
    MOSES M. BANE v. THE UNITED STATES.
    [Departmental No. 4.
    Decided June 2, 1884.]
    
      On the Facts.
    
    The land office in Salt Lake City is a consolidated land office. No house or room being provided by the government for the transaction of the business of the office, the receiver rents and occupies rooms for that purpose, but without being authorized so to do by the Secretary of the Interior. He pays the rent and applies to the Department for reimbursement.
    I. The disbursement of the annual appropriations “ for incidental expenses of the land offices ” is within the discretion and under the authority of the Secretary of the Interior. ■ .
    
      II. The provision in the Revised Statutes, § 2265, that “ the Secretary of the Interior is authorized to malee a reasonable allowance for office rent for each consolidated land office," is merely an authority to the Secretary to allow office rent out of the appropriation for iucidental expenses, ana the authority must he exercised within his discretion.
    III. The receiver of a consolidated land .office, who rents an office for the transaction of his official business without authority from the Commissioner of the General Land Office, has no legal right to reimbursement from the ajjpropriation for incidental expenses of land offices.
    
      The Reporters’ statement of the case:
    This case was transmitted to the court by the Secretary of the Interior under the provisions of the Bowman Act. The following are the facts as found by the court:
    The claimant is, and has been since October 30,1876, receiver of public moneys at Salt Lake City, in the Territory of Utah; and the land office at that place has been a consolidated land office since the 19th of June, 1877. Not having been provided by the government with house or rooms for the transaction of the business of his office, he rented and occupied rooms for that purpose, without having been authorized by the Secretary of the Interior to do so, and paid the rent out of his private means, as follows: From January 1 to July 1, 1877, $175, and from September 1, 1877, to March 1, 1879, $905. The rooms which he rented were suitable for the purpose, and the rent he paid for them was reasonable, and no more.
    February 20,1881, be wrote to the Commissioner of the General Land Office, asking that if there was no appropriation available to the reimbursement to him of those expenditures, the amount should be included in a deficiency estimate to be submitted for the action of Congress. The Commissioner replied to him in these words, on the 11th of January, 1882:
    “By reference to the records of this office it is found that no allowance had been made you for office rent during the time specified, and your expenditures for that purpose were therefore unauthorized. Being unauthorized, you have no claim against the United States that this office can recognize, and I therefore have to decline to recommend the amount to Congress for appropriation as a claim for the fiscal years specified.
    “Your only remedy lies in an application to Congress for your relief.”
    January 25, 1882, the claimant’s attorney applied to the Secretary of the Interior for the payment of this claim, who referred the attorney’s letter to the Commissioner for a report. February 1, 1882, the Commissioner reported thereon, in a letter to the Secretary, in which were the following sentences:
    “The annual appropriations for contingent expenses of local land offices, are devoted to defraying the expenses of purchase of furniture, repairs on same, books, binding, salaries of clerks, rent of offices, and expenses of agents, while making examinations.
    “ The amounts appropriated are inadequate to the payment of all the expenses necessary to the proper transaction of business within said offices, and it has been the practice of this office to request authority of the Department, under section 3683 of the Revised Statutes, for such reasonable allowance for each office in the matter of contingent expenses as is deemed proper and practicable, taking into consideration the amount of the appropriations.
    “ In the matter of rent of offices and salaries of clerks, it has been the rule that where clerks are authorized to be employed no authority has been given to charge the United States with the expense of office rent — not but that it is considered just and equitable that the United States should, in addition to salaries of clerks, pay the rent of offices where there are no public buildings, together with the expense of fuel (which is never allowed), but the inadequacy of the appropriations will not permit it.”
    February 4,1882, the Secretary of the Interior rendered the following adverse decision on the claim:
    “Department op ihr Interior,
    “ Washington, 4th Feb., 1882.
    “ Sir : I have received your report of the 1st instant on the claim of M. M. Bane, esq. (presented by James H. Mandeville, esq., of this city, in his letter of the 25th ultimo), for office rent, as receiver of public moneys at Salt Lake City, Utah Territory, amounting to $1,080.
    “It appears that there was no allowance made by your office for such rent, and in the absence of such allowance Mr. Bane had no reason to suppose that it would be paid. There is no fund out of which it could be paid, and the claim cannot be entertained by the Department. You will so inform Mr. Mande-ville, and return to him the papers transmitted herewith.
    “Yery respectfully,
    “S. J. Kirkwood,
    “ Secretary.
    
    “The Commissioner op the
    “General Land Oppice.”
    
      
      Mr. J. JET. Mandeville for the claimant:
    Where a statute directs a thing of a public nature, may is understood as shall. “The sheriff may take bail; this is construed he shall.” (Rex v. Barlow, 2 Salkeld, 607; Ballentine’s Estate, 45 California, 699; Kelly v. Morse, 3 Nebraska, 228; Bowler v. Berkins, 77 Illinois, 273.)
    It means shall only in cases where the public interest is concerned, and the public or third persons have a claim de jure that the power should be exercised. (Newburgh Turnpike Go. v. Miller, 5 Johns. Chancery, 113; Maleorn v. Rogers, 5 Cowan, 193; Schuyler Go. v. Mereer Go., 9 Illinois, 24; Nave v. Nave, 7 Indiana, 123; Blake v. R. R. Go., 39 N. H., 435; Bansemer v. Mace, 18 Ind., 27; Kane v. Booth, 70 111., 590; Low v. Dunham, 61 Maine 566; People ex rel. Gomvay v. Supervisors, 68 N. Y., 119.)
    It means shall when it concerns the public interest or the rights of individuals. (Hill v. Barge, 12 Ind., 693; Gillinwater v. R. R. Go., 13 111., 3; Lovell v. Wheaton, 11 Minn., 101; Phelps v. Hawley, 52 N. Y., 27; Queen v. Bishop of Oxford, 4 Queen’s Bench Division, 190; Supervisors v. United States, 4 Wallace, 446.)
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendants:
    The statute vests full power in the Secretary of the Interior to say whether any allowance at all, and, if so, what allowance, is reasonable; all of which, of course, depends upon the business demands of the office, the amount of the necessary appropriation, and other circumstances of which he is the exclusive judge. The Secretary is, in effect, a “ special tribunal,” to which all such claims for allowance for rent must be submitted, and whose decision thereon must, under the statutes, be final. (2 C. Cls. R., 225.)
   Drake, Ch. J.,

delivered the opinion of the court:

So far as this court is advised, there is no appropriation out of which rents of land offices can be paid, except the annual appropriation “for incidental expenses of the land offices”; which, in each of the fiscal years in which the claimant’s outlays for rent of office rooms were made, was $40,175.

This sum, as appears by the statement of the Commissioner of the General Land Officers “inadequate to the payment of all the expenses necessary to the proper transaction of business within said offices ”; and therefore it has been his “ practice to request authority of the Department for such reasonable allowance for each office in the matter of contingent expenses as is deemed proper and practicable, taking into consideration the amount of the appropriations.”

Manifestly, this was the only proper course for the Commissioner to take. He had no power to disburse any part of that appropriation, for any object, without previous authority therefor conferred by the Secretary of the Interior.

It is equally manifest that no Register or Receiver of a land office could have any right to disburse, or contract for the disbursement of, any part of the sum allowed by the Secretary for the incidental expenses of his office, unless authority had been given him by the Commissioner to make or contract for such disbursement.

Had the claimant been authorized to contract for rent of office-rooms, the rent would certainly have been paid out of the appropriation “ for incidental expenses of the land offices”; but he saw fit to rent such rooms, and pay the rent thereof out of his private means, without having received from the Department any authority so to do; and he urges that the Department is under legal obligation to reimburse the amount so paid by him.

In support of this claim he relies on these words in section 2255 of the Revised Statutes:

“The Secretary of the Interior is authorized to make a reasonable allowance for office-rent for each consolidated land office.”

It is claimed that these words are, in effect, a statutory command to the^ Secretary to make the allowance; that is, that the words “is authorized to maleev are the same as may malee, and that may there means shall.

As is well known, there are instances in which may, in a statute, is held to mean shall; but in our opinion this is not one of them.

Had tbe Legislature intended a command to the Secretary, it would, doubtless, have appropriated money specifically for rent for each consolidated land office, and then there would have been no question in the case. But when it appropriates a given sum “ for incidental expenses of the land offices,” the right to disburse that sum must rest in the Secretary, and no disbursement of it can be lawfully made without his authority.

The language of section 2255 is merely an authority to the Secretary to allow for office-rent for a consolidated land office. To what extent he should exercise that authority is left for him to determine, in view of the circumstances of each case and of the state of the appropriation for incidental expenses; and no right can exist in any land-officer to demand payment by the Department of rent paid out by him, unless the payment of such rent had been previously authorized by the Secretary.

The conclusion of the court is, that the claimant has no legal claim on the Department of the Interior for reimbursement of the money paid by him for office-rent; and it is oruered that a copy of the findings of fact and of this opinion be transmitted to that Department for its guidance and action.  