tinuance of such lease to be paid into the These provisions as well as others from the prior legislation were carried forward into the [122]Revised Statutes, approved June 22, 1874, §§ 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and §§ 1956 to 1976 thereof to the subject un der consideration. By 1960 the killing of any fur seals upon the islands or their adjacent waters was forbidden, except during June, July, September, and October in each year, etc., with the same proviso as in the 1st section of the act of 1870. Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows: pany shall, in addition to the penalties and forfeitures herein provided, forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then such person or company shall forfeit the value of the same. "Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixtythree, a revenue tax or duty of two dollars is laid upon each fur-seal skin taken and shipped from the islands of Saint Paul and Saint George, during the continuance of any lease, to be paid into the Treasury of the United States; and the Secretary of the Treasury is empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed." "Sec. 1972. Congress may at any time hereafter alter, amend, or repeal sections from nineteen hundred and sixty to nineteen hundred and seventy-one, both inclusive, of this chapter. "Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur seals which may be killed for their skins upon the island of "Sec. 1973. The Secretary of the Treasury St. Paul is limited to seventy-five thousand is authorized to appoint one agent and three per annum; and the number of fur seals assistant agents who shall be charged with which may be killed for their skins upon the the management of the seal fisheries in Alasisland of St. George is limited to twenty-ka, and the performance of such other duties five thousand per annum; but the Secretary as may be assigned to them by the Secretary of the Treasury may limit the right of kill- of the Treasury." ing, if it becomes necessary for the preserva- Pending the adoption of the Revised Stattion of such seals, with such proportionate re-utes, and on March 24, 1874 (18 Stat. at L. duction of the rents reserved to the govern- 24, chap. 64), the act of July 1, 1870, was ment as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section. amended so as to authorize the Secretary of the Treasury to designate the months in which fur seals "may be taken for their skins on the islands of St. Paul and St. George, "Sec. 1963. When the lease heretofore in Alaska, and in the waters adjacent theremade by the Secretary of the Treasury to to, and the number to be taken on or about 'The Alaska Commercial Company,' of the the islands respectively." Thus the Revised right to engage in taking fur seals on the Statutes were in effect amended so that[124] islands of Saint Paul and Saint George, pur- whereas by § 1960 the months of June, July, suant to the act of July 1, 1870, chapter 189, September, and October had been designated or when any future similar lease expires, or as the months in which fur seals might be is surrendered, forfeited, or terminated, the taken on the islands and in the waters adSecretary shall lease to proper and responsible jacent thereto, for their skins, and by § 1962 parties, for the best advantage of the United the maximum number which might be killed States, having due regard to the interests of on the island of St. Paul was limited to the government, the native inhabitants, their 75,000, and on the island of St. George to comfort, maintenance, and education, as well 25,000, per annum, the Secretary of the as to the interests of the parties heretofore en-Treasury was authorized by the amendatory gaged in trade and the protection of the fisheries, the right of taking fur seals on the islands herein named, and of sending a vessel or vessels to the islands for the skins of such seals for the term of twenty years, at an annual rental of not less than fifty thousand dollars, to be reserved in such lease and se[123]cured by a deposit of United States bonds to that amount, and every such lease shall be duly executed in duplicate, and shall not be transferable." "Sec. 1968. If any person or company, under any lease herein authorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in this chapter prescribed, such person or com act to designate the months in which fur seals might be taken, and the number to be taken on or about each island respectively. The times of killing and the number to be killed were left to the judgment of the Secretary of the Treasury. Manifestly the object the government had in view throughout this legislation was the preservation by proper regulations of the furbearing animals of Alaska, including, and particularly, the fur seals. The first twenty years being about to expire the Secretary of the Treasury on December 24, 1889, advertised for proposals "for the exclusive right to take fur seals upon the islands of St. Paul and St. George, Alaska, for the term of twenty (20) years from the | as it can prevent, in any year a greater num. first day of May, 1890 agreeably to the pro- ber of seals than is authorized by the Secrevisions of the statutes of the United States." tary of the Treasury." Among other things, the advertisement It was also agreed that "the annual rental, stated: "The number of seals to be taken together with all other payments to the Unit-[126] for their skins upon said islands during the ed States provided for in this lease, shall be year ending May 1, 1891, will be limited to made and paid on or before the first day of sixty thousand (60,000), and for the succeed-April of each and every year during ing years the number will be determined by the existence of this lease, beginning with the the Secretary of the Treasury, in accordance first day of April, 1891." The lease also prowith the provisions of law." vided that the number of fur seals to be taken and killed for their skins during the year ending May 1, 1891, should not exceed 60,000. There were twelve proposals or bids, of which the North American Commercial Company put in three, numbered 10, 11, and 12, each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capitem. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not through the Secretary of the Treasury, or otherwise, limit the skins to be taken to any number less than 100,000 [125]skins per annum after the first year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands and the waters known as the "Behring Sea." No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into "in pursuance of chapter 3 of title 23, Revised Statutes," as it recites. 1. It is contended on behalf of the company that, conceding that the right of kiiling in 1893 had been duly limited to 7,500 seals, and that it took and received that num ber of skins as full performance of the covenants of the lease on the part of the govern ment, it is entitled under § 1962 of the Revised Statutes to a proportionate reduction of the rent reserved, that is, in the proportion that 7,500 bears to 100,000; and that this reduction applies to the per capita of $7.621⁄2 for each fur-seal skin taken and shipped by it, as well as to the $60,000 annual rental. On this theory, the company tendered to the United States, before action brought, the sum of $23,789.50, being $15,000 for the tax on 7,500 skins; $4,500, three fortieths of the annual rental; and $4,289.50, three fortieths of the full royalty on the skins. The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.621⁄2 for each and every skin was not a part of the annual rental. The lease is explicit that. the annual rental is the sum of $60,000, and that in addition the lessee shall pay the rev. enue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be deposited "to secure the prompt payment of the sixty thousand dollars rental above referred to," and "the annual rental, together with all other payments to the United States provided for in this lease," was to be paid on or before the 1st of April of each and every year. We think the rent reserved as such was this specified annual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration. By its terms, the company undertook, in consideration of the lease for twenty years of "the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals," "to pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the further sum of seven dollars sixty-two and one half cents apiece for each and every fur-seal skin taken and shipped from said islands, and to secure the sixty thousand dollars rental above referred to" to deposit United States bonds of the face value of fifty thousand dollars; and further "faithfully to obey and *The Secretary was to lease to the best ad-[127] abide by all rules and regulations that the vantage to the United States, and that inSecretary of the Treasury has heretofore or cluded the right to accept an offer of this may hereafter establish or make in pursuance kind; and while the per capita was a part of law concerning the taking of seals on said of the return to the government, it does not islands, and concerning the comfort, morals, follow that the provision for reduction had and other interests of said inhabitants, and reference to anything else than the specified all matters pertaining to said islands and the rental, nor is any other construction com. taking of seals within the possession of the pelled by the fact that the per capita might United States. It also agrees to obey and exceed the rental. Natural causes might diabide by any restrictions or limitations upon minish the catch so that this would not be the right to kill seals that the Secretary of so, and, at all events, the construction of the the Treasury shall adjudge necessary, under words of the statute and contract cannot be the law, for the preservation of the seal fish-controlled by the amount of the reduction eries of the United States; and it agrees that in one view rather than the other. Of course it will not kill, or permit to be killed, so far at the time the lease was made it is evident that it was supposed that 60,000 seals might | by § 4 of the act of 1870 the character of the On the other hand, it may be that each seal would cost more as the number taken was less, and that, if the price of skins did not keep up, the company might be subjected to a loss, no matter how many it took, and the loss might be greater the more it took. But that was a risk the company assumed, and no reason is perceived for relieving it from the consequences. *And § 1968, taken from the latter part of[129] § 5 of the act of 1870, provided for the forfeiture of all the skins "if any person or company, under any lease herein authorized, The reduction of what the company agreed knowingly kills, or permits to be killed, any to pay, so far as the per capita was con- number of seals exceeding the number for cerned, regulated itself. The smaller the each island in this chapter prescribed." number of skins, the less the company would It is said that the words "under any lease pay, the larger the number, the more. We herein authorized," were intended to apply conclude that there is no adequate ground to the then pending lease, and that the purfor holuing that there should be any reduc-pose of the section was to provide for a fortion on the per capita, which necessarily had to be paid. By 1962 of the Revised Statutes it was provided, as it had been by § 3 of the act of 1870, that for the period of twenty years from July 1, 1870, the number of fur seals which might be killed for their skins on the island of St. Paul was limited to 75,000 per annum, and the number which might be killed on the island of St. George to 25.000 [128]but the Secretary of the Treasury might limit the right of killing if it became necessary for the preservation of such seals, "with such proportionate reduction of the rents reserved to the government as may be proper." By § 5 of the act of 1870, that at the expiration of the first term of twenty years, or its termination by surrender or forfeiture, other leases might be made "in manner as aforesaid, for other terms of twenty years;" and by § 1963 of the Revised Statutes, that, when the first lease, or any future similar lease, expired, or was surrendered, forfeited, or terminated the Secretary should again lease for the term of twenty years. feiture against any new lessee who might come in under a lease made on the happening of either of the contingencies mentioned in § 1963, as applied to the first lease, but we think the operation of the section was not intended to be thus restrained, and that it referred to any lease authorized under the chapter, and applied the forfeiture to the killing of seals in excess of the maximum number prescribed, which was to remain, if, when the time arrived for a new bidding, no change had been made by Congress. The revision of the statutes was approved June 22, 1574, but by the last section, §5601, provision was made that legislation between December 1, 1873, and the date of enactment should take effect as if passed subsequently. Accordingly the act of May 24, 1874, oper ated by way of amendment, and by authorizing the Secretary to designate the months during which seals might be taken and the number to be taken on or about each island respectively, removed the restrictions imposed by §§ 1960 and 1962 in those regards. The next day after the approval of the act, It is argued with great force on behalf of the then Secretary availed himself of it by the governinent that whether reference be entering into an agreement with the com had to the act of 1870. or to the Revised Stat-pany that the lease of 1870 should be amended utes, the limitation of the maximum number so as to provide that not more than 90,000 was expressly made only for a period of seals should be killed per annum on the istwenty years from July 1, 1870; that that land of St. Paul, an not more than 10,000 limitation determined with the expiration of on the island of St. George, and that no seals that period, and that consequently the pro- should be killed in any other month except vision for a proportionate reduction of rental the months of June, July, August to the 15th, in case of a limitation by the Secretary did September, and October. It seems to us reanot afterwards apply. But, taking the en-sonably clear that the specific restriction as tire legislation into consideration, as we may, to number, whien, with the other restriction and indeed must, in accordance with well- as to the months, it was the object of the settled rules of construction, when interpreta- act to remove, had relation to the distribution results in fairly differing meanings (United States v. Lacher, 134 U. S. 624, 626 [33: 1080, 1082]; Barrett v. United States, 169 U. S. 218, 227 [42: 723, 726]), we are not persuaded that this position is correct. In giving authority to make the first lease, tion *as between the two islands "respective [130) scope were explained on behalf of that com- I might have been taken without an undue mittee in each house, and those explanations diminution of the seal herds." And it apdeclared the object to be as above indicated. pears that the United States originally preAlthough the authority conferred as to the sented as part of its case a claim for the retimes of killing and the number to be killed covery of the damages which it and its lessee was continuing and discretionary, and al-had sustained by reason of the limitation to though the company in the present lease covenanted that it would not kill in any year a greater number than was authorized by the Secretary, yet we think it would be going much too far to hold that the original provision for a maximum number, and a proportionate reduction of the fixed rental in case of a limitation, was done away with by im-action, and counsel had no authority to bind plication. Repeals where the intention to do so is not expressed are not favored, and moreover, here the mischiefs sought to be remedied are quite obvious. One was that it was evidently thought that seals might properly be taken during the first half of August, and the existing statute forbade this; the other was, that the maximum was fixed for each island, whereas it had probably been ascertained that the distribution was erroneous, or that the numbers that might be safely taken on one or the other might vary, and consequently that greater elasticity was desirable. The language by which these objects were at tained was entirely reconcilable with the prior law so far as it did not purport to change it. The legislation from the beginning was directed to the preservation of the fur seals, and the act of 1870 recognized that it might be necessary to such preservation that the number to be killed in the different years should be varied, and the discretion to do this was vested in the Secretary, but while this authority was made more comprehensive by the act of 1874, and a redistribution as between the two islands authorized, we cannot accept the view that it was the intention by that act to wholly change the scheme of leasing by making the discretion of the Secretary purely arbitrary, and dispensing with any maximum or reduction. [181] It should be added that the action of the Treasury Department in the matter of the abatement of rent for 1890, 1891, and 1892 does not impress us as amounting to such departmental construction as entitles it to any particular weight, and the views of the Department of Justice were conflicting. Reference is made to article 5 of the treaty of 1892 extending the modus vivendi and the action taken under it before the tribunal of arbitration, as if amounting to an estoppel, or an admission against interest, or at the least as having some considerable bearing on the construction of the lease and the statutes. That article provided, among other things, that "if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreement to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators 7,500, but this claim was certainly not presented as a claim which the company could maintain against the United States under the lease, and it involved no question of the power of the Secretary in respect of the lessee under the covenants of that instrument. There was no element of estoppel about the trans the government for any other purpose than the pending cause. Moreover, counsel for the United States were constrained to expressly admit that the evidence failed to establish that an additional take over and above the 7,500 could have been safely allowed. In the argument on behalf of the United States, Judge Blodgett, one of the counsel, and all the counsel concurred, made this statement: "Frankness requires us, as we think, to say that the proofs which appear in the counter case of the United States as to the condition of the seal herd on the Pribiloff islands show that the United *States could not have allowed its lessees to[132] have much, if any, exceeded the number of skins allowed by the modus vivendi of 1892 without an undue diminution of the seal herd, and upon this branch of the case we simply call the attention of the tribunal to the proofs, and submit the question to its decision." And later, counsel announced that the United States would not ask the tribunal for any finding for damages upon and under article 5. Our opinion is, that, assuming that the lessee took all the risk of a catch, reduced by natural causes, yet that when the number that might be killed was limited by the act of the government or its agent, the Secretary, the company was entitled to such reduction on the rental reserved as might be proper, and that the rule to be observed in that re gard would be a reduction in the same proportion as the number of skins permitted to be taken bore to the maximum. This would reduce the annual rental for the year under consideration from $60,000 to $4,500; the tax due would be $15,000, and the per capita $57,187.50, making a total of $76,687.50. 2. Laying out of view the concession under the first proposition, the company further contended that the prohibition by the United States, by agreement with Great Britain, of seal killing in excess of 7,500, to be taken on the islands for the subsistence of the natives, relieved the company from its covenants for the payment of rent and royalty, and that no action could be maintained therefor on the lease. The evidence disclosed that prior to 1890 the number of seals annually resorting to these islands was rapidly diminishing. This was attributed to the open sea or pelagic sealing, whereby the seals, especially the females, who were exempt from slaughter under the laws of the United States, were interrupted in their passage to the islands by the crews of hibited and prevented the said company from foreign vessels and were killed in great num- taking any seals whatever from the said bers while in the water. For several years istands during the year 1893, and thus dethe United States, asserting that it had terri-prived the said defendant of the benefit of its torial jurisdiction over Behring sea, had been said lease." We think this so far partakes of striving to prevent vessels of foreign nations a conclusion of law that we are not shut up to from seal hunting on the open waters thereof. treating it as a finding of fact. The power to Great Britain denied the territorial jurisdic- regulate the seal fisheries in the interest of tion of the United States and denied that the the preservation of the species was a sovereign [133]United States *had a right of property in the protective power, subject to which the lease fur seals while on the high seas during their was taken, and if the government found it progress to or from the islands of St. Paul necessary to exercise that power to the exand St. George, and it became necessary to re- tent which this finding asserts, and if we assort to international regulation to prevent the sume that the company might thereupon have extermination of the seals. Indeed, it ap- treated this contract as rescinded, it is suffipears that the Treasury agent in charge made cient to say that it took no such position, but a report to the Secretary of the Treasury af- accepted the performance involved in the deter the season of 1890, in which he strenuous-livery of the 7,500 skins. The company did ly urged the necessity of stopping sealing for not wish to rescind or abandon, and it could a number of years absolutely upon the islands not but recognize that, as the modus was enas a necessary measure for the preservation tered into in an effort to save the seal race of the seals. On the 15th of June, 1891, an from extermination, and thereby to preagreement for a modus vivendi was concluded serve something for the future years of the between the government of the United States lease, the prohibition was so far for its beneand the government of Her Britannic Majesty fit. ercising the power of regulation through the Secretary, so that it was immaterial whether the Secretary on his own judgment or in compliance with the will of the government confined the number of seals taken in the year 1893 to 7,500. Undoubtedly the government could have directed the Secretary by law to restrict the killing to 7,500 seals, and the treaty was nothing more. "in relation to the fur seal fisheries in Behring Again, although the government acted in And under the same date the modus vivendi was renewed during the pendency of the arbitration. 27 Stat. at L. 952. The arbitral tribunal sat in Paris in 189293, and the prohibition covered the killing period for which recovery is sought in this case. The company could not object that the Secretary was constrained to impose the limitation, for the Secretary was bound to obey the instructions of his principal, and the company could not make it the subject of a con-[135] test in pais as to whether the preservation of the herd in fact required the limitation. The whole business of taking seals was conducted under the supervision of the government, and by § 1973 the Secretary was authorized to appoint agents, who were charged with the management of the seal fisheries. The record shows that instructions were issued to the government supervising agent The learned circuit judge held that the on. April 26, 1893, and a copy delivered to the limitation under the modus vivendi was not superintendent of the company before the a designation by the Secretary, but was a commencement of the season of that year. prohibition by the government; and, conse- These instructions directed the number quently, that if the lessees had not received of seals to be taken during the season of 1893 any skins the action could not have been to be limited to 7,500. It was stated by the maintained. But he held that as the 7,500 Secretary that it was believed "that if the skins were received by the lessees they must killing be confined between the first of June make compensation for them; that a proper and the tenth of August, a better quality of [134]way to determine *this was to ascertain what the fair product of the year, which might safely be taken, was, and compute what each skin would have cost the company, assuming they had taken that number; and by this mode of computation, having found that 20,000 might properly have been taken, he reached the sum of $94,687.50 as the amount due to the government. The circuit court found that the United skins would be obtained and less injury In the letter of the attorney of the com- |