#### ROBERT BILLINGS v. THE UNITED STATES.

[No. 32960.

Decided May 24, 1915.]

*On the*Proofs.

The plaintiff on April 20, 1886, made desert land entry at the United States land office at Evanston, Wyo., for a tract of land containing 640 acres, for which he paid to the proper officer of the United States, in accordance with the provisions of the act of Congress of March 3, 1877, 19 *Stat. L.,*377, an initial payment of 25 cents an acre. He took no further action, and on October 27, 1890, the Commissioner of the General Land Office canceled said entry, because of the failure of claimant to make final proof and payments as required by the provisions of the said act of Congress and refused the repayment of. the amount theretofore paid, to recover which this suit was brought.

I. When the Government has observed its obligations and the claimant has not, a legislative intention to refund money paid in strict accord with beneficial legislation can not be assumed.

*The Reporter's*statement of tbe case:

*Mr. W. R. Andrews*for tbe plaintiff.

The decision of the Secretary of tbe Interior denying claimant’s application for repayment is based entirely upon a question of law, namely, that tbe act of March 26, 1908, does not authorize repayment where an entry is canceled for failure to comply with tbe law. There can, therefore, be no question as to the jurisdiction of this court under the ruling in the case of *Robert F. King,*48 C. Cls., 371.

Section 1 of the act of March 26,1908, provides:

“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, 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.”

*329This statute in clear and unmistakable terms creates the right of repayment in all cases of rejected *applications, entries or proofs*not tainted by fraud. No particular kinds of applications, entries or proofs are designated, but the same right of refund is specifically provided for in all cases, under any public land law, that have been or shall hereafter be rejected, and are free from fraud. Nor is the right of refund based to any extent upon the cause of rejection; all applications, entries and proofs that are not fraudulent are within the plain and express terms of the statute. Whether the entrymen, because of circumstances beyond his control, suffered the rejection or cancellation of his entry, or whether he did so through mere negligence, are alike immaterial. But two conditions are imposed by the statute, that the application, entry or proof be rejected, and that the transaction be free from fraud. In other words, by this statute Congress has offered to refund purchase money and commissions to all public land claimants who for any reason have failed or may hereafter fail to secure title to the land applied for, except where the transactions were fraudulent.

Notwithstanding the plain and unambiguous language of the said act of March 26, 1908, leaves no room for the application of principles of construction, various interpretations have been placed upon it by the Interior Department in a series of conflicting and inconsistent decisions.

It was first construed to embrace only cases where an “ application has been or shall hereafter be rejected,” *Instructions,*36 L. D., 388, and to not authorize repayment in cases where the entry failed of confirmation solely because of the laches or fault of the entryman. James H. Febes, 37 L. D., 210. This construction of the statute confined the right of refund thereby created to cases of rejected applications in their narrow technical meaning as used by the Interior Department — that is, applications that were rejected, without ever becoming entries — thus excluding from the operation of the statute the cases of entries therein expressly provided for.

The justification for this interpretation of the law is claimed by reason of the fact that the Interior Department *330recommended to Congress the creation of the right of repayment in the cases of such rejected applications. But it is clear that the intent of Congress can not be controlled by such an extraneous matter, and the scope of the statute thereby changed and limited by eliminating therefrom the express provision for repayment in the case of rejected entries. Nor can the express provision for repayment *m all cases*of rejected applications, entries, or proofs be qualified and limited by reading into the law exceptions in cases of entries canceled for failure to comply with the law or because of the laches or fault of the entrymen.

That Congress did heed the recommendation of the Interior Department and create the right of repayment in all cases of rejected *tona fide*applications is evident from the language of the statute, but it is likewise evident that Congress went further and created a similar right of repayment in all cases of *bona fide*rejected entries and proofs that were free from fraud. This is evident from the language of the statute, and from this language — not from some departmental recommendation — must the intent of Congress be collected. *Johnson*v. *Southern Pac. Go.,*196 U. S., 1; *United States*v. Harris, 177 IT. S., 305.

The legislative intent is first to be sought in the language used. *Maxwell*v. *Dow,*176 IT. S., 581; *United States*v. *Gooding,*12 Wheat., 460.

If the words of a statute convey a definite meaning, which involves no absurdity nor any contradiction of any other parts of the law, then that meaning, apparent on the fact of the law, must be accepted, and neither the courts nor the legislature have the right to add to or take from it. *Lake Oounty*v. *Rollins,*130 IT. S., 662; *Scott*v. *Reid,*10 Pet., 524.

Where the words of a statute are explicit, they must be construed to comprehend every case not completely excepted from their operation. *Young*v. *Bank,*2 Cranch, 384.

In *Gla/y*v. *Erhardt,*48 Fed. B., 294, the court said:

C£ Of course it is perfectly possible to make almost anything out of a tariff act, by construction, without violating recognized rules for the interpretation of statutes, but construction should be reserved for doubtful language. When we have a proposition in a tariff act that seems to be unambigu*331ous, I think it unsafe and unwise to seek in it for something different from the meaning it plainly bears on its face.”

“ If the language be clear it is conclusive. There can be no construction where there is nothing to construe.”

*United, States*v. Hartwell, 6 Wall., 396.

In *United States*v. Wiltberger, 5 Wheat., 95, 96, Chief Justice Marshall stated the rule in the following language:

“The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in words, there is no room for construction. The case must be a strong one indeed which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so.”

If Congress had intended to limit the right of repayment to cases of bare applications that had never passed to entry, it is inconceivable how the phrases “ person who made such application, entry, or proof” and “where such application, entry, or proof has been or shall hereafter be rejected ” could have found place in the statute.

And if Congress had intended to except from the operation of the statute entries that had failed because of the fault, laches, or failure to comply wtth the law on the part of the claimants, as well as cases tainted by fraud, it is likewise inconceivable why such additional excepted cases did not find place in the statute.

The statute in question is designed to grant relief to public-land claimants who have practiced no fraud on the Government and who have failed to secure title to the lands sought, and it should therefore be construed liberally if construction should be necessary for a proper understanding of . its terms.

But the ruling that the statute contemplates mere technical applications and not entries, even though the law expressly includes entries, was so obviously erroneous that it was not adhered to by the Interior Department. In numerous cases thereafter repayment was allowed in cases of canceled entries, as instanced by the cases of *Margaret E.*Scully, 88 L. D., 564; *Alfred D. Hawk,*41 L. D., 350; *Frank G.*Bell, 39 L. D., 181; *Helen Serret,*42 L. D., 537; *Thomas J.*
      *332
      *Keogh,*42 L. D., 28; *Cumberland Mining & Smelting Co.,*43 L. D., 183; and *Howard A. Robinson,*43 L. D., 221.

In the case of *Howard A. Robinson, supra,*the ruling that only technical applications were contemplated by the statute, which ruling had theretofore been overruled inferentially, was overruled expressly in the following language:

“ The position assumed by the commissioner that the act of March 26, 1908, supra, makes no provision for repayment in cases where applications have been carried to entry is clearly unwarranted and erroneous. The act provides that certain moneys ‘ shall be repaid to the person who made such application, *entry*or proof,’ and in a number of cases the department has allowed repayment where entries were involved. *Mary Ward,*39 L. D., 495; *Alfred D. Hawk,*41 L. D., 350; *Osear A. Olson,*43 L. D., 93.”

Nor has the Interior Department consistently adhered to the ruling that entries that failed because of the fault, laches, or failure to comply with the law on the part of the entrymen are not within the benefits of the statute.

In *Margaret E. Scully,*38 L. D., 564, it is held that: ■

“ Where the proof submitted on a timber and stone claim is challenged by the Land Department and the claimant notified that unless he applies for a hearing his claim will be rejected, and to avoid the expense of a hearing he relinquishes the claim and applies for the return of the purchase money, repayment may be allowed under section 1 of the act of March 26, 1908, in the absence of fraud or bad faith, *the action of the Land Department amounting to a rejection of the proof within the meaning of that*section.”

In *Alfred D. HawJe,*41 L. D., 350, it is held that:

“ The purchase money paid in connection with a mineral entry, made in good faith but canceled for lack of sufficient proof of discovery, may be repaid under the provisions of the act of March 26, 1908.”

To support a mineral entry it is requisite that the entry-man prove a discovery of mineral in paying quantities. This the entryman in the case last cited failed to do, and his entry, after having been first allowed, was rejected and canceled, and this rejection was expressly based upon his failure to comply with the law as to proof of discovery.

*333In *Frank G.*Bell, 39 L. D., 191, it is held that:

Mere error of judgment on the part of a timber and stone applicant in swearing that the land is more valuable for timber than for agricultural purposes and is unoccupied, no bad faith or attempt at fraud appearing, is no sufficient ground for refusing repayment of the purchase money under the act of March 26, 1908, upon rejection of the application by the department upon a finding that the land is agricultural in character.”

In *Oscar A.*Olson, 43 L. D., 93, it is held that—

“Where commutation proof is rejected for insufficient showing of residence and cultivation, and the entry held intact subject to future compliance with law, and the entryman thereupon relinquishes the entry and applies for repayment, repayment may be allowed under the act of March 26, 1908, in the absence of fraud or attempted fraud in connection with the rejected proof.”

In the case of *Ernest*Weisenborn, 42 L. D., 533, the Interior Department abandoned all attempts to limit the scope of the statute through the process of construction, and there gave full effect to the plain and mandatory provisions of the law. In that case it appeared that Weisenborn in connection with a commuted homestead entry submitted a defective notice of publication. He was ruled to show cause why his entry should not be canceled for such defect, but failed to cure the defect, although duly notified, and thereafter the entry was canceled. In granting his application for the repayment of the purchase money the Interior Department said:

“ The evident purpose of this act was to return to disappointed purchasers of public lands their purchase money *in dll cases where they fail to acquire title*and had been guilty of no fraud or attempted fraud in connection with their application to purchase.- *The obligation to ref ay is ylaced on the failure of consideration and is granted in all cases not tainted by fraud?*

This ruling was approved and followed, and the ruling in the case *oí James H.*Febes, *suyra,*was expressly revoked in the case of the *Cumberland Mining <& Smelting Co.}*43 L. D., 183.

*334
      *Mr. Marvin*Farrington, witb whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

Booth, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

The claimant herein made a desert-land entry at the land office in Wyoming for a tract of land in said State. The act of March 3, 1877, 19 *Stat. L.,*377, required an advance payment of 25 cents per acre, and this amount the claimant paid. On October 27, 1890, the Commissioner of the General Land Office canceled claimant’s entry aforesaid and refused the repayment of the amount theretofore paid. This suit is to recover the same, amounting in all to $160.

The findings show that the claimant conformed to the terms of the act of March 3,1877, in so far as the initiatory proceedings are concerned, but for some reason failed to pursue the subsequent course mapped out in the act preliminary to investiture of title. The law upon which he now relies for reimbursement is the act of March 26, 1908, 35. *Stat. L.,*chap. 102, p. 48, and reads as follows:

> “ 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.”

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 *335dual 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. An entry may be canceled by the action of the department upon an examination of the record in the case without the intervention of any outside influence, wherein it develops an error has been made, or it may be done when attention is called thereto; but as we gather from the record and decisions of the Land Office a rejection follows a proceeding quite different in detail and form. The facts in this case clearly illustrate the distinction and solve what might at first blush seem an ex-' tremely narrow and technical distinction. The claimant preferred his claim and made the first payment, a very nominal sum of 25 cents per acre. Thereafter he did nothing to perfect his title and secure patent to the lands entered. No one intervened to forestall a compliance with the law, and the Land Office raised no objections and placed no obstacles in the way of his confirming the entry. It was in effect an abandonment of a right the claimant might have pursued to completion, and all that remained to ascertain the fact was an examination of the records of the Land Office.

Aside from the fact that the court must presume that Congress in using the term “rejected” intended to give it the meaning ascribed to it by the Land Office in years of departmental construction, we can not assume a legislative intention to refund money paid in strict accord with beneficial legislation in a case where the Government has observed its obligations and the claimant has not. Some purpose was to be conserved by the nominal advance payment; it was in part intended as an evidence of good faith, a guarantee for future proceedings. If not so, no provision would have been made therefor, and it seems illogical to import an intention to Congress in the refunding act of 19Ó8 to pay back to delinquents this small sum when they are alone responsible for the failure to acquire the coveted lands.

If the situation was the reverse innumerable land entries might be legally made the basis of extensive speculation in public lands, and thus defeat the avowed purposes of the Government in opening up the public domain to settlement.

*336A reason exists for refunding sums paid in cases of rejection, for in every instance some hindrance appears which is not attributable alone to the entrymen; some contest arises which, if free from fraud, leaves just and equitable reasons for refunding sums paid through misapprehension, mistake, etc. No such reason appears here, and while the case is free from fraud it is absolutely devoid of any showing which could have possible incited-the doing of anything more than the cancellation of the entry for abandonment.

We have carefully examined the authorities in the briefs. The court finds no case similar as to facts. A review of the cases, however, attests a uniform procedure and holding by the Land Office in its various opinions upon the subject in harmony with the views expressed herein. The case of Yan H. Gwinn, No. 30742, is not a contrary determination. There was a contest in that case; evidence was taken, a rejection resulted; Gwinn followed the law; he had done all that was necessary for him to do up to the time his entry was canceled. In this case, so far as the record discloses, the claimant made the advance payment, and thereafter did nothing whatever to perfect his title. It is shown that he could have obtained a patent if he had simply pursued the course prescribed by the statute. No objections were interposed from any source that the land was not subject to entry or that the law had not been followed.

The Supreme Court in *United States*v. *Colorado Anthracite Co.,*225 U. S., 219, 223, in speaking of the act of June 16, 1880, a refunding act similar in most respects to the act of 1908, said: “We speak of the view which equity would take of the matter, because it is manifest that the act of 1880 proceeds upon equitable principles and is intended to be administered accordingly.” This holding is both logical and just. It is inapplicable to the present case, however, for the equities of the transaction are not with the claimant, and it would be an unwarrantable extension of the doctrine to apply it to circumstances which indisputably sustain an abandonment of a land entry without disclosing any reason therefor. It is impossible to escape from a conclusion that Congress did not by the act of 1908 intend to indiscriminately refund all advanced payments made in pursuance of *337law upon a land entry upon the mere proof that the same had been made. The Land Office has given refunding acts the very widest latitude and announced most generous and equitable decisions with respect to this subject.

In the case of *Dorothy*Ditmer, 43 L. D., 104, it was said: “Whenever an application, entry, or proof fails or is defeated for any cause short of voluntary abandonment or relinquishment by the applicant, it is ‘rejected’ within the meaning of the repayment act of March 26, 1908 * *

This course has been consistently pursued, as evidenced by the decisions in the numerous cases cited on the brief. In every instance “short of voluntary abandonment or relinquishment ” the equities of the case have been fully recognized and rights accorded. We believe they are justified by law in so holding.

The petition is dismissed. It is so ordered.

All concur.