North American Commercial Company v. United States/Opinion of the Court

By the act of July 27, 1868 (15 Stat. 240, c. 273), the laws of the United States relating to customs, commerce, and navigation were extended over all the mainland, islands, and waters of the territory ceded to the United States by the emperor of Russia March 30, 1867, so far as applicable; and by section 6 of that act it was made unlawful for any person or persons to kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of said territory, or in the waters thereof; provided, that the secretary of the treasury might authorize the killing of any such furbearing animal, except fur seals, under such regulations as he might prescribe; and it was made his duty to prevent the killing of any fur seal, and to provide for the execution of the provisions of the section until otherwise provided by law. On the 3d of March, 1869, a resolution was approved (15 Stat. 348, No. 22), entitled 'A resolution more efficiently to protect the fur seal in Alaska,' declaring the islands of St. Paul and St. George, in Alaska, 'a special reservation for government purposes,' and that, until otherwise provided by law, it should be unlawful for any person to land or remain on either of said islands, except by the authority of the secretary of the treasury.

July 1 1870, an act entitled 'An act to prevent the extermination of fur-bearing animals in Alaska,' was approved. 16 Stat. 180, c. 189. By the first section it was made unlawful to kill any fur seal upon the islands of St. Paul and St. George, or in the waters adjacent thereto, except during the months of June, July, September, and October in each year, or to kill such seals at any time by the use of firearms, or to use other means tending to drive the seals away from said islands: provided, that the natives should have the privilege of killing such young seals as might be necessary for their own food and clothing during other months, and also such old seals as might be required for their own clothing, and for the manufacture of boats for their own use, which killing should be limited and controlled by such regulations as should be prescribed by the secretary of the treasury.

By section 2 it was made unlawful to kill any female seal, or any seal less than one year old, at any season of the year, except as above provided; and also to kill any seal in the waters adjacent to the islands, or on the beaches, cliffs, or rocks where they haul up from the sea to remain.

'Sec. 3. That for the period of twenty years from and after the passage of this act the number of fur seals which may be killed for their skins upon the island of St. Paul is hereby limited and restricted to seventy-five thousand per annum; and the number of fur seals which may be killed for their skins upon the island of St. George is hereby limited and restricted to twenty-five thousand per annum: provided, that the secretary of the treasury may restrict and limit the right of killing if it shall become necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as shall be right and proper; and if any person shall knowingly violate either of the provisions of this section, he shall, upon due conviction thereof, be punished in the same way as provided herein for a violation of the provisions of the first and second sections of this act.'

The fourth section provided that immediately after the passage of the act the secretary of the treasury should lease, for the rental mentioned in the sixth section of the act, to the best advantage of the United States, having due regard for the interests of the government, the native inhabitants, parties theretofore engaged in trade, and the protection of the seal fisheries, for a term of 20 years from the 1st day of May, 1870, 'the right to engage in the business of taking fur seals on the islands of St. Paul and St. George, and to send a vessel or vessels to said islands for the skins of such seals'; giving a lease duly executed, and not transferable, and taking from the lessee or lessees a bond conditioned 'for the faithful observance of all the laws and requirements of congress and of the regulations of the secretary of the treasury touching the subject matter of taking fur seals, and disposing of the same, and for the payment of all taxes and dues accruing to the United States connected therewith; and in making said lease the secretary of the treasury shall have due regard to the preservation of the seal fur trade of said islands, and the comfort, maintenance, and education of the natives thereof.'

The fifth section read: 'Sec. 5. That at the expiration of said term of twenty years, or on surrender or forfeiture of any lease, other leases may be made in manner as aforesaid, for other terms of twenty years; * *  * and any person who shall kill any fur seal on either of said islands, or in the waters adjacent thereto, without authority of the lessees thereof, and any person who shall molest, disturb, or interfere with said lessees, or either of them, or their agent or employees in the lawful prosecution of their business, under the provisions of this act, shall be deemed guilty of a misdemeanor, and shall for each offense, on conviction thereof, be u nished in the same way and by like penalties as prescribed in the second section of this act; and all vessels, their tackle, apparel, appurtenances, and cargo, whose crews shall be found engaged in any violation of either of the provisions of this section, shall be forfeited to the United States; and if any person or company, under any lease herein authorized shall knowingly kill, or permit to be killed, number of seals exceeding the number for each island in this act prescribed, such person or company shall, in addition to the penalties and forfeitures aforesaid, also forfeit the whole number of the skins of seals killed in that year, or, in case the same have then said person or company shall forfeit the value of the same. * *  * '

By the sixth section it was provided that 'the annual rental to be reserved by said lease shall not be less than fifty thousand dollars per annum, * *  * and in addition thereto, a revenue tax or duty of two dollars is hereby laid upon each fur sealskin taken and shipped from said islands during the continuance of such lease to be paid into the treasury of the United States; and the secretary of the treasury is hereby empowered and authorized to make all needful rules and regulations for the collection and payment of the same, for the comfort, maintenance, education and protection of the natives of said islands, and also for carrying into full effect all the provisions of this act.'

These provisions, as well as others from the prior legislation, were carried forward into the Revised Statutes, approved June 22, 1874; sections 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and sections 1956 to 1976 thereof to the subject under consideration.

By section 1960 the killing of any fur seals upon the islands or their adjacent waters was forbidden, except during June, July, September, and October in each year, etc., with the same proviso as in the first section of the act of 1870.

Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows:

'Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur seals which may be killed for their skins upon the island of St. Paul is limited to seventy-five thousand per annum; and the number of fur seals which may be killed for their skins upon the island of St. George is limited to twenty-five thousand per annum; but the secretary of the treasury may limit the right of killing, if it becomes necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section.

'Sec. 1963. When the lease heretofore made by the secretary of the treasury to 'The Alaska Commercial Company,' of the right to engage in taking fur seals on the islands of Saint Paul and Saint George, pursuant to the act of July 1, 1870, chapter 189, or when any future similar lease expires, or is surrendered, forfeited, or terminated, the secretary shall lease to proper and responsible parties, for the best advantage of the United States, having due regard to the interests of the government, the native inhabitants, their comfort, maintenance, and education, as well as to the interests of the parties heretofore engaged in trade and the protection of the fisheries, the right of taking fur seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and secured by a deposit of United States bonds to that amount, and every such lease shall be duly executed in duplicate, and shall not be transferable.'

'Sec. 1968. If any person or company, under any lease herein authorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in thi chapter prescribed, such person or company shall, in addition to the penalties and forfeitures herein provided, forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same.

'Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixty-three, a revenue tax or duty of two dollars is laid upon each fur seal skin taken and shipped from the islands of Saint Paul and Saint George, during the continuance of any lease, to be paid into the treasury of the United States; and the secretary of the treasury is empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed.'

'Sec. 1972. Congress may at any time hereafter alter, amend, or repeal sections from nineteen hundred and sixty to nineteen hundred and seventy-one, both inclusive, of this chapter.

'Sec. 1973. The secretary of the treasury is authorized to appoint one agent and three assistant agents who shall be charged with the management of the seal fisheries in Alaska, and the performance of such other duties as may be assigned to them by the secretary of the treasury.'

Pending the adoption of the Revised Statutes, and on March 24, 1874 (18 Stat. 24, c. 64), the act of July 1, 1870, was amended so as to authorize the secretary of the treasury to designate the months in which fur seals 'may be taken for their skins on the islands of St. Paul and St. George, in Alaska, and in the waters adjacent thereto, and the number to be taken on or about the islands respectively.' Thus, the Revised Statutes were in effect amended so that whereas by section 1960 the months of June, July, September, and October had been designated as the months in which fur seals might be taken on the islands and in the waters adjacent thereto, for their skins, and by section 1962 the maximum number which might be killed on the island of St. Paul was limited to 75,000, and on the island of St. George to 25,000, per annum, the secretary of the treasury was authorized by the amendatory act to designate the months in which fur seals might be taken, and the number to be taken on or about each island, respectively. The times of killing, and the number to be killed, were left to the judgment of the secretary of the treasury.

Manifestly, the object the government had in view throughout this legislation was the preservation, by proper regulations, of the fur-bearing animals of Alaska, including, and particularly, the fur seals.

The first 20 years being about to expire, the secretary of the treasury on December 24, 1889, advertised for proposals 'for the exclusive right to take fur seals upon the islands of St. Paul and St. George, Alaska, for the term of twenty (20) years from the first day of May, 1890, agreeably to the provisions of the statutes of the United States.' Among other things, the advertisement stated: 'The number of seals to be taken for their skins upon said islands during the year ending May 1, 1891, will be limited to sixty thousand (60,000), and for the succeeding years the number will be determined by the secretary of the treasury, in accordance with the provisions of law.'

There were 12 proposals or bids, of which the North American Commercial Company put in three, numbered 10, 11, and 12, each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capita. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not, through the secretary of the treasury, or otherwise, limit the skins to be taken to any number less than 100,000 skins per annum after thef irst year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands, and the waters known as the 'Behring Sea.' No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into, 'in pursuance of chapter 3 of title 23, Revised Statutes,' as it recites.

By its terms the company undertook, in consideration of the lease for 20 years of 'the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals,' 'to pay to the treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said treasurer the further sum of seven dollars sixty-two and one-half cents apiece for each and every fur seal skin taken and shipped from said islands, * *  * and to secure the sixty thousand dollars rental above referred to' to deposit United States bonds of the face value of fifty thousand dollars; and further 'faithfully to obey and abide by all rules and regulations that the secretary of the treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that the secretary of the treasury shall adjudge necessary, under the law, for the preservation of the seal fisheries of the United States; and it agrees that it will not kill, or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the secretary of the treasury.'

It was also agreed that 'the annual rental, together with all other payments to the United States provided for in this lease, shall be made and paid on or before the first day of April of each and every year during the existence of this lease, beginning with the first day of April, 1891.' The lease also provided that the number of fur seals to be taken and killed for their skins during the year ending May 1, 1891, should not exceed 60,000.

1. It is contended on behalf of the company that conceding that the right of killing in 1893 had been duly limited to 7,500 seals, and that it took and received that number of skins as full performance of the covenants of the lease on the part of the government, it is entitled, under section 1962 of the Revised Statutes, to a proportionate reduction of the rent reserved (that is, in the proportion that 7,500 bears to 100,000), and that this reduction applies to the per capita of $7.62 1/2 for each fur seal skin taken and shipped by it, as well as to the $60,000 annual rental. On this theory, the company tendered to the United States, before action brought, the sum of $23,789.50, being $15,000 for the tax on 7,500 skins; $4,500, three-fortieths tieths of the annual rental; and $4,289.50, three-fortieths of the full royalty on the skins.

The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.62 1/2 for each and every skin was not a part of the annual rental. The lease is explicit that the annual rental is the sum of $60,000, and that in addition the lessee shall pay the revenue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be deposited 'to secure the prompt payment of the sixty thousand dollars rental above referred to'; and' the annual rental, together with all other payments to the United States provided for in this lease,' was to be paid on or before the 1st of April of each and every year.

We think the rent reserved as such was this specified annual rental, and that the per capita payment was in the nature of a bonus, in the sense of an addition to the stated consideration.

The secretary was to lease to the best advantage to the United States, and that included the right to accept an offer of this kind; and, while the per capita was a part of the return to the government, it does not follow that the provision for reduction had reference to anything else than the specified rental, nor is any other construction compelled by the fact that the per capita might exceed the rental. Natural causes might diminish the catch so that this would not be so, and, at all events, the construction of the words of the statute and contract cannot be controlled by the amount of the reduction in one view rather than the other. Of course, at the time the lease was made it is evident that it was supposed that 60,000 seals might be taken annually, and on that basis the per capita royalty would be the principal compensation of the government. This made it directly to the interest of the government to allow the largest possible catch, which was undoubtedly a reason for the offer of the lessee in that form, as it tended to induce great circumspection in prescribing any limitation.

On the other hand, it may be that each seal would cost more as the number taken was less, and that, if the price of skins did not keep up, the company might be subjected to a loss, no matter how many it took, and the loss might be greater the more it took. But that was a risk the company assumed, and no reason is perceived for relieving it from the consequences.

The reduction of what the company agreed to pay, so far as the per capita was concerned, regulated itself. The smaller the number of skins, the less the company would pay; the larger the number, the more. We conclude that there is no adequate ground for holding that there should be any reduction on the per capita, which necessarily had to be paid.

By section 1962 of the Revised Statutes it was provided, as it had been by section 3 of the act of 1870, that for the period of 20 years from July 1, 1870, the number of fur seals which might be killed for their skins on the island of St. Paul was limited to 75,000 per annum, and the number which might be killed on the island of St. George to 25,000; but the secretary of the treasury might limit the right of killing, if it became necessary for the preservation of such seals, 'with such proportionate reduction of the rents reserved to the government as may be proper.'

By section 5 of the act of 1870, that at the expiration of the first term of 20 years, or its termination by surrender or forfeiture, other leases might be made 'in manner as aforesaid, for other terms of twenty years,' and by section 1963 of the Revised Statutes, that when the first lease, or any future similar lease, expired, or was surrendered, forfeited, or terminated, the secretary should again lease for the term of 20 years.

It is argued with great force on behalf of the government that whether reference be had to the act of 1870, or to the Revised Statutes, the limitation of the miximum number was expressly made only for a period of 20 years from July 1, 1870, that that limitation determined with the expiration of that period, and that, consequently, the provision for a proportionate reduction of rental in case of a limitation by the secretary did not afterwards apply. But taking the entire legislation into consideration, as we may, and indeed must, in accordance with well-settled rules of construction, when interpretation results in fairly differing meanings (U.S. v. Lacher, 134 U.S. 624, 626, 10 Sup. Ct. 625; Barrett v. U.S., 169 U.S. 218, 227, 18 Sup. Ct. 332), we are not persuaded that this position is correct.

In giving authority to make h e first lease, by section 4 of the act of 1870, the character of the lease was described; and a provision for further leases was made in section 5, which referred back to the description in section 4, by saying that other leases might be made 'in manner as aforesaid for other terms of twenty years.' When, however, the statutes were revised, the first lease had been executed, and was running, and the words 'in manner as aforesaid' were eliminated. The provision for succeeding leases was made the subject of section 1963, and, in declaring what they should be, the same language was used as that employed in the original act, whereby the character of future leases was indicated.

And section 1968, taken from the latter part of section 5 of the act of 1870, provided for the forfeiture of all the skins 'if any person or company, under any lease herein aughorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in this chapter prescribed.'

It is said that the words 'under any lease herein authorized' were intended to apply to the then pending lease, and that the purpose of the section was to provide for a forfeiture against any new lessee who might come in under a lease made on the happening of either of the contingencies mentioned in section 1963, as applied to the first lease; but we think the operation of the section was not intended to be thus restrained, and that it referred to any lease authorized under the chapter, and applied the forfeiture to the killing of seals in excess of the maximum number prescribed, which was to remain, if, when the time arrived for a new bidding, no change had been made by congress.

The revision of the statutes was approved June 22, 1874; but, by the last section (section 5601), provision was made that legislation between December 1, 1873, and the date of enactment, should take effect as if passed subsequently.

Accordingly the act of March 24, 1874, operated by way of amendment, and by authorizing the secretary to designate the months during which seals might be taken, and the number to be taken on or about each island, respectively, removed the restrictions imposed by sections 1960 and 1962 in those regards. The next day after the approval of the act, the then secretary availed himself of it by entering into an agreement with the company that the lease of 1870 should be amended so as to provide that not more than 90,000 seals should be killed per annum on the island of St. Paul, and not more than 10,000 on the island of St. George, and that no seals should be killed in any other month except the months of June, July, August to the 15th, September, and October. It seems to us reasonably clear that the specific restriction as to number, which, with the other restriction as to the months, it was the object of the act to remove, had relation to the distribution as between the two islands, 'respectively'; and, if it were proper to resort to what passed in congress, no doubt could be entertained on the subject. When the bill was reported from the committee on commerce, no written report was made; but its purpose and scope were explained on behalf of that committee in each house, and those explanations declared the object to be as above indicated.

Although the authority conferred as to the times of killing and the number to be killed was continuing and discretionary, and although the company in the present lease covenanted that it would not kill in any year a greater number than was authorized by the secretary, yet we think it would be going much too far to hold that the original provision for a maximum number, and a proportionate reduction of the fixed rental in case of a limitation, were done away with by implication.

Repeals, where the intention to do so is not expressed, are not favored; and, moreover, here the mischiefs sought to be remedied are quite obvious. One was that it was evidently thought that seals might properly be taken during the first half of Auu st, and the existing statute forbade this. The other was that the maximum was fixed for each island, whereas it had probably been ascertained that the distribution was erroneous, or that the numbers that might be safely taken on one or the other might vary, and consequently that greater elasticity was desirable. The language by which these objects were attained was entirely reconcilable with the prior law, so far as it did not purport to change it.

The legislation, from the beginning, was directed to the preservation of the fur seals, and the act of 1870 recognized that it might be necessary to such preservation that the number to be killed in the different years should be varied, and the discretion to do this was vested in the secretary; but while this authority was made more comprehensive by the act of 1874, and a redistribution, as between the two islands, authorized, we cannot accept the view that it was the intention by that act to wholly change the scheme of leasing, by making the discretion of the secretary purely arbitrary, and dispensing with any maximum or reduction.

It should be added that the action of the treasury department in the matter of the abatement of rent for 1890, 1891, and 1892 does not impress us as amounting to such departmental construction as entitles it to any particular weight, and the views of the department of justice were conflicting.

Reference is made to article 5 of the treaty of 1892, extending the modus vivendi, and the action taken under it before the tribunal of arbitration, as if amounting to an estoppel, or an admission against interest, or at the least as having some considerable bearing on the construction of the lease and the statutes. That article provided, among other things, that 'if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreement to limit the island catch to seven thousand five hundred a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators might have been taken without an undue diminution of the seal herds.' And it appears that the United States originally presented, as part of its case, a claim for the recovery of the damages which it and its lessee had sustained by reason of the limitation to 7,500; but this claim was certainly not presented as a claim which the company could maintain against the United States under the lease, and it involved no question of the power of the secretary in respect of the lessee under the covenants of that instrument. There was no element of estoppel about the transaction, and counsel had no authority to bind the government for any other purpose than the pending cause.

Moreover, counsel for the United States were constrained to expressly admit that the evidence failed to establish that an additional take, over and above the 7,500, could have been safely allowed. In the argument on behalf of the United States, Judge Blodgett, one of the counsel (and all the counsel concurred), made this statement: 'Frankness requires us, as we think, to say that the proofs which appear in the counter case of the United States as to the condition of the seal herd on the Pribilof Islands show that the United States could not have allowed its lessees to have much, if any, exceeded the number of skins allowed by the modus vivendi of 1892, without an undue diminution of the seal herd; and, upon this branch of the case, we simply call the attention of the tribunal to the proofs, and submit the question to its decision.' And, later, counsel announced that the United States would not ask the tribunal for any finding for damages upon and under article 5.

Our opinion is that, assuming that the lessee took all the risk of a catch reduced by natural causes, yet that when the number that might be killed was limited by the act of theg overnment or its agent, the secretary, the company was entitled to such reduction on the rental reserved as might be proper, and that the rule to be observed in that regard would be a reduction in the same proportion as the number of skins permitted to be taken bore to the maximum. This would reduce the annual rental for the year under consideration from $60,000 to $4,500; the tax due would be $15,000; and the per capita, $57,187.50; making a total of $76,687.50.

2. Laying out of view the concession under the first proposition, the company further contended that the prohibition by the United States, by agreement with Great Britain, of seal killing in excess of 7,500, to be taken on the islands for the subsistence of the natives, relieved the company from its covenants for the payment of rent and royalty, and that no action could be maintained therefor on the lease.

The evidence disclosed that prior to 1890 the number of seals annually resorting to these islands was rapidly diminishing. This was attributed to the open sea or pelagic sealing, whereby the seals, especially the females, who were exempt from slaughter under the laws of the United States, were interrupted in their passage to the islands by the crews of foreign vessels, and were killed in great numbers while in the water. For several years the United States, asserting that it had territorial jurisdiction over Behring Sea, had been striving to prevent vessels of foreign nations from seal hunting on the open waters thereof. Great Britain denied the territorial jurisdiction of the United States, and denied that the United States had a right of property in the fur seals while on the high seas during their progress to or from the islands of S. Paul and St. George, and it became necessary to resort to international regulation to prevent the extermination of the seals. Indeed, it appears that the treasury agent in charge made a report to the secretary of the treasury after the season of 1890, in which he strenuously urged the necessity of stopping sealing for a number of years absolutely, upon the islands, as a necessary measure for the preservation of the seals. On the 15th of June, 1891, an agreement for a modus vivendi was concluded between the government of the United States and the government of her Britannic majesty 'in relation to the fur seal fisheries in Behring Sea' (27 Stat. 980), whereby, with a view to promote the friendly settlement of the questions between the two governments touching their respective rights in Behring Sea, 'and for the preservation of the seal species,' it was agreed that seal killing should be prohibited until the following May, altogether by Great Britain, and by the United States 'in excess of seventy-five hundred, to be taken on the islands for the subsistence and care of the natives.' This was followed by a convention submitting to arbitration the questions concerning the jurisdictional rights of the United States in Behring Sea, 'the preservation of the fur seal in, or habitually resorting to, the said sea,' and the right to take such seals, which was proclaimed May 9, 1892. 27 Stat. 947.

And under the same date the modus vivendi was renewed during the pendency of the arbitration. 27 Stat. 952.

The arbitral tribunal sat in Paris in 1892-93, and the prohibition covered the killing period for which recovery is sought is this case.

The learned circuit judge held that the limitation under the modus vivendi was not a designation by the secretary, but was a prohibition by the government, and, consequently, that, if the lessees had not received any skins, the action could not have been maintained. But he held that, as the 7,500 skins were received by the lessees, they must make compensation for them; that a proper way to determine this was to ascertain what the fair product of the year, which might safely be taken, was, and compute what each skin would have cost the company, assuming they had taken that number; and by this mode of computation, having found that 20,000 mightp roperly have been taken, he reached the sum of $94,687.50 as the amount due to the government.

The circuit court found that the United States, pursuant to the modus vivendi, 'prohibited and prevented the said company from taking any seals whatever from the said islands during the year 1893, and thus deprived the said defendant of the benefit of its said lease.' We think this so far partakes of a conclusion of law that we are not shut up to treating it as a finding of fact. The power to regulate the seal fisheries in the interest of the preservation of the species was a sovereign, protective power, subject to which the lease was taken; and if the government found it necessary to exercise that power to the extent which this finding asserts, and if we assume that the company might thereupon have treated this contract as rescinded, it is sufficient to say that it took no such position, but accepted the performance involved in the delivery of the 7,500 skins. The company did not wish to rescind or abandon, and it could not but recognize that, as the modus was entered into in an effort to save the seal race from extermination, and thereby to preserve something for the future years of the lease, the prohibition was so far for its benefit.

Again, although the government acted, in making the lease, by the hand of the secretary, it was the real contracting party, exercising the power of regulation through the secretary; so that it was immaterial whether the secretary, on his own judgment, or in compliance with the will of the government, confined the number of seals taken in the year 1893 to 7,500. Undoubtedly the government could have directed the secretary, by law, to restrict the killing to 7,500 seals; and the treaty was nothing more.

The company could not object that the secretary was constrained to impose the limitation, for the secretary was bound to obey the instructions of his principal, and the company could not make it the subject of a contest in pais as to whether the preservation of the herd in fact required the limitation. The whole business of taking seals was conducted under the supervision of the government, and by section 1973 the secretary was authorized to appoint agents, who were charged with the management of the seal fisheries.

The record shows that instructions were issued to the government supervising agent on April 26, 1893, and a copy delivered to the superintendent of the company before the commencement of the season of that year. These instructions directed the number of seals to be taken during the season of 1893 to be limited to 7,500. It was stated by the secretary that it was believed 'that, if the killing be confined between the 1st of June and the 10th of August, a better quality of skins would be obtained, and less injury would be done to the rookeries'; and he added: 'This matter is, however, left, as above stated, to your discretion, and in reference thereto you will confer fully with the representative of the company; its interests, and those of the government, in the preservation of the fur seals, being identical.'

In the letter of the attorney of the company of November 15, 1893, he said: 'During the present year this company, in strict compliance with the orders of the treasury department, restricted its catch to 7,500.' In other words, it appears that both parties regarded the secretary of the treasury as authorizing the taking of 7,500 skins in the year 1893.

Under the law of 1870, and the various sections of the Revised Statutes, the power was expressly reserved to the government to make whatever restrictions of the business it might see fit to make; the lease recognized this, to the full extent; and it was, moreover, expressly stipulated that the company was not to kill, or permit to be killed, a greater number than the secretary might authorize. The company was offered 7,500 skins for 1893, took them, paid the amount fixed by the secretary under the lease for compensation to the natives for taking and loading the skins and subsequently tendered the sum of $23,789.50, as, according to its computation, the full amount due under the lease. These particular seals were killed by the government agent; but notice of the killing, from time to time, was given to the company, and the company requested to select the skins it desired, which it did. The government did not regard the lease as broken, but proceeded under it, and delivered the 7,500 skins as full performance of the covenant on its part, for the privilege of taking the seals was subject to such limitation on the number as the government believed it necessary to impose; and the company acquiesced in that view by taking the 7,500 skins without dissent.

It was after this that the question arose, not of breach of contract, but as to what sum, if any, was due from the company, under the lease, more than it had tendered. Was the company entitled to a reduction on what it had agreed to pay; and, if so, how much?

3. Finally, the company claims that the United States are liable to it in damages, to the extent of $287,725, for skins it could have taken during the season of 1893, without unreasonable injury to, or diminution of, the seal herd, and which the United States prevented it from doing, and that it can avail itself of this claim in this suit, by way of recoupment and counterclaim.

The circuit court rejected this counterclaim on the ground that the claim had not been presented, and disallowed by the accounting officers of the treasury, and dismissed it, not on the merits, but without prejudice. The company prosecuted its writ of error from the circuit court of appeals for the Second circuit, and assigned as errors, among others, that the circuit court erred in adjudging that its claim for damages was not duly presented, that the court did not allow its counterclaim, and that judgment was not directed in favor of the company. From what we have already said, it will have been seen that we are of opinion that the company cannot maintain this claim for damages, and that, assuming that the claim had been duly presented and disallowed, and that, if meritorious, it might be availed of by way of recoupment in this action, the circuit court erred in its disposition of the counterclaim.

The seal fisheries of the Pribilof Islands were a branch of commerce, and their regulation involved the exercise of power as a sovereign, and not as a mere proprietor. Such governmental powers cannot be contracted away, and it is absurd to argue that in this instance there was any attempt to do so, or any sheer oppression or wrong inflicted on the lessee by the government in the effort to protect the fur seal from extinction.

The privilege leased was the exclusive right to take fur seals, but it was subject, and expressly subjected, from the beginning, to whatever regulations of the business the United States might make. If those regulations reduced the catch, the company was protected by a reduction of the rental, and paid taxes and per capita only on the number taken. The other expenses to which it bound itself were part of the risk of the venture. The catch for 1893 was lawfully limited to 7,500, and the company accepted and disposed of the skins. It cannot now be heard to insist that that limitation was in breach of the obligations of the government, for which, though still claiming the contract to be outstanding, it is entitled to recover damages.

The judgment of the circuit court is reversed, and the cause remanded, with a direction to enter judgment in favor of the United States for $76,687.50, with interest from the 1st day of April, 1894, and to enter judgment in favor of the United States on the counterclaim.