Statement of the Case.

UNITED STATES v. EDMONDSTON.

APPEAL FROM THE COURT OF CLAIMS.

No. 353. Submitted April 8, 1901.-Decided May 13, 1901.

One who pays to government officers, entitled to receive money for public lands, more than the law required him to pay for it cannot recover that excess in an action against the government in the Court of Claims.

THIS was an appeal from a judgment of the Court of Claims in favor of the appellee and against the United States for $200, being the amount he was overcharged in the purchase of a quarter section of land. The evidence disclosed the following facts: The claimant on March 11, 1891, filed in the local land office at Ashland, Wis., a statement, under the preëmption laws, of his intention to preëmpt a tract of 160 acres. On September 16, 1891, he gave public notice, as required by law, of his purpose to make final proof, and, in pursuance of such notice, on November 9, 1891, proved up before the register and receiver of the land office the necessary settlement and improve

ment.

Findings 2, 3, 4 and 5 are as follows:

"II. The claimant having established his right to the said land, on November 11, 1891, was required to pay for the same to the United States the sum of $400, being at the rate of $2.50 per acre for 160 acres, and he did pay the United States that amount for the land.

"III. The land inhabited and improved by the claimant, and paid for by him on the 11th of November, 1891, had been raised in price to $2.50 per acre, and put in the market prior to January, 1861, by reason of the grant of alternate sections to aid in the construction of railroads, and was of an alternate section reserved to the United States along the line of a railroad within the limits granted to the State of Wisconsin by the act approved June 3, 1856, 11 Stat. 20, to aid in the construction of railroads in that State, now known as the grant to the Chicago,

Opinion of the Court.

St. Paul, Minneapolis and Omaho Railway Company, and it was never alternate reserved land to the United States along the line of railroads within the limits granted by any other act of Congress to any other railway company.

"IV. At the time said cash entry was made and said money paid to the receiver at the local land office at Ashland, Wisconsin, it does not appear that the claimant made any protest or objection to said payment, nor asserted any right to purchase the land at a less price than that which he was called upon to pay for said land.

"V. Said land had been raised to $2.50 per acre and put on the market prior to January, 1861, by reason of the grant of alternate sections for railroad purposes, said land having been thus offered on June 14, 1856."

It also appeared that the claimant applied to the land office for the repayment of half of the purchase money, which was refused.

Mr. George Hines Gorman and Mr. Assistant Attorney General Pradt for the United States.

Mr. Harvey Spalding and Mr. E. W. Spalding for Edmond

ston.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

On June 16, 1880, an act was passed, 21 Stat. 287, c. 244, in section 2 of which is the following clause:

"And in all cases where parties have paid double minimum price for land which has afterwards been found not to be within the limits of a railroad land grant, the excess of one dollar and twenty-five cents per acre shall, in like manner, be repaid to the purchaser thereof, or to his heirs or assigns."

Another act passed the day before, June 15, 1880, 21 Stat. 237, c. 227, contained this provision:

"The price of lands now subject to entry which were raised to two dollars and fifty cents per acre and put in market prior

Opinion of the Court.

to January, 1861, by reason of the grant of alternate sections for railroad purposes, is hereby reduced to one dollar and twenty-five cents per acre."

Medbury v. United States, 173 U. S. 492, arose under the clause first quoted, and it was held that it did not apply to lands which were in fact within the limits of a land grant, but which had been forfeited on account of the failure of the railroad company to build its road, but only to cases in which there had been a mistake in the first instance as to the location of the land, the court saying (p. 500):

"That act plainly referred to the case of a mistake in location at the time when the entry was made. Where the parties supposed that the land entered was within the limits of the land grant, and where subsequently it is discovered that the lands were not within those limits, that a mistake had been made, and that the party had not obtained the lands which he thought he was obtaining by virtue of his entry, then the act of 1880 applies.

"Here no mistake whatever has been made. The lands were within the limits of the land grant at the time of the entry, and so remained for many years and up to the time of the act of forfeiture by Congress."

The act of June 16, 1880, may, therefore, be put out of consideration. By the act of June 15, however, the price of this tract was reduced from $2.50 to $1.25 per acre. The claimant paid the $2.50 without protest or question. He paid more than the law required him to pay. Can he recover the excess in this action in the Court of Claims?

The question thus presented is one of difficulty. If the parties to the transaction were both private individuals, it would clearly be a case of voluntary payment, and the amount overpaid would not be recoverable. If, for instance, the owner of a large body of land placed certain prices on different tracts thereof, and his agent, dealing with a purchaser of one of those tracts, charged him more than the price fixed by the principal, the purchaser paying the extra price without protest, and the principal accepting such payment, the transaction would not thereafter be open to inquiry in the courts, and the purchaser

Opinion of the Court.

could not recover the extra sum which he had paid to the agent. But it is insisted that the relations between the government and its purchaser are not like those between two individuals— that there is a constraining power in the government, a species of force or compulsion in its action, which makes the payment of money by one purchasing land from it through its officers a payment not voluntary but an exaction, and therefore enables the purchaser to recover any excess in the price.

We may not enter into any discussion of the mere equities of this transaction or the extent of the moral obligation resting on the government to repay a purchaser an excess in the price charged to and received from him. Our inquiry is limited to the question whether, in the statutes conferring jurisdiction on the Court of Claims, Congress has intended to acknowledge the liability of the government to every individual who has paid to any one of its officers a sum in excess of the legal charge for property or services and given to that court the power to render judgment against it for such excess.

The consequences of such a conclusion are far-reaching. The administrative affairs of the government are carried on by many thousands of officers. The fees for their services are generally prescribed. The sums which are to be paid for property obtained from the government are in like manner fixed by statute. Can it be that every individual who pays for services rendered by any of the administrative officers of the government, or for property which he obtains through the action of such officers, may come into the Court of Claims, and have an inquiry whether he has paid more than the statutory fee or price, and if he has, obtain judgment for the excess? Suppose, for instance, the statutory fee for a certificate from a certain official is twentyfive cents, and a party applying for such certificate is charged and pays fifty cents, has Congress by its legislation in respect to the Court of Claims provided that he can go into that court and recover from the government the extra twenty-five cents? It may be said that this is an extreme case, and that the fee is for the personal services of the officer; but under the present provisions of the statutes, generally speaking, all fees for the services of officers belong to the government, and are available

Opinion of the Court.

only in payment so far as they go of their salaries. It may also be said that no one would go to the trouble of suing for such a trifle as twenty-five cents, but if there are 10,000 cases of that kind the aggregate is no inconsiderable sum. But whether the aggregate of these claims be large or small, the inquiry is fairly presented whether Congress by its legislation intended to commit to the courts a supervision of all the charges for services and all the prices for property which administrative officers collect and receive, and empowered them to render judgment against the government in every case of excess therein. Of course, if such was its purpose the courts cannot decline jurisdiction, and must act in compliance therewith. But before so holding it seems to us that that purpose should be clearly manifested, and that a doubt in respect thereto should be resolved in favor of the government.

By 24 Stat. 505, c. 359, § 1, jurisdiction is given to the Court of Claims over actions against the United States for—

"All claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort."

One contention is that there is an implied contract by the government to return to the payor any sum in excess of that which is legally due as the price of property, although the payment was made without any question, protest or notice.

No one can read the findings without recognizing that the transaction between the officials of the land office and the claimant was at the time acceptable to both and without any complaint on the part of the petitioner. Some stress is placed by counsel on the word "required" in the second finding, but we think that it means simply that the government officials charged him four hundred dollars. To that charge he made no objection. Take any case in which application is made to an official for services or for the purchase of property; when he names the fee or the price the applicant ordinarily without question pays it. In a certain sense the applicant is required to pay;