the public lands shall be covered into the Treasury of the United States as other moneys received from the sale of public lands" (Supp. Rev. Stat., 316), and the act of June 3, 1878 (Supp. Rev. Stat., 328)—the main purport of which was to provide for the sale of the public timber lands in the Pacific States and Washington Territory-after repeating the provision just quoted for all sales so to be made, goes on immediately thereafter to expressly repeal section 4751 so far as concerns such States and Territories.

Referring to the three-fold operation of section 4751 above mentioned, it is plain that it is not repealed by the act of April, 1878. For instance, this latter enactment does not touch the powers of the Secretary as regards the superintendence of suits or the mitigation of penalties. The opinion of the Attorney-General of February 17, 1882, referred to by you, goes upon this view, although it is one only incidental to the point which he there discusses.

I am now asked in effect how far this act modifies the provision designated above as "(2)."

In my judgment it applies only to that part of the penalty which is payable to the Secretary.

Since the year 1831, when the provisions of section 4751 were first enacted, it has become the general policy of the United States to require that all moneys collected in behalf of the United States shall be paid into the Treasury (Rev. Stat., sec. 3617). Some exceptions thereto, not depending upon any special reason, which here and there had escaped

attention, are gradually disappearing. I regard the provision of the above act of 1878 merely as putting an end to one of these exceptions. This is the more evident from the circumstance that it operates expressly upon all collections theretofore as well as upon those thereafter. As the legislature could not have meant to disturb the informer's rights in the former cases-at all events in many of them-it appears that they were not advertent, or therefore referring, to such rights in any case.

So that what is meant is, that so much of such money as is collected for the United States shall be paid into the Treasury, and not, as theretofore, to the Secretary. The emphasis is upon the disposal, not the proportion of certain moneyed interests of the United States.

That this is the true interpretation appears also from a corresponding passage in the act of June, 1878, where, although section 4751 is expressly repealed, yet express provision (ex abundanti) is added as to the payment into the Treasury of the proceeds of the sales therein ordered; as if it had not been enough to repeal the provision which gave what had been, to a certain extent, the equivalents of such proceeds to the Secretary, but were necessary also to direct expressly that the proceeds themselves shall follow the general direction of public moneys.

The two acts of 1878, therefore, have their distinct operations, that of April applying to the whole country, and merely directing that whatever moneys vest in the United States under section 4751 shall thereafter be paid into the Treasury, that of June applying to certain localities only, and for them entirely annulling section 4751, adding also a proviso that any moneys which might arise from the methods therein devised as substitutes for those referred to in section 4751 should (in like manner) be paid into the Treasury.

Very respectfully,

S. F. PHILLIPS, Acting Attorney-General.

The SECRETARY OF THE NAVY.

MOIETY CLAUSE OF SECTION 4751, U. S. R. S., REPEALED AS REGARDS ALL PUBLIC-LAND STATES.

DEPARTMENT OF JUSTICE,

Washington, D. C., May 9, 1895.

SIR: Replying, as promised by my letter to you of the 15th ultimo, to your inquiries concerning the proper construction of section 2461, R. S. U. S., relating to timber trespass on public lands, and section 4751, R. S., relative to the moiety allowed to informers, as affected by the act of June 3, 1878 (20 Stat., 89; 1 Supp. R. S., p. 169), relating to public lands in California, Oregon, Nevada, and Washington Territory, providing for settlement of prosecutions and repealing said section 4751, and as affected by the act of August 4, 1892 (27 Stat., 348),

making general as to all public-land States the said act of 1878, I will say that I perceive no reason for doubting that prosecutions in Wisconsin under said section 2461 are covered by the provision of the act of 1878 (as amended by said act of 1892) in regard to settlement of prosecutions for the sum of $2.50 per acre. As relates to informers, I am of the opinion that said section 4751 is repealed as to all the "public-land States," which, of course, includes Wisconsin. If you, or any informer, desire decisive settlement of these points, you may institute a test case in order to bring them before the court.

The Land Department has authority to make seizure, through its officers or agents, of timber unlawfully cut on the public lands. Timber unlawfully cut on the public lands, which has been seized by duly authorized agents of the Land Department and is in their custody, may be disposed of by that Department; and whether this be done by public or private sale, with or without previous advertisement, is a matter entirely discretionary therewith.

DEPARTMENT OF JUSTICE,

August 23, 1886.

SIR: By your letter to the Attorney-General of the 14th ultimo attention is called to a communication received by you from the Commissioner of the General Land Office, a copy of which was transmitted therewith, touching the disposition of a large quantity of timber alleged to have been unlawfully cut on the public lands in Montana Territory and which has recently been seized as the property of the United States under instructions from that office, and the question presented for consideration is, Whether the Commissioner may "direct the sale of the property so seized; and, if so, whether it may be disposed of at private sale, and in such way as may be both to the advantage of the Government and to the benefit of the community, without advertising the same?" Having carefully examined this subject, I now beg to submit the following in reply:

The question proposed seems to involve a preliminary inquiry, namely, as to the authority of the officers of the Land Department to make seizure of timber unlawfully cut on the public lands. Upon this point I entertain no doubt.

Congress has provided a remedy for the protection of the timber on

the public lands by imposing certain penalties and forfeitures (see sec. 2461 and 2462, Rev. Stat.; also, sec. 3 of the act of June 3, 1878, chap. 150, and sec. 4 of the act of June 3, 1878, chap. 151), which can only be enforced by indictment or information; and by section 2 of the act of April 30, 1878, chapter 76, it is further provided "that if any timber cut on the public lands shall be exported from the Territories of the United States it shall be liable to seizure by United States authority wherever found."

But these statutory remedies are not the only ones available to the Government. In Cotton v. United States (11 How., 229) it was held that the United States have a right to bring an action of trespass quare clausum fregit against a person for cutting and carrying away trees from the public lands. Agreeably to the doctrine of that case the United States may resort to the same civil remedies for the protection of their property which are open to any other proprietor. Thus they may seize the timber cut, arrest it by replevin, or recover damages in trespass for the taking and conversion (United States v. Cook, 19 Wall., 594). These are the ordinary remedies given by the common law for the recovery of personal property or its value. Seizure or recaption (which is one of them) is a remedy by the mere act of the party injured, and may be resorted to for the recovery of such property where its exertion will not endanger the public peace. (3 Black. Com., 4.)

Authority to exert this remedy in behalf of the United States must be deemed to belong to the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior, as a power included in the general duties respecting the public lands which are devolved upon him (sec. 453, Rev. Stat.). Such authority, indeed, has long been asserted and frequently exercised by the Land Department through its officers or agents, the latter acting under instructions issued by the Commissioner, with the sanction of the Secretary. Referring to this, the Supreme Court, in Wells v. Nickles (104 U. S., 447), observes:

The Department of the Interior, under the idea of protecting from depredation timber on the lands of the Government has gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced. In aid of this the registers and receivers of the Land Office have, by instructions from the Secretary of the Interior, been constituted agents of the United States for these purposes, with power to appoint special agents under themselves. If any authority to do this was necessary, it may be fairly inferred from appropriations made to pay the services of these special timber agents.

In that case a compromise by timber agents with a trespasser respecting the disposition of timber cut by him on the public lands and seized by such agents, which was made in conformity to instructions of the Commissioner of the General Land Office, was held to be valid. This amounts to an affirmation of the authority of the Commissioner, through those agents, to act for the United States in matters connected with timber depredations on the public domain, and I think it safe to say

that under such authority the remedy by recaption or seizure, as well as any other of the before-mentioned common-law remedies, may be resorted to for the recovery of timber unlawfully cut on the public lands, according to the circumstances of the case. While I entertain no doubt as to the existence of the remedy by seizure, yet its liability to abuse and to become an instrument of oppression demand that it should be used with judicious discretion and only in clear or emergent cases, and except in such cases the regular procedure of the courts should be preferred.

As to the authority of the Commissioner to dispose of such timber by public or private sale, where the same has been seized by duly authorized agents of the Land Department and remains in their custody, I apprehend that this power exists, subject to the general supervision or direction of the Secretary of the Interior. There being no statutory provision covering a case of that kind, or regulating the disposition of the property, it must be regarded as a subject left to the Land Department to be dealt with in such manner as in the judgment of that Department will best protect the interests of the Government. As the property is perishable in its nature, and its custody may involve expense, it is not only within the power but it is the duty of the Department, for the avoidance of loss to the Government, to convert the same into money; and whether this be done by public or private sale is a matter entirely discretionary with it. While ordinarily the public interests (which are always to be kept in view) will be best subserved by a public sale after advertisement, yet I perceive no objection, legal or other, to a private sale either with or without previous advertisement, where the mode of disposal is advantageous to the Government, but as a general rule public sale should be had.

In direct response to the question presented by you, I therefore submit that, in my opinion, the Commissioner may direct the sale of the property seized, and that "it may be disposed of at private sale, and in such way as may be both to the advantage of the Government and to the benefit of the community without advertising the same."

I am, sir, very respectfully,

G. A. JENKS, Acting Attorney-General.

The SECRETARY OF THE INTERIOR.

WELLS v. NICKLES.

(104 U. S., 444.)

While no act of Congress expressly authorizes the Secretary of the Interior or other officer of the Land Department to appoint timber agents, the appropriation of money by Congress to pay them is a recognition of the validity of their appointment.