Reporter's Statement of the Case levied an assessment thereon against the plaintiff in the sum of $1,127.95 which was paid in installments as follows: In March 1933 plaintiff filed his income tax return for the taxable year 1932 and listed therein compensation received by him as referee in bankruptcy in the sum of $36,567.68 with deductions (not in dispute) aggregating $3,763.36 leaving net taxable income in the sum of $32,804.32. Upon the filing of this return the Commissioner of Internal Revenue levied an assessment thereon against the plaintiff in the sum of $3,943.00 which was paid in installments as follows: In March 1934 plaintiff filed his income tax return for the taxable year 1933 and listed therein compensation received by him as referee in bankruptcy in the sum of $43,909.98 and other income (not in dispute) of $3,739.84 totalling $47,649.82 with deductions (not in dispute) aggregating $239.30, leaving net taxable income in the sum of $47,410.52. Upon the filing of this return the Commissioner of Internal Revenue levied an assessment thereon against the plaintiff in the sum of $7,921.06 which was paid in installments as follows: On March 15, 1935, plaintiff filed claims for refund for the following years and in the amounts set opposite: 1931 1932 1933_. $1, 127.95 3, 943.00 7,921. 06 Opinion of the Court being the amount of tax paid, as stated above, and as grounds for such claims for refund plaintiff alleged in substance in the respective claims his appointment as referee in bankruptcy, that the taxes sought to be refunded were assessed upon income which consisted solely of compensation received by him as such referee in accordance with law, and that his income as a judicial officer was not subject to diminution by taxation under the Constitution of the United States. These claims were disallowed by the Commissioner. The court decided that the plaintiff was not entitled to recover. GREEN, Judge, delivered the opinion of the court: The question to be determined in this case is whether the income of a referee in bankruptcy arising out of fees paid to him for services in that capacity is subject to an income tax. The plaintiff contends that he is a judicial officer and that the provision of the Constitution with reference to judges providing that their compensation shall not be diminished during their continuance in office renders illegal any tax imposed upon his compensation. Conceding for the purpose of the argument that the taxation of plaintiff's compensation operates to diminish it, we do not think that he was one of the judges of the "inferior courts" whose compensation can not under the Constitution be "diminished during their continuance in office." It is true that a referee in bankruptcy performs many judicial functions and in some respects acts as a judge but, as said in Weidhorn v. Levy, 253 U. S. 268, 271: These provisions make it clear that the referee is not in any sense a separate court, nor endowed with any independent judicial authority, and is merely an officer of the court of bankruptcy, having no power except as conferred by the order of reference * It is well settled that the mere performance of judicial duties is not a test of whether the officer is one whose compensation can not be diminished under the provisions of the Constitution. See Williams v. United States, 289 U. S. 553; O'Donoghue v. United States, 289 U. S. 516. The plaintiff was not a judge of a court in the ordinary sense of the word Syllabus and there are other matters which, we think, make it clear that it was not intended that the constitutional provision should be applied to his office. The plaintiff was not appointed for life but only for a short term. The compensation of a referee in bankruptcy is indefinite and based on the value of the funds coming into the jurisdiction of the bankruptcy court. The tax does not take away what has been given by the Government and in that respect is not similar to the tax considered in Evans v. Gore, 253 U. S. 245. Moreover, the Supreme Court has held in Williams v. United States, supra, that the provision of the Constitution now being considered applies only to what are termed judges of a "constitutional court" and without quoting from the decision in that case it is quite evident from what is said therein the office which plaintiff filled is not that of a judge of a constitutional court. The prohibition against diminution of compensation was designed to provide an independent judiciary and for that purpose was coupled with life tenure, otherwise it would be of little effect. We are clear that it was not intended to apply to referees in bankruptcy. What we have said above makes it unnecessary to consider the other questions raised in the case. The petition of plaintiff must be dismissed, and it is so ordered. WHALEY, Judge; WILLIAMS, Judge; LITTLETON, Judge; and BOOTH, Chief Justice, concur. LAMM LUMBER COMPANY v. THE UNITED [No. K-533. Decided January 12, 1938. Motion for new trial overruled May 2, 1938] On the Proofs Contract for purchase of timber on Indian Reservation.-Evidence held insufficient to sustain claim for damage on account of land patent issued by government. 64834-38-CC-vol. 86- -13 Reporter's Statement of the Case Same; tribal contract; increase in price.-Where tribal contract provided in substance that any advance in stumpage rates to be paid by plaintiff should not exceed fifty per cent of the increase in average mill run wholesale net value of lumber at mills, during the three years preceding, and evidence shows there was no such increase in mill prices, an increase in stumpage prices under the contract was without authority. See Forest Lumber Co. v. U. S., herein, p. 188. Same; liability of the Government under tribal contract.-Where contract recited it was made by the Superintendent of the Klamath Indian School, for and on behalf of the tribe, and purchaser agreed to make payment to said Superintendent "for the use and benefit" of the tribe, said Superintendent was acting, by authority of law, for the government; and the government, in what it did, was acting under its own rights and powers, and not as agent; where one executes a contract solely under his own powers and rights he becomes liable thereon although the instrument specifies that it is executed in behalf of and for the benefit of a third party. The Reporter's statement of the case: Mr. Ralph H. Case for the plaintiff. Mr. James J. Sweeney, with whom was Mr. Assistant Attorney General Sam E. Whitaker, for the defendant. The court made special findings of fact as follows: 1. Lamm Lumber Company, plaintiff, is a corporation organized under the laws of the State of Oregon, with its principal office and place of business at Modoc Point, Oregon. 2. In March 1917, the Assistant Secretary of the Interior advertised for sale about 160,000,000 feet of timber (about 90% yellow pine and 10% sugar pine) and 10,000,000 feet of white fir upon about 11,500 acres within township 33 south, range 7 east, on what is designated as Southern Mount Scott Unit, within the Klamath Indian Reservation, Klamath, Oregon. 3. Plaintiff in response to this advertisement bid on the property offered for sale and its bid was accepted. On June 27, 1917, a contract was signed by plaintiff and later approved by the Assistant Secretary of the Interior. The contract stated that it was made by the Superintendent of the Klamath Indian School "for and on behalf of the Klamath Reporter's Statement of the Case Indians, party of the first part," by the terms of which the purchaser agreed to pay the value of the timber to "the Superintendent of the Klamath Indian School, State of Oregon, for the use and benefit of the Klamath Tribe of Indians." This contract is attached to the petition as Exhibit “A” and made a part hereof by reference. Under the contract, the party of the first part agreed to sell to the party of the second part all merchantable dead timber standing or fallen, and all live timber marked or designated for cutting by officers of the Indian Service, estimated to be about 160,000,000 feet board measure, log scale of pine timber (about 95% yellow pine and 5% sugar pine), and about 10,000,000 feet of white fir, located upon an area of about 11,500 acres of land, designated as the Southern Mount Scott Unit within the Klamath Indian Reservation. Under the contract, the party of the second part agreed to pay to the superintendent of the Klamath Indian School, State of Oregon, for the use and benefit of the Klamath Tribe of Indians, the full value of the timber to be cut at fixed rates per M feet board measure, Scribner Decimal C scale. The contract prescribed the rates for specified periods of the contract and with reference to changes in the rates provided: It is agreed further that the advance in stumpage rates as determined at the close of each specified period shall not exceed fifty per cent of the increase in the average mill run wholesale net value of lumber at mills in Southern Oregon and Northern California during the three years preceding January 1, of the year in which the new prices are fixed. Among other things, the contract also provided: 2. The sale includes an area of approximately 11,500 acres to be designated on the ground before cutting begins. The boundaries of the unit are definitely shown on the attached map, which is made a part of this contract, and are further described as follows: [Here followed a description of the boundaries as to which there is no dispute in the case.] The sale area includes 23 allotments comprising approximately 3,600 acres as to which the purchaser agrees to enter into separate contracts with the Indians who |