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Opinion of the Court

held evidenced an intention to continue the suspension provided for by previous appropriation bills.

The appropriation act in the Dickerson case was more explicit than is the appropriation act in the case at bar. In the Dickerson case express reference was made to the act granting these allowances and it was provided that the appropriation made should not be available to pay these allowances, notwithstanding the provisions of the act granting them. The appropriation act in the case at bar does not make such explicit reference, but it is plain that it had in mind the act authorizing increased pay for aerial flights.

The mere fact that Congress makes a certain appropriation unavailable to discharge an obligation is not of itself conclusive evidence of an intention on the part of Congress to repeal or suspend the law under which the obligation arose. But, as in the Dickerson case, the legislative history of this act convinces us that such was its intention. The committee on appropriations, in reporting this bill to the House, said:

The remaining amount ($7,000) of the reduction proposed by the committee under this head runs to the item of flight pay for flag officers. The current appropriation act limits the number of flag officers who might draw flight pay to three. The budget proposes to increase the number to four. The committee has fixed the number at two, with the thought that one would be the incumbent of the Office of the Bureau of Aeronautics and the other the officer filling the position of commandant of the flight school at Pensacola. Generals do not lead armies, and it is not reasonable to believe that officers of relative rank in the Navy will lead air armadas or take to the air to engage or scout or otherwise contact hostile air forces. Why, therefore, should they be required to fly, which they would be required to do in order to draw flight pay, in time of peace? They are supposed to have come up from grades below where they had experience as active pilots or observers, thus qualifying them for command posts identified with aviation either ashore or afloat.

In other words, the appropriation committee did not deem it necessary for officers above the grade of captain to engage in aerial flights and, therefore, reduced the appropriation for this purpose and made available only sufficient money to pay two officers above the grade of captain for aerial flights;

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whereas, formerly appropriation had been made for three, and the budget had requested four for the year under consideration.

When the bill reached the Senate it was amended by providing that no part of the appropriation should be available for such increased pay for any officer above the rank of captain. In conference it was agreed to provide for such increased pay for one such officer.

This history, in view of the doubt about the legislative intent, persuades us that Congress did not think it necessary for more than one such officer to engage in aerial flights, and meant to prohibit their doing so, or, at any rate, to deprive them of extra compensation therefor in case they did.

Accordingly, we hold that section 2 of the act of July 2, 1926 was suspended by the act of April 26, 1938, and that the plaintiff is not entitled to recover. It is so ordered.

LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur.

THE SEMINOLE NATION v. THE UNITED STATES [No. L-207. Decided October 7, 1940. Plaintiff's motion for new trial overruled January 6, 1941.]*

On the Proofs

Indian claim; sale of townsite lots to Principal Chief of Nation; allegations of fraud.-Where by an act of the general council of the Seminole Nation a townsite commission was created, and said commission under the authority of said act acquired a tract of land which was divided into lots and offered for sale; and where a number of lots were sold to Brown, principal chief of said Nation; and where said sale to Brown was not in accordance with the provisions of said act in that in such sale Brown was relieved of the requirement to erect a building or buildings on said lots within 6 months thereafter, but where said sale to Brown was later ratified and confirmed by resolution of the Seminole general council, and said resolution was afterwards ratified and confirmed by the Congress of the United States, it is held that the proof submitted is insufficient to show that said sale was a fraud on the plaintiff's rights nor that the ratification of said sale by the Congress in these circumstances amounts to a taking of plaintiff's land by the United States.

*Certiorari denied.


Reporter's Statement of the Case

Same.-The United States did not appropriate the land for its own benefit nor did it appropriate it for the benefit of another, unless the sale of the lots to Brown was fraudulent and the United States was a party to the fraud. Same.-Where Congress in the passage of the act conferring on the Court of Claims jurisdiction in the instant case failed to indicate by clear and explicit language its intention that the court should inquire if one of the former acts of Congress was fraudulent, it is held that no such intention can be inferred. Same. Jurisdiction to render judgment "in any and all legal and equitable claims" cannot be construed to embrace a claim founded upon an allegation that a former act of Congress was fraudulent. Klamath Indians v. United States (No. E346), 81 C. Cls. 79; 296 U. S. 244. Same.-Where plaintiff to show fraud relies solely on the alleged inadequacy of the price paid and the fact that the purchaser was the principal chief of the Seminole Nation, and that Congress when it passed the act ratifying the sale was cognizant of these facts, it is held that this falls short of sufficient proof of fraud and far short of sufficient proof that the United States was party to a fraud.

Inadequacy of price not a fraud.—Mere inadequacy of price is insufficient to establish fraud.

The Reporter's statement of the case:

Mr. Paul M. Niebell, for the plaintiff. Mr. W. W. Pryor was on the brief.

Mr. Wilfred Hearn, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. Mr. Raymond T. Nagle was on the brief.

The court made special findings of fact as follows:

1. By an act of Congress approved May 20, 1924 (43 Stat. 133), and by the acts of May 19, 1926 (44 Stat. 568), February 19, 1929 (45 Stat. 1229), and the act of August 16, 1937 (50 Stat. 650), jurisdiction was conferred on the Court of Claims to


adjudicate and render judgment in any and all legal and equitable claims arising under or growing out of any treaty or agreement between the United States and the Seminole Indian Nation or Tribe, or arising under or growing out of any act of Congress in relation to Indian Affairs, [43 Stat. 133].

291825-41-CC-vol. 92——16

92 C. Cls.

Reporter's Statement of the Case

Under the provisions of the above acts a petition was filed on May 31, 1930, and an amended petition, on December 27, 1937.

2. By act of the general council of the Seminole Nation, approved April 23, 1897, a townsite commission was created to be composed of A. J. Brown, Thomas McGeisey, Thomas Factor, W. L. Joseph, and Dorsey Fife, with authority to acquire a tract of land composed of not more than 640 acres, to survey and divide the same into lots, blocks, streets, and alleys, and to sell or lease said lots as said commission may deem proper.

3. By act of Congress, approved July 1, 1898 (30 Stat. 567), an agreement between commissioners on behalf of the United States and commissioners on behalf of the Seminole Nation was ratified. This agreement, among other things, provided that

The townsite of Wewoka shall be controlled and disposed of according to the provisions of an act of the General Council of the Seminole Nation, approved April 23d, 1897, relative thereto; and on extinguishment of the tribal government, deeds of conveyance shall issue to owners of lots as herein provided for allottees; and all lots remaining unsold at that time may be sold in such manner as may be prescribed by the Secretary of the Interior.

4. Under the above tribal act the Commissioners selected a tract of land of 640 acres, more or less, made a survey thereof, and platted the same into streets, alleys, blocks, and 4,234 lots. Of the 4,234 lots, 1,102 of them were conveyed to A. J. Brown in accordance with the tribal act, leaving for sale a balance of 3,132. By February 12, 1900, 7 lots in the townsite had been sold by the commission. On that date John F. Brown, the Principal Chief of the Seminole Nation, offered to purchase the remaining lots for the sum of $12,000. This offer was accepted by the commission. The deed executed to him by the commission contained the following provision:

the said J. F. Brown not being required, however, to erect buildings or improvements on the property herein conveyed, except as to him seems reasonable


Reporter's Statement of the Case

and practicable, but for good cause shown to us no definite time is named within which buildings or improvements shall be placed on said lots, and the same is hereby indefinitely extended.

Section 4 of the tribal act of April 23, 1897, provided that

no transfer of the title of lots shall be made to any person or persons except upon the condition that a building or buildings, or other valuable improvements shall be erected thereon within six months from date of lease or purchase of such lot or lots. Provided, that said Commissioners may in their discretion, for good cause shown, extend the time for the completion of such building, buildings or improvements.

On April 18, 1900, the Seminole General Council passed a resolution ratifying said sale.

Later, protest against the sale was made on behalf of a large number of the members of the tribe, and the legality of the transaction was submitted to the Assistant Attorney General for the Interior Department, who held that the deed to John F. Brown was void and that the Council had no power to ratify or confirm it.

5. On March 3, 1905 (33 Stat. 1048, 1068), an act of Congress was passed which, among other things, ratified and confirmed the resolution of the Seminole National Council ratifying the above sale to John F. Brown. At the time this act was passed Congress had before it the recommendation of the Secretary of the Interior concurring in the recommendation of the Commissioner of Indian Affairs recommending against the passage of the legislation, on the ground that the sale to Brown was illegal. This recommendation, however, did not mention inadequacy of price or otherwise question the bona fides of the transaction. At the time Congress also had before it an opinion of Assistant Attorney General Campbell holding that the sale to Brown was void on the ground that the townsite commission had exceeded its authority. In this opinion doubt was expressed as to the bona fides of the transaction, but his opinion was based not upon this ground, but upon the lack of authority of the townsite commission.

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