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tween the expiration of any officer's term of office and the qualification of his successor to discharge the same official duties.

The official term, as here understood, may end by the resignation or death of the incumbent. The constitution does not intend to interfere with any of the methods whereby an officer's incumbency may be made to cease according to law, but only to provide that whenever it does cease, by whatever means, he shall be empowered to act until the qualification of his successor.”

The same theory obtains in the case of United States v. Green et al. (53 Fed. Rep., 769). Section 1 of the syllabus is as follows:

“The constitution of Missouri (Art. 14, sec. 5) provides that ‘in the absence of any contrary provision all officers hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms and until their successors shall be elected or appointed and qualified.'

“Rev. St. Mo., 1889, sec. 1584, provides that the mayor, marshal, collector, and board of alderman of any city shall hold their offices for two years and until their successors are elected and qualified.

Held, That the saving of right of resignation in the constitution does not enable an officer to resign so as to create a vacancy before the election of his successor, and, notwithstanding such resignation, he holds office until that time.”

See also the cases of Edwards v. United States (103 U. S., 471) and Salamanca v. Wilson (109 U. S., 627), which, together with the Badger case, are discussed and adhered to in Amy v. Watertown, No. 1 (130 U. S., 301) and distinguished from the principle therein laid down. (Also 6 Comp. Dec., 594.)

In the case of Mr. Grigsby it must therefore be held that though his resignation had been accepted to take effect as stated by you, the appointment and qualification of his successor were necessary to complete the severance of his official relations and to terminate his duties and responsibility in the office he had held.

It follows, in my opinion, that inasmuch as Mr. Grigsby performed the duties of his office from July 1, 1904, to July 28, 1904, inclusive, he is entitled to the salary, as demanded, covering said period.

LAND GRANT PORTION OF THE MISSOURI, KAN

SAS AND TEXAS RAILWAY.

The Missouri, Kansas & Texas Railway is a free land-grant road between

Junction City, Kans., and the northern boundary of the Osage ceded

lands. The provision in the act of July 26, 1866, that the Missouri, Kansas and

Texas Railway should “at all times transport troops, munitions of war, supplies, and public stores upon its road for the Government of the United States free from all cost or charge therefor to the Government," made said railway a free land-grant road. (Decision by Comptroller Tracewell, November 19, 1904.)

The Auditor for the War Department reports the following decision for approval, disapproval, or modification:

“In the examination of the claim (File No. 55161; Claim No. 146558) of the Missouri, Kansas and Texas Railway Company, for compensation for transportation over its line in the State of Kansas, in May and June, 1903, as required by certain transportation requests issued to it in May and June, 1903, the following questions arise:

“First. For what distance and between what points in the State of Kansas is the Missouri, Kansas and Texas Railway a land-grant road?

Second. Is said road for said distance and between said points a free land-grant road or a fifty-per-centum land grant road?

“The claim under consideration, being bill No. 587 of the claimant company, is based upon transportation requests M. No. 481733, for one man from San Antonio, Tex., to Macon, Mo., M. Nos. 330912 and 330914, for one and five men, respectively, from Junction City, Kans., to Taylor, Tex., amounting to $99.81.

“The claimant company contended in June, 1903, that its line between Parsons and Chetopa, Kans., which theretofore had been treated as land grant, is not land grant, and asked that full rates of pay for the performance of mail service thereon be allowed. The Second Assistant Posmaster-General took the matter under consideration.

On June 30, 1903, the Acting Second Assistant Postmaster-General asked the Commissioner of Railroads as to the extent to which the company received aid by grant of lands in the State of Kansas,

** On July 11, 1903, the Acting Commissioner of the General Land Office addressed a letter to the Acting Second Assistant Postmaster-General, reading as follows:

***Sir: I have the honor to acknowledge the receipt of your letter of June 30, 1903, asking the extent to which the Missouri, Kansas and Texas Railway Company received aid by grant of lands in the State of Kansas, stating that the company operates a mail route through that State and that the portion of it lying between Parsons and Chetopa has been regarded as land-grant road and the compensation for carrying the mail thereon has been adjusted accordingly.

** You quote from the representations made by the company, more particularly as to its grant from Parsons to Chetopa, which very fully contains the facts as shown by the records of this office.

"- "In reply I have to state that the grant for the company was made by the act of July 26, 1866 (14 Stat., 289), from near Fort Riley, down the valley of the Neosho, to the southern line of Kansas.

** • It was a grant with an indemnity proviso, authorizing the patenting to the company of both odd and even numbered sections of land within the indemnity limits of the grant in lieu of lands lost within the primary limits thereof. That part of the road from Parsons to Chetopa passes through the Osage ceded lands which were excepted from the operation of the company's grant, but under the established rulings of the Supreme Court and the Department the company was entitled to indemnity lands in lieu thereof within the 20-mile (indemnity) limits of its grant elsewhere coterminous with the line of its road in Kansas.

** * The length of the road in Kansas is 180.5 miles, and the adjustment of the grant August 2, 1890 (11 L. D., 130), shows as follows:

Acres. Total area of grant

1, 134, 791.08 Deduct on account of moieties: A., T. and S. Fe..

37,161.14 L. L. and G

90, 898. 74

128, 059.88

1,006, 731. 20

Approved in granted limits....
Approved to L. L. and G., in clear lists

122, 656. 53

1, 663. 36

124, 319. 89

Loss to grant.

882, 411.31 Approved as indemnity

494, 072. 38 Due as indemnity

388, 338. 93 * * There have been only 2,519.17 acres subsequently patented to the company for indemnity purposes, leaving 385,819.76 acres due.'

On August 11, 1903, the Second Assistant PostmasterGeneral informed the company that it had been decided that the portion of its line between Parsons and Chetopa, Kans., is not land grant, and that an order had been issued which reads as follows:

“ . From July 1, 1903, add to pay for transportation at the rate of $1,318.60 per annum, being $57.12 per mile for 23.61 miles between Parsons and Chetopa, Kans., it having been decided that said portion of this route is not land grant.'

“On October 5, 1903, he informed the company that an order had that day been issued, reading as follows:

"From October 1, 1903, add to pay at the rate of $151.21 per annum, being $14.37 per mile for 31.40 miles between the north line of the Osage ceded lands, Kansas, and Parsons, Kans., it having been decided that that portion of route No. 155009 is not land grant.'

"The general solicitor of the claimant company obtained these rulings from the Post-Office Department to the effect that that portion of its line extending from Parsons northwardly to a point near Humboldt is not land grant, a distance of 31.4 miles, and that its line from Parsons to Chetopa, a distance of 23.61 miles, is not a land grant line.

“ The claimant company thereupon requested that the matter be taken up with the proper office in the War Department with a view to having a similar ruling made on account of transportation for said Department.

“On November 1, 1903, in his annual report to the Secretary of the Interior, the Commissioner of Railroads stated, on page 36, that Junction City, Kans., and the southern boundary of Kansas, and Fort Smith, when the Indian title is extinguished, are the land-grant termini of the Missouri, Kansas and Texas Railway.

“On November 6, 1903, the Commissioner of Railroads addressed a letter to the Quartermaster-General of the Army in substance, as follows:

666SIR: I have the honor to acknowledge the receipt of a letter, which is returned herewith, from the depot quartermaster at St. Louis, Mo., referred to me by you, on the subject of the length of the land-grant line of the Missouri, Kansas and Texas Railway Company.

"I find upon consulting the records of this department that the company has received no lands within the limits of the Osage ceded reservation, about 32 miles, nor any indemnity lands for that portion of the line. Also that the portion of the line from Parsons to Chetopa is not a land-grant line.'

“On December 21, 1903, a letter was addressed to the Quartermaster-General of the Army, from the office of the Commissioner of Railroads, stating that the land-grant mileage of the Missouri, Kansas and Texas Railway Company in Kansas is 125.77 miles, extending from Junction City to the northern boundary line of the Osage ceded lands, near Humboldt.

"It appears from a letter addressed to the depot quartermaster at St. Louis, Mo., by the general freight agent of the claimant company, December 24, 1903, on file in the Quartermaster-General's Office, that the conclusion that the length of the company's land-grant line in Kansas is 125.77 miles, lying between Junction City and the northern boundary line of the Osage ceded lands, near Humboldt, is based upon an affidavit by Mr. S. B. Fisher, the company's chief engineer, furnished to the Commissioner of Railroads.

"On December 26, 1903, the depot quartermaster at St. Louis was informed that the Commissioner of Railroads had advised the Quartermaster-General of the Army as follows:

“The free land-grant mileage of said road in Kansas is 125.77 miles, extending from Junction City to the northern boundary line of the Osage ceded lands, near Humboldt.'

“The depot quartermaster at St. Louis was thereupon directed by the Quartermaster-General of the Army to be governed by this information in the settlement of Government transportation originating on and after the date of said letter, namely, December 26, 1903, that is affected by said change of mileage, and a copy of said letter was furnished to quartermasters and others concerned for their information and guidance.

"On May 11, 1904, the auditor for the claimant company forwarded the aforesaid claim to the depot quartermaster at St. Louis, stating that it had been selected for the purpose of obtaining a ruling from the Auditor for the War Department in the settlement of Government transportation over the claimant's land-grant line in Kansas. He contended that the company is entitled to full pay for the transportation of troops and munitions of war over the 55 miles of alleged nonlandgrant road, whether the transportation was performed before December 26, 1903, or after that date. He also contended that the company is entitled to half pay for the transportation of troops and munitions of war over the 125.77 miles of its land-grant line extending from Junction City to a point near Humboldt, and submited the aforesaid claim to serve as a test case.

“Accordingly, the depot quartermaster at St. Louis, on May 12, 1904, forwarded the aforesaid claim to this office for the action of the accounting officers of the Treasury, as requested in the letter of the auditor for the company. The quartermaster stated that the auditor of the company not only contends that the change in the land-grant mileage of the company should be applied retroactively on all unsettled business, but that the Government should pay 50 per cent of tariff rates for transportation over the remaining 125.77 miles of its line which has always been considered wholly free. He stated that the grounds upon which this latter claim is based

28007–Vol. 11-05-14

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