ISABEL KOUNS O'PRY, Sole Descendant Mr. Justice McKenna delivered the and Sole Heir of John Kouns, Surviving opinion of the court: Partner of George L. Kouns and John Kouns, and Charles Schneidau, Substituted Assignee in Bankruptcy of George L. Kouns, Appts.,

APPEAL from the Court of Claims to for the United States products of states

The Act of July 2, 1864, was an amendThe facts are stated in the opinion. ment of the Act of March 12, 1863, enMessrs. George A. King, William B. titled, "An Act to Provide for the ColKing, William E. Harvey, and Alexander the Prevention of Frauds in Insurreclection of Abandoned Property and for M. Garber for appellants. tionary Districts within the United Assistant Attorney General Brown for States." 12 Stat. at L. 820, chap. 120. appellee. In pursuance of the authority thus

conferred, the Secretary of the Treasury, cotton and receives all that the law aldesignated, among other cities, the city lows him, he has any valid claim under of New Orleans as a place of purchase, § 162 of the Judicial Code." and by a subsequent regulation directed that the agents appointed should receive all the cotton brought to the places designated as places of purchase and forthwith return to the seller three fourths of the cotton, or sell the same and retain out of the price thereof the difference between three fourths of the market price and the full price thereof in the city of New York.

The agent appointed at New Orleans was Otis N. Cutler, and, on the arrival of the Kouns cotton, Cutler, as such agent, took possession of it and refused to release the same, or to allow the owners to have any custody of it until they paid him one fourth of its market value, being the sum of $30,777.50. They paid the same under protest, and it was placed in the Treasury of the United States, where it remains.

June 13, 1865 [13 Stat. at L. 763], the President removed by proclamation [326] all restrictions upon intercourse and trade in products of states theretofore in insurrection, and theretofore imposed in the territory east [italics ours] of the Mississippi river.

Thereafter the Kounses brought suit in a New York court against Cutler, which was removed to the circuit court of the United States for the southern district of New York. The ground of Cutler's liability was alleged to be that his retention of the cotton and the exaction of money from them was unwarranted in law. They recovered judgment, but it was reversed by the Supreme Court of the United States (110 U. S. 720, 28 L. ed. 305, 4 Sup. Ct. Rep. 274) and a new trial ordered. The suit was then dismissed.

The loyalty of the appellants is alleged. The court of claims dismissed the suit upon the demurrer of the government. The court expressed the opinion that the claim did not come either "within the letter or the spirit of § 162 and the correlative statutes," and said: "At the time of this transaction the Kouns firm could not have made any disposal of the cotton in question had it not been for the provision of said § 8, it being insurrectionary territory. That section prescribed the method and the conditions upon which it might be sold to the government. The firm complied with those conditions and were doubtless glad to do so. We do not think where one complies with the law in his transaction with the government in the sale of

To fulfil the conditions of necessary parties on account of a doubt expressed by the court, there was an intervening petition by Charles Schneidau, assignee in bankruptcy of George L. Kouns. He adopted the petition of Isabel Kouns O'Pry, "and jointly with her claims as therein prayed."

By order of the court the petition was amended and [327] Schneidau made a party claimant. The government's deinurrer to the petition as amended was sustained.

The case is not in broad compass, involving as it does only the relation and construction of statutes, but it is not easy to state it briefly. The petition recites, as we have seen, that the Kounses in their lifetime brought suit against the agent of the government, Cutler, who had seized the cotton in New Orleans and exacted payment from them of one fourth of its value, granting them, however, the indulgence of paying it in three instalments, respectively, June 12, June 15, and June 20, 1865. They charged Cutler with an unlawful seizure of the cotton and an unlawful exaction of the money. They obtained judgment in the circuit court, but the judgment was reversed by this court (110 U. S. 720, 28 L. ed. 305, 4 Sup. Ct. Rep. 274), and the following is, so far as material, a summary of the decision in the case:

In consequence of the Act of July 13, 1861 (12 Stat. at L. 255, chap. 3, Comp. Stat. 1916, § 10,156), it was lawful for the President to declare that the inhabitants of all states in rebellion against the United States were in a state of insurrection, and that all commercial intercourse between them should cease and be unlawful so long as such condition of hostilities should continue. And August 16, 1861 (12 Stat. at L. 1262), the states of Texas and Louisiana were declared to be in like condition, and intercourse was forbidden between them and other states and parts of the United States. On April 12, 1862, the city of New Orleans, however, was occupied by the national forces, and from that date was excepted from the operation of the Nonintercourse Act.

In this state of affairs Congress passed the Act of July 2, 1864, referred to in the petition, § 8 of which authorized the purchase of products of states declared in insurrection, which included the cotton in suit, and it was seized by virtue of such authority and the pay

counsel offers as an answer to Cutler v. Kouns, 110 U. S. 720, 28 L. ed. 305, 4 Sup. Ct. Rep. 274, and that Congress having, by § 162, opened the doors of the court of claims "to claimants whose property was seized after June 1, 1865, they can no longer be met with the defense that because the seizure was lawful when made, there can be no recovery on account of it. To sustain such a defense would be 'to keep the word of promise to the ear and break it to the hope.'" The government opposes the contentions.

ments mentioned [328] exacted. It was contended that the cotton was exempt from such action by proclamation of the President of June 13, 1865. The contention was rejected, the cotton not being, as it was said, the product of territory east of the Mississippi river. It was, however, further urged that the President's proclamation of June 24, 1865 [13 Stat. at L. 769], removed all restrictions as well from products of territory west of the Mississippi river. To this it was replied that upon the arrival of the cotton in New Orleans the rights of the government to it became The Act of March 12, 1863 (12 Stat. fixed, and that at such time "one fourth at L. 820, chap. 120), is entitled, “An its value was as much the property of Act to Provide for the Collection of the government as the other three Abandoned Property and for the Prefourths were the property of the de- vention of Frauds in Insurrectionary fendants in error [the Kounses]. No Districts within the United States." Its proclamation of the President could 1st section empowers the Secretary of transfer the property of the government the Treasury to appoint a special agent to them." It was hence decided that or special agents to collect and receive Cutler "had authority under the law all abandoned or captured property in and regulations of the Treasury Depart- any state or territory in insurrection, ment to exact the money" which the suit with an exception not material. Section was brought to recover. The defense 2 provides that the property so received of the Statute of Limitations was also or collected may be put to public use or sustained. sold at public auction and the proceeds thereof put into the Treasury of the United States. By § 3 a bond may be required of the agent or agents, who may be required to keep a book or books of accounts showing those from whom the property was received, the cost of transportation, and proceeds of sale. It is further provided that the owner of the property may at any time within two years prefer a claim for the proceeds thereof, and upon proof of loyalty receive the residue of the proceeds.

It is now asserted that, notwithstanding such decision, a claim has accrued to appellants by virtue of § 162 of the Judicial Code, upon which they are entitled to recover. It will be observed by reference to that section that the court of claims is given jurisdiction of claims of those whose property was taken subsequent to June 1, 1865, under the provisions of the Act of March 12, 1863, "and acts amendatory thereof," where the property was sold and its net proceeds were placed in the Treasury of the United States, and they are directed to be returned upon judgment rendered for the claimant. Appellants invoke the relief of these provisions by the contention that the cotton was taken under the provisions of the Act of March 12, 1863, because the Act of July 2, 1864, was an amendment to it, and that therefore the provision of § 162 of the The Act of July 2, 1864 (13 Stat. at Judicial Code is completely satisfied; in L. 375, chap. 225, Comp. Stat. 1916, other words, that the money exacted was § 1136 (3)), describes itself to be "An taken under the [329] Act of March 12, Act in Addition to the Several Acts Con1863, "and acts amendatory thereof." It cerning Commercial Intercourse between is further contended that the conditions Loyal and Insurrectionary States, and of § 162 being thus satisfied, it is no an- to Provide for the Collection of Capswer to say that the seizure of the cot- tured and Abandoned Property, and the ton was legal, it being the intention of Prevention of Frauds in States Declared Congress to declare that, even in such in Insurrection." The act, therefore, is case, "the proceeds should be returned declared to be an "addition" to precedto the owners." And this contentioning legislation, not an amendment to it.

It will be observed that the act had a special purpose and was directed to the receipt and collection of property [330] in a particular condition, either abandoned or captured, recognizing, however, that there might be a just claim to it, but limiting the assertion of the claim to two years after the suppression of the rebellion.

Interior, Appt.,

V.

JOSEPH J. DARLINGTON and John H.
Clapp, Trustees of the Estate of John M.
Clapp, Deceased.

(See S. C. Reporter's ed. 331–334.) Public lands judicial relief against departmental action resurvey.

Is an addition the same as amendment?, FRANKLIN K. LANE, Secretary of the We are informed by the dictionaries that in addition, the added parts remain independent, and by amendment there is change, and, it may be, improvement. The words and the processes they respectively describe may, however, be regarded as roughly or even accurately interchangeable, and in investigating the meaning of legislation we must regard that possibility and resolve a doubt in the words by the purpose of the legislation. In other words, whatever the relation of the statutes, their purpose must be looked to to determine the application to them of § 162. So looked to, we agree with the government that the purpose of the Act of July 2, 1864, demonstrates the contrary of the contention of appellants, and that the act was strictly in addition to prior acts, and not an amendment of the Act of March 12, 1863, in the sense asserted. The latter act applied to a different situation. The cotton collected under it and to which its provisions applied might be the property of those innocent of disloyalty, but victims of the disorder and violence of

A resurvey by the Land Department of a part of the boundary of a Mexican land grant in an effort to find the bounStates may not be enjoined by the courts daries of land belonging to the United at the instance of the private owners of the adjoining land; but so long as the United States has not conveyed its land it is entitled to survey and resurvey what it owns, and to establish and re-establish boundaries, the only limit being that what it thus does for its own information canside of the line already existing in theory not affect the rights of owners on the other of law.

[For other cases, see Public Lands, I. h, 2, d; Courts, I. e, 6, in Digest Sup. Ct. 1908.]

[No. 219.]

31, 1919.

the times, and the government constitut- Argued March 12, 1919. Decided March ed itself a trustee for them and gave them the opportunity, at any time with

in two years after the suppression of the rebellion, to establish their right to the proceeds, requiring of them nothing but proof of loyalty and ownership. United States v. [331] Anderson, 9 Wall. 56, 65, 19 L. ed. 615, 617; United States v. Padelford, 9 Wall. 531, 19 L. ed. 788; United States v. Klein, 13 Wall. 128, 20 L. ed. 519.

The cotton in the present case, unlike that to which the Act of March 12 applied, was the subject of a business enterprise, and taken to a market opened by the United States forces upon the conditions expressed in the Act of July 2, 1864,—that is, that its owners should turn over to the government one fourth of the cotton, or its money equivalent, which would immediately become the property of the United States. Cutler v. Kouns, supra. The conditions in the two situations, therefore, are in broad contrast, and it could not have been the intention of § 162 to confound the conditions. The section did no more than remove the bar of limitation of time to sue that was given by the Act of March 12, 1863. It did not intend to transfer property that had become that of the United States.

Judgment affirmed.

APPEAL from the Court of Appeals of the District of Columbia to review a decree which reversed a decree of the Supreme Court of the District, dismissing the bill in a suit to restrain the Secretary of the Interior from carrying out a resurvey of a part of the boundaries of a Mexican land grant. Reversed with directions to affirm the decree of the Supreme Court.

See same case below, 46 App. D. C.

465.

The facts are stated in the opinion.

Assistant Attorney General Kearful argued the cause, and, with Solicitor General King, filed a brief for appellant:

This suit is in effect against the United States, and the courts are without jurisdiction because the United States has not consented to be sued, or waived its immunity from suit.

Louisiana v. Garfield, 211 U. S. 70, 77, 78, 53 L. ed. 92, 96, 97, 29 Sup. Ct. Rep. 58, 61 L. ed. 588, 591, 37 Sup. Ct. Rep. 31; New Mexico v. Lane, 243 U. S. 52, 57, 348; Oregon v. Hitchcock, 202 U. S. 60, 68, 69, 50 L. ed. 935, 938, 26 Sup. Ct. Rep. 568.

Equity has no jurisdiction to interfere with the executive administration. There is also an absence of indispensable parties.

Kirwan v. Murphy, 189 U. S. 35, 47 L.

ed. 698, 23 Sup. Ct. Rep. 599; Minnesota, ordered a new survey of the line between v. Lane, 247 U. S. 243, 249, 62 L. ed. stations 20 and 25. This was made by 1098, 1101, 38 Sup. Ct. Rep. 508; Min-one Sickler, and was approved by the nesota v. Northern Securities Co. 184 Secretary of the Interior on February U. S. 199, 235, 46 L. ed. 499, 515, 22 Sup. Ct. Rep. 308.

The decree of the court of appeals is erroneous in awarding an injunction instead of remanding the case, recognizing the right of the defendant to answer and contest the bill on the facts.

Davis v. Tileston, 6 How. 114, 12 L. ed. 366; United States v. Mackey, 132 C. C. A. 370, 216 Fed. 126.

Mr. Francis W. Clements argued the cause, and, with Mr. Alexander Britton, filed a brief for appellees:

28, 1907. On September 5, 1913, the Secretary vacated the Sickler survey and ordered the re-establishment of the Perrin line. The present bill to restrain the carrying out of this order was dismissed on motion by the supreme court of the District of Columbia, but the decree was reversed and an injunction ordered by the court of appeals.

The bill, of course, is not a bill against the United States, brought on the ground to the plaintiffs. The bill does not seek that it is claiming land [333] belonging The Land Department possessed the to try the title. It is brought on the right to fix and determine the boundary ground that the power of the Secretary is between the patented grant and the ad- exhausted, and it may be doubted whethJoining public lands, but when this righter that is a matter with which the plainhad been exercised and the matter had been closed by the final approval of the Flat re-establishing and monumenting the boundaries of the patented grant, the jurisdiction of the Land Office officials necessarily ceased.

Kirwin v. Murphy, 189 U. S. 35, 47 L. ed. 698, 23 Sup. Ct. Rep. 599; New Orleans v. Paine, 147 U. S. 261, 37 L. ed. 162, 13 Sup. Ct. Rep. 303; United States ex rel. Knight v. Lane, 228 U. S. 6, 13, 57 L. ed. 709, 712, 33 Sup. Ct. Rep. 407; United States v. Stone, 2 Wall. 525, 535, 17 L. ed. 765, 767.

Mr. Justice Holmes delivered the opin

ion of the court:

differ from that of the owners of the

tiffs have anything to do. But, however that may be, the whole proceeding on behalf of the United States is simply an effort to fix the boundaries of its own land. It is recognized-it was recognized when the Perrin survey was set aside that the United States has no authority to change the Hancock line; but it has a right, for its own purposes, to try to find out where that line runs, and the fact that its conclusions may Hancock grant does not diminish that right. So long as the United States has not conveyed its land, it is entitled to to establish and re-establish boundaries, survey and resurvey what it owns, and as well one boundary as another, the This is a bill in equity, brought by only limit being that what it thus does the appellees to restrain the Secretary for its own information cannot affect of the Interior from carrying out a rethe rights of owners on the other side survey of a part of the boundary of a of the line already existing in theory Mexican grant. The plaintiffs hold the of law. If, as the result of the survey legal title to the grant, and the adjoin-adopted, the United States should give ing land belongs to the United States. patents for land thought by the plainThe boundary was surveyed by one Han- tiffs to belong to them, "the courts can cock, and on June 22, 1872, the grant was then, in the appropriate proceeding, depatented. A bill to set aside the pat-termine who has the better title or right. ent was dismissed in United States v. Hancock, 133 U. S. 193, 33 L. ed. 601, 10 Sup. Ct. Rep. 264 (1890). Doubts having arisen as to where a portion of the Hancock line on the northern boundary ran, the Land Department employed one Perrin to make a resurvey. It found and re-established the original monuments except between Hancock's stations 20 and 25, and attempted to fix the line between these also. In 1901 the resurvey was approved by the Commissioner of the General Land Office, but in 1902, on an appeal, the Secretary of the Interior reversed the approval and

Litch

To interfere now is to take from the offi-
tions which the law confides to them,
cers of the Land Department the func-
and exercise them by the court.'
field v. Register (Littlefield v. Richards)
9 Wall. 575, 578, 19 L. ed. 681, 682;
Minnesota v. Lane, 247 U. S. 243, 250,
62 L. ed. 1098, 1101, 38 Sup. Ct. Rep.
508.

We know of no warrant for the notion that the power is exhausted by a single exercise of it. Repeated retracement of lines, although, of course, exceptions, are well known, we believe, to the Land Department, as, with the limitation that