upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000.
utes to limit the right of killing seals when leaves as the net loss sustained by the said
necessary for the preservation of such seals, defendant in consequence of the breach of its
and did not so limit or restrict the right of the said lease by the said plaintiff, the sum of
said defendant to take seals under its said $142,187.50, which is due and owing to the
lease for the year 1893, and that during that said defendant by the said plaintiff; and
year it was not necessary or even desirable that its claim therefor would be a proper mat-
for the preservation of such seals to limit the ter of counterclaim or credit in this action,
killing of the seals upon the said islands to if the conditions prescribed by § 951 of the
the said number of 7,500 specified in the said United States Revised Statutes had been com-
modus vivendi.
plied with by the said defendant."

"Eighteenth. The defendant did not pre-
sent to the accounting officers of the Treas
ury for their examination any claim for dam-
ages by reason of the losses alleged to have
been incurred by the defendant by reason of
the action of the United States in entering
into the said convention or modus vivendi
with Great Britain and limiting the catch of
seals upon the said islands to 7,500; and such
"In accordance with the power reserved to claim was not disallowed by the accounting
him in said contract, the Secretary of the officers of the Treasury in whole or in part,
Treasury at the commencement of the seal- and it was not proved to the satisfaction of[118]
killing season for the year ending April 1, the court that the defendant was at the time
1894, fixed the compensation of the natives of the trial of this action in possession of
upon the islands of St. Paul and St. George vouchers not before in its power to procure,
to be paid to them by the defendant for kill- or that the defendant was prevented from
ing the seals, sorting the skins, and loading exhibiting its said alleged claim at the Treas-
them on board the defendant's steamer, at 50 ury by absence from the United States or by
cents for each skin taken from the islands dur- unavoidable accident."
ing the said season; and defendant paid to the
natives said compensation, to wit, the sum of of law:
$3,750.

The circuit court made these conclusions

"First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, sum of $94,687.50, with interest thereon from and the said defendant would have taken that the first day of April, 1894; and the said number had it been permitted so to do. plaintiff is entitled to recover in this action "Fourteenth. That if the said defendant said sum, with interest as aforesaid, from had been allowed to and had taken in the the said defendant. vear 1893. under its said lease, 20,000 seal [117]*skins, there would have been due to the said plaintiff the $60,000 rental and for the per capita of seven dollars and sixty two and one half cents and the revenue tax of two dcllars per skin, the sum of $192,500, making together the sum of $252.500-that is, twelve dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50.

"Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in selecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins.

"Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such

"Second. That by reason of the breach of the said lease by the said plaintiff, prohibiting the said defendant from taking any seal skins during the year 1893, the said plaintiff is liable to the said defendant for the said sum of $142,187.50, with interest thereon from the first day of December, 1894.

"That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding."

Mr. James C. Carter for plinta in error.

Mr. John W. Griggs, Attorney General, for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and navigation were extended over all the mainland, is

tinuance of such lease to be paid into the pany shall, in addition to the penalties and Treasury of the United States; and the Secre-forfeitures herein provided, forfeit the whole tary of the Treasury is hereby empowered number of the skins of seals killed in that and authorized to make all needful rules and year, or, in case the same have been disposed regulations for the collection and payment of of, then such person or company shall forfeit the same, for the comfort, maintenance, edu- the value of the same. cation, and protection of the natives of said islands, and also for carrying into full effect all the provisions of this act."

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.

"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."

Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows:

"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 preservation of such seals, with such proportionate reduction of the rents reserved to the government 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.

Pending the adoption of the Revised Statutes, and on March 24, 1874 (18 Stat. at L. 24, chap. 64), the act of July 1, 1870, was 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 fish- act to designate the months in which fur eries, the right of taking fur seals on the seals might be taken, and the number to be islands herein named, and of sending a vessel taken on or about each island respectively. or vessels to the islands for the skins of such The times of killing and the number to be seals for the term of twenty years, at an an- killed were left to the judgment of the Secnual rental of not less than fifty thousand retary of the Treasury. 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."

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.

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.

"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 exclusive right to take fur seals upon the this chapter prescribed, such person or com-islands of St. Paul and St. George, Alaska,

The first twenty years being about to expire the Secretary of the Treasury on December 24, 1889, advertised for proposals "for the

as it can prevent, in any year a greater num-
ber of seals than is authorized by the Secre-
tary of the Treasury."

for the term of twenty (20) years from the | first day of May, 1890 agreeably to the provisions of the statutes of the United States." 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 Secretary of the Treasury, in accordance with the provisions of law."

the existence of this lease, beginning with the first day of April, 1891." The lease also provided that the number of fur seals to be There were twelve proposals or bids, of taken and killed for their skins during the which the North American Commercial Com-year ending May 1, 1891, should not exceed pany put in three, numbered 10, 11, and 12, 60,000. 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.

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,

1. It is contended on behalf of the company that, conceding that the right of killing 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 cove nants of the lease on the part of the government, 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 $7.622 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 $7.622 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 ennual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration.

The next document referring to the matter | nunc pro tunc." On March 10, 1893, a mo-
is the following:
tion for judgment was filed on behalf of the
plaintiff.

Office of the
Commissioners of the District of Columbia.
Washington, January 11, 1892.

Ordered, that J. J. Johnson is hereby ap-
pointed referee in the matter of the suit of
Bailey, Administratrix of Bailey, Deceased, v.
District of Columbia.

Official copy furnished Mr. J. J. Johnson.
By order:
W. Tindall, Secretary.

Without action being had on the excep tions and motions referred to, the administratrix of Bailey, on August 8, 1893, instituted an action at law, numbered 34,564, in the supreme court *of the District of Colum-[166] bia, seeking to recover from the District the sum of $10,519.20, basing the right to such recovery upon the claim that the finding of Mr. Johnson was, in fact, a final decision and award. In the affidavit filed with the declaration, as authorized by the rules of pracUnder this appointment, on February 17. tice of the court, what purports to be a copy 1892, the attorneys for the respective parties of the resolution appointing Mr. Johnson appeared before Mr. Johnson. It was claimed referee is set out, but the words "of the suit" by witnesses for the plaintiff at the trial of are omitted from before the words "of Bailey, the action subsequently brought to enforce administratrix." On September 2, 1893, the finding of the referee, that at the com- pleas were filed on behalf of the District, demencement of the hearing the latter gentle-nying that it had agreed to submit the matman, as well as the attorney for the administers of difference referred to in the declaratratrix, raised the question whether or not tion to the award and arbitrament of Johnunder the order of appointment the decision son, and averring that Johnson had not made of the referee was to be final, and were as an award concerning the same. The various sured by the attorney for the District that steps in the original action (No. 24,279) the decision of Mr. Johnson was to be a final were stated, and it was alleged that motions determination of the case. *Such witnesses to set aside award and for judgment were also testified that subsequently, when a ques- still pending. It was also averred that the tion arose with respect to permitting an alleged award was not under seal and was amended declaration to be filed, setting up a never delivered to the defendant; that the claim for an extra half inch of resurfacing, defendant never undertook and promised in the referee and attorneys discussed as to the manner and form as alleged, and that the whether the decision of the referee "was to District was not indebted as alleged. The wind up finally the whole matter," and plaintiff joined issue. On October 8, 1895, an affirmative conclusion was arrived at. on motion of the plaintiff, the two causes No attempt, however, was made to obtain were consolidated. While the motion to from the commissioners of the District any consolidate was opposed by the District, no modification or amplification of the writing exceptions were taken to the entry of the or of January 11, 1892. der of consolidation.

The hearing before the referee was concluded on July 18, 1892, when Mr. Johnson placed on the files of the supreme court of the District of Columbia in action numbered 24,279 his report as referee. The report did not refer to the mode by which its author had become referee. It was entitled in the cause, purported to contain a synopsis of the pleadings, the plaintiff's claim, a statement of the facts and the findings of "J. J. Johnson, referee." The report concluded as follows:

The consolidated action came on for trial

January 13, 1895. At the trial W. Preston Williamson, a witness for the plaintiff, testified that he had sent to the commissioners the communication of September 16, 1891. Under objection and exception he was permitted to testify to conversations had separately with two of the commissioners, which tended to show that in the event of the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee "Upon the evidence and the law I have al- or arbitrator the final determination of the lowed the plaintiff for the unexecuted bal- entire controversy referred to in Williamance of 11,385 square yards, $4,440.15, being son's letter. Also under objection and exthe profit between the cost of resurfacing the ception, the witness testified that after the streets at fifty cents per square yard and order appointing Mr. Johnson referee was sighty-nine cents, the price received, and for made by the commissioners, he and the attorthe extra one-half inch I have allowed the ney for the District, in the presence of the plaintiff $6,079.05 at the contract price, ag- referee, discussed the scope of the submission, gregating the sum of $10,519.20. I do there- *and agreed that the decision of the referee[167] fore find that there is due to the plaintiff was intended by the parties to the controfrom the defendant the sum of $10,519.20, be-versy to be a final disposition of the whole

sides costs."

The referee al30 fixed his fee at $550, which was paid by the administratrix.

On September 23, 1892, exceptions were filed on behalf of the District to this report. Upon the exceptions, the attorney for the plaintiff made the following indorsement: "I consent that these exceptions be filed

matter. The indorsements on the letter of
Mr. Williamson, the letter of the assistant
attorney of the District, and other memo-
randa heretofore set out were put in evidence
on behalf of the plaintiff. Mr. Hazleton, a
former attorney for the District, also testi-
fied for the plaintiff, in substance, under ob-
jection and exception, that it was the inten-