#### FRANK M. CZARNOWSKI v. THE UNITED STATES

[No. D-982.

Decided December 6, 1926]

*On the Proofs*

*Desert-land entry within railroad grant; forfeiture of grant; payment of double minimum for entry; refund under act of March &6, 1908.—*

(1) The act of February 28, 1885, which forfeited the odd-numbered sections of public land theretofore granted to the Texas Pacific Railroad Co., restored the said sections to 'public entry at the price of $2.50 per acre. (Following *Southworth’s case,*30 C. Cls. 78.)

(2) Where the plaintiff: in January, 1888, filed a declaration, under the desert land act of March 3, 1877, covering an even-numbered section within the aforesaid grant and was thereupon required to pay for initiation of his said entry 50 cents an acre, which was canceled upon his failure to make final proof, the price paid was lawfully exacted and he can not recover under the act of March 26, 1908, the difference between the price so paid and the minimum of 25 cents fixed by the act of March 3, 1877.

*The Reporter’s*statement of the case:

*Mr. Frcmcis W. Clements*for the plaintiff. *Mr. Edwin W. Spalding*was on the brief.

*661
      *Mr. Joseph Henry*GoJien, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. On January 17, 1888, Frank M. Czarnowski duly filed with the local officers at Tucson, Arizona, a declaration under the desert land act of March 3, 1877, 19 Stat. 377, covering the entire section numbered 28, T. 6 S., it. 14 W., embracing 640 acres. He was required at the time of filing said declaration to pay on account thereof $320 or at the rate of 50 cents per acre, being the double minimum rate, which amount was paid by him to the said local officers, as provided by section 8 of a circular approved by the Secretary of the Interior under date of June 27, 1887, 5 L. D. 708, 710. Whereupon his desert declaration was allowed and went to record, being numbered 1200. On November 22, 1892, the said declaration was canceled by the Commissioner of the General Land Office because of failure to make final proof.

II. By the act of March 3, 1871, 16 Stat. 573, a grant was made to the Texas Pacific Eailroad Company of the odd-numbered sections within defined limits to be adjusted to a map of definite location to be filed by said company. No map of definite location was ever filed by said Texas Pacific Eailroad Company, and the grant was, by the act of February 28,1885, 23 Stat. 337, declared to be forfeited.

III. Prior to the filing by Czarnowski, the tract declared upon by him was brought within the limits of a withdrawal made by the Land Department based on a map of general route as provided by section 12 of the granting act. This withdrawal was of the odd-numbered sections. By the order of withdrawal the local land officers were instructed to hold the even-numbered sections within the limits of said withdrawal at the double minimum rate, and’ at the time that Czarnowski filed his said desert-land declaration it was still the holding of the Land Department that the even-numbered sections were increased in price to the double minimum rate by the order of withdrawal of the odd-numbered sections based on the map of general route filed by the said Texas Pacific Eailroad Company.

*662IY. Czarnowski duly applied to the Commissioner of the . General Land Office for a refund of $160 on account of his desert declaration, claiming that the payment required of him at the time of filing said declaration was in excess of legal requirements and, therefore, repayable under the act of March 26, 1908, 86 Stat. 48. Said application for a refund was denied by the Assistant Commissioner of the General Land Office in a decision dated December 31,1923, that Czarnowski paid the proper price, a copy of which decision is attached hereto as Exhibit A. This decision was affirmed by the Assistant Secretary of the Interior in a decision dated April 24,1924, 50 L. D. 416.

Y. No refund has ever been made to the plaintiff Czar-nowski on account of his said desert application.

YI. Long prior to the passage of the act of February 28, 1885, 23 Stat. 337, forfeiting the Texas Pacific land grant the price of the even-numbered sections within the limits of that grant, as shown by its map of general route, had been fixed in fact at $2.50 per acre by the Secretary of the Interior and exacted in practice by the Land Department. These conditions were well understood by Congress at the time of enactment of the forfeiture act; but the price of $2.50 per acre was not made to apply specifically to desert-land entries on such reserved even-numbered sections within the limits of railroad grants until circular of June 27, 1887, 5 L. D. 708, was issued by the Secretary of the Interior, which, although not retroactive, held that Eev. Stat. sec. 2357 applied to desert lands in railroad land-grant limits as well as preemption entries.

VII. Without conceding its pertinency or waiving the right to dispute the legality of the administrative practice heretofore mentioned, it is further stipulated and agreed that the Land Department has accepted and applied certain court decisions as holding in effect that the even-numbered sections were improperly increased to the double minimum rate prior to the forfeiture act of February 28, 1885, on withdrawal based on map of general route, and refund has been directed in cases where the double minimum rate was exacted and paid on entries made prior to said act.

*663Exhibit A

Department of the Interior,

General Land Office, *Washington, December 31,1923.*

In reply please refer to

1015548 “M” LWB

Repayment: Reconsideration denied.

Mr. Edwin W. Spalding,

*National Metrofolitan Bank Building,*

*Washington, D. O.*

Mx Dear Sir: Your request of December 11, 1923, that the action of this office of December 9, 1922, denying the application of Frank M. Czarnowski for repayment of moneys alleged to have been paid in excess of lawful requirements in connection with desert land entry Tucson No. 1200, for all of Sec. 28, T. 6 S., R. 14 W., G. and S. R. M., be reconsidered in the light of the decision of the Secretary of the Interior in the case of the heirs of James Byrne and allowed under the act of March 26,1908, 35 Stat. 48, has been received.

Czarnowski’s entry was made January 17,1888, six months after it was held that the price of lands within primary limits of railroad grants was $2.50 per acre, whether the entry was made under the desert-land act or any other public land law. Instructions of this office provided that the $2.50 per acre should be paid in two installments, 50 cents per acre at time of initiating the entry and $2.00 per acre at time of submission of final proof.

While the lands embraced in the Czarnowski entry were not within the primary limits of a definitely located railroad, they were within the primary limits of the withdrawals for the Texas Pacific Railroad, and the price was held in the case of George B. Perkins, 49 L. D., 173, to have been fixed by the act of February 28, 1885, 23 Stat. 337, at $2.50 per acre.

You contend that the initial payment of 50 cents per acre was a payment in excess of lawful requirements even though $2.50 per acre might have been the proper price for the land, inasmuch as the act of March 3, 1877, provided that 25 cents an acre should be paid; that the act of March 3, 1877, provided that the initial payment should be forfeited in case of failure to complete the entry, and forfeiture of 50 cents per acre because of failure to complete the entry was not authorized.

This office can see no merit in such contention. The act of March 3, 1877, as definitely fixed the amount to be paid at *664time of submission of final proof at $1.00 per acre as it did the amount to be paid to initiate the entry at 25 cents per acre. If $2.00 or $2.25 per acre were paid at time of submission of final proof the same argument that a payment in excess of lawful requirements had been made could be advanced. As pointed out in the case of the *United States*vs. Healey, 160 U. S. 136, the price of desert-land entries made before the passage of the act of March 3, 1891, 26 Stat. 1095, within the limits of railroad land grants was fixed at $2.50 per acre. Two dollars and fifty cents per acre could not have been paid and the amount and manner of payment be governed exclusively by the act of March 3, 1877.

In the case of the *United States*vs. Ingram, 172 U. S. 327, Ingram had paid 50 cents per acre to initiate his entry. Final payment, as in this case, was not made, the entry having been voluntarily abandoned. No fault was there found with charging 50 cents to initiate the entry. It was said therein: “Voluntarily abandoning his entry, he has no cause of action for the sum he paid to initiate it.”

You quote from decision of the Secretary of the Interior of October 26,1923, in the case of the heirs of James Byrne, as follows:

“ The desert land act of 1877, under which the entry was made required an initial payment of 25 cents per acre, and no other law either prior or subsequent required more.”

Immediately following that quotation was the qualification:

“ and there was no regulation of the department violated in the allowance of the entry; hence, it was not erroneously allowed.”

The contention advanced by you in the Byrne case was that the entry had been erroneously allowed at the single minimum price under the desert land act upon payment of 25 cents per acre. Repayment was denied because under regulations of this office in effect at the time the entry was made and canceled it could have been confirmed by complying with the law and making payment of $1.00 per acre at time final proof was submitted. The contention of this office was sustained by the department.

In your appeal you advanced the argument that the regulations permitting confirmation of the entry as made were illegal and as a matter of law the entry could not have been legally confirmed unless $2.50 per acre was paid for the land. The portion of the decision of the Secretary of the Interior quoted by you was in answer to such contention. It is true that no price other than 25 cents was fixed by an *665set of Congress. The only prices fixed by act of Congress for each payment were 25 cents and $1.00. However, the price for the land was fixed at $2.50 per acre. A departmental regulation required 50 cents an acre to be paid to initiate entries between June 27, 1887, and March 3, 1891. In the Byrne case the entry having been initiated prior to June 27, 1887, no regulation of the department was violated when only 25 cents per acre was paid to initiate the entry. In the instant case departmental regulations required the payment of 50 cents per acre to initiate the entry.

The amount of the payments were fixed at 25 cents and $1.00 per acre by the act of March 8, 1877. The price of the land was fixed by sec. 2357 United States Revised Statutes, $2.50 per acre. In the case of *United States*vs. *Healey, supra,*it was held that the price of the land as fixed by sec. 2357 was the proper price. It was accordingly necessary for the department by regulation to fix the amount to be paid to initiate the entry and the amount to be paid at time of final proof in such manner that the total price should be $2.50 per acre. This was done by doubling the price paid to initiate an entry and doubling the amount to be paid when final proof was submitted. That .was clearly the province of the department.

As stated in your letter, the act of March 3, 1877, provided that the initial payment or 25 cents per acre should be forfeited in case of failure to complete the entry. However, forfeiture of the money paid to initiate the entry does not or did not depend upon the forfeiture provision of the desert land law. In absence of specific statutory authority, money paid in connection with an entry of public land is not repayable — forfeited.

Accordingly, repayment is not authorized.

Very respectfully,

(Sgd.) Wickham, *Assistant Commissioner.*

The court decided that plaintiff was not entitled to recover.

Campbell, *Chief Justice,*

delivered the opinion of the court:

The facts are stipulated. It appears that plaintiff in .January, 1888, filed a declaration under the desert land act, 19 Stat. 377, covering an entire section, 640 acres. He was then required to pay at the rate of fifty cents per acre, as provided by section 8 of the circular approved by the Secre*666tary of the Interior June 27, 1887. (See 5 L. D. 708, 710.) Upon this payment being made the desert declaration was allowed, being number 1200. In November, 1892, nearly five years after the payment of the $320, the declaration was canceled by the Land Office because of his failure to make proof. Having applied to the Commissioner of the General Land Office for a refund of $160 (one-half of the amount paid by him) and that application having been denied, he sues in this court for $160, under the act of March 26, 1908, 35 Stat. 48. When the application for a refund was first made does not appear. It must have been subsequent to the act of March 26, 1908, here relied on, and was finally disposed of in the Land Office in April, 1924, 50 L. D. 416.

The right to bring suit in this court under the act of 1908 and to have judgment where the facts justify recovery is well established. See *United States*v. *Laughlin,*249 U. S. 440. The sole question, therefore, is upon the effect of the act of February 28, 1885, 23 Stat. 337, forfeiting the grant to the Texas Pacific Railroad Company, made by the act of March 3, 1871, 16 Stat. 573, with especial reference to the proviso in section 1 of the forfeiting act reading: *“Pro*vided, That the price of the lands so forfeited and restored shall be the same as heretofore fixed for the even sections within said grant.” This proviso in the act was fully considered by this court in *SouthworWs case,*decided in 1895, 30 C. Cls. 78, and after an examination of all the applicable statutes the conclusion was reached in an opinion by Judge (afterward Chief Justice) Peelle that the proviso fixed the price of the forfeited lands by reference to other existing statutes and the action of the Secretary of the Interior at $2.50 per acre. Among other things in the stipulated facts it is agreed (Section VI) that long prior to the passage of the forfeiting act of 1885 “ the price of the even-numbered sections within the limits of that grant, as shown by its map of general route, had been fixed in fact at $2.50 per acre by the Secretary of the Interior and exacted in practice by the Land Department.” This fact is also found in the *South-worth case, supra*(pp. 88-90) and is made the basis for finding the price of the odd-numbered sections to have been *667$2.50 per acre. A distinction which the plaintiff attempts between that case and this is that the *Soutfoworth case*involved an odd-numbered section within the Texas Pacific grant entered after forfeiture, while the present case involves an even-numbered section within the same grant, also entered after forfeiture. But it was necessary for the court to determine in the *Southworth case*that the price of even-numbered sections had been fixed at $2.50 per acre before it could find that the price of the odd-numbered sections was the like price of $2.50 per acre. Speaking of the purpose of the proviso it is said (p. 84) : “ If the act had omitted the proviso, there would be no question but that the land so forfeited would have been subject to disposal under the general laws of the United States — that is, at $1.25 per acre— the same as though the grant had never been made.” In other words, the forfeiting act was complete for its purposes of forfeiture without the proviso and therefore some effect must be given the proviso, as intended to fix a price for the forfeited lands different from the price generally applicable to public lands. This price was to be the same as that “heretofore fixed for the even sections, within said grant.” A reason for the proviso is thus stated in the opinion (p. 92) :

“At the time of the passage of the act of forfeiture Congress knew that the railroad had not been constructed. It was for this very reason that the lands granted thereto were forfeited and restored to the public domain; and it is reasonable to presume that when the act of forfeiture was passed Congress took into consideration the time which had elapsed since the passage of the granting act, the probable sales of the reserve lands at $2.50 per acre, and whether or not the lands thereby granted and withdrawn from the market in 1871 had during the interim increased in value from any cause. Especially would they take into consideration the construction by the Southern Pacific Company of a railroad substantially over the route contemplated by section 1, act 1871, which was before them in House Report No. 1803, Forty-seventh Congress, first session, and of which railroad the court takes judicial notice. So that whatever may have been the legal status of any who may have purchased of the reserve lands prior to the forfeiture, the proviso to the act making the price of the lands thereby forfeited and restored ‘the same as heretofore fixed for *668the even sections within said grant ’ thereby determined that those who thereafter purchased such forfeited lands should pay $2.50 per acre therefor.”

This conclusion is fortified by the additional fact that by the act of March 2, 1889, section 4, 25 Stat. 854, the price of lands within the limits of any grant to aid in the construction of railroads but which had been forfeited was fixed at $1.25 per acre, it thus appearing that Congress thought there had been forfeited grants where the price fixed was $2.50 per acre. And that we think was true of the instant case. This conclusion was reached by the Commissioner of the General Land Office in an opinion made an exhibit to the agreed facts, and his decision was affirmed by the Assistant Secretary of the Interior in a decision dated April 24, 1924, 50 L. D. 416. We think this ruling is correct and should not be disturbed and that the petition should be dismissed. And it is so ordered.

Moss, *Judge;*Geaham, *Judge;*Hay, *Judge;*and Booth, Judge, concur.