Secretary TELLER ruled: Rule 53 of the Rules of Practice prescribed by your office and this Department provides, that after the papers in an appeal have been sent up by the local office, such office will thereafter take no further action affecting the disposal of the land in contest until instructed by the Commissioner. The reason for the adoption of this rule is obvious. In the absence of such a provision, a multiplicity of suits would frequently arise involving practically the same question, and thus encumber and obscure the record to no good purpose. But no rule formulated for the adminis tration of the law will be permitted in its operation to defeat a statutory right. At the time that Hoyt applied to enter the land it was open to such entry. The original claimant, Sanborn, having forfeited his rights and relinquished his entry, the local office properly allowed Hoyt's application, subject to outstanding rights of other parties. The illegal contest of Sullivan, then pending, could not deprive Hoyt of his statutory right to enter the land nor operate to remove the land from a prop: er disposition by the district officers. You are not at all bound by your rule of practice therefore.

A case explicit to the point that the usage must not extend the law, as a regulation must not, is Ogden v. Maxwell, 3 Blatchf. 320 (1855). This was an action against the collector of New York to recover back money paid under the following circumstances: The plaintiff, owner of the ship Racer, had paid for 154 permits, being one permit for every 20 passengers. This was proved to have been the uniform practice at the port of New York. The statute only provided for one fee for one permit and one permit for one entry.

On this Mr. Justice BETTS said: The statute gives no reward except for doing the individual act named; and no consideration of convenience to either or both parties, or saving of expense by substituting another practice in place of that directed by law, will authorize a collector colore officii to charge and receive compensation for a service differing from that appointed by positive law. The custom or usage alleged to prevail at this port to make constructive charges for granting permits, whatever may be its notoriety or continuance, is void, both because it contravenes the construction of the statute, and also because there is no warrant of law except under the statute, for imposing any charge or fee for that official act. The defendant would without aid of the statute, be guilty of extortion in levying fees of any kind. for his official services.82

An example of that evident case is Stone v. Greaves, 1880 Pat. Dec. 23 (1879). Priority of invention was awarded to Graves by the Examiner of Interferences and on appeal by the Examiners-in-Chief. Afterward at the request of the Primary Examiner the interference was suspended and the applications remanded. Upon consideration thereof, the Primary Examiner rejected the application of Stone and the reissue application of Graves. Stone now moved that the interference be dissolved upon the ground that the invention was not pat

82 CONFLICT WITH LEGISLATION.-Navy Regulations, 6 Opin. 10; Manning's Case, 6 Lawrence 13; Real Estate, 3 Int. Rev. Rec. 37; Hatfield, 17 Land Dec. 79; Stone v. Greaves, 1880 Pat. Dec. 23; Eastridge, 8 Pen. Dec. 5.

entable. This motion involved a clash between the statute and the regulation.

PAINE, the Commissioner, ruled: On one side of the question stands the rule authorizing the dissolution of an interference for want of patentability of the claim. On the other side stands the statute conferring upon the applicant the right of appeal. It is necessary to avoid, if possible, both Scylla and Charybdis; but it is necessary, in any event, to avoid a violation of the statute. If possible that course is to be taken which will harmonize the statute and the rule and give effect to both. If that is impossible the rule must be sacrificed to the law, in every case.

To the same effect, not quite so obvious, is Bennett, 7 Pen. Dec. 1 (1893). Charles T. Bennett, late private, Company F., Thirteenth Indiana Volunteers, filed his original application for an invalid pension under the provisions of the Revised Statutes, on July 5, 1886, alleg ing that while in the service and in line of duty at Raleigh, N. C., about June 1, 1865, he was prostrated by sunstroke, from which resulted a disease of the head and loss of hearing. The claim was rejected by the bureau February 18, 1892, upon the ground that the evidence failed to establish the existence of any disability due to the claimant's army service. The applicant was awarded for slight deafness not of service origin $12. The award was made under the act of 1890. It was given by the bureau for "slight deafness" because under an entirely different act, applicable to disabilities of service origin alone, $15 was the lowest rating for slight deafness. The inability of the applicant to perform manual labor was not taken into consideration. Yet the act of

1890, under which the applicant sought and was allowed a pension, made inability of the applicant to perform manual labor, in such a degree as to prevent him from earning a support, the foundation of his claim.

The Assistant Secretary, REYNOLDS, ruled adversely to the Commissioner in this matter: It is, therefore clear that the rating under the Revised Statutes for disabilities of service origin was substituted for the act of 1890. The order having resulted in one error, a second error naturally followed, and the inability of the applicant to perform manual labor was not taken into consideration. In a word, the act of June 27, 1890, was changed and superseded by Order No. 164, as construed by your Bureau, and by a practice that neglected to take into consideration the ability of the applicant to perform manual labor. It is hardly necessary to present argument or to support by authority the proposition that neither the Secretary nor the Commissioner can by order or practice supersede an act of Congress. The power of the department so far as orders are concerned is limited to an execution of the law; it ceases when an effort is made to supersede the law.

Upon the whole this seems too plain for discussion, that regulations must not contravene existing law. The position of the regulation of the statute is much like the position of the statute to the constitution-the position of an inferior law to a superior law. And as a new constitutional provision would overrule a pre-existing law inconsistent with it, so the Legislature by its express enactment would overrule any regulation upon the same subject matter which had been promulgated by the administration in so far as the regulation was inconsistent

with the legislation. But in any case, as has been pointed out, just as no statute should be held to be overruled by a constitution unless the repugnancy is plain, so no regulation should be held to be inconsistent with the statute unless the repugnancy is plain also. It is only by such accommodation that government can go on without continual irritation.83

§ 107. Limitation.

There is the same limitation upon the usage of the administration as there is upon the regulation of the administration-the law. A usage cannot be allowed to contravene the law. A usage cannot be allowed to contradict the law, any more than a regulation can be allowed. Whatever scope there is for usage is within the law. Since the office of the usage is to aid in administration, the usage cannot by the hypothesis go further and become legislation. The same limitation is upon the usage of the administration as is upon every separate act which goes to make up the usage.

The leading case is United States v. Mann, 2 Brock. 11 (1882). This was a motion by a marshal of the United States to discharge an attachment against him levied on behalf of the United States because, as he said, the United States was indebted to him in a larger sum for fees due to him, which fees the Treasury Department refused to pay. The refusal of the Treasury Department it appears was based upon a practice in that department that the officer must make his fees out of the execution.

83 REPUGNANCY.-Forest Reservations, 22 Opin. 266; Hoyt v. Sullivan, 2 Land Dec. 283; Stone v. Graves, 1880 Pat. Dec. 23; Bennett, 7 Pen. Dec. 1; Re-enlistment in Navy, 6 Compt. Dec. 589.