1. The register of a land office is not entitled to retain a
larger sum than three thousand dollars as commissions for locating
military bounty land warrants under the Acts of February 11, 1847,
September 25, 1850, March 22, 1852, and March 3, 1855.
2. All fees received by a register, whether for locating
military bounty land warrants or for other services, in excess of
the maximum fixed by law must be paid into the Treasury.
3. The second proviso in the third section of the Act of March
22, 1852, which declares "that no register or receiver shall
receive for his services during any year a greater compensation
than the maximum now allowed by law" is not limited in its effect
to the section where it is found, but is an independent proposition
which applies alike to all officers of this class.
The United States brought debt against Lysander W. Babbit
Page 66 U. S. 56
and his sureties on his official bond as register of the land
office at Kanesville, Iowa. Babbit was commissioned on the 6th of
April, 1853, and held his office until the 20th of October, 1856,
to which time his accounts were adjusted by the accounting officers
of the Treasury, showing a balance against him of $9,816 24. This
amount consisted of fees received by him for locating military
bounty land warrants under the Acts of February 11, 1847, September
25, 1850, March 22, 1852, and March 3, 1855. The accounts credited
him with commissions to the full amount of $3,000, and the balance
of the fees received by him being in excess of the maximum allowed
by law, the United States brought this suit to recover them. The
defense was that the fees rightfully belonged to the officer
himself, and he was not bound to account for them to the United
States. The question of law raised in the cause was whether a
register of the land office who has received fees for locating
military bounty lands can retain them whatever may be their amount,
or whether he is bound to account for them and pay over to the
Treasury all he receives beyond three thousand dollars of such
fees, as of others. The district court decided the point in favor
of the defendants, and the United States brought the case into the
Supreme Court on writ of error.
MR. JUSTICE SWAYNE.
This was an action in the court below upon the official bond of
the defendant, Babbit, as register of the land office at
Kanesville, in the State of Iowa. The bond bears date on the 9th
day of May, 1853. The petition, we are advised, is according to the
practice in the courts of that state. It sets out a copy of the
bond and alleges as a breach that Babbit,
"as such receiver, and by virtue of his office, to-wit, from the
6th day of April, 1853, to the 20th day of October, 1856, received,
as fees for the location of military
Page 66 U. S. 57
bounty land warrants, under the provisions of the Acts of
Congress approved 11th of February, 1847, 25th of September, 1850,
22d of March, 1852, and 3d of March, 1855, the sum total of $13,879
08, and that sum the said Babbit still holds and refuses to pay to
the plaintiffs, though often requested and directed by the proper
officers to do so, the sum of nine thousand eight hundred and
sixteen dollars and twenty-four cents."
The pleader has annexed to and made a part of the petition a
Treasury transcript of the accounts of the register showing the
balance against him claimed by the plaintiffs.
The defendants demurred, and assigned for causes:
1. That the petition was so defective in form that the
plaintiffs could not, by law, maintain their action.
2. That the petition did not set forth a cause of action in
proper form.
3. That no cause of action was set forth in the petition, for
that, by law, the defendant Babbit was entitled to retain the said
moneys received by him, as fees of office, and was not bound to
account to the plaintiffs for the same.
The petition is in striking contrast with the brevity and
clearness of the common law forms in like cases. It contains,
however, all the substantial elements of a good declaration and
sufficiently discloses the cause of action which the pleader
designed to present.
This brings us to the consideration of the main question in the
case, which is whether the defendant Babbit is entitled to retain,
for his own use, the fees in controversy. The proper solution of
this question must depend upon a careful examination of the acts of
Congress to which our attention has been called.
The Act of April 20, 1818, 3 Stat. 466, provides:
"That instead of the compensation now allowed by law to the
registers of the land offices, they shall receive an annual salary
of five hundred dollars each, and a commission of one percentum
upon all moneys expressed in the receipts by them filed and
entered, and of which they shall have transmitted an account to the
Secretary of the Treasury, provided that the whole amount which any
register of the land offices shall receive
Page 66 U. S. 58
under the provisions of this act shall not exceed, for any one
year, the sum of three thousand dollars."
The Act of February 11, 1847, 9 Stat. 125, gave to certain
noncommissioned officers, musicians, and privates in the Mexican
war, each one hundred and sixty acres of land. This act makes no
provision for fees.
The act of May 17, 1848, 9 Stat. 231, authorized registers and
receivers to receive from the holders of warrants the fees therein
specified, for their services in carrying out the provisions of the
act of 1847, with a proviso that where the warrant was located for
the use of the volunteer to whom it was issued, no compensation
should be charged either by the register or receiver.
The Act of September 28, 1850, 9 Stat. 520, authorized the
issuing of bounty land warrants to the soldiers who performed
military service in the war of 1812 or in any of the Indian wars
since 1790, and to the commissioned officers in the Mexican war.
This act made no provision for fees, but, on the contrary, directed
the locations to be made "free of expense."
The Act of March 22, 1852, 10 Stat. 4, extends the benefits of
the act of 1850 to all cases where the militia or volunteers of any
state or territory were called into military service and paid by
the United States subsequent to the 18th of June, 1812.
The second and third sections of that act are as follows:
"SEC. 2. That the registers and receivers of the land offices
shall hereafter be severally authorized to charge and receive for
their services, in locating all military bounty land warrants
issued since the 11th day of February, 1847, the same compensation
or percentage to which they are entitled by law for sales of public
lands for cash, at the rate of $1 25 per acre, the said
compensation to be hereafter paid by the assignees or holders of
such warrants."
"SEC. 3. That registers and receivers, whether in or out of
office at the passage of this act, or their legal representatives
in case of death, shall be entitled to receive from the Treasury of
the United States, for services heretofore performed in
Page 66 U. S. 59
locating military bounty land warrants, the same rate of
compensation provided in the preceding section for services
hereafter to be performed, after deducting the amount already
received by such officers under the act entitled 'An act to require
the holders of military land warrants to compensate the land
officers,' &c., approved May 17, 1848,
provided that
no register or receiver shall receive any compensation out of the
Treasury for past services who has charged and received illegal
fees for the location of such warrants,
and provided,
further that no register or receiver shall receive for his
services, during any year, a greater compensation than the maximum
now allowed by law."
The Appropriation Act of March 3, 1853, 10 Stat. 224, contains
at its close the following proviso:
"That whenever the amount received at any United States land
office, under the third section of an act entitled 'An act to make
land warrants assignable, and for other purposes,' approved March
22, 1852, has exceeded or shall exceed the amount which the
registers and receivers at any such office are entitled to receive
under said third section, the surplus which shall remain, after
paying the amount so due as aforesaid to said registers and
receivers, shall be paid into the Treasury of the United States as
other public moneys."
The Act of March 3, 1855, 10 Stat. 635, provides:
"That each register of a land office and receiver of public
moneys shall receive the same amount of pay for each and every
entry of land made under the graduation act of 1854, as such
officer is by law entitled to receive for similar entries of land
at the minimum price of one dollar and twenty-five cents per acre,
provided that the whole amount received per year shall in
no case exceed the limitation fixed by existing laws."
By another act of the same date as the preceding act, 10 Stat.
701, it is provided:
"That the registers and receivers of the several land offices
shall be severally authorized to
charge and receive for their
services in locating all warrants under the provisions of this
act the same compensation or percentage to which they are
entitled
Page 66 U. S. 60
by law for the sales of public lands for cash, at the rate of
one dollar and twenty-five cents per acre, the said compensation to
be
paid by the assignees or holders of such warrants."
The general appropriation act of August 18, 1856, 11 Stat. 91,
provides:
"That in the settlement of the accounts of registers and
receivers of the public land offices, the Secretary of the Interior
be authorized to allow, subject to the approval of Congress, such
reasonable compensation for additional clerical services and
extraordinary expenses incident to said offices as he shall think
just and proper, and report to Congress all such cases of allowance
at each succeeding session, with estimates of the sum or sums
required to pay the same."
The Act of March 3, 1853, 10 Stat. 245, fixes the salaries of
registers and receivers in California at $3,000 each, and prohibits
them from receiving any percentage or fees, except for deciding
preemption cases.
The Act of July 17, 1854, 10 Stat. 306, limits the salaries of
the registers and receivers of Oregon and Washington Territories
each to $2,500 per annum and office rent, and prohibits them from
receiving fees or emoluments of any kind except the receivers'
necessary expenses for depositing moneys.
The Act of July 12, 1858, 11 Stat. 325, gives the same
compensation to registers and receivers in New Mexico which those
officers receive in Washington Territory, with a proviso that their
compensation, including fees, shall not exceed $3,000 each per
annum.
This is the legislation, by the light of which we are to make up
our judgment in this case.
It is a rule in the construction of statutes, that all relating
to the same subject matter shall be considered together.
The act of 1818 fixes a specific sum as the maximum amount which
registers shall be permitted to receive. Whenever Congress has
spoken upon the subject since that time, the same policy has been
adhered to. This remark applies to this class of officers alike in
the Atlantic and Pacific states and territories. The act of 1856
provides a mode of compensating them "for additional clerical
services and extraordinary expenses."
Page 66 U. S. 61
The act of 1852 provides for the compensation, upon the basis of
fees, of registers who had gone out of office, and of those who
were then in office. The latter, for future as well as past
services, were limited to the maximum then "allowed by law," which
was three thousand dollars per annum.
It would be singular if one rate of compensation were provided
for those then in office and their predecessors and another and a
different one in respect of their successors for the same services
rendered under the same circumstances. It is insisted by the
counsel for the defendants in error that this is a necessary
result, because the proviso at the end of the third section of this
act, which imposes the limitation, is confined in its operation to
the cases mentioned in the previous part of the same section. If
this were so, the result claimed would not necessarily follow. In
that case, we should find no difficulty in holding it to be clearly
implied that the same rule of compensation should apply to their
successors as to the then incumbents and their predecessors. What
is implied in a statute, pleading, contract, or will is as much a
part of it as what is expressed. 2 Paine's Rep. 251;
Koning v.
Bayard, 3 Wend. 258;
Haight v. Holley, 10 Wend. 218;
Rogers v. Kneland, 20 Wend. 447;
Fox v. Phelps,
Com. Dig., Tit. Devise, n. 12.
"A thing within the intention of the makers of the statute is as
much within the statute as if it were within the letter." Plow.
366;
Zouch v.
Stowell, 3 How. 565;
United
States v. Freeman, 3 How. 556.
But we do not place our decision upon this ground. We are of
opinion that the proviso referred to is not limited in its effect
to the section where it is found, but that it was affirmed by
Congress as an independent proposition, and applies alike to all
officers of this class.
Whether the proviso in the appropriation act of 1856 is to be
construed as referring to the 3d section of the act of 1852,
according to its letter, or to the 2d section, as is claimed in
behalf of the government, we have not found it necessary to
consider.
The views we have expressed are sufficient to decide this
Page 66 U. S. 62
case. They conduct us to the conclusion, that the court below
erred in sustaining the demurrer.
Judgment of the district court reversed, and cause remanded,
with directions to proceed in conformity to the opinion of the
Supreme court.