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REPAYMENT OF PURCHASE MONEY FOR LANDS ERRONEOUSLY SOLD.
The decision of the honorable Secretary of the Treasury, dated April 20, 1877, "in relation to the use of appropriations for the payment of accrued claims," bears severely upon claimants for refunding of pur. chase money for lands erroneously sold, whose cases it is made the duty of this office to examine and adjust.
Section 2362 Revised Statutes (p. 435) authorizes the Secretary of the Interior to repay the purchase money in cases of sales of public lands where from any cause the sale cannot be confirmed. Section 2363, recognizing the preferred character of these claims, further authorizes the sale of stocks held in trust where it may be necessary, in order to carry out the provisions of the preceding section.
The Secretary of the Treasury, in the decision referred to holds that the act of June 20, 1874, (18 Stat., p. 110,) precludes the payment of claims under “ permanent annual appropriations," where such claims accrued more than two complete fiscal years prior to the presentation of the adjusted account at the Treasury Department for warrant. The appropriation for refunding money for lands erroneously sold comes under section 3689 Rev. Stat., (p. 733,) making permanent annual appro. priations; and under the decision specifying this section there are now in the office of the First Comptroller of the Treasury some thirty cases approved by the honorable Secretary of the Interior in accordance with law, but withheld from final settlement, for the reason that the date of cancellation of sale is more than two complete fiscal years anterior to the date of receipt of the adjusted accounts.
These claims are manifestly so different from most others and possess such peculiar equities that I think the small number and amount of money involved have caused them to be overlooked in the decision of the Secretary of the Treasury. During the fiscal year ending June 30, 1877, 258 of these claims were reported to the Treasury Department, aggregating the sum of $29,666.19 only. The amount of money to be refunded in each case is never a matter of doubt; the certificate of pur. chase issued by the register of the land office at date of purchase, to. gether with the receiver's receipt for the money paid, determines that the United States has received a specific sum for a specific tract of land which the Government had contracted to sell, but which sale it was unable to confirm. The only question for determination is as to the party entitled to the return of this money, which, under the law, is decided by the additional legislation asked for.
The custom of this office under the act of January 12, 1825, author. izing repayment of purchase money for lands erroneously sold, has been to report formerly to the Secretary of the Treasury and latterly to the Secretary of the Interior all claims for refunding of excesses charged over the legal price, or any other illegal exactions on the part of the local land officers. These claims have been recognized and approved by the several heads of each Department to the present time, and it is only that now a question arises as to whether under a strict interpretation of the provision of the Revised Statutes, sec. 2362, p. 435, such repayments can be continued. To remove all possibility of doubt on this point, I respectfully suggest that it be recommended to Congress to pass an act amendatory of said section 2362, authorizing the Secretary of the Interior to repay to the original purchaser, or heirs, the amount of any overpayment or illegal exaction in the purchase of public lands. No refund. ing of such overpayments or illegal exactions to be made to other than
the original purchaser or heirs, except in cases of specific and definite assignment of such claims.
In tbe same amendatory act I would recommend the extension of the provisions of said section 2362 to embrace cases of deposit by settlers to cover the expense of survey of public lands under section 2403, p. 413, C. S. Revised Statutes.
DECISIONS IN LAND CASES.
There is much need of a well arranged digest of the decisions of the Department respecting the public lands, and a current publication of those rendered from day to day, both by this office and the Secretary. In the necessary distribution of work, it is impossible for one person to keep constantly in mind tbe rulings and decisions affecting every branch of the office, and it is not infrequently the case that conflicting decisions are rendered on important points, causing great mortification to the officials and uncertainty among claimants, as well as difficult modifications and explanations in making proper correction when dis. covered.
By the appointment of a law clerk for this bureau, something has been done toward securing correct constructions and harmonious rul. ings, but there being no text book of cases for his guidance, he must necessarily rely for authorities upon such written records of the Department as he may be able to refer to from his personal recollection, or from that of the clerks in charge of the various distributive branches of the office. It would be impossible, therefore, to expect, from his individual efforts, conclusions at all times in harmony with settled decis. ions of the Department, unless these decisions would be so codified and presented as to make them convenient for his consultation and reference, as well as accessible to the heads of divisions and examiners having the adjustment of important cases immediately in hand.
I had hoped to secure from the last Congress some legislative pro. vision by which the decisions of the Department relating to lands could be officially published, but, in the great press of important matters toward the close of the session, nothing was accomplished beyond the introduction of a joint resolution in the Senate relating to the subject.
That measure has been revived in the present Congress, and its provisions are embodied in Senate joint resolution No. 1, "Authorizing the official publication of the decisions of the Interior Department relating to the public lands." It provides for the designation by the Secretary of the Interior of a suitable person to collate, digest, and prepare for publication from mouth to month, or quarterly, as he may deem most desirable, such decisions, orders, circulars, and letters, as will fully explain and illustrate the current rulings and practice of the De. partment in land cases, to be printed by the Public Printer for distribution to parties entitled, and for sale to individuals at a price sufficient to cover the reasonable cost of the same.
In my judgment this measure will supply a much needed want in the administration of the land system, and I hope it may receive the speedy sanction of Congress.
ACT MARCH 3, 1875.
Attention is invited to the error in the description of the land directed to be withdrawn from sale and settlement and granted to the Holy Cross Mission, in the Territory of Dakota, by the act of Congress approved March 3, 1875. (Statutes at Large, vol. 18, p. 519.) Said act describes
the land as situated in sections thirteen and eighteen, whereas it appears that the land referred to is situated in sections thirteen and twenty-four. It will be necessary before the grant to said mission can be finally adjudicated that the statute be corrected by striking out the word eighteen in line six and substituting therefor the word twenty-four. I would also suggest that said act be so amended as to direct in specific terms the issue of a patent to said mission.
RECOMMENDS LEGISLATION AUTHORIZING THE COMMISSIONER OF THE GENERAL LAND OFFICE TO ISSUE COMMISSIONS TO TAKE TESTIMONY IN SUCH CASES AS IN HIS JUDGMENT THE EXIGENCIES OF THE CASE DEMAND.
It often becomes necessary and important in the adjudication of mat. ters relating to the public land and private land claims in the Territories and some of the sparsely settled public land States, particularly in ascer. taining the true location, boundaries, and extent of the various grants and claims, to take the testimony of witnesses residing at points remote from the offices of the surveyors general, whose examination is attended with great delay, trouble, and expense to the parties and the public service and great inconvenience to the witnesses whose attendance may be required. It has been the custom for the surveyors general, in cases where the testimony of distant witnesses is desired to be used before them or for the information of this office, to authorize county clerks or clerks of courts of record to take and return such testimony. But this affords only a partial and very inadequate remedy, the public duties of the officer frequently preventing prompt attention to the matter referred to him, and the distance still being so great in many cases, even when the nearest proper officer is selected, between his office and the residence of the witnesses, as to be a great hardship upon the latter and upon the parties who are compelled, for the protection of their interests, to procure their attendance and examination.
I therefore recommend appropriate legislation authorizing and em. powering the Commissioner of the General Land Office to issue commissions to such persons as he may deem fit and proper to take testimony in all cases where, in his judgment, the interests of the service, for the protection of the interests of the Government or the rights of the par. ties, require it.
RECOMMENDS THAT PATENTS BE DIRECTED TO ISSUE FOR LANDS LO.
CATED UNDER THE PROVISIONS OF THE SIXTH SECTION OF THE ACT OF CONGRESS APPROVED JUNE 22, 1860.
The sixth section of the act of June 22, 1860, (Statutes at Large, vol. 12, p. 85,) provides :
That whenever it shall appear that lands claimed, and the title to which may be confirmed under the provisions of this act, have been sold, in whole or in part, by the United States prior to such confirmation, or where the surveyor general shall ascertain that the same cannot be surveyed or located, the party in whose favor the title is confirmed shall have the right to enter upon any of the public lands of the United States a quantity of land equal in extent to that sold by tbe Government: Provided, That said entry be made only as lands subject to private entry, at one dollar and twenty-five cents per acre, and as far as may be possible in legal divisions and subdivisions, according to the surveys made by the United States.
Pursuant to the provisions of the above section, and in accordance with the mandates of the Supreme Court of the United States, in the cases adjudicated by said court under the provisions of the eleventh
section of said act, there has been issued by this office scrip or certifi. cates entitling the coufirmees or their assigns to locate 429,979.16 acres of land.
While the act of 1860 provided for the issue of patents for lands confirmed in place, it will be observed that it fails to provide for the issue of patents for lands located by the aforesaid scrip. The only evidence of title, therefore, that can be obtained to lands located thereby is the certificate of entry issued by the register and receiver of the land office in whose district the location is made, upon the surrender by the holder of the scrip under which the location is made.
In view of the foregoing, I have the bonor to recommend appropriate legislation directing the Commissioner of the General Land Office to issue patents for lands located by the aforesaid scrip or certificates of location.
SUPERVISION OF SURVEYS.
The first section of the act of Congress approved May 18, 1796, entitled "An act providing for the sale of the lands of the United States in the territory northwest of the river Ohio, and above the mouth of the Kentucky River,” provides that,
A surveyor general shall be appointed, whose daty it shall be to engage a sufficient number of skillful surveyors as his deputies, whom he shall cause, without delay, to survey and mark the unascertained outlines of the lands lying northwest of the river Obio, and above the mouth of the river Kentucky, in which the titles of the Indian tribes have been extinguished, and to divide the same in a manner hereinafter directed; he shall bave authority to frame regulations and instructions for the government of his deputies, to administer the necessary oaths upon their appointments, and to remove them for negligence or misconduct in office.
The second section provides for the method of survey; the fourth section for the sale of lands “ under the direction of the governor or secretary of the western territory and the surveyor general.”
General Rufus Putnam was appointed by the President the first surveror general of the United States, (northwest of Ohio River,) the pub. lic lands being then under the administration of the Treasury Department, and all letters addressed to the surveyor general up to June 17, 1812, were signed by the Secretary of the Treasury.
It will be seen by the foregoing that in the beginning there was but one surveyor general for the whole country. He had authority to appoint competent deputies to assist him in the work. “By various acts of Congress, since passed, the number of surveyors general has been in. creased, and the price per mile been fixed under contract system.
The practical result of tbe legislation increasing the number of surreyors general has not been such as to commend it to the country, and I am clearly of the opinion that the whole system should now be changed. I suggest and urge this on the ground of economy, and the belief that the work of public surveys would be more faithfully and permanently executed under the direction of one officer. There are now sixteen surveyors general, the maintenance of whose offices will cost during the present fiscal year $128,609.27, while expending in public surveys only the small sum of $300,000, being at the rate of about fortythree cents for superintending the expenditure of each dollar.
One surveyor general, employing not to exceed forty clerks, and at a cost uot exceeding fifty thousand dollars, could, under the present contract system, if that were to continue, perform all the work in a more satisfactory manner than it is now done at so much greater cost. The reasons wby this could be done are obvious to those who will investi. gate the subject. The salaries of sixteen surveyor generals, the rent of sixteen offices, the fuel and lights for the same, the employment of sixteen chief clerks, each at a salary, in most instances, as great, if not greater, than that received by the principal clerk of surveys of the whole United States, under whose direction and supervision all surveys are made, and by whow the accuracy of all the work is tested, could be dispensed with, and in lieu thereof substitute one surveyor general, one chief clerk, and the necessary number of clerks, as before stated.
The contract system for public surveys should be at once annulled and set aside. All surveys should be made by a regular staff or corps of officers selected by the surveyor general as his assistants on account of their fitness for the service. It should be the duty of such assistants to go into the field and make the surveys in person. If this system were adopted, it would certainly insure better work at less cost than by the present mode. The assistants, working at a fixed salary, would have no motive for doing the work imperfectly, as they might bare if under contract, which, in my opinion, is a sufficient reason for saying that the surveys would be made in a more satisfactory manner. There can be no reasonable doubt that surveys made in this manner would cost less than by the present contract method. It is true that the prices now allowed by law are too small to admit of large profits being made in the survey of mountainous or densely timbered lands, if the work be properly done. One reason why this is true is found in the fact that many of the persons surveying under contract are not well skilled in their work, and have not the means of procuring the necessary equip. ment for camp and field to enable them to do the work in the most economical manner. Most contractors in the Western States and Territories have to pay ruinous rates of interest for money to enable them to go into the field at all, and yet, with all these adverse circumstances to contend against, they make good profits on surveys of arable or level lands.
During the fiscal year ending June 30, 1877, there were expended in the surveys of public lands the sum of $215,942.42, for which there were surveyed 10,847,082 acres. Add to this the further sum of $146,933.58 which it cost to maintain the surveyor generals' offices in the sixteen districts where the surveys were made, and it is found that the total cost amounts to $362,876.
I hazard nothing in saying that under the system of having but one surveyor general and assistants, as proposed, a much larger area could have been surveyed and in a better manner. In many of the surveying districts lines and corners, established only a few years since under the contract system, are entirely obliterated.
It may be urged against this system that it would not be convenient for settlers and others, interested in any district where there are unsurveyed public lands, to procure such surveys as might be desired, if the surveyor general's office in the district were abolished or removed. No such argument can be successfully maintained. The rule is now for the surveyors general to make surveys in such parts of their several districts as they deem best, and all contracts for surveys before they become binding are sent to this office for approval. An order to survey any particular township in any district can be sent to an assistant in less time thau a contract could be prepared, sent here, approved, and returned to the surveyor general, all of which must be done before the work can be commenced. I therefore recommend
First. The consolidation of all the offices of surveyors general into one, which shall be located in Washington.