tations. The act of 1887 neither repealed nor modified the provisions of section 3227."

In Petri v. Creelman Lumber Co., 199 U. S. 487, 26 Sup. Ct. 133, 50 L. Ed. 281, the same rule was laid down that a general act does not repeal by replication an earlier special act; and in United States. v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130, the same rule was applied to the Tucker act.

But is this an action for the recovery of an internal revenue tax alleged to have been erroneously or illegally assessed or collected within the meaning of section 3227, Rev. St.? As has been stated hereinbefore, under the laws of the state of Arkansas, the distributive shares of the plaintiffs, as heirs of their mother, who died intestate on June 3, 1901, and letters of administration were issued on July 23, 1901, were contingent, and did not become vested prior to July 1, 1902. The act of 1902, in so far as it applies to payments made without protest prior to its passage, was clearly only a free gift of Congress, for having been paid voluntarily, without protest, the claim for refund was moral only and not legal, and for this reason no action could have been maintained for a refund without the aid of that act. This was the ground assigned by Judge Lowell in Thacher v. United States (C. C.) 149 Fed. 902, who further held that the cause of action is not based upon the illegality of the tax, but only seeks to enforce the free bounty of the government given by that act. He then pro

ceeds:

"If section 3228 be applicable here by analogy, yet the two years therein mentioned must run, if to run at all, not from the payment of tax, which was ineffective to create the claim here in suit, but from the passage of the act providing the bounty which the petitioners seek to obtain."

This is the general rule applying to statutes of limitations affecting rights springing into existence by virtue of the new act. Lewis v. Lewis, 7 How. 776, 12 L. Ed. 909; Sohn v. Watterson, 17 Wall. 596, 21 L. Ed. 737; In re Wehrli (D. C.) 157 Fed. 938. This is a reasonable construction, and when applied to payments made prior to the passage of the act gives the parties ample time to present their claims to the commissioner of internal revenue, and upon his rejection to institute suit therefor. As to payments made after the enactment of the statute and after the repeal of the act went into effect, there is certainly no reason why the provisions of these sections (3226, 3227, and 3228) should not apply. The collection of the tax in 1903 was clearly illegal and without authority of law. As every one is presumed to know the law, the plaintiffs are presumed to have known it, and their duty was to make protest at the time, and in any event to institute the action to recover the money paid within two years from the time of payment. This is the effect of the decision of the United States Circuit Court of Appeals for this circuit in Christie Street Commission Company v. United States, supra, where Judge Sanborn, in a very elaborate opinion, the reasoning of which is unassailable, reached the conclusion that:

"This class of actions, the class founded under a law of Congress, was not enlarged by the act of 1887, but it remained bound by the same limitations and conditioned by the same words after as before the passage of that act.

It is an action directly against the United States, and the logical and unavoidable conclusion is that it was barred by the statutory limitations of section 3227, because it was not commenced until more than two years after the cause of action it presents accrued."

Were this an action to recover money paid prior to the passage* of the act, it may be possible that the contention of counsel for plaintiffs could be sustained, but this tax was assessed and payment thereof made long after the enactment of the statute and the repeal of the tax had taken effect. The act covers not only payments made before its enactment, but also payments made thereafter. The object of inserting the latter clause was, no doubt, prompted by the fact that as the act was introduced several months before its final passage, and the repeal was not to take effect until July 1st, Congress intended to provide for the refunding of any such collections made, if wrongful, although made after the enactment of the statute of June 27, 1902, but prior to July 1st. As has been hereinbefore stated, an assessment of this tax, and consequently its collection after July 1, 1902, was without any authority of law, and for this reason was clearly illegally assessed and collected. It was for the recovery of such collections that sections 3226, 3227, and 3228 were enacted. The act of June 27, 1902, was not necessary in order to enable the plaintiffs to maintain this action, as by section of the act of April 12, 1902, the statute under which the collection was made had been repealed to take effect July 1, 1902. These conclusions make it unnecessary to determine whether, under the provisions of section 29 of the war revenue act, contingent interests of heirs of one who died intestate were subject to the tax at all, or whether the tax was limited to personalty or an interest therein, transferred by deed, grant, bargain. sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor.

From what has been said it follows, as of course, that as this action was not brought within two years of the payment made by the administrator of the estate, the action is barred by limitation, and judgment will be entered for the defendant.

TURNER v. SEEP et al.

(Circuit Court, E. D. Oklahoma. February 10, 1909.)

No. 233.

1. INDIANS (§ 16*)-APPROVAL OF LEASES-POWERS AND DUTIES OF ASSISTANT SECRETARY OF THE INTERIOR-DELEGATION.

Under Rev. St. § 439 (U. S. Comp. St. 1901. p. 249), which provides that "the Assistant Secretary of the Interior shall perform such duties in the Department of the Interior as shall be prescribed by the Secretary or may be required by law," the Secretary may delegate to the Assistant Secretary authority to approve leases of Indian lands and assignments

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

thereof, and, so long as such authority remains unrevoked, the approval of the Assistant Secretary is equivalent to that of the Secretary.

[Ed. Note. For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]

2. INDIANS (§ 16*)-LANDS-ASSIGNMENT OF OIL LEASE.

Where an oil and gas lease executed by an Indian in the Indian Terri tory on a form prescribed by the Interior Department expressly provided that no sublase or assignment of any interest therein could be made without the written consent of the lessor and the Secretary of the Interior, and any attempted assignment or transfer without such consent should be void, a subsequent regulation of the department which contained no requirement of the lessor's consent in such cases could not validate an assignment of such lease made without the lessor's consent.

[Ed. Note. For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]

3. MINES AND MINERALS (§ 74*)-OIL LEASE-VOID ASSIGNMENT-RIGHTS OF LESSOR-DAMAGES.

In a suit in equity to recover land from trespassers who had drilled oil wells thereon and for an accounting for the oil taken, where it appeared that defendants had gone into possession under a void assignment of a lease executed by complainant and had expended large sums in good faith in the mistaken belief that they had a lawful right to enter, they will not be required to account for the full value of the oil taken after it was produced, but only for its value in the ground as measured by the royalty complainant was to receive under the lease.

Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 202; Dec. Dig. § 74.*]

M. C. Reville, K. S. Murchison, and A. A. Davidson, for complain

ant.

Zevely, Givens & Smith and Eugene M. Mackey, for respondents. CAMPBELL, District Judge. Susan Turner, the plaintiff herein, is a full-blooded Cherokee Indian, and at the time of the executing of the lease hereinafter mentioned was a minor. On November 16, 1905, J. T. Parks, who, prior to that date, had been regularly appointed the plaintiff's legal guardian, executed to the Midland Oil Company, one of the defendants, an oil and gas mining lease covering the S. E. 14 of the S. W. 14, and the S. E. 14 of the S. W. 14 of the S. W. 14, of section 25, Tp. 25 north, range 16 east, in the Cherokee Nation, in the Indian Territory, which land was a portion of the allotment of the plaintiff. The lease was executed upon the form prescribed at the time by the Secretary of the Interior, and was made for a term extending to December 4, 1908. In the execution of this lease the guardian acted under an order of the United States Court for the Northern District of the Indian Territory, sitting at Tahlequah, which court had at that time jurisdiction of such guardianship matters under the laws then in force. Thereafter, on December 9, 1905, the lease was filed with the United States Indian agent at Muskogee, to be forwarded to the Secretary of the Interior for his approval. In addition to filing the lease with the United States Indian agent, it was necessary, under the rules and regulations of the Secretary of the Interior then in force, that the lessee in such cases also file an application to accompany the lease, upon a form prepared and pre*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

scribed by the Secretary of the Interior, setting forth certain information required by the department. The application to accompany this lease was not filed by the lessee, the Midland Oil Company, until September 5, 1906. One of the provisions of the lease was as follows:

"And it is mutually understood and agreed that no sub-lease assignment, or transfer of this lease or of any interest therein or thereunder can be directly or indirectly made without the written consent thereto of the lessor and the Secretary of the Interior first obtained, and that any such assignment or transfer made or attempted without such consent shall be void."

On the 29th day of April, 1907, the Midland Oil Company executed to William J. Seep, of Coffeyville, Kan., and Theodore N. Barnsdall, of Pittsburg, Pa., a written instrument purporting to be an assignment of this lease to Barnsdall and Seep. And on the same date, the said Barnsdall and Seep executed a written instrument styled an "acceptance" of such assignment. At the time of the execution of these instruments, the lease had not been approved by the Secretary of the Interior, nor had the plaintiff or her guardian consented either verbally or in writing to the assignment; but on June 18th, following, both the lease and assignment were approved by the Assistant Secretary of the Interior, as appears from an indorsement thereon reading as follows:

"Department of the Interior, Washington, D. C., June 18th, 1907. Lease and assignment approved as recommended. Jesse E. Wilson, Asst. Secretary of the Interior."

The Midland Oil Company never took possession of this property. under its lease. The evidence shows, however, that early in the year 1906, within a few months after the date of the execution of the lease, W. J. Seep, appearing to act for Barnsdall and himself, went upon this property, which consisted of about 50 acres of land, and proceeded to sink oil wells thereon until it had developed 12 producing wells. Pumps were put in, and the oil was drawn and delivered to the Prairie Oil & Gas Company, a corporation engaged in the business of buying and piping oil from that field. Early in January, 1907, the guardian having been advised that developments were being made upon the land, visited the property and found Seep in possession, and oil wells sunk on the land and all equipment set for drawing oil from the land-tanks erected, pipes laid, and engine and engine house, and a man in charge of the land. Upon inquiry at the office of the Prairie Oil & Gas Company, he learned that they were taking the oil from the land, and that it was being credited to Barnsdall and Seep.

On March 7th, following, he filed this action, styled a "complaint in equity," in the United States Court for the Northern District of the Indian Territory, sitting at Tahlequah, setting up the minority of the plaintiff, his guardianship, the execution of the lease, and the fact that it had never been approved by the Secretary of the Interior; that Barnsdall and Seep were unlawfully in possession of the land, and withholding the same from the plaintiff, destroying the timber thereon, and withdrawing the oil therefrom, to the irreparable injury of the plaintiff; and praying that a receiver be appointed pending the action, that the defendants be restrained from interfering with the

plaintiff's possession and peaceful enjoyment of the premises and from removing the oil therefrom, and that the defendants be requirea to account to the plaintiff for the timber cut from the land and the oil and gas or other mineral taken and extracted therefrom, and that plaintiff have judgment therefor, and that she be adjudged and decreed the exclusive possession of her said allotment. A receiver was appointed by the court, pending the litigation, and the receivership still continues. To this complaint the Prairie Oil & Gas Company filed its separate answer, disclaiming any interest in the property, and denying that it was in any way in collusion with the other defendants in the premises, and praying that the complaint be dismissed in so far as it was concerned. Subsequently, this action was dismissed as to that company.

On November 5, 1907, the defendants, Seep and Barnsdall and the Midland Oil Company, also filed their separate answers, admitting the execution of the lease to the Midland Oil Company, and alleging its approval by the Secretary of the Interior on the 18th day of June, 1907, setting up also the execution and approval of the assignment from the Midland Oil Company to Barnsdall and Seep, and denying the allegations of the complaint with reference to the conversion of oil and timber by them from the land, and praying that the receiver be discharged and that the complaint be dismissed as against them. By replication thereafter filed, the plaintiff denied the approval of the lease by the Secretary of the Interior, and also denied the assignment of the same. It is contended by the plaintiff that the Assistant Secretary of the Interior had no authority to approve the lease, and that the sole authority to do so is vested personally in the Secretary of the Interior himself. By the Revised Statutes of the United States, it is provided:

"Sec. 438. There shall be in the Department of the Interior an Assistant Secretary of the Interior, who shall be appointed by the President by and with the advise and consent of the Senate, and shall be entitled to a salary of six thousand dollars a year, to be paid monthly." U. S. Comp. St. 1901, p. 248.

"Sec. 439. The Assistant Secretary of the Interior shall perform such duties in the Department of the Interior as shall be prescribed by the Secretary or may be required by law." U. S. Comp. St. 1901, p. 249.

Section 439, above quoted, was construed by Attorney General A. H. Garland, in an opinion rendered by him on July 30, 1886, 18 Op. Atty. Gen. 432, in connection with section 3683 (U. S. Comp. St. 1901, p. 2456), which reads as follows:

"No part of the contingent funds appropriated by any department, bureau, or office shall be applied to the purchase of any articles, except such as the head of the department shall deem necessary and proper to carry on the business of the department, bureau, or office, and shall by written order direct to be procured."

The question arose as to whether or not the Assistant Secretary of the Interior, acting under direction of the Secretary of the Interior, might be considered "the head of the department,' as the term is used in section 3683. In the course of the opinion, Mr. Garland says: