
    BENJAMIN HEALEY v. THE UNITED STATES.
    [No 18122.
    Decided February 19, 1894.]
    
      On the Proofs.
    
    In 1889 the claimant files a declaration of his intention to reclaim a tract of desert land, being part of the alternate reserved sections along the line of a railroad. At the time the Gefieral Land Office holds these railroad lands to come under the.provision of the lievised Statutes, § 2357 “that the price to be paid for alternate reserved lands along the line of railroads shall be $%.50 per acre.” The claimant pays that price without objection or protest and acquires his title. He now contends that tailing up land in alternate sections under the desert land act does not subject him to a payment of $2.50 per acre, and he seeks to recover back half of his purchase money.
    I. The provision of the Eevised Statutes (§ 2357) declaring that the vriee to be paid for alternate reserved lands along the line of railroads shall. be ‡%.50 per aeré’ applies only to lands disposed of at auction or private sale for cash, and has no application to lands disposed of under the Desert Zand Aot, Sd March, 1877 (19 Stat. L., p., 377).
    
      II. Where the law is unsettled, and in doubt, money paid in mistake of * its true construction may he considered in the nature of a compromise, and can not be recovered back, unless it be paid between persons who do not stand on equal footing. A citizen buying public lands and a receiver of the land office acting under instructions of the Commissioner do not stand on an equal footing. Money paid for land at a higher price than the true construction of the statute requires may be recovered back, though paid without objection or protest.
    
      The Reporters’ statement of the ease :
    The following are the facts of the case as found by the court:
    I. March 12,1877, the Interior Department issued the following circular:
    “DEPARTMENT OE THE INTERIOR,
    “General Land Oeeioe,
    “ Washington, T). 0., March 12,1877. “Register and Receiver,
    “ U. S. Land Office:
    
    “Gentlemen: The following is the text of an act of Congress approved March 3, 1877, and entitled ‘ An act to provide for the sale of desert lands in certain States and Territories:’
    “ ‘ Be it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That it shall be lawful for any citizen of the United States, or any person of requisite age who may be entitled to become a citizen, and who has filed his declaration to become such, and upon payment of twenty-five cents per acre, to file a declaration, under oath, with the register and receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land, not exceeding one section, by conducting water upon the same, within the period of three years thereafter; provided, however, that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres, shall depend upon bona fide prior appropriation, and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.
    “‘Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey.
    
      “ ‘ At any time within tbe period of three years after filing-said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him.
    a £ Provided, That no person shall be permitted to enter more than one tract of land, and not to exceed six hundred and forty acres, which shall be in compact form.
    “‘ Seo 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses, under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated.
    “‘Sec. 3. That this act shall only apply to and take effect in the States of California, Oregon, and Nevada, and the Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office.’
    “The declaration specified in the first section of the act to be filed with the register and receiver must be under oath, and may be executed before either the register or receiver or the clerk of any court of record having a seal. It must set forth that the applicant is a citizen of the United States, or that he has declared his intention to become such, in which case a duly-certified copy of his declaration of intentions to become a citizen must be presented and filed. It must also set up that the applicant has made no other declaration for desert lands under the provisions of this act, and that he intends to reclaim the tract of land applied for, not exceeding one section, by conducting water thereon within three years from the date of his declaration.
    “The declaration must also contain a description of the land applied for by legal subdivision if surveyed, or if unsurveyed, as nearly as possible without survey, by giving- with as much clearness and precision as possible the locality of the tract with reference to known and conspicuous landmarks of the established lines of survey, so as to admit of its being thereafter readily identified when the lines of survey come to be extended.
    “As preliminary to the filing of such declaration, it must be satisfactorily shown that the land therein described is desert land as defined in the second section of the act. To this end you will require the testimony of at least two disinterested and credible witnesses, whose testimony you will reduce to writing in the usual manner, or the evidence may be furnished in the form of affidavits, executed before the clerk of any court of record having a seal, the credibility of the witnesses to be certified by said clerk. The witnesses must clearly state their acquaintance with the premises and the facts as to the condition and situation of the land upon which they base their judgment. You are particularly enjoined to exercise great care as to the sufficiency of the proof upon this point in each case.
    
      “After this proof lias leen made to your satisfaction, the receiver will receive from the applicant the sum of twenty-five cents per acre for the land, applied for, the register will receive and file his declaration, and you will jointly issue, in duplicate, a certificate in the following form:
      
    
    
      u 1 United States Laítd Oeeice,
    hi_18_
    “ ‘It is hereby certified that, under the provision of the act of Congress approved March 3,1877, entitled “An act to provide for the sale of desert lands in certain States and Territories,” -1-has this day filed in this office his declaration of intentions to reclaim tlie following-described tract of land, viz,-; that he has proven to our satisfaction that the said tract of land is desert lands, defined in the second section of said act, and that he has paidt o the receiver the sum of-dollars, being at the rate of twenty-five cents per acre for the land above described. It is therefore further certified that if within three years from the date hereof the said- -, or his assignee or legal representative, shall satisfactorily prove that the said land has been reclaimed by carrying water thereon, and shall pay to the receiver the additional sum of one dollar per acre for the land above described, he or she or they shall be entitled to receive a patent therefor under the provisions of the said act.
    
      u 1-, Register.
    
    
      u e-, Receiver.’ ”
    “You will deliver one copy of this certificate to the applicant, retaining the other copy with tlie declaration and proof. You will number the certificates in the order of their issue. The register will keep a record of the certificates issued, showing the number, date, amount paid, name of applicant, and description of the land applied for in each case, and, in addition, he will note the same upon his plats and records, as iu cases of ordinary entry. At the end of each month he will, with his regular returns, forward to this office an abstract of the declarations filed and certificates issued under this act during the month, accompanying same with the declaration and proofs filed and the retained copy of certificate in each case.
    
      “The receiver will also account for the money received under this act in the usual form. At any time within three years after the date of filing the declaration and the issue of certificate the proper party may make satisfactory proof of having conducted water upon the land applied for.
    “This proof must consist of the testimony of at least two disinterested and credible witnesses, who must appear in person before the register and receiver. They must declare that they’ have personal knowledge of the condition of the land applied for and of the facts to which they testify, and their testimony shall be reduced to writing in the usual manner. You will also require the party to present and surrender the duplicate certificate issued when the declaration was filed.
    “ When this is done, and the proof made to your satisfaction, the receiver will receive the additional payment of one dollar per acre, receipting therefor in duplicate in the usual manner, but indorsing upon the face of the receipt a reference to this act. The register will also issue a final certificate of purchase in the’ordinary form of such certificates, indorsing also upon the face of the certificate a reference to this act. You will give to these final certificates and receipts a special series of numbers, and will make separate abstracts of same at the end of each month, sending up the final certificates, receipts, and proofs, as in cases of ordinary preemption entries.
    “In cases where declarations shall be filed under this act for unsurveyed lands, you will immediately forward copies of the declarations to the surveyor-general.
    “ You will acknowledge receipt of this circular.
    “Yery respectfully,
    “J. A. WILLIAMSON,
    “ Commissioner.”
    II. June 27, 1887, the following circular was issued by said Department:
    “DESERT LAND ENTRY — FINAL PROOE.
    “The first section of the Act of March 5,1877 (19 Stat. L., 377), entitled ‘An act to provide for the sale of desert lands in certain States and Territories/ provides for the reclamation of such lands by ‘ conducting water upon the same.’ The second section provides £ that all lands exclusive of timber lands and mineral lands which will not, without artificial irrigation, produce some agricultural crop, shall be deemed desert lands within the meaning of this act,’ and the third section provides that ‘the determination of what maybe considered desert land shall be subject to the decision and regulation of the Commissioner of the G-eneral Land Office.’ It is therefore prescribed as follows:
    “ First. Lands bordering upon streams, lakes, or other natural bodies of water, dr through or upon which there is any river,
    
      stream, arroyo, lake, pond, body of water, or living spring, are not subject to entry under tbe desert land law until tbe clearest proof of tbeir desert character is furnished.
    “ Second. Land which produces native grasses sufficient in quantity, if unfed by grazing animals, to make an ordinary crop of hay in usual seasons, is not desert land.
    
      u Third. Lands which will produce an agricultural crop of any kind in amount to make the cultivation reasonably remunerative, are not desert.
    
      “ Fourth. Lands containing sufficient moisture to produce a natural growth of trees are not to be classed as desert lands.
    “ (1) The amount of land which may be entered by any one person under the desert land act can not exceed 1 section, or 640 acres, which must be in compact form, and no person can make more than one entry.
    “(2) Desert land entries are not assignable, and the transfer of such entries, whether by deed, contract, or agreement, vitiates the entry. An entry made in the interest or for the benefit of any other person, firm, or corporation, or with intent that the title shall be conveyed to any other person, firm or corporation, is illegal.
    “ (3) „The price at tohich la/nds may be entered imder the desert land act is the same as under the preemption law, vim: single minimtm lands at $1.25 per acre, and double minimum lands at ‡2.50 per acre. (Sec. 2357, TJ. S. Eev. Stats.)
    
    “(4) A party desiring to avail himself of the privileges of the desert land act must file with the register and receiver of the proper district land office a declaration, under oath, setting forth that the applicant is a citizen of the United States, or that he has declared his intention to become such. In the latter case a duly certified copy of his declaration of intention to become a citizen must be presented and filed. It must also be set up that the applicant has not previously exercised the right of entry under thé provisions of this act, and that he intends to reclaim the tract of land applied for by conducting-water thereon within three years from the date of his declaration. The declaration must also contain a description of the land applied for, by legal subdivisions if surveyed, or if unsur-veyed as nearly as possible without a survey, by giving with as much clearness and precision as possible the locality of the tract with reference to the already established lines of survey or to known and conspicuous landmarks, so as to admit of its being readily identified when the lines of survey come to be extended.
    “(5) Tour attention is called to the terms of this declaration as provided by existing regulations (Form 4-274), which are such as require a personal knowledge by the entrymen of lands intended to be entered. The required affidavit can not be made by an agent nor upon information and belief, and yon will hereafter reject all applications in which it does not appear that the entryman made the averments contained in the sworn declaration upon his own knowledge, derived from a personal examination of the lands. The blank in the declaration, to wit, “that I became acquainted with said lands by -,” must be filled in with a full statement of the facts of his acquaintance with the land and how he knows its character as alleged. Said declaration must be corroborated by the affidavits of two reputable witnesses who are acquainted with the land and with the applicant, and who must clearly state their acquaintance with the premises and the facts as to the condition and situation of the land upon which they base their judgment. (Form 4-074.)
    “ (6) Applicants and witnesses must in all cases state their place of actual residence, their business or occupation, and their post-office address. Itis not sufficient to name the county and State, or Territory, where a party lives, but the town or city must be named, and, if residence is in the city, the street and number must be given.
    “ (7) The declaration and corroborating affidavits may be made before either the register or receiver of the land district in which the lands are situated, or before the judge or clerk of a court of record of the county in which the lands are situated, and if the lands are in an unorganized county, then the affidavit may be made in an adjacent county. The depositions of applicant and witnesses in making final proof must be taken in the same manner, and the authority of any practice or regulation permitting original or final desert-land affidavits to be executed before any other officers than those named above is hereby revoked. The affidavits of applicant and witnesses must in every instance, either of original application or final proof, be made at the same time and place and before the same officer.
    “(S) When proof of the character of the land has been made as above required to the satisfaction of the district officers, the applicant will pay the receiver the sum of 25 cents per acre where the land is single minimum, and 50 cents per acre where the land is double minimum. The register will receive and file the declaration, and the register and receiver will jointly issue, in duplicate, a certificate (Form 4-199) acknowledging the receipt of the 25 or 50 cents per acre, as the case may be, and the filing of the declaration. One of these duplicates will be delivered to the applicant, the other will be retained by the register and receiver with the declaration and proof. They will bear a number according to the order in which the certificate was issued. The register will keep a record of the certificates issued, showing the number, date, amount paid, name of applicant, and description of the land applied for in each case, and, in addition, he will note the same upon his plats and records, as in cases of ordinary entry. Át the end of each month he will, with his regular returns, forward to the General Land Office an abstract of the declarations hied and certificates issued under this act during the month, accompanying thesaihe with the declarations and proofs filed and the retained copy of certificate in each case. The receiver will also account tor the money received under this act in the usual form.
    “(9) Surveys of desert-land claims can not be made in advance of the regular progress of the public surveys.' After a township has been surveyed the claim must be adjusted to the lines of the survey.
    “ (10) Personsmaking desert-land entries must acquire aclear right to the use of sufficient water for thepurposeof irrigating the whole of the land and of keeping it permanently irrigated. A person who makes a desert-land entry before he has secured a water right does so at his own risk, and as one entry exhausts his right of entry, such right can not be restored or again exercised because of failure to obtain water to irrigate the land selected by him.
    “ (11) The source and volume of water supply, how acquired and how maintained, the carrying capacity of the ditches, and the number and length of all ditches on each legal subdivision of the land must be specifically shown. Applicant and witnesses must each state in full what has been done in the manner of reclamation and improvement and by whom, and must each answer fully and of their own personal knowledge the questions propounded in the final proof depositions. They must state specifically whether they at any time saw the land effectually irrigated, for without knowledge thus derived the fact of reclamation remains a matter of conjecture. (Case of Charles H. Schick, 5 L. D., 151.)
    “(12) The whole tract and each legal subdivision for which proof is offered' must be actually irrigated. If there are some high points or uneven surfaces which are practically not susceptible of irrigation, the nature, extent, and area of such spots must be fully stated. In this connection the right to the water used, the quantity of it, the manner of its distribution, and the permanence of the supply are all to be taken into consideration. (Case of Geo. Itamsey, 5 L.’D., 120.)
    “(13) Before final proof shall hereafter be submitted by any person claiming to enter lands under the desert land act, such person will be required to file a notice of intention to make such proof, which shall be published in the same manner as required in homestead and preemption cases.
    “ (14) Contests may be instituted against desert-land entries for illegality or fraud in the inception of the entry, or for failure to comply with the law after entry, or for any sufficient cause affecting the legality or validity of the claim. Contestants will be allowed a preference right of entry for thirty days after notice of the cancellation of the contested entry in the same
    
      manner as in homestead and preemption cases, and the register will give the same notice and be entitled to the same fee for notice as in other cases.
    “ (15) When relinquishments of desert-land entries are filed in the local land office the entries will be cancelled by .the register and receiver in the same manner as in homestead, preemption, and timber-culture cases, under the 'first section' of the Act of May 14, 1890 (21 Stat. L., 140).
    
      “(16) Nothing herein will be construed to have a retroactive effect in cases where the official regulations of this Department in force at the date of entry were complied with.
    “Wm. A. J. Sparks,
    
      “Commissioner.
    
    “Approved:
    “L. Q. C. Lamar,
    “Secretary.”
    III. January 13,1892, the Secretary of the Interior, in answer to a letter of the Commissioner of the General Land Office asking instructions on the subject, made the following ruling:
    “After a careful consideration of this matter I have concluded that the amount of money to be paid in acquiring title to desert lands under said act of March 3, 1877, as amended by the act of March 3,1891, is $1.25 per acre without regard to the situation of the land in relation to the limits of railroad grants.”
    In September, 1893, another Secretary of the Interior adhered to the latter ruling in the case of one White, who applied for refund of money overpaid by him. White, having filed May 20,1891, his application to make an entry on land within the limits granted to a railroad, was required by the receiver to pay $2.50 an acre therefor. The Secretary held that:
    “Under the facts in this case and the Act of March 3,1887. as amended by the Act of March 3,1891 (26 Stat. L., 1095), fixing the price of desert-land entries at $1.25 per acre without regard to the situation of the land with relation to the limits of railroad grants, there is no question but that White was required to pay $400 too much for his land. And the only question before me for my consideration is, whether or not the Secretary of the Interior has the power to repay to White that $400 after it has found its way into the Treasury of the United States. As there is no statute in existence' empowering the Secretary of the Interior to make repayment in cases of this character, your decision is affirmed.”
    IY. February 5,1889, the claimant filed with the register and receiver of the Vandalia laud office a declaration of his intention to reclaim a tract of land situated in their said district, part of the alternate reserved sections along the line of the railroad and within the limits granted by the Act of Congress of July 27,1866 (oh. 278, 14 Stat. L., 299), being on section 30, townshiio 21 south of range 19 east of Mount Diablo meridian, California, containing 639.20 acres, and other facts required in such declaration by said act and the circular of March 12, 1877. At the same time, being so required, without protest and without taking any steps for relief against the demand of the receiver, he paid the sum of $319.60, which was 50 cents per acre for the land so described.
    Y. September 21,1891, the claimant made satisfactory proof to the register and receiver of the reclamation of said tract of land as provided by said .statute and circulars, and, being so required, without protest and without taking, any steps for relief against the demand of the receiver, he paid the sum of $1,278.40, which was $2 per acre for the land reclaimed in addition to the amount paid at the time of filing his declaration, in all, $2.50 per acre, and thereupon a patent was issued.
    YI. No part of said money has been refunded to the claimant.
    
      Messrs. J. R. and H. W. Spalding for the claimant.
    It appears from the record that on the 29th day of June, 1887, the then Commissioner of the General Land Office issued a circular letter to the registers and receivers of the several land offices purporting to set forth the requirements of the desert land law, in which circular it was stated that the price to be paid for entries under the desert laud law was the same as for entries under the preemption law, $1.25 per acre for single minimum lands and $2.50 per acre for double minimum lands, and in another portion of the circular he directed the receivers to demand 50 cents per acre on the filing of the preliminary declaration where the land was within a railroad grant, and that this circular was issued with the approval of the Secretary of the Interior.
    When, therefore, the claimant came to the land office to enter the particular body of land that he had selected he was confronted by the land officers with this circular. The law presumes conclusively, as stated in defendant’s brief, that the claimant knew the law; that he knew he was entitled to enter this laud upon payment of 25 cents per acre. Yet the record shows that he paid 50 cents an acre. That he paid this sum instead of 25 cents, when he knew he ought in law only to pay
    
      tbe smaller sum, shows conclusively that he was coerced into the payment by the refusal of the land officers to receive his declaration on payment of the legal amount. The record shows that the claimant proceeded to irrigate the land according to the provisions of the law, and that he again came to the land office to prove to the satisfaction of the register and receiver that he had reclaimed it and to make his final payment upon the land. He knew, and he is presumed in law to have known, that he was entitled to make a final payment of but 75 cents an acre, having already overpaid to the extent of 25 cents; yet the record shows that he actually paid $2 per acre. Why? Plainly because he found it necessary, in order to get the register and receiver to approve his final proof and to give him his final certificate, without which he could not obtain a patent and without which all the money he had previously spent in making his preliminary payment and in irrigating the land would have been lost, together with his right to make an entry under the desert land act, for he was only entitled to make one such entry. A payment made under such conditions has never been called a voluntary payment. (Morgan v. Palmer, 2 Barn. & 0., 729; Steele v. Williams, 8 Weis, Hurl. & G-ard., 625; Lawson v. United, States, 14 C. 01s. B>., 338.)
    The cases cited by counsel for defendant (Lamhorn v. County Commissioners, 97 H. S., 181, and Railroad Co. v. Commissioners, 98 IT. S., 541) in no way conflict with the principles of the oases we have just referred to, nor do they apply to the present case. They are both tax cases, where the plaintiffs, having paid taxes assessed against their real estate, which afterward turned out to have been illegal, brought suit to recover the amounts so paid, and the court rightly held that those payments were voluntarily made; that the plaintiffs were under no compulsion to pay an illegal tax; that the county had no way of collecting the same, and that a sale of the land to other parties for such unpaid illegal taxes would have been utterly void and would have cast no cloud upon the title. The plaintiffs were in no manner in the power of the defendants.
    It is submitted that the cases of Lawson y. The United States (101 TJ. S., 164), and Swift Company v. The United States (111 IT. S., 22), cited in our brief, are conclusive upon this aspect of the case. In the 1 atter case it will be found that the right of the claimant to recover the amount overpaid was assumed by both parties, the defense having been made on the ground that by a long series of transactions and settlements the claimant had waived his right to recover and had accepted the stamps allowed him in accord and satisfaction of his claims. But the court said that the claimant was compelled by the force of his position to transact his business as he had done, and that there was no evidence of any relinquishment- of his statutory rights; that where a Department adopted and published to the world a construction of a law, parties dealing with them are freed from any obligation to protest against such construction at every dealing and that they can recover any amounts of which they have been deprived by such rulings by suit in the Court of Claims.
    
      Mr. George JET. Gorman (with whom was ilir. Assistant Attorney- General Dodge) for the defendants.
    1. The kind of sale provided for by section 2357, Revised Statutes, is an absolute sale; that is, a sale outright and where nothing remains to be done on the part of either buyer or seller, and to which there are no conditions attached. The kind of sale which is provided for in the desert land act, on the contrary, is what is known as a conditional sale, or sale upon conditions; and, mutatis mutandis, is exactly similar to that class of cases in which the buyer is to do a thing as a condition on which the passing of the property or title depends. In such cases the property or title does not pass at all until the condition is fulfilled, even though possession be delivered to the purchaser. (Mgee Ootton Gases, 22 Wall., 187-196; Heryford v. Davis, 102 IT. S., 246; Dopey. Allis, 115 id., 363-371-372; Anderson’s Law Diet., 915.)
    So in the case at bar. The statute offers for sale certain public lands to certain persons upon certain terms and conditions, to wit:
    Whomsoever desires to become a purchaser of the lands under this offer of sale is required to make an initial payment of 25 cents per acre and to file with the register and receiver his declaration of intention to reclaim said land by conducting water thereon, etc. Upon the performance of this condition the entryman or prospective purchaser is permitted to go upon and occupy the land. He thereby acquires an inceptive right to and a qualified interest in the land. Until the requirements mentioned below are performed, and until patent is issued by the Government, the fee remains in the Government (Bagnell v. Bro deride, 13 Peters, 436); but upon the fulfillment of the conditions mentioned in this paragraph he becomes vested with an equitable right to demand the patent after he shall have performed the conditions set forth in the paragraph below; that is, after such further proceedings as the law and the course of business in the Department require. (Lcmgdonv. Sherwood, 124 U. S., 83; Fennv. Holm, 21 How., 488; Hooper v. Sehiemer, 23 id., 249; Foster v. Mora, 98 U. S., 425.)
    The second condition of the sale is that (within three years from the filing of the declaration.mentioned above) the entryman or prospective purchaser shall make satisfactory proof (to the register and receiver of the local land office) that he has conducted water upon the land, etc., and shall pay to the receiver the additional sum of $1 per acre (provided the land be single minimum; see page 1). Thereupon the sale becomes absolute and completed, and the Government issues a patent (the Government’s deed) to the purchaser of the land.
    How, then, can it be contended that such an acquisition of land is not by purchase and sale? It is a conditional sale, it is true, but it is none the less a sale — just the same sort of sale upon condition-precedent as is made in the mercantile world every day. So there are several different methods prescribed by the statutes for the sale of the public .lands. One is by absolute sale for cash at public auction; another is an absolute sale for cash in private; another is a conditional sale embraced within the terms of an offer of sale known as the desert land act, etc. While it is true that the term “ desert entry” includes a “ sale,” it is none the less true that the term “ sale ” includes a “ desert entry.” In other words, the term “ sale” is a generic term, and comprehends all the various varieties of sales that have been created by the acts of Congress; and when section 2357 of the Revised Statutes declares that no land which lies within the limits of a railroad grant shall be sold for' a less price than $2.50 per acre, the meaning is that they shall not be sold— not sold absolutely, conditionally, or in any other way — for a less sum than the specified price.
    In the case of Railroad Oo. v. JDunmeyer (113 U. S., 629), cited by counsel for petitioner, the court held that the act of July 13,1866 (being an amendment and extension of the time mentioned in tbe original grant), which authorized the Secretary of the Interior to withdraw certain lands from sale on filing a map of the general route of the road with him, did not reserve such lands from entry under the preemption and homestead laws. On page 638 of this case Mr. Justice Miller uses certain general expressions which the petitioner’s counsel have quoted in their brief, and upon which they appear to found all their hopes of success in the contention that an entry under the Desert Land Act of 1877 is not a sale of lands within the meaning of section 2357 of the Revised Statutes. It is believed, however, that a careful examination of the case will disclose the fact that it is not authority for the contention of the petitioner.
    In making this examination let us keep constantly in mind the well-known rule of construction, that in cases of public grants the words thereof are to be construed most strongly against the grantee and strictly in favor of the G-overnment on the grounds of public policy. If the meaning of the words be doubtful in a grant designed to be of general benefit to the public they will be taken most strongly against the grantee and for the Government, and therefore should not be extended by implication in favor of the former beyond the obvious meaning of the words employed. Any ambiguity in the terms must operate in favor of the Government. Whatever is not unequivocally granted is withheld. Nothing passes by such grant save that which is given in clear, explicit, and unambiguous terms. (See Southerland on Stat. Construct., sec. 378.)
    And in support of the doctrines laid down the author cites, among others, this very case of Railroad v. Dunmeyer; and it is believed that the above principles governed the decision in that case, although the opinion does not so state in terms.
    This is not a case of public grant, but a sale by the Government to a private individual; and therefore none of the rules of construction which evidently governed the court in the Dun-meyer case is applicable to it.
    So far as the general expressions contained in the opinion in the Dunmeyer case are concerned, it is only necessary to say that, like all isolated expressions, they may mean much or nothing, according to the context, and are dependent upon the facts of a given case. The court says that in the terminology concerning the public lands the terms “ sale,” “ private entry,” “preemption,” etc., all designate different modes of acquiring an interest in tbe public lands. Certainly, that is true. They mean different things, just as an absolute sale is a different thing from a conditional sale, and yet they are both sales. And it is not believed that in the entire opinion in the Dunmeyer case a single expression can be found which, fairly interpreted, can be held to convey the idea that an acquisition of the public lands under the desert-land act is otherwise than by purchase and sale.
    It is submitted that section 2357 of the Revised Statutes was neither repealed nor superseded by the desert land act of March 3,1877; that there is no inconsistency between them, and that the price to be paid for lands which are embraced within the limits of a railroad grant is, under both laws, the sum of $2.50 per acre.
    The statute contains no words of repeal, either direct or indirect. If repealed at all, it must be by implication.
    
      (a) Repeals by implication are not favored. The intention to repeal will not be presumed nor the effect of repeal admitted, unless the inconsistency is clear, unmistakable, and unavoidable. On the contrary, it is the duty of the courts to reconcile, if possible, statutes which are seemingly inconsistent, so that both statutes may stand together, unaltered and unimpaired, and all statutes in derogation of existing statutes will be strictly construed. (See Sutherland on Stat. Construct., pp. 180,381, and long list of cases there cited. Id., sec. 148; id., p. 182.)
    While it is utterly denied that there is any repugnancy of spirit or principle between section 2357, Revised Statutes, and the desert act, still, even if we concede, for the sake of the argument, that such is the case, it should be remembered that repugnancy in principle merely between two acts forms no reason why both may not stand; nor is one statute repealed by the repugnant spirit of another. (Bx parte Smith, 40 Cal., 419; State v. Macon Go. Gt., 41, Mo., 453; Gass v. Dillon, 2 Ohio St., 612; State v. Gincinnati, 19 Ohio, 197; Sutherland Stat. Construct., p. 178.)
    
      (b) Laws are presumed to be passed with deliberation and with a full knowledge of all existing laws on the same subject. (Bowen v. Lease, 5 Hil.l 221, 226; Landis v. Landis, 39 N. J. L., 274-277; Sutherland Stat. Construct., p. 177.)
    
      (c) The desert land act is an affirmative, not a negative, statute, and it contains no reference whatever to section.2357, Revised Statutes. “Affirmative statutes which contain no reference to existing statutes, either to amend or repeal them, import that the lawmaker has no conscious purpose to affect them, unless by congruous addition. On the other hand, when there is inserted in a statute a provision declaring a repeal of all inconsistent acts or parts of acts, there is an assumption that the new rule to some extent is repugnant to some law enacted before. (Sutherland Stat. Construct., p. 199; Bish.W. Laws, sec. 112a; State v. Kelley, 34 N. J. L., 75-77; Oom. v. Chur chill, 2 Metcalf, 118.)
    
      (d) All consistent statutes which can stand together, though enacted at different times, relating' to the same subject, and hence designated as statutes in pari materia, are treated prospectively and construed together, as though they constituted one act. This is true, whether the acts were passed at different dates, separated by long or short intervals, at the same session of the legislative body, or on the same day. (See Sutherland Stat. Construct., sec. 283, and cases cited).
    The act of April 23,1820 (now sec. 2357, Rev. Stat.), is the parent of the American public-land system. By it provision is made for the absolute sale of public lands, and the price thereof fixed at $1.25 per acre for such lands as do not, and at $2.50 per acre for such lands as do, lie within the limits of a railroad grant. The first clause of sec. 2357 is a substantial reenactment of the act of 1820. The proviso of the section is the result of the general policy and intent of Congress with regard to the price of .the reserved sections along 'the line of railroad grants, fixing them at $2.50 per aere,'as is shown by almost every act granting land to railroads from 1850, when the practice first began, down to the present time. Many of these acts provided that such lands should not be “disposed of” for a less price than $2.50 per acre, noc using the term “ sale” at all. The object was that the reserved sections should bring double price, in compensation for the sections given away. This object was clearly understood and expressed by ’the revisors, hence the difference in phraseology in the first part and in the proviso of said section 2357 — the one expression being “ shall not be sold” and the other “the price to be paid.”
    
      Besides, wben Congress made these grants to railroads as an inducement to build up the country, aud promised not to undersell the railroads, not to sell or dispose of this land for less than $2.50 per acre, thereby insuring the railroad that the land should be worth at least that sum, Congress not only made a contract to that effect with the railroad, but held out an inducement to the company, upon which promise it relied in building its road. The construction which the claimant seeks to have put on the desert land act, not only violates this contract, but repudiates the promise of Congress and sinks the legislative branch of the Government to the level of a common cheat. The court is asked to hold that, although the Congress of the United States once promised and contracted with a railroad not to sell these reserved sections fcr less than $2.50 per acre, the contract being accepted and the promise relied upon by the company, yet it now passes a law which permits those sections to be bought at one-half that price, thus violating its former contract and repudiating its former promise. The bare statement of such a proposition should be its answer.
    From time to time, since the passage of this adt, Congress has seen fit to extend the method of sale of these lands, so as to give the citizens of the United States the full benefit of them, and, at the same time, to protect the rights of the Government. Sales on credit having been prohibited (Rev. Stat., sec. 2356), and it being evident that many worthy citizens were prevented from enjoying such lands by reason of their inability to purchase for cash, Congress proceeded to grant relief against chis unjust discrimination by providing for certain conditional sales by the initial payment of a small sum, the performance of certain conditions, the extension of credit of from three to five years for the payment of the remainder of the purchase money, possession of the said land in the meantime being given to the purchaser, but the title thereto being reserved by the Government until the conditions are performed and the balance of the purchase money paid. Accordingly we have conditional sales under the conditions of the homestead law, the preemption law, the timber-culture law, andtheact concerning desert lands, now under consideration.
    It is admitted by counsel that none of these acts alter the price of the public lands fixed by section 2357 of the Revised Statutes except the desert act, and this only because the min-imurn price is mentioned in terms. That portion of the argument has already been answered.
    For the reasons mentioned under (a) this act must be harmonized with section 2357, Revised Statutes; for the reasons set forth under (c) it must be taken as a congruous addition to that section, and under the doctrine laid down under (d) it must be read, together with that section, as a part of it. When we come to do this, we find that land within a railroad grant can not be sold for less than $2.50 per acre, and that land not within the limits of such a grant can not be sold for less than $1.25 per acre. We then find it provided that land may be bought, under certain conditions as to payment, etc., at $1.25 per acre. No description is given of the land thus offered for sale. Where, then, is such land situated? Why, manifestly, it is situated wherever land can be found that can be lawfully sold at $1.25 per acre. Where is that? Land not embraced within the limits of a railroad grant, and no others.
    This construction is presented to the court as being well worthy of its consideration. I am unable to perceive any good reason why it should not be adopted as the true meaning and intent of the desert land act of 1877.
    The very most, however, that can possibly be claimed under this act is that it offers for sale, under the conditions therein mentioned, both lands within and without the limits of a railroad grant at the respective prices mentioned in section 2357.
    3. If, however, we assume the price charged the petitioner for his land was wrongfully charged and paid under a mistake of law, then it is further contended on behalf of the Government that the payment of the money now sought to be recovered in this action was a voluntary payment, without the slightest compulsion on the part of the Government, and for * that reason can not be recovered, upon the well settled principle that money paid voluntarily under a mistake of law can not be recovered.
    When, on the 5th day of February, 1889, the petitioner went to the local land office to purchase this land he not only knew the law (he is conclusively presumed to have known it), but knew that the price of the land had been raised by a second order from the General Land Office inconsistent with a prior order. Yet he evidently thought the land worth $2.50 per acre and was willing to purchase it at that price. He did so, without protest aud without the slightest compulsion, with a full knowledge of all the facts.
    Two years and seven months thereafter, to wit, on the 21st day of September, 1891, he again came to the local land office, still with a full knowledge of all the facts, and, without protest and without the slightest compulsion, made his final payment of $2 per acre.
    All this time the petitioner was living in ignorance of the “ great wrong done by a greedy Government.” For two years more he is permitted to peacefully enjoy his ranch without the harrowing suspicion that he has “ paid too dear for his whistle,” only to have his happiness destroyed by the receipt at last of the inevitable letter from an enterprising Washington lawyer.
    Can there be any question about the payment being voluntary? (See Bamborn v. County Commissioners, 97 U. S., 181, 185; Railroad Co. y. Commissioners, 98 U. S., 541, 543. Vide also Clarice v. Dutcher, 9 Cow. N. Y., 674; JEge v. ICoontz, 8 Pa. St., 109; Glass Co. v. City of Boston, 4 Mete. Mass., 181; Benson v. Monroe, 7 Cush. Mass., 125; Milnes v. Duncan, 6 Barn. Cres., 671; Radish v. JLutehins, 95 U. S., 210.)
    In 18 Am, and Eng. Enc. Law, 214, the doctrine is thus announced:
    “A voluntary payment of money, under a claim of right, can not, in general, be recovered back. To warrant such recovery, there must be compulsion, actual, present, potential, and the demand must be illegal. In the absence of such compulsion, a mere protest is not sufficient. The element of coercion is essential to the right.”
    In support of this text the oases from which I have just quoted are cited among others.
    On page 223 of the same work it is said:
    “Money voluntarily paid to another under a mistake of law, but with a knowledge of all the facts, can not be recovered back.”
    In view of the facts in the case at bar — facts winch show an absolutely voluntary payment, in full possession of all the facts, without fraud, compulsion, or coercion — these decisions would seem to be conclusive. But, in order that the case may be fully presented in all aspects, it may not be amiss to notice briefly an exception to the general rule which appears to have
    
      been estalished by some cases presenting peculiar facts. Without undertaking to notice all the cases, it is believed that the doctrine which they establish may be fully and fairly stated thus: To render a payment voluntary, in the proper sense of that word, the parties must stand upon equal terms. There must be no duress operating upon the one and no oppression or fraud practiced by the other.
    This is a full, fair, and liberal statement of the exception. Can it be claimed that the facts in the case at bar are covered by it! Has there been any “duress” or a oppression” or “fraud” practiced upon this petitioner1?
    Coercion or duress, to render a payment involuntary, must consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another from which that other has no immediate means of relief except by making payment. (Badish v. Hutchins, 95 U. S., 210.) And it is entirely erroneous to. say that the money should be returned if “in equity or good conscience it can not be retained.” This doctrine only applies to mistakes of fact. It has nothing to do with mistakes of law, against which courts will not relieve, because a man must be presumed to know the law, and hence there was no mistake. Equity and conscience has nothing to do with the matter. (Olarh v. Dutcher, 9 Cow., 674.)
    In the first place, there was no exercise of power, either actual or threatened, in the case at bar.
    In the second place, if there had been “ compulsion,” or an “ exercise of power,” the petitioner had a means of relief at hand otherwise than by payment; and having failed to avail himself of such means of relief, he can not now plead any “ exercise of power ” as an excuse for payment.
    It is by no means certain but that the Secretary of the Interior, upon a proper showing in this case, would have referred the matter to the Court of Claims for adjudication under the authority of section 1063 of the Revised Statutes. Besides, the Court of Claims, was open to him then, as now, for the determination of his rights, by his voluntary petition filed therein, and there is no excuse for this delay of five years. He would not have so delayed had he thought any wrong had been done him or that any right of his had been violated.
    
      
       These words are here printed in italics for convenience of reference. [See Gall. 48'for type of note.]
    
    
      
       These words are here printed in italics for convenience of reference.
    
   Biciiabdson, Ob. J.,

delivered tbe opinion of tbe court:

Tbe first question arising in this case is whether or not tbe proviso of section 2357 of tbe Bevised Statutes applies to tbe desert-land act of 1877, March 3 (chapter 107,1 Supp. to Kev. Stat., 2d ed., p. 137). Tbe section is as follows:

a Sec. 2357. The'price at which tbe public lands are offered for sale shall be one dollar and twenty-five cents an acre; and at every public sale the highest bidder, who makes payment as provided in tbe preceding section, shall be tbe purchaser; but no land shall be sold, either at public or private sale, for a less price than one dollar and twenty-five cents an acre; and all the public lands which are hereafter offered at public sale, according to law, and remain unsold at the close of such public sales, shall be subject to be sold at i>rivate sale, by entry at the land office, at one dollar and twenty-five cents an acre, to be paid at the time of making such entry :
“Provided, That the price to be paid for alternate reserved lauds along the line of railroads within the limits granted by any act' of Congress shall be two dollars and fifty cents ppr acre.”

This section is reproduced from the. Act of 1.8.20, April 24, chapter 51, section 3 (3 Stat. L., 58G). At the time of the passage of that act the whole policy of the Government; in relation to the disposal of public lands consisted in offering the lands at public or private sale for cash only. The second section of the act (nowBev. Stat., sec. 2350) expressly provided that credit should not be allowed for the purchase money of any of the public lands.

In 1841 Congress began to make other provisions for the disposal of such lands. By the act of 1841, September 4, ch. 16, section 10 (5 Stat. L., 455), it was provided that any citizen of the United States, or any person who had declared his intention to become such, being the head of a family, or widow, or single man over the age of twenty-one years, who made settlement on such lands, inhabited and improved the same, and erected a dwelling thereon, might enter with the register of the land office any number, not exceeding one hundred and sixty acres, upon paying the minimum, price therefor. (Now Bev. Stabs., §§ 2257, 2258, 2259, 2260, 2261.) This was the first of the preemption laws.

Subsequently, in reserving lands in grants to railroads, Congress provided that the lands so reserved should not be sold for less than double the minimum price of the public lauds when sold after having been offered for sale to tbe highest bidder. (10 Stat. L., ch. 45, § 3, p. 9; ch. 72, § 2, p. 302; 11 Stat. L., ch. 28, § 2, p. 9; ch. 31, § 2, p. 16; ch. 41, § 2, p. 17, and other acts.) From these acts came the use of the phrase, “ double-minimum lauds.”

In 1862 Congress adopted the policy of disposing of public lands to citizens who entered thereon for the purpose of obtaining homesteads. {Act of 1862, May 20, ch. 75, and subsequent acts, now Eev. Stats., §§ 2289-2317.) These acts make special provisions on the subject different from those existing in 1820 in relation to the sale of public lands.

They allowed an entry to be made on payment of $5 where the quantity of land was less than 80 acres, and $10 where it was more than 80 acres. (Eev. Stats., § 2290.) At the end of five years, upon proof that the person making such entry has resided on or cultivated the land for the term of five years immediately previous thereto, and upon making affidavit of other facts as therein specified, he is entitled to a patent without further payment. At the end of three years of such residence he might receive a patent, without further payment, upon proof that he has had under cultivation for two years one acre of timber for each sixteen acres. {Act of 1873, March 3, ch. 277,17 Stat. L., 605, now Eev. Stat., § 2317.)

In 1873 Congress entered upon an additional policy. By the Act of March 3, chapter 277, entitled “An act to encourage the growth of timber on the Western prairies,” Congress provided, as reproduced in the Bevised Statutes, that—

“Sec. 2464. Every person who plants, protects, and keeps in a healthy growing condition for ten years forty acres of timber, the trees thereon not being more than twelve feet apart each way, on any quarter section of any of the public lands, shall be entitled to a patent for the whole of such quarter section at the expiration of ike ten years, on making proof of such fact by not less than two credible witnesses: Provided, That only one quarter section in any section shall be thus granted.
“ Sec. 2465. Every person applying for the benefit of the preceding section shall, upon application to the register of the land office in which he is about to make such entry, make affidavit before the register or receiver that such entry is made for the cultivation of timber, and upon filing his affidavit with the register and receiver, and on payment of ten dollars, he shall thereupon be permitted to enter the quantity of land specified.
“Sec. 2400. No certificate shall be given or patent issue therefor until the expiration of at least ten years from the date of such entry; and if, at the expiration of such time or at any time within three years thereafter, the person making such entry or, if he be dead, his heirs or legal representatives, shall prove by two credible witnesses that he has planted, and for not less than ten years has cultivated and protected such quantity and character of timber, he shall receive the j>atent for such quarter section of land.”

It will be observed that this act allowed the benefit of the provisions to “every person” without requiring citizenship or residence, and that upon payment of ten dollars at the time of entry he becomes entitled to a patent at the end of ten years upon proof that he has planted, cultivated, and protected timber according to the provisions of the act, without further payment.

With all these provisions the Government found itself in possession of much desert land which had not been sold for cash or taken up under the preemption or homestead laws.

As to such lands in certain States and Territories named, Congress entered upon still another policy, by offering the same to citizens upon quite different terms, as set out in this act of 1877, March 3, chapter 107, now under consideration (1 Supp. Eev. Stat., 2d ed., p. 137), upon which the present action is founded.

This act provides that any citizen, or person who has duly filed his intention to become such, without any requirement as to family or age, upon payment of twenty-five cents per acre, may file a declaration, under oath, with the register and receiver of the district where the land is situated, that he intends to reclaim a tract of desert land, not exceeding one section, by conducting water upon the same within a period of three years thereafter, and that at any time within three years thereafter, upon satisfactory proof of the reclamation of the land as therein provided, upon payment of the sum of one dollar per aere, a patent for the same shall be issued.

There is no proviso like that in section 2357 of the Revised Statutes, and no reference to “minimum price,” as in the preemption statutes, nor to the “ double-minimum price,” as in the land-grant statutes. The amount to be paid is expressly fixed by the act itself, and the whole consideration is entirely independent of the provisions of any other public-land laws. Purchasers are not required to look back a half century to the statutes of 1820, euacted upon a different policy of the Government, for any of the terms on which sales may be made. The act of 1877 .itself contains specifically all the terms of the offer of the Government.

Such was the construction given by the Interior Department immediately upon the passage of the act, as appears by the circular of March 12, 1877, set out in finding i, last clause, there l>rinted in italics. This decision was contemporaneous, having been made only nine days after the passage of the act, when the public officers charged with its execution better understood its objects than those who years afterwards come to administer it, and was followed by the Department for more than ten years thereafter. It is therefore entitled to the benefit of the ruling of the Supreme Court in the case of Edwards’s Leasees v. Darby (12 Wheat., 210), which has been repeatedly cited with approval by that court and many other courts, and has become a familiar principle of law. (United States v. Union Pacific R. It., 37 Fed. E., 555; Rand v. United States, 38 Fed. R., 667.) The court there said:

In the construction of a doubtful and ambiguous law the contemporaneous construction of those who were called upon to act under the law and were appointed to carry its provisions into effect is entitled to very great respect.”

It was not till more than ten years later, June 27,1887, that another Secretary issued a circular, set out in finding ir, addressed to the registers and receivers, raising the price' to just double that expressed in the act of 1877, as set out in the third paragraph, therein printed in italics.

In January, 1892, the then Secretary of the Interior, in answer to a letter of the Commissioner of the General Land Office asking instructions on the subject, made a ruling, set out in finding m, reversing the decision of his predecessor in 1887, and returning to that of 1877 and the former practice.

In September, 1893, still another Secretary, on an application for refund of the excess overpaid, emphatically adhered to the later decision, as appears by said finding in. (Decisions of the Department of the Interior relating to public lands, vol. 14, pp. 75, 76.; vol. 17, p. 339.)

In these latest two decisions reference is made to the Act of 1891, March 3, chapter 561 (1 Suppl. to Rev. Sta-t., 2d ed., p. 940). But that act made no change in the requirements of the previous statute as to the amounts- to be paid the Government. It adds six new sections, extending the provisions to Colo-ardo, and making some alterations not relating to the money to be paid.

The practice of the Department is now what it was the first ten years after the passage of the act.

There is no question of repeal involved in the- case. It is not claimed by anybody that the proviso of the act of 1820, found in Revised Statutes, § 2357, has been repealed; the only question is as to its application to a later act. It seems to us clear that the proviso applies to the disposal of .public lands at auction or private sale for cash, according to the existing public-policy at that time, and not to any additions made thereto, and has no application to the disposition of lands under the desert-land act passed many years thereafter upon a different policy and for a different purpose. We hold with the Secretaries of the Interior of 1877,1892, and 1893, that a purchaser was bound to pay no more than was required by the act of 1877. All in excess of that amount exacted of him was an overpayment.

It remains to be considered whether or not such overpayment was so far voluntary and in mistake of law on his part that he can not recover it back in an action of law.

As was said substantially in a former case cited and adopted in Msworth’s Oase (14 O. Cls. R., 382, 394) that the general rule of the common law is that money paid in mistake of law, when all the facts are known to the parties, and there is no fraud, can not be recovered back. This rule is founded on the maxim of the civil law, u ignorantia legis neminem excusat,” which, in its application to the administration of the law of crimes and offenses, is a concise and correct enunciation of a sound principle of public policy. But when made the foundation of a rule that money paid in mistake of law can in no case be recovered back unless fraud is proved, its application seems to be extended far beyond justification.

When one has committed a crime or offense, and has thereby done injury to persons and a wrong to the state, he may well be confronted with the maxim that ignorance of the law excusesno one,” and with justice may be compelled to submit to the penalty which the law imposes upon him for his wrongful act. But when one pays, in mistake of law, money which he does not owe, and which the receiver has no right in justice and conscience to retain, he does not commit a wrong, and is not estopped from recovering back what is paid; it is the receiver who does a wrong, and attempts to excuse it on the ground of mistake on the part of the person whose money he unjustly received and retains.

The rule has often been presented to courts in cases in which its application would work manifest hardship, injustice, and wrong; to obviate which it has been denied or explained away, and sometimes a nice distinction drawn between ignorance and mistake of law, by which the rule was held to be restricted to cases of ignorance, and not to apply to cases of mistake. This distinction, although supported by strong reasons, is too subtle to be of much practical importance. The Supreme Court, in recognizing the rule, at the same time recognizes the fact that it has exceptions and limitations. (Hunt v. Rousmainer’s Administrators, 1 Peters, 15; Bank of the United States v. Daniel, 12 Peters, 48.)

It has been held that money ma.y be recovered back in an action for money had and received in mistake of law where • there is a full knowledge of all the facts if the mistake is clearly proved, -and the defendant can not under all the circumstances in good conscience retain' it; and, as obviating the necessity of exceptions and subtle distinctions, this would seem to be a better rule, and it is supported by many authorities. (See, among other cases, Northup v. Graves, 19 Conn., 554; Culbreath v. Culbreath, 7 Ga., 64; Stedwell v. Anderson, 21 Conn., 139; Underwood v. Brochman, 4 Dana, 309; Hopkins v. Mazyck, 1 Hill, Ch. R., 242; Lawrence v. Beaubien, 2 Bailey, 623; Lowndes v. Chisolm, 2 McCord, Ch. R., 455; Robinson v. City Council, 2 Rich., 317, 320; Farmer v. Arundell, 2 Wm. Black, 825; Moses v. Macfarlan, 2 Burr, 1002. )

But perhaps the most correct rule would be that where the law is misettled and in doubt money so paid in mistake of the true construction may be considered in the nature of a compromise, and so not to be recovered back unless it be paid between persons who do not stand on an equal footing. (Morgan v. Palmer, 2 Barn & C., 720; Steele v. Williams, 8 Wells; Hurl & Gard, 625, 1 Smith’s Leading Cases, part 2,440 and 428; Kinney v. Dodge, 101 Ind., 573; United States v. Lawson, 101 U. S., 164; Swift Co. v. United States, 111 U. S., 22; Elsworth’s Case, 14 C. Cls. R., 384, affirmed by the Supreme Court, 101 U. S., 170.)

There can be no doubt that the parties in this case did not stand on equal footing. The claimant was a private citizen, without power in the matter. The receiver was a public officer, bound to follow the instructions of his superior. The claimant desired to obtain a patent for certain desert land. He had a right to do so on terms offered by the desert land act of 1877. When he went to the office of the register he found that he could not have the land on the terms offered, but was required to pay double the amount therein specified. What was he to do? He might have protested to the receiver, but was not obliged to do so. No statute required a protest for the foundation of an action, as in the payment of customs duties. (Eev. Stats., §§ 3011,3012.)

The object of a protest not required by statute is to give the receiver of the money an opportunity to recede from his demand. But the receiver in this case was a subordinate public officer, acting under general instructions from his superior, over which he had no control. To have protested then and there would have been an idle proceeding, and the law does not require proceedings which are merely useless. Should he have protested to the Secretary of the Interior? He knew that the Secretary had by law supervision of Government business in relation to the public lands, and had his office in Washington, thousands of miles away. He knew that the Secretary had made his decision of general application, and any efforts for obtaining a reversal of it or an exception in his favor would require time, labor, and expense, with little prospect of success, at least during the term of office of the same Secretary. In the meantime what he had expended in preparing for irrigation might be lost, and some other enterprising citizen might enter the same land by paying the sums exacted, and his opportunity would be lost. The particular lot of land and time of obtaining it might be material to him. He was justified in paying the price and in postponing his remedy therefor to some future day when he could better attend to it. The ruling of tbe Secretary of the Interior was in the nature of compulsion, which the claimant was powerless to resist without sacrificing his rights under the law. We do not think it was his duty to exhaust all means within his power (if any there were) .to obtain Ms rights, but was justified iu paying’ the price exacted by the receiver as upon compulsion, and to abide Ms time for bringing an action to recover back the excess.

The defendants, having received money of the claimant upon the erroneous construction of a statute by a public officer, can not in good conscience retain it.

Thatthe Government could not have recovered if the mistake had been the other way and the claimant had paid less than the statute price is not a sound argument. The Government is frequently estopped by the errors of its officers in paying out money on misconstruction of statutes under high executive authority by which innocent parties have been misled (Hartson’s Case, 21 C. Cls. R., 451), but it does not therefore follow upon any principle of law or justice that parties who have paid too much by the actions of officers are estopped, within the period of limitation, from maintaining suits for overpayment.

Ilad there been any discretion in the Secretary or receiver to fix any price other than that named in the act, then the parties would have stood on equal footing. There was no such discretion, and the decision by the Secretary was an official act within the scope of his authority, and was final for executive purposes. The claimant had no part in making it and was not bound by it, but could not then resist.

Congress, the lawmaking power, alone had the right to establish the price of the laud, and, having established it, no public officer had authority to make a change. The Secretary of the Interior is not the Government. Being charged with the duty of executing the law, he had the power, 'but not the right, to double the price fixed by law and to exact from the claimant the excess which he paid.

The conclusion of the court is that the claimant recover the sum of $799.

Nott, J.,

dissenting:

The rule is not a technicality, but a principle, that where a matter is closed voluntarily without fraud or mistake it must stay closed. Courts are not established to unsettle the transactions of men.

That a completed business transaction with the Government can be torn up for no better reason than that the judiciary differ from tbe executive in tbe construction wbicb should be given to statute seems to me a proposition wbicb should be dropped as soon as stated.

When tbe Government steps into tbe common arena of buying or selling property it lays aside its prerogatives of sovereignty and is ruled in its transactions by tbe rules wbicb regulate tbe affairs of men; and when tbe individual deals with tbe Government in matters of contract, be is entitled to no different rule of law than when be deals with one of bis fellowmen. In these cases of land sales tbe Government can not sue one set of purchasers for double tbe agreed price on tbe ground that its agent, tbe Commissioner of the Laud Office, exceeded bis lawful authority by a misconstruction of tbe statutes and sold tbe land too cheap; and, if tbe Government can not reopen tbe transaction because of tbe erroneous act of its agent, tbe claimants can not.

It was said on tbe argument that tbe purchase was not voluntary because tbe contracting parties did not stand on an equal footing. Let us test that. Gould tbe claimant compel tbe Commissioner of tbe Land Office to sell tbe land? No. Could tbe Commissioner' compel tbe claimant to buy it? No. Then they did stand on an equal footing.

It may be thought that this case is like Mosby’s (133 U. S., 273); but there is not tbe slightest similarity between tbe two. Mosby’s case was founded on a law of Congress; tbe claimant was a public officer; bis services were rendered before be was ordered to pay over tbe money; be did not pay it over voluntarily, but pursuant to tbe order of bis superior. Tbe present is a case of contract. The only case like it is that of tbe laborer in tbe New Testament, who, after doing bis work and receiving bis wages, came back for, more, on tbe ground that somebody else bad done less work in tbe vineyard than be.

About tbe middle of tbe century tbe Government entered upon its land-grant railroad policy. One justification given by Congress to tbe country was that by giving away one-balf of tbe land in a railroad belt tbe other half thereby would .be doubled in value. Accordingly tbe price for such lands was doubled, and they were supposed to be a special estate carved out of the public domain. In 1874 tbe Revised Statutes expressed tbe idea by a proviso to section 2357, saying “ That the price to be paid for alternate reserved lands along the line of railroads within the limits granted, by any act of Congress shall be $2.25 per acre.” Whether the interpretation by which the claimant seeks to escape from this requirement of the law is artificial or rational I do not stop to inquire. It is sufficient to show that this case rests upon a mere question of statutory construction, and that the claimant seeks, by a technical use or abuse of statutory terms, to pay no more for six hundred and forty acres of land, for the improvement of which the Government sacrificed six hundred and forty acres of adjoining land, than another man must pay for similar land five hundred miles distant from a railroad; and this after having entered into an agreement and paid the price and received the deed and obtained possession of the land.

The claimant had no personal right to the acquisition of this property. If the Land Office had fixed the price at $1.50, a dozen other men might have been before him; if he had not taken it at $2.50, a dozen other men might have been ready to take it who would not have repudiated their agreement. The case, in my judgment, is devoid of law, equity, and morals.  