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FRIEDMAN v. UNITED STATES

March 28, 1921

FRIEDMAN
v.
UNITED STATES



APPEAL FROM THE COURT OF CLAIMS

White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis; Clarke took no part in the consideration and decision of this case

Author: Mckenna

[ 255 U.S. Page 468]

 MR. JUSTICE McKENNA delivered the opinion of the court.

Action to recover the sum of $3,600, excessive payment exacted by the Secretary of the Interior for 120 acres of coal land, which plaintiff (we so designate him in this opinion) was entitled to enter and did enter under § 2347 of the Revised Statutes.

The Court of Claims dismissed the petition and from its judgment this appeal is prosecuted.

The right of plaintiff to enter the land is not disputed. The dispute is as to the price prescribed by § 2347. Its provision is that payment shall be made of not less than $10 per acre if the lands selected be more than 15 miles

[ 255 U.S. Page 469]

     from a completed railroad, and not less than $20 per acre if they be within 15 miles of the railroad.

The entry of plaintiff was within 15 miles of the railroad and the Secretary required the payment of $50 per acre. The requirement is attacked as beyond the power of the Secretary, it being in excess of the statutory price which, it is contended, is $20 per acre; and to sustain the attack there is adduced the prior practice of the Interior Department and cases whose analogy, it is contended, demonstrate that the words "not less than twenty dollars per acre" mean not more than twenty dollars per acre. The answer to the contention would seem necessarily to be that "less" and "more" are words of contrast -- indeed of opposition, and cannot be confounded. It is easy to see that if their difference should be disregarded in dealing with the things of the world, sensible or insensible, the resulting confusion would be hard to describe.

Plaintiff makes the words even more facile to management than in the above contention and makes them exclude all freedom of judgment and choice of price which they seem not only to imply but to require, in the administration of § 2347. In support of the liberty of identifying or confusing different things plaintiff invokes the practice of the Interior Department from 1873 to 1907, and urges that Congress by silence gave sanction and approval to the practice.

The inference deduced from the practice and the asserted sanction we cannot accept. The practice was but the exercise of administration by the Department upon the then circumstances, deemed proper and adequate then and accepted as such by Congress.

In 1907 there was a change of conditions and they dictated a change in administration and, in aid of a judgment of values and its exercise under the direction of § 2347, coal lands were subjected to classification and appraisement, a ...


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