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of Mr. Attorney General Nelson in support of the right, has been received from that day to this, as the rule of law for the action of the Land Office. (Opinion August 12th, 1843.)
In the case of the United States v. Boyd, 5 Howard, 30, 49, the Supreme Court spoke of some of the inconveniences of this doctrine, but they did not proceed to pronounce it contrary to law. I think, therefore,
well, it is a matter for the legislative interposition of Congress.
As to pre-emption purchase by either Receivers or Registers, although not expressly forbidden by statute, still it appears to me inadmissible by the general principles of law and of statutory construction.
By the general law, all pre-emption claims must be adjudicated, in the first instance, by the Register and Receiver. See Act of September 4, 1841, sec. 12; 5 Stat. at Large, p. 546. (No. 48.) There is no statute which provides a substitute for either of them in a case of purchase made by himself. It is clear that, by the rules of law and of right, neither of them can be the judge in his own case. Michaud y. Girod, 4 Howard, 503; 553.
Of course he cannot make proof of pre-emption. If he possess any right of pre-emption, it must remain in abeyance until means of adjudication be provided by Congress. I have the honor to be, very respectfully,
C. CUSHING. Hon. Robert M-Clelland,
Secretary of the Interior.
November 5, 1850. I will thank you to call upon the Register (G. Bay, Wis.,) for an explanation whether his correspondence with the Department, and his certificates of purchase, and other returns, have been signed by himself or by his clerk for him, and if the latter, why; and upon the Receiver, also, to know why this neglect of duty on the part of the Register was not communicated to your office. * * In the mean time, the issuance of the patents on the certificates of purchase in question should be suspended.
T. EWING, Secretary.
October 15, 1855. The sense of Congress in regard to the penalty which should attach to the charging or receiving illegal fees, is distinctly indicated in the 6th section of the Act of July 17, 1854, (No. 244,) which declares that all offcers, so offending, shall be forth with removed from office.” This provision, I am officially informed, was inserted in that act, at the instance of the late Commissioner of the General Land Office, and was designed to apply to all officers connected with the public lands. The law, therefore, as intended and construed by the General Land Office, would seem to be strictly imperative, and leave no discretion to the President in the premises. With the above fact stated, and the law before you, you will admit that it would not be proper to restore Mr. L.
Respectfully yours, &c.,
R. M‘CLELLAND, Secretary. Hon. E. S. Shorter, Newton, Ala.
No. 392. It is the duty of the Register to enter Swamp Land selections on the Tract books. When practicable, the Register and Receiver should both be present at the time testimony in pre-emption cases is taken.
DEPARTMENT OF THE INTERIOR,
September 6, 1856. Your letter of the 5th instant in reply to that of the 2d instant from the Department, on the subject of the difficulties between the Register and Receiver at Tampa, Florida, has been received. In the opinion of the Department it is the duty of the Register to enter the approval of swamp land selections on his tract books. To give instructions whereby any other officer would be charged with a portion of such duty, and of consequence, the custody for the time being of the books of the Register, would be to vitiate the security under the bond of the latter for the faithful performance of his duties. In reference to the taking of pre-emption proof, although your office may have held that it is not necessary that both officers should be present at such taking, yet it is not understood that you thereby countenance the taking of such proof by one officer, without the knowledge or assent of the other.
The law requires that such proof shall be satisfactory to both officers, and where it is practicable, they ought to sit together and jointly take such proof; and when for any just cause it is taken by one only, it should always be after notice to, and with the concurrence of the other; each should have the opportunity of cross-examining the witnesses if it should be desired. It is understood that the Register claims a pre-emption upon land now reserved, and has filed before himself a declaratory statement for the same ;* one of the grounds of objection by the Receiver, to the taking of testimony by the Register alone is, that according to the system of the latter, he may take and file testimony in relation to his claim without the knowledge or participation therein by the Receiver. It is also deemed proper that you should advise both officers, that harmony in the discharge of their public duties is essential to their proper execution, and if that cannot be attained the proper remedy will be the removal of one or both.
GEO. C. WHITING, Acting Secretary. Commissioner of the General Land Office.
* See No. 389.
No. 393. Registers and Receivers required to account for fees received from locators of land warrants.
June 23, 1857. The question whether Registers and Receivers of the several land offices are required to account to the United States for the fees received from locators of land warrants under the general laws limiting their compensation to three thousand dollars per annum,* having been decided in the affirmative by my predecessor, upon an appeal taken to him from the action of your office, I do not feel at liberty to review that decision, nor indeed could I do so without totally disregarding a well settled rule of this Department,—the whole subject having been exhausted by the late Secretary
J. THOMPSON, Secretary.
No. 394. By letter of 20th February, 1858, the Secretary requested ihe Commis
sioner to report, - 1st. Whether it is his practice to allow the outgoing officer, (Register or Receiver,) compensation up to the time when his successor receipts to him for the books, papers, &c., of his office, and has there been any exceptions thereto, and if so, what ?”
76 2nd. In the case of a deceased officer, up to what time do you allow compensation ? If to a date subsequent to his decease, upon what principle?”
To which the Commissioner replied, (on 27th February, 1858,) “ That the general rule of this Office, in cases of change in the District Land Officers, is, at the present time to allow the outgoing officer to continue to act until his successor qualifies and enters upon duty. This rule, however, is only operative where the officer remains at his post to perform official duty, and has been generally observed since the passage of the Act of 3rd March, 1853.” (No. 224.)
The Commissioner then specifies numerous cases, where the books, &c., of the vacated office have been placed in charge of the remaining officer. “ In the case of a deceased officer, his compensation ceases with the date of his death, but in some cases the archives are permitted to remain in charge of his family, his clerk, or other agents, to whom an allowance is made for the safe keeping thereof, at the rate of $500 per annum, in accordance with a long established practice of the Treasury Department."
* See Act of February 2, 1859, (No. 348.)
No. 395. Compensation allowed to Registers and Receivers for the sale of Indian
lands, must be adjusted as though no special trust as to the nett proceeds of sales had been created, and in the same manner as in ordinary sales.
DEPARTMENT OF THE INTERIOR,
Washington, May 30, 1859. Sir:-I enclose herewith the papers which have been filed by S. S. Baxter, Esq., Attorney for Messrs. Whitfield and Woodson, Register and Receiver at Kickapoo, Kansas, asking a review by me of the question of compensation, involved : with your report of the 4th October last, and my reply of the 1st February following.
As there is no appeal to me from your action or proposed action, in proceeding with the adjustment of the accounts of those officers, I shall not decide as to the specific facts and details in the case.
On a review of the act of Congress regulating the compensation of Registers and Receivers, and limiting the allowances and payments to officers or other persons whose pay or emoluments are fixed by law, and in view of the provisions of the treaties of 1854, with the loway and Delaware tribes of Indians, I am of the opinion that the compensation which can be allowed the Register and Receiver at Doniphan, for services in the sale of lands pursuant to those treaties, must be adjusted as though no special trust in regard to the net proceeds of those sales had been created by the treaties, and in the same manner and with the same limitations, as though the sales had been made in the ordinary course of business under the land laws.
The receipts from sales at Iowa Point, and Osawkee, are within, and of the compensation year of the officers, which was running at the times of the sales.
As these lands, sold on Indian account, were the first sold after the dates of the commissions and bonds of the officers, and as one per cent. on the amount received exceeds the yearly maximum of $2500, allowable as commissions in their first year, I think that said sum of $2500 may be charged to and paid out of the funds held by the United States under the treaties; say one per cent., but not to exceed $1250, from the funds arising from sales under the treaty with the Ioways, and the balance or remaining half, from money received from sales under the treaty with the Delawares.
As the officers received instructions from you, under date of the 15th May, to make those sales, and as they had both executed their bonds before that date, I am of the opinion that their salaries should be allowed from the date of these instructions.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
Disposal of Public Lands at Public and Private
DEPARTMENT OF THE INTERIOR,
September 10, 1849. Sir:-The President of the United States has referred to this department for reply, your communication of the 27th of July last, with the accompanying report.
The Congress of the United States has enacted no general law authorizing the donation or granting of the public lands; but it may be said to
Whether a title to a tract of public land has passed from the United States, is a question depending upon statutes enacted by Congress. After title has passed, it becomes subject to the laws of the State in which it lies.— Wilcox v. Jackson, 13 Peters, 498, 13 Condensed Reports, 266.
Under the powers of Congress to dispose of the public lands, the same may be leased.-- United States v. Gratiot, 14 Peters, 526, 13 C. R. 644.
If the proceedings on which the patent was founded were irregular, the government, but not one having no prior equity, can take advantage thereof.— Hoofnagle V. Anderson, 7 Wheaton, 212 ; 5 C. R. 248.
A mere right to enter on certain lands for military services, no particular land having been appropriated, is not such a prior equity as would enable its holder to set aside a patent regular on its face.-Ib.
Authority to enter” a certain quantity of land, does not authorize a location on lands previously appropriated, or withdrawn from market.-Chotard v. Pope, 12 Wheaton, 586; 7 C. R. 376.
Congress has exclusive power to make and authorize appropriations of the public lands.—United States v. Fitzgerald, 15 Peters, 407; 14 C. R. 128.
Congress has the sole power to declare the effect and dignity of titles emanating from the United States.-- Bagnell v. Broderick, 13 Peters, 436; 13 C. R. 235.
At a sale of public lands in a Territory, an agent who purchased for another must account, as trustee, to his employer, although the statutes of the Territory hare abolished all resulting trusts. It promotes the public sales, that agents should be allowed to attend and purchase under the usual responsibility of agents or trustees. The control, enjoyment and disposal by the United States, of their own property, is independent of the locality of such property, whether it be situated in a State or Territory; nor are the contracts of the government, with respect to subjects within its constitutional competency, local or confined in their effects and operation, to the sites of the subjects to which they relate. Although a certificate may be the subject of bargain and sale, yet the United States can take care that the conveyance shall be made to him who is in good faith their vendee. Although the officers of the land department may in practice and as a rule of convenience, have received the certificate of purchase as evidence of title, yet neither that practice, nor the certificate itself, can control the power either of the United States, or of this court, to ad