Lewis v. United States (244 U.S. 134)/Opinion of the Court

Section 2207 of the Revised Statutes (Comp. Stat. 1916, § 4435) provided for the appointment of a surveyor general for the surveying district of Louisiana; § 2208 fixed his salary at the sum of $2,000 a year; § 2217 (Comp. Stat. 1916, § 4450) fixed the term of office at four years from the date of the commission unless the incumbent should resign, die, or be removed from office within that period.

The claimant insists that Lewis was entitled to the salary of the office for the year ending June 10, 1910, notwithstanding the facts found by the court of claims as to the discontinuance of the office, as it was not until that date that the state of Louisiana duly provided for the reception and safekeeping of the papers and records of the office, which were delivered by the custodian to the state on June 30, 1910.

Sections 2218, 2219, 2221, and 2222 of the Revised Statutes (Comp. Stat. 1916, §§ 4451, 4452, 4454, 4456), provided as follows:

'2218. The Secretary of the Interior shall take all the necessary measures for the completion of the surveys in the several surveying districts for which surveyors general have been, or may be, appointed, at the earliest periods compatible with the purposes contemplated by law; and whenever the surveys and records of any such district are completed, the surveyor general thereof shall be required to deliver over to the secretary of state of the respective states, including such surveys, or to such other officer as may be authorized to receive them, all the field notes, maps, records, and other papers appertaining to land titles within the same; and the office of surveyor general in every such district shall thereafter cease and be discontinued.

'2219. In all cases where, as provided in the preceding section, the field notes, maps, records, and other papers appertaining to land titles in any state are turned over to the authorities of such state, the same authority, powers, and duties in relation to the survey, resurvey, or subdivision of the lands therein, and all matters and things connected therewith, as previously exercised by the surveyor general, whose district included such state, shall be vested in and devolved upon, the Commissioner of the General Land Office.'

'2221. The field notes, maps, records, and other papers mentioned in section twenty-two hundred and nineteen shall in no case be turned over to the authorities of any state, until such state has provided by law for the reception and safe-keeping of the same as public records, and for the allowance of free access to the same by the authorities of the United States.

'2222. Every surveyor general, register, and receiver, except where the President sees cause otherwise to determine, is authorized to continue in the uninterrupted discharge of his regular official duties, after the day of expiration of his commission, and until a new commission is issued to him for the same office, or until the day when a successor enters upon the duties of such office; and the existing official bond of any officer so acting shall be deemed good and sufficient, and in force, until the date of the approval of a new bond to be given by him, if recommissioned, or otherwise, for the additional time he may so continue officially to act, pursuant to the authority of this section.'

It is the contention of the government that the action of the Secretary of the Interior with the approval of the President had the effect to discontinue the office as of July 1, 1909, and that in fact the office of surveyor general was discontinued after June 30, 1909. In the Sundry Civil Appropriation Act of March 4, 1909 (35 Stat. at L. 945, 987, chap. 299), it was provided:

'To enable the Secretary of the Interior to complete the unfinished drafting and field note writing pertaining to surveys in the states of Minnesota, North Dakota, and Louisiana, caused by the discontinuance of the offices of the surveyors general in those states, six thousand five hundred dollars.'

And in the appropriation bill for that year Congress made no provision, such as had been customary in former years, for salaries of these officials.

The court of claims held that this act was effectual to abolish the office of surveyor general for Louisiana. We deem that a correct conclusion. It is true that repeals by implication are not favored. The repugnancy between the later act upon the same subject and the former legislation must be such that the first act cannot stand and be capable of execution consistently with the terms of the later enactment. As we view it, such conflict does appear in this instance.

It must be assumed that Congress was familiar with the action of the executive department undertaking to terminate the office, and when Congress acted upon the assumption that the office was abolished, and provided for the unfinished work pertaining to the surveys, 'caused by the discontinuance' of the office, such action was tantamount to a direct repeal of the act creating the office and had the effect to abolish it.

As to the part of Lewis's claim which is for fees, it is alleged in his petition, and found to be a fact by the court of claims, that during the entire period of his service as surveyor general he furnished copies of plats of surveys and transcripts from the records of his office to various individuals requiring them, receiving therefor compensation as authorized by § 5 of the Act of Congress of March 3, 1831 (4 Stat. at L. 492, chap. 116), which is as follows:

'The surveyor general. . . shall be allowed an annual salary of two thousand dollars. . . and that the fees heretofore authorized by law for examining and recording surveys be, and the same are hereby, abolished;. . . and for every copy of a plat of survey, there shall be paid twenty-five cents, and for any transcript from the records of said office, there shall be paid at the rate of twenty-five cents for every hundred words by the individuals requiring the same.' It had been the custom of Lewis and his predecessors in office to retain these fees as their personal property; but by virtue of an order from the Commissioner of the General Land Office, the amounts realized from these fees between May 1, 1907, and June 30, 1909, being $2,287.80, were paid into the Treasury of the United States. It is appellants' contention that this amount is now due and owing Lewis's estate, under the terms of § 5 of the Act of March 3, 1831, above quoted, interpreted in the light of established custom.

Section 1765 of the Revised Statutes (Comp. Stat. 1916, § 3234) provides:

'No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.'

Claimant contends that this section shows no intention to interfere with the enjoyment of any emoluments already fixed by law, as the additional compensation, the receipt of which it prohibits, is compensation additional to 'salary, pay or emoluments. . . fixed by law or regulations.' To establish that these fees were emoluments fixed by law, the claimant points to the Act of April 21, 1806 (2 Stat. at L. 391, chap. 39), by § 9 of which it is provided:

'The surveyor of the public lands, south of Tennessee, be, and he is hereby directed to appoint a principal deputy for each of the two land districts of the territory of Orleans. . . and each of the said principal deputies shall receive an annual compensation of five hundred dollars, and in addition thereto, the following fees, that is to say: for examining and recording the surveys executed by any of the deputies, at the rate of twenty-five cents for every mile of the boundary line of such survey; and for a certified copy of any plat of a survey in the office, twenty-five cents.'

This, read in connection with the Act of March 3, 1831, is the foundation of this claim. The Act of 1831 provides that the surveyor general of the state of Louisiana shall have the same authority, and perform the same duties, as are vested in and required of the surveyor of the lands of the United States, south of the state of Tennessee, or of the principal deputy surveyors in the said state.

We are of opinion that § 1765 of the Revised Statutes (Comp. Stat. 1916, § 3234), above quoted, prevents the allowance of the claim for fees. This section is general in its application, and fixes the compensation of officers of the United States at the salary established by law, unless the additional compensation is authorized and explicitly appropriated for. No such law or appropriation is shown in this case. The Act of March 3, 1831, made no disposition of the fees. After May, 1907, the Department required them to be paid into the Treasury. The Court of Claims correctly ruled that § 1765 (Comp. Stat. 1916, § 3234) controlled this part of the claim of appellant.

Judgment affirmed.

Mr. Justice McReynolds took no part in the consideration and decision of this case.