the action of the judicial department to ascertain and determine that which the executive department in the scope of its authority has already determined, or to enforce payment by suit when the trespasser offers to discharge his liability without suit.

The special agents may report the character of the trespass, the amount and the value, or either of these facts, different from that shown by the sworn statement of the trespasser; as, for instance, the trespasser may claim that he is an innocent purchaser from an unintentional trespasser, and may offer to pay the value of the timber at the time when taken. The special agent may report that the trespass was wilful, of which the purchaser had notice, and may recommend settlement at the full value of the property at the time and place of demand. Upon further investigation by the special agent or upon examination by the Commissioner or the Secretary, it may be determined that the purchase was made without notice of wrong, but from a wilful trespasser, and that the timber should be settled for at the value of the property at the time of purchase, to which the trespasser may agree and settle. While the amount paid may be greater than the amount originally offered and less than the amount originally reported by the Government officials, it is not a compromise of the claim, but a determination from the facts of the case of the amount due the Government.

If after that amount has been ascertained the trespasser either declines to pay or is unable to pay it, but offers a less amount, there is no authority in this Department to compromise the claim, but the future control of the case should be left with the Department of Justice.

This question was incidentally passed upon by the Solicitor-General, acting as Attorney-General, in his letter of August 23 last, addressed to this Department, relative to the seizure of timber taken from the public lands, from which I infer that the Department of Justice concurs in the view herein expressed; but as this question was not directly involved in the matter referred to I do not feel at liberty to claim it as authority for this opinion.

Being satisfied that this Department not only has authority, but that it is its duty to take jurisdiction of and to settle all such cases in the manner herein stated, I have for this reason so fully presented the matter for your consideration, with the request that if you should not agree in this opinion you will concur in submitting the matter to the Attorney-General for his opinion thereon.

WELLS. NICKLES.

(104 U. S., 444.)

While no act of Congress expressly authorizes the Secretary of the Interior or other officer of the Land Department to appoint timber agents, the appropriation of money by Congress to pay them is a recognition of the validity of their appointment.

Where the instructions of the Commissioner of the General Land Office directed the agents to seize and sell timber cut on the public lands, and also authorized them to compromise with the trespasser on his paying a reasonable compensation for the timber cut and taken away, Held, That a compromise so made by which he pays all the costs and expenses of the seizure, and gives bond to pay for the timber when its value shall be ascertained, pursuant to the agreement, is binding on the United States.

This compromise, should, in violation of its terms, the property be seized and sold by such agents, is evidence of his title and right of possession in his action against their vendee for the recovery of the property.

SETTLEMENT FOR TRESPASS UNDER ACT OF JUNE 3, 1878 (20 STAT., 89). Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That surveyed public lands of the United States within the States of California, Oregon and Nevada, and in Washington Territory, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on the same terms as timber lands.

SEC. 5. That any person prosecuted in said States and Territory for violating section two thousand four hundred and sixty-one of the Revised Statutes of the United States who is not prosecuted for cutting timber for export from the United States, may be relieved from further prosecution and liability therefor upon payment, into the court wherein said action is pending, of the sum of two dollars and fifty cents per acre for all lands on which he shall have cut or caused to be cut timber, or removed or caused to be removed the same: Provided, That nothing contained in this section shall be construed as granting to the person hereby relieved the title to said lands for said payment; but he shall have the right to purchase the same upon the same terms and conditions as other persons, as provided herein before in this act: And further provided, That all moneys collected under this act shall be covered into the Treasury of the United States. And section four thousand seven hundred and fifty-one of the Revised Statutes is hereby repealed, so far as it relates to the States and Territory herein named.

The provisions of this act are extended to all the public-land States by the act of August 4, 1892 (27 Stat., 348).

PAYMENT OF $2.50 PER ACRE, UNDER SECTION 5 OF THE ACT OF JUNE 3, 1878 (20 STAT., 89), ONLY RELIEVES FROM CRIMINAL

LIABILITY.

UNITED STATES v. SCOTT ET AL.

Circuit court, northern district of California (39 Fed. Rep., 900).

PUBLIC LANDS-CUTTING TIMBER-PAYMENT FOR LAND.

A party prosecuted for cutting timber on the public lands under section 2461, Revised Statutes, is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on which it is cut, in pursuance of the provisions of the act of 1878 (1 Supp. Rev. Stat., p. 329, sec. 5); he is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut.

SETTLEMENT OF TRESPASS BY PURCHASE OF THE LAND TRESPASSED UPON.

[Act of June 15, 1880; 21 Stat., 237.]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That when any lands of the United States shall have been entered and the Government price paid therefor in full no criminal suit or proceeding by or in the name of the United States shall thereafter be had or further maintained for any trespasses upon or for or on account of any material taken from said lands, and no civil suit or proceeding shall be had or further maintained for or on account of any trespasses upon or material taken from the said lands of the United States in the ordinary clearing of land, in working a mining claim or for agricultural or domestic purposes or for maintaining improvements upon the land of any bona fide settler or for or on account of any timber or material taken or used by any per son without fault or knowledge of the trespass or for or on account of any timber taken or used without fraud or collusion by any person who in good faith paid the officers or agents of the United States for the same or for or on account of any alleged conspiracy in relation thereto: Provided, That the provisions of this section shall apply only to trespasses and acts done or committed and conspiracies entered into prior to March first, eighteen hundred and seventy-nine: And provided further, That defendants in such suits or proceedings shall exhibit to the proper courts or officer the evidence of such entry and payment and shall pay all costs accrued up the time of such entry.

SEC. 2. That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads, may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the Government price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the Government upon said lands

shall be taken as part payment of said price: Provided, This shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.

SEC. 3. That the price of lands now subject to entry which were raised to two dollars and fifty cents per acre, and put in market prior to January, eighteen hundred and sixty-one, by reason of the grant of alternate sections for railroad purposes is hereby reduced to one dollar and twenty-five cents per acre.

SEC. 4. This act shall not apply to any of the mineral lands of the United States; and no person who shall be prosecuted for or proceeded against on account of any trespass committed or material taken from any of the public lands after March first, eighteen hundred and seventynine, shall be entitled to the benefit thereof.

SALE OF PUBLIC TIMBER.

Public timber unlawfully cut may be disposed of by public sale after advertisement, or by private sale, either with or without previous advertisement. (See Department of Justice to Secretary of the Interior, August 23, 1886, p. 41).

Advertising must be by consent of Secretary of Interior. (See Rev. Stat., 1878, sec. 3828.)

DISPOSITION OF MONEYS COLLECTED FOR DEPREDATIONS UPON

PUBLIC LANDS.

MOIETY.

SEC. 4751. All penalties and forfeitures incurred under the provi sions of sections twenty-four hundred and sixty-one, twenty-four hundred and sixty-two, and twenty-four hundred and sixty-three, Title "The Public Lands," shall be sued for, recovered, distributed, and accounted for, under the directions of the Secretary of the Navy, and shall be paid over, one-half to the informers, if any, or captors, where seized, and the other half to the Secretary of the Navy for the use of the Navy pension fund; and the Secretary is authorized to mitigate, in whole or in part, on such terms and conditions as he deems proper, by an order in writing, any fine, penalty, or forfeiture so incurred.

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SEC. 2. Provided, That all moneys heretofore, and that shall hereafter be, collected for depredations upon the public lands shall be covered in the Treasury of the United States as other moneys received from the sale of public lands: And provided further, That where wood and timber lands in the Territories of the United States are not surveyed and offered for sale in proper subdivisions, convenient of access, no money herein appropriated shall be used to collect any charge for wood or timber cut on the public lands in the Territories of

the United States for the use of actual settlers in the Territories and not for export from the Territories of the United States where the timber grew: And provided further, That if any timber cut on the public lands shall be exported from the Territories of the United States, it shall be liable to seizure by United States authority wherever found.

TIMBER LANDS IN THE STATES OF CALIFORNIA, OREGON,

AND IN WASHINGTON TERRITORY.

[Chapter 151; approved June 3, 1878; 20 Stat., 89.]

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NEVADA,

SEC. 5. That any person prosecuted in said States and Territory for violating section two thousand four hundred and sixty-one of the Revised Statutes of the United States who is not prosecuted for cutting timber for export from the United States, may be relieved from further prosecution and liability therefor upon payment, into the court wherein said action is pending, of the sum of two dollars and fifty cents per acre for all lands on which he shall have cut or caused to be cut timber, or removed or caused to be removed the same: Provided, That nothing contained in this section shall be construed as granting to the person hereby relieved the title to said lands for said payment; but he shall have the right to purchase the same upon the same terms and conditions as other persons, as provided herein before in this act: And further provided, That all moneys collected under this act shall be covered into the Treasury of the United States. And section four thousand seven hundred and fifty-one of the Revised Statutes is hereby repealed, so far as it relates to the States and Territory herein named.

The act of August 4, 1892 (27 Stat., 348), extends the provisions of this act to all the public-land States.

MOIETY CLAUSE OF SECTION 4751, U. S. R. S., MODIFIED AND PARTLY REPEALED.

[17 Op., p. 592.]

The provisions in section 2 of the act of April 30, 1878, chapter 76, requiring moneys collected for depredations upon the public lands to be covered into the Treasury, in effect modifies section 4751, Revised Statutes, only as to that part of the penalties, etc., recovered which was payable under the latter section to the Secretary of the Navy; it does not affect the part payable thereunder to informers. Section 5 of the act of June 3, 1878, chapter 151, applies to the Pacific States and Washington Territory, and repeals section 4751, Revised Statutes, only so far as concerns such States and Territory.

DEPARTMENT OF JUSTICE, July 19, 1883. SIR: Yours of the 16th instant incloses a note addressed to yourself from the United States attorney for eastern Michigan, which informs you that certain fines under section 2461, Revised Statutes, are now in the registry of the district court for his district, and that he supposes them to be distributable under your direction (to the informer, etc.) under section 4751.