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legitimate conclusion to be drawn from his own argument; and it appears to be too narrow an interpretation to hold that the amendment only provided an additional right in the adjustment of the grant to make indemnity selections in advance of the surveys, and from any unappropriated public lands in the state or territory where the loss occurs, instead of from lands most contiguous to the same. A more satisfactory interpretation of the statute as amended is to be found in a prior decision of the secretary of the interior, dated April 22, 1891, where it was held that it was intended by the act of February 28, 1891, to provide a uniform rule for the se. lection of indemnity of lands applicable to all the states and territories having grants of school lands. This decision is based, mainly, upon the proceedings in congress, and, particularly, on the report of the committee on public lands of the house of represent. atives, reciting and adopting a report previously made to the sen. ate. This report contained the following statement:

"In the administration of the law, it has been found by the land depart. ment that the statute does not meet a variety of conditions, whereby the states and territories suffer loss of these sections, without adequate provision for indemnity selection in lieu thereof. Special laws have been enacted in a few instances to cover, in part, these defects with respect to particular states or territories; but, as the school grant is intended to have equal operation and equal benefit in all the public land states and territories, it is obvious the general law should meet the situation, and partiality or favor be there. hy excluded. * * * The bill as now framed will cure all inequalities in legislation; place the states and territories in a position where the school · grant can be applied to good lands, and largest measure of benefit to the school funds be thereby secured.” 22 Cong. Rec. p. 3632.

In construing a statute, aid may be derived from attention to the state of things as it appeared to the legislature when the statute was enacted. U. S. v. Union Pac. R. Co., 91 U. S. 72; Platt v. Railroad Co., 99 U. S. 48; Smith v. Townsend, 148 U. S. 490, 13 Sup. Ct. 634.

From the statement of the committee, it appears very clearly that the statute was intended to be general in its terms, and applicable alike to all the states and territories receiving grants of school lands; and such appears to be the view now held by the secretary of the interior, who, under date of September 27, 1895, so interpreted the statute in a decision relating to a settlement before survey on school lands in the state of Nebraska. 21 Land Dec. Dep. Int. 220..

The law being general, and providing indemnity selection for mineral lands in sections 16 and 36 of each township, it follows that California is entitled to make such a selection for the land lost to the state in section 36, township 3 N., range 15 E., and in section 16, township 17 S., range 31 E., providing it is sufficiently established in this case that the land is of a mineral character; and that question we now proceed to consider.

The school sections above described were certified by the United States deputy surveyor to be mineral. His field notes of surveys and plats thereof were approved by the United States surveyor general and the commissioner of the general land office, and filed in the United States land office. Upon this showing, the state alleged a loss of the said sections for school purposes, and has selected other lands in lieu thereof. The objection to the selection is that such designation and return do not in fact make the sections mineral lands, within the meaning of the law.

Section 2319 of the Revised Statutes provides that: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase."

The survey of public lands is provided by sections 2395 to 2413 of the Revised Statutes. Section 2406 provides that “the public surveys shall extend over all mineral lands." By paragraph 7 of section 2395, the deputy surveyor is required to note in his field books the true situation of all mines, salt licks, salt springs, and mill seats which may come to his knowledge, and also the quality of the lands. Paragraph 8 of the same section provides that:

“These field books shall be returned to the surveyor general, who shall cause therefrom a description of the whole lands surveyed to be inade out and transmitted to the officers who may superintend the sales.”

Section 441, Rev. St. U. S., reads: “The secretary of the interior is charged with the supervision of public business relating to the following subjects: * * * Second. The public lands, including mines."

Section 453, Rev. St. U. S., provides that the commissioner of the general land office shall perform, under the direction of the secretary of the interior, all executive duties pertaining to the survey and sale of the public lands of the United States, or in

ny wise respecting such public lands, and also such as relate to private claims of land.

In Sutton v. State of Minnesota, 7 Land Dec. Dep. Int. 562, 564, the secretary of the interior said:

"The field notes of survey, being entries in writing made by a public officer in the regular discharge of his duty, are presumptively correct, and are prima facie evidence of the fact stated, of a very high character. They must be taken as true, till disproved by a clear preponderance of the evidence."

In Re John W. Moore, 13 Land Dec. Dep. Int. 64, 66, he held that: · "The returns of the surveyor general and the record of the survey made under his direction are evidence of the highest character, that no private survey can be allowed to overcome.”

In the case of Bishop of Wesqually v. Gibbon, 158 U. S. 155, 15 Sup. Ct. 779, the plaintiff claimed the right to 640 acres of land under the act of August 14, 1848, establishing the territorial government of Oregon, wherein it was provided :

"That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said territories, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations respectively be. long."

In the bill filed in the court below, the plaintiff alleged that, un. der and by virtue of the foregoing provision, it was entitled to a


tract of 640 acres at and adjacent to the present town of Tan. couver, 430 acres of which were in the occupancy of the defend. ants as officers and soldiers of the United States, who held the same as a military reservation. In the previous controversy relating to this tract of land, it appears that the secretary of the interior had sustained the claim of the plaintiff to only a small tract (less than half an acre), upon which the building used as a church was situated, and had denied it as to the rest of the land. Afterwards the president approved a final survey and plat of the military reservation, confirmed the previous action of the war de partment, and declared the reservation set apart for military purposes. Commenting on these facts, the supreme court said:

"Upon these facts, it may well be doubted whether the decision of the secretary of the interior is not conclusive. The act of congress purports to CUDfirm 'the title to the land, not exceeding six hundred and forty acres, no occupied as missionary stations. It is a question of fact whether there was at Vancouver a missionary station, and also a like question, if one existed, how much land it occupied. The rule is that, in the administration of the public lands, the decision of the land department upon questions of fact is conclusive, and only questions of law are reviewable in the courts."

It was held further: “While there may be no specific reference in the act of 1848 of questions arising under this grant to the land department, yet its administration comes within the scope of the general powers vested in that department."

It is not claimed in this case by the defendant in error that the classification of public lands as mineral lands by the surveyor is absolutely conclusive upon the land department as to their real character, but that, when lands are surveyed and returned by the surveyor as mineral lands, they are treated and dealt with by the land department as such as long as they are so classified. The question is, what is the status of a school section when the state comes to make a selection? If it is mineral land, it is free and open to exploration and purchase under the laws of the United States; and, if it is so classified by the land department, it cannot be taken by the state, but other lands may be selected as indemnity for the loss. In this way, there is provided an immediate adjustment of the claim of the state under the school land grant. This method of procedure appears to be fair and reasonable, and in accordance with the purpose of the law. The state was therefore entitled to make a selection in lieu of such mineral lands.

The judgment of the circuit court is affirmed.

(Circuit Court of Appeals, Ninth Circuit. February 24, 1896.)

No. 225.


A lawyer appointed by a district attorney, ostensibly as a clerk, but to assist him in the duties of his office, pursuant to a letter from the attorney

1 Petition for rehearing denied.

general authorizing such appointment on condition that the appointed should look solely to the district attorney for his compensation, which was to be paid out of the emoluments of the office, is not an employé of the United States, and cannot maintain a suit against them for his compensation. Gilbert, Circuit Judge, dissenting. 66 Fed. 255, reversed.

In Error to the Circuit Court of the United States for the District of Montana.

The defendant in error filed his petition in the circuit court to recover from the plaintiffs in error upon two specific claims for clerical services rendered by him, as a clerk in the office of the United States attorney for the district of Montana, during the years 1891 and 1892. The claim for services in 1892 was disallowed by the court below (66 Fed. 255), and the only question before this court relates to his claim for services for the year 1891, amounting to $1,237.50. The petition alleges "that, pursuant to authority from the attorney general of the United States therefor, plaintiff began said services on or about the 12th day of March, 1891, under an appointment by the said United States district attorney, at an annual salary of $1,500, and continued said services under said appointment, and at the request of said attorney general and the said United States district attorney, up to and including the 31st day of December, 1891." The answer admits "that, by authority of the attorney general of the United States, plaintiff performed certain clerical services in the office of the United States district attorney for said district, commencing on or about the 12th day of March, 1891, at an annual salary of $1,500, and continuing said services up to the 1st day of December, 1891,” The findings of the circuit court below were: “First. That from the 12th of March, 1891, to the 31st day of December, 1891, plaintiff performed services for the United States as clerk in the office of the United States district attorney for the district of Montana; that he was employed to perform said services for the United States by E. D. Weed, the United States district attorney for the district of Montana, and his salary was fixed at $1,500 per annum; that said Weed was duly authorized to so employ plaintiff at said salary." As a conclusion of law the court found "that plaintiff is entitled to a judgment against the United States for the sum of $1,237.50."

It is contended by the plaintiffs in error that the court erred in finding as a fact that "the plaintiff performed services for the United States," and erred in its conclusion of law. The facts relative to the appointment of the defendant in error, as shown by the bill of exceptions, are as follows: On January 26, 1891, E. D. Weed, then United States attorney for Montana, addressed a communication to the attorney general, stating that the business of the United States was increasing so fast as to place it beyond his power to give it proper attention, adding, “I have to request that you appoint Mr. John M, McDonald as my assistant, and that the compensation be allowed from the emoluments of my office in excess of the maximum." The attorney general answered this communication as follows: “On the 26th ultimo you ask for the appointment of an assistant attorney, at a compensation to be allowed from the emoluments of your office in excess of your maximum. Whenever an appointment is made in the manner mentioned, it is a difficult matter to get a settlement through the accounting officers of the treasury. The better way seems to be that you appoint a person for the discharge of clerical services in your office, at a compensation not exceeding $1,500, such person to be an attorney at law who can assist you in the courts. If you are willing to appoint Mr. McDonald, his appointinent as an assistant is authorized, upon the further condition that he is to understand that he can have no account against the United States for serv. ices, but is to look exclusively to you for compensation." Pursuant to the authority thus given, the United States attorney for the district of Montana appointed McDonald as a clerk in his office, and in due time presented his account against the United States, in which he included, "Amount paid John M. McDonald for services as assistant attorney, $1,237.50." This item in the emolument account of the United States attorney was suspended. The reason given by the comptroller to the district attorney was as follows: "In your communication you state that, in reference to the vouchers of John M. McDonald for $1,237.50, 'if they were made out to him as assistant United States attorney, it was an error on his part, as he is not, officially speaking, such otficer, and

draws no salary as such from the United States. He is a clerk in my office, appointed by me, under directions of the attorney general, at a salary of $125 per month, to be paid out of the emoluments of this office.'” The comptroller further informed the United States attorney that, before the suspended item could be allowed, "you will be required to furnish a sworn statement setting forth the fact that Mr. McDonald performed clerical services only, and did not act in the capacity or perform services as assistant attorney."

Preston H. Leslie, U. S. Atty.
Russel J. Wilson, for defendant in error.

Before MCKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge, after stating the facts, delivered the opinion of the court.

The facts of this case present the question whether there is such a privity between McDonald and the government as to authorize him to maintain an action against the United States for the services rendered by him as a clerk in the office of the United States attorney for the district of Montana. The United States never employed McDonald to perform any services, legal or clerical, in their behalf. It is true that the attorney general gave authority to the United States attorney for the district of Montana to appoint McDonald as a clerk in his office, to assist him in the discharge of his duties as district attorney, at a named salary; but this authority was given upon the express condition that McDonald “is to understand that he can have no account against the United States for services, but is to look exclusively to the district attorney for his compensation.” This authority is conclusive. Its true interpretation and meaning govern the question. McDonald was to be paid by the district attorney out of the fees and emoluments of his office. The district attorney was to be allowed for McDonald's services out of his emolument account, as an expense properly incurred in his office. McDonald had no trust relation with that fund. He could only look to the district attorney for his compensation. The settlement of the emolument account was a matter between the government and the district attorney. If any item in that account was erroneously disallowed, the district attorney could maintain an action therefor against the United States. A clerk in the office of a district attorney is not a government officer. The fact that, in the emolument accounts of the district attorney, the auditor may allow him to deduct from his fees the clerk's compensation, does not make the clerk such an officer or employé of the government as to authorize him to recover any compensation for legal or clerical services rendered in the office of the United States attorney. The claim of McDonald is analogous to that of deputy marshals or deputy clerks, and it has always been held that such officers are in no sense creditors of the United States for the amount of their compensation. Deputy marshals, although entitled to certain fees by statute, and recognized as officers of the court, are not officers of the United States, in the sense that they can maintain an action against the government for their fees. Bollin v. Blythe. 16 Fed. 181; Powell v. U. S., 60 Fed. 687; Wallace v. Doug. lass, 103 V. C. 19, 9 S. E. 153. In Powell v. U. S., Bruce, J., said:

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