stamps, which appellant passed over to pur-1
chasers as their commissions. Upon retirement
from office, his accounts were settled and ad-
justed at the Treasury Department, without any
assertion of a right to commissions for himself.
In that settlement he was allowed or credited
with all payments made by him in stamps, of
commissions to purchasers. The appellant de-
rived no personal advantage from the sales.
He brought this action on the first day of
May, 1875, to recover from the United States
the sum of $184,934.95, to which he claims to
be entitled as commissions upon such sales.
His claim was denied, and judgment was en-
tered for the Government.

By section 161 of the Act of June 30, 1864, providing internal revenue to support the Government, to pay the interest on the public debt, and for other purposes, it is provided among other things, that,

"The Commissioner of Internal Revenue be and he is hereby, authorized to sell to and supply collectors, deputy collectors, postmasters, stationers or any other persons, at his discretion, with adhesive stamps or stamped paper, vellum or parchment, as herein provided for, in amounts of not less than $50, upon payment at the time of delivery, of the amount of duties said stamps, stamped paper, vellum or parchment, so sold or supplied, represent, and may allow, upon the aggregate amount of such stamps, as aforesaid, the sum of not exceeding five per centum as commission to the collectors, postmasters, stationers or other purchasers; but the cost of any paper, vellum or parchment shall be paid by the purchaser of such stamped paper, vellum or parchment as aforesaid; Provided, That any proprietor or proprietors of articles named in Schedule C, who shall furnish his or their own die or design for stamps, to be used especially for his or their own proprietary articles, shall be allowed the following commission, namely: on amounts purchased at one time, of not less than $50 nor more than $500, five per centum; on amounts over $500, ten per centum." 13 Stat. at L., 294. Section 170 of the same Act declares: "That in any collection district where in the judgment of the commissioner the facilities for the procurement and distribution of stamped vellum, parchment or paper, and adhesive stamps, are or shall be insufficient, the commissioner is authorized to furnish, supply and deliver to the collector and to the assessor of any such district and to any Assistant Treasurer of the United States, or designated depositary thereof, or any postmaster, a suitable amount of stamped vellum, parchment or paper, and adhesive stamps, without prepayment therefor, and shall allow the highest rate of commissions allowed by law to any other parties purchasing the same; and may in advance require of any such collector, assessor, Assistant Treasurer of the United States, or postmaster, a bond with sufficient sureties to an amount equal to the value of any stamped vellum, parchment or paper; and adhesive stamps, which may be placed in his hands and remain unaccounted for, conditioned for the faithful return, whenever so required, of all quantities or amounts undisposed of, and for the payment monthly of all quantities or amounts sold, or not remaining on hand.

And it shall be the duty of such collector to supply his deputy with, or sell to other parties within his district who may make application therefor, stamped vellum, parchment or paper, and adhesive stamps, upon the same terms allowed by law or under the regulations of the commissioner, who is hereby authorized to make such other regulations not inconsistent herewith, for the security of the United States and the better accommodation of the public, in relation to the matters herein before mentioned, as he may judge necessary and expedient. And the Secretary of the Treasury may from time to time make such regulations as he may find necessary to insure the safe keeping or prevent the illegal use of all such stamped vellum, parchment, paper and adhesive stamps." 13 Stat. at L., 297.

Section 161 plainly provides for sales by the commissioner, while section 170 authorizes him to furnish and supply certain officers with stamps for sale to others. Whether stamps were purchased directly from the Commissioner of Internal Revenue, for cash, under section 161, or from one of the officers to whom they were furnished for sale and distribution under section 170, in either case the purchaser, it is conceded, was allowed commissions according to the rate or scale established by the regulations of the commissioner. Touching the particular sales made by appellant, the purchasers of common or general stamps were entitled, respectively, to five per cent in commissions, and the purchasers of proprietary stamps to ten per cent. There can be no doubt of this, since the petition of appellant distinctly alleges that his sales of common stamps were in amounts of not less than $1,000, and of proprietary stamps in amounts exceeding $500. If, therefore, it be suggested that appellant was entitled to the difference between the highest rate or per cent allowed by the Government (five per cent in purchases of common stamps, and ten per cent in purchases of proprietary stamps) and the amount paid over by him, in stamps to purchasers, the obvious answer is that there was in this case no such difference. This interpretation of the statute, we may observe, could therefore, be of no practical value to appellant. His contention, and upon no other ground could appellant's claim be sustained, is, that without reference to the commissions which the purchaser of stamps received-although he may have received the highest rate allowed-appellant was, nevertheless, given by the statute, to his own use and as his personal allowance or compensation for distributing stamps, under section 170, the highest rate of commissions which was allowed to anyone buying from the Commissioner of Internal Revenue.

For instance, upon the theory advanced by appellant's counsel, a purchaser from the Commissioner of Internal Revenue, of common stamps to the amount, at one time, of $1,000 or more, would be allowed five per cent as com missions, payable in stamps (which, in such cases, would be the full extent of the Government's loss), while upon a sale, through an assistant treasurer of the United States, to the same purchaser of the same stamps, in sealed packages, the Government would lose altogether ten per cent in commissions; five per cent to the Assistant Treasurer, and five per cent to the

purchaser; that, is, double commissions. In other words, according to that construction of the statute, the Government held out an inducement to officers named in sections 161 and 170, not to become themselves purchasers, for cash, of stamps for sale and distribution in their respective localities, as they might under section 161, but to receive them, under section 170, and thereby, without advancing any money, secure for themselves, outside of what the purchasers from them would be allowed, the highest rate which the law allowed in purchases directly from the commissioner.

We cannot give our assent to any such construction of the statute. The officers, named in section 170, were charged at the outset, with the value of each sealed package of stamps delivered to them for distribution. In the settlement of their accounts they were entitled to be credited with the amount of stamps unsold and returned; with the sums received upon sales, and paid over to the Government; and, also, with the value of the stamps placed in the sealed packages for delivery to purchasers as commissions allowed, to them. In this way they were relieved from the responsibility assumed when they were supplied with stamps for distribution under section 170. The statutory direction that the commissioner, in such cases, "shall allow the highest rate of commissions allowed by law to any other parties purchasing the same," was an awkward mode of expressing the idea that the same commissions, up to the highest rate, should be allowed in purchases under section 170, as under section 161; that is, that those wishing stamps might purchase from the officers named in section 170 at the like rate, even the highest, accorded to "any other parties purchasing the same" stamps, for cash, directly from the commissioner.

As to assistant treasurers distributing stamps under section 170, we are of opinion that Congress did not intend that they should receive any compensation whatever for services of that character; certainly not in any case where the commissions paid to those who purchased from such officers were as large as the highest rate prescribed in sales by the commissioner, for cash, under section 161. It was for the better accommodation of the public that the Secretary of the Treasury required assistant treasurers to aid in the distribution of adhesive stamps. The communications addressed to the Assistant Treasurer of New York, announcing his purpose to adopt that course, show upon their face that the Secretary had no expectation thereby of in creasing the loss, in the way of commissions, which the Government would sustain upon sales of stamps. He believed that he had the power to impose that duty upon assistant treasurers, as an additional means of facilitating the distribution of internal revenue stamps.

The conclusion we have indicated is in line with the settled policy which has existed upon the subject of extra compensation to officers having fixed salaries or pay, especially in regard to Assistant Treasurers of the United States.

By an Act approved March 3, 1839, making appropriations for the civil and diplomatic service, it was declared, that "No officer in any branch of the public service, or any other person whose salaries, or whose pay or emoluments is or are fixed by law or regulations

shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or for the performance of any other service, unless the said extra allowance or compensation be authorized by law." 5 Stat. at L., 349. In a subsequent Act of August 23, 1842, this prohibition against extra compensation to officers with fixed salaries was somewhat enlarged, and this provision was inserted: "No officer in any branch of the public service, or any other person whose salary, pay or emoluments is or are, fixed by law or regulations shall receive any additional pay, extra allowance or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly st forth that it is for such additional pay, extra allowance, or compensation." 5 Stat. at L., 510. And at the same session of Congress, by an Act approved August 26, 1842, it was declared that "No allowance or compensation shall be made to any clerk or other officer, by reason of the discharge of duties which belong to any other clerk or officer, in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any clerk or other officer may be required to perform." 5 Stat. at L., 525.

We come, then, to the Act of August 6, 1846, under which appellant was appointed to office, providing for the better organization of the Treasury, and the collection, safe-keeping, transfer and disbursement of the public revenue. Among the duties imposed by that Act upon assistant treasurers was that of doing and performing all duties as fiscal agents of the Government which might be imposed by that or any other Act of Congress, or by any regulation of the Treasury Department made in conformity to law; and, "Also to do and perform all acts and duties required by law, or by direction of any of the executive departments of the Government, as agents for paying pensions, or for making any other disbursements which either of the heads of these departments may be required by law to make, and which are of a character to be made by the depositaries hereby constituted, consistently with the other official duties imposed upon them." 9 Stat. at L., 60. The same Act fixed the salaries of the assistant treasurers, and declared: "And these salaries, respectively, shall be in full for the services of the respective officers; nor shall either of them be permitted to charge or receive any commission, pay or perquisite, for any offcial service, of any character or description whatsoever." 9 Stat. at L., 65. The foregoing provisions in the Acts of 1839, 1842 and 1846 have been preserved in sections 1763, 1764, 1765 and 3597 of the Revised Statutes. They were all in force when the General Revenue Statute of 1864 was passed. Commenting upon the Act of August 23, 1842, 5 Stat. at L., 510, this court in Stansbury v. U. S., 8 Wall., 37 [75 U. S., XIX., 316], said: "The law was passed to remedy an evil which had existed of detailing officers with fixed pay to perform duties outside of their regular employment, and paying them for it, when the Government was entitled, without this double pay, to all their services. The law prohibited, and was intended to do so, the allow

and a member, by "birth, blood, and descent,' ," of the Confederate Tribes of Sacs and Foxes of the Mississippi. At the date of the Treaties of 1859 and 1867, between those Tribes and the United States, she was the wife of William Whistler, a member of the same Tribe. After his death she intermarried with one Henry Pennock, a white person, a citizen of the United States, and a resident of Kansas, with whom she now lives. In May, 1871, she was the owner in fee of certain lands in Franklin County in that State, which were listed and assessed by its officers for taxes in the same way as other real property in the county. The taxes and charges being unpaid, the lands were sold to pay them, and certificates of sale given. To restrain the issue of deeds to the purchasers, and to set aside the tax sale as illegal, the present suit was brought. The district court of the county held the sale illegal, and gave a decree for the plaintiff. The Supreme Court of the State reversed the decree and rendered judgment for the defendants, and the plaintiff has brought the case, on writ of error to this court. It is admitted in the record that the plaintiff, though residing with her husband in Kansas, keeps up her relations with her Tribe, and the question is presented, whether under these circumstances her lands in Kansas are exempt from taxation by that State. With some exceptions not applicable to them, other property within its limits, real and personal, is subject to taxation. The solution of the question depends upon the construction given to the Treaties between the United States and the Tribes mentioned.

By the treaty concluded with them in October, 1842, they ceded to the United States all the lands west of the Mississippi River to which they had any claim or title, or in which they had any interest. In consideration of the cession it was, among other things, agreed that the United States should pay to them an annual interest of five per cent on $800,000, and discharge certain debts which they had contracted, and that the President should assign to them a tract of land on the Missouri River, or some of its waters, suitable and convenient for Indian purposes, "for a permanent and perpetual residence for them and their descendants." 7 Stat. at L., 596. Pursuant to this latter provision, the President soon afterwards assigned to them a tract of land on the Missouri River, afterwards known as their reservation, situated within what are now the limits of the State of Kansas. The lands were held by them in common until 1860. In the meantime white settlements had sprung up around them, and they had adopted many of the habits and customs of the white people. It was by comparison of their own condition with that of their white neighbors at least we may so infer from what subsequently occurred-that they were induced to believe that the continued ownership of their lands in common was not beneficial to them, and that their prosperity would be promoted if limited quantities were held by individuals in severalty. This consideration led to a new Treaty, which was concluded on the 1st of October, 1859, and ratified in July, 1860. 15 Stat. at L., 467. It recited that the Tribes had more lands than were necessary for their occupancy and use, and that they were

anxious to promote "habits of industry and enterprise amongst themselves by abolishing the tenure in common" by which they held their lands, and "by assigning limited quantities thereof in severalty to the individual members of the tribes, to be cultivated and improved for their individual use and benefit," and it stipulated, among other things, that a portion of their reservation, amounting to 153,600 acres, should be set apart and retained for that purpose; and that out of it there should be assigned to each member of the Tribes, without distinction of age or sex, a tract of eighty acres. It declared that these tracts should not be aliened in fee, leased or otherwise disposed of by the parties to whom they were assigned, except to the United States or to members of the Tribes, and then under such rules and regulations as might be prescribed by the Secretary of the Interior, and that they should be exempt from taxation, levy, sale or forfeiture, until otherwise provided by Congress.

In order to establish the members of the Tribes upon the lands thus assigned to them in severalty, by building them houses and furnishing them with agricultural implements, stock animals, and other necessary aid and facilities for commencing agricultural pursuits under favorable circumstances, the Treaty further provided that the lands in the reservation of the Tribes which were not thus set apart and retained, should be sold, under the direction of the Secretary of the Interior, and the proceeds expended for those purposes, and to pay the debts of the Tribes and of the individual members thereof.

These stipulations, which are set forth in the first five articles of the Treaty, would be deemed to apply to all members of the confederate Tribes, but for the special provisions contained in article ten. The latter relate exclusively to such members as were either “mixed and half bloods," or women, being whole bloods, who had intermarried with white men. To each of them three hundred and twenty acres were to be assigned from that portion of the land relinquished by the Treaty to the United States in trust, provided the parties desired to take such tracts. The lands thus granted were to remain inalienable except to the United States or members of the Tribes, and the grantees were not to participate in the proceeds of the land sold. This article operates as a limitation upon the provisions of the previous articles, and confines them to members of the Tribes other than the mixed or half-bloods, or the females intermarried with white men. These parties, by accepting the grant of the 10th article, were excluded from the benefits and freed from the restrictions of the other articles, except as they were repeated in it. Under it various tracts of the quantity specified, were assigned to the parties coming under the classes designated and, among others, to Mrs. Pennock, who is of mixed and half-blood, the plaintiff in this suit, at the time the wife of William Whistler.

In February, 1867, another Treaty was concluded with the Sacs and Foxes, which was ratified in October, 1868. 15 Stat. at L., 495. By it they ceded to the United States all the lands in Kansas to which they had any claim, and agreed to remove to the Indian Territory, where the United States promised to give them for

their future home another tract of land. The Treaty provided for their removal, the payment of certain debts contracted by them, the erection of various buildings for their use, and other measures designed for their improvement and civilization. It also allowed various parties to select half and quarter sections of land, and provided for the issue of patents to them. Article 17 declared that the half-breeds and full-bloods, who were entitled to selections of land under the Treaty ratified in July, 1860, and whose selections had been approved by the Secretary of the Interior, should be entitled to patents in feesimple for the lands selected, according to certain schedules annexed.

Under this Treaty the Tribes removed to the Indian Territory, where they now reside, and under the 17th article patents were issued to Mrs. Pennock under her former name of Sarah A. Whistler, and to other parties of a like class, for the tracts of land severally assigned to them under the 10th article of the Treaty ratified in July, 1860. Mrs. Pennock did not accompany her Tribe, but remained with her white husband in Kansas, having an indefeasible and absolute title to the lands covered by her patent, and having acquired by purchase other tracts from parties to whom similar patents had been issued. She had renounced all claim to share in the proceeds of lands in the reservation sold by the United States, by accepting the grant under the 10th article of that Treaty. Her subsequent relation to her Tribe as a member of it, if she chose to keep it up, cannot affect the jurisdiction of the State over her property for governmental purposes. She might have followed her Tribe; she can now do it; but as that Tribe, under a Treaty with the United States, has left the State, while she remains, and has taken-not an imperfect title, to be held under the guardianship of the Secretary of the Interior, to be disposed

consistent with the perfect title which accompanies the patent.

There is nothing in the case of the Kansas Indians, reported in 5th Wallace, 737 [72 U. S., XVIII., 667], in conflict with these views. There the Indians resided in Tribes, though their tribal organizations had been much broken in upon by their intercourse with the whites. Patents to individual members, enabling them to hold lands in severalty, were accompanied with a condition against alienation without the consent of the Secretary of the Interior. A Treaty of the United States with one of the Tribes stipulated that their lands should not be liable to "levy, sale, execution or forfeiture "-terms which were held to prevent a levy and sale by officers of the State for taxes, as well as a levy and sale under judicial proceedings. And the Act admitting Kansas into the Union as a State provided that the rights of the Indians in the territory should remain unimpaired, and the general government be at liberty to make any regulation respecting them and their lands which it would have been competent to make had Kansas not been thus admitted. Their tribal organizations continuing in the State, and the United States treating with them as distinct political communities, the Legislature of Kansas could not interfere with their lands or the lands of individual members of the Tribes, and subject them to taxation.

to be prescribed by him, but a title carrying with it absolute ownership, with a right of free disposition at her will, she and her property have come under the control of the State, and are subject to its laws, entitled to its protection, and bound to bear a portion of its burdens.

The 18th article of the Treaty does not, in our judgment, apply to the lands covered by the pateut to the plaintiff, or by the patents to the other parties from whom she purchased. Its language is that "All sales hereafter made by or on behalf of persons to whom lands are assigned in this Treaty shall receive the approval of the Secretary of the Interior before taking effect or Conveying title to lands so sold." This language strictly considered would, it is true, place a limitation upon all subsequent sales, by or on behalf of persons to whom lands were assigned under the Treaty, but we think the restriction was onlyintended to apply to the alienation of the bands thus assigned, and not to other lands which sich persons may have had assigned to them by other treaties. And we are also of opinion Cat the restriction upon alienation only applies to lands where the sole title of the holder is by the assignment made. When the patent of the Government is once issued for the lands, all restrictions upon their alienation, not expressly Lamed, are gone. Without such designation, Lability to alienate the property would be in

MAN, Deceased.

(See S. C., 13 Otto, 62-66.)

Death of party after cause submitted.

Where a party dies after his cause is finally submitted for decision, the court has the power to enter the decree as of the term when, in the lifetime of the party, the cause, after argument, was finally submitted for decision. [No. 176.] Submitted Jan. 5, 1881. Decided Feb. 28, 1881.

IN

ERROR to the Court of the United

States for the Southern District of Ohio. The case is fully stated by the court. Messrs. Rufus King, Samuel J. Thompson and Lawrence Maxwell, Jr., for plaintiff in error.

Messrs. Stanley Matthews and Wm. M. Ramsey, for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

On the 26th day of July, 1866, Conrad Stutzman commenced an action against Robert Mitchell and others, in the District Court for the County of Webster, a court of general jurisdiction, in the State of Iowa. Two of the defendants, although duly served with process, failed to appear, and against them a decree pro con