FISCAL MANAGEMENT DECISIONS. 125 



and removed plus the amount of such damages, then no refund could 

 be made. (Case of Orleans Longacre, Comp. Dec, Dec. 27, 1911.) 



The provision in a timber-sale contract that " all moneys paid or 

 promised under this agreement " shall become the property of the 

 United States " as liquidated damages and not as a penalty," on the 

 failure of the purchaser to fulfill " all and singular " the numerous re- 

 quirements of the contract, some of which are comparatively trivial 

 and if broken can result in little damage, is, in legal substance and 

 effect, a provision for a penalty, and a refund can be made where 

 money has been deposited in excess of the actual damages suffered. 

 (2 Sol. Op., 831.) 



The provision in timber-sale Form 202 that refunds will be made 

 " only at the discretion of the Forester, except when the amount of 

 such deposits is more than the value of the timber on the cutting area 

 covered by this agreement," does not empower the Forester to make 

 refunds without limitation and without reference to the damages 

 which may accrue to the Government by a breach of the contract. 

 (2 Sol. Op., 831.) 



Where an applicant for a timber-sale contract deposits money to 

 cover the cost of advertising the sale, and dies before submitting a 

 bid, the deposit may be regarded as made " to secure the purchase 

 price on the sale " of forest products, and may be refunded to his legal 

 representatives after deducting any expense incurred by the United 

 States in consequence of the application. (Case of C. W. Dutrow, 

 Comp. Dec, Dec. 27, 1911.) 



Where timber unlawfully cut is seized and subsequently released 

 to the trespasser on payment of its value and his agreement to clean 

 up the cut-over area, the transaction amounts to a sale on condition 

 subsequent, and on his failure to perform the condition the money, 

 less damages caused by the breach, may be refunded under the act of 

 March 4, 1907, and the trespasser be held liable for the trespass. 

 (1 Sol. Op., 355.) 



The amended refund provision contained in the act of March 4, 

 1911, being clearly remedial in character, is retrospective in its opera- 

 tion. (2 Sol. Op., 685 ; Comp. Dec, Dec. 27, 1911.) 



Moneys erroneously collected on account of a special-use permit to 

 occupy lands listed under the act of June 11, 1906, could not be 

 refunder under the act of March 4, 1907 (34 Stat., 1256), but may 

 be under the retroactive amendment contained in the appropriation 

 act of March 4, 1911. (2 Sol. Op., 685 ; Comp. Dec, Dec. 27, 1911.) 



WTiere by mistake the amount agreed upon in settlement of a tres- 

 pass by boxing for turpentine is twice paid, the excess payment may 

 be refunded under the amending provision contained in the appro- 

 priation act of March 4, 1911, as "money erroneously collected for 

 the use of any lands." (Case of C. J. Conger, Comp. Dec, Dec. 27, 

 1911.) 



Moneys collected for a trespass in cutting timber from an un- 

 perfected homestead claim can not be refunded under the amending 

 act merely because final proof has since been made and final cer- 

 tificate issued. If the cutting was in fact illegal when done, the 

 subsequent proof and issuance of certificate does not satisfy the 

 statutory requirement that the act be "subsequently found to have 

 been legal and proper." (Case of Haney, Comp. Dec, Dec 27, 1911.) 



