(dissenting). This appeal is not for the purpose of determining finally the rights of the parents and the children to the money in question. We may inquire only as to whether the Secretary’s decision has any support in the record. If it has, then his judgment, not ours, must prevail; in other words, unless he acted arbitrarily, we may not disturb his conclusion. Ashley v. Roper, 48 App. D. C. 69; Brougham v. Blanton Manufacturing Co., 249 U. S. 495, 39 Sup. Ct. 363, 63 L. Ed. 725; United States ex rel. Sykes v. Lane, 48 App. D. C. 48, 258 Fed. 520. In the recent case of United States ex rel. Hall v. Payne, 254 U. S. -, 41 Sup. Ct. 131, 65 L. Ed.-, decided December 13, 1920, the Supreme Court of the United States said that, where the action of the Secretary “was not arbitrary or capricious, but rested on a possible construction of the act,” it would be affirmed.
The controversy seems to hinge upon whether or not a bonus is necessarily within the meaning of the word “royalties.” It is according to the opinion of the court, but the- definition of a bonus given therein does not support its conclusion. It says that a bonus may be considered as a “sum paid * * * upon a consideration in addition to or-in excess of that which would ordinarily be given.” The record shows that royalty is what would ordinarily be given. A bonus is something in excess of it. Does not the statute lend itself to this interpretation ?
Moreover, is there not room for the belief that, as applied to oil lands, a royalty does not include a bonus? A writer upon the subject says:
“The consideration whieli the lessee pays for the lease must not be confounded witli the consideration which the lessor is to receive for the oil and gas. The cash consideration, bonus, or whatever it may bo called, paid or agreed to be paid by lessee lor the lease, is a consideration for the exclusive privilege of entry for exploration. * . * * When lessee discovers oil or gas in paying quantities, his right to produce them becomes a vested right. He is then, for the first time, authorized and obligated to pay the consideration to lessor for the exclusive vested right to produce the oil and gas, the true consideration for such minerals being the royalty of oils and cash rental for gas, as the case may be.” Archer’s Law and Practice in Oil and Gas Cases, p. 44.
This clearly indicates that there is a wide difference between a royalty and a bonus.
*876See also Brookshire Oil Co. v. Casmalia Oil & Development Co., 156 Cal. 211, 103 Pac. 927, and Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732.
For the purpose of interpreting the act we may look at the conditions existing, and presumably known' to Congress, at the time it was passed. United States v. Union Pacific R. R. Co., 91 U. S. 72, 23 L. Ed. 224; Siemcn’s Administrator v. Sellers, 123 U. S. 276, 8 Sup. Ct. 117, 31 L. Ed. 153; Smith v. Townsend, 148 U. S. 490, 13 Sup. Ct. 634, 37 L. Ed. 533. At that time bonuses were not resorted to in the Osage country. They did not come into existence until the expiration in 1916 of what is known as the Foster leases; hence were not within the contemplation of Congress at that time. Of course, if the. language used clearly embraces them, the fact that they were not then in vogue would be, perhaps, immaterial; but. if it does not, the Secretary, as the person charged with the administration of the act, would be justified under the circumstances, to be noticed immediately, in refusing to stretch the language so as to include them.
When the act was passed the portion which each child derived from its lands annually was about $256, not more than was necessary for its support; but in 1920 the sum coming to it from interest and royalty alone was about $3,551, and from bonuses $4,730, making a total of $8,821 a year. May it not be said with reason that, while Congress was willing to intrust to the parents annually $256, or thereabouts, for each minor child, to be used for its benefit—for we cannot assume, in the absence of a specific direction on the subject, that Congress intended that the child’s money should be used for any other purpose—it was not within its contemplation that the parents should have more than the support and, education of the child required. The act provides in specific language for the payment to the parents of the royalties, and that must be done, though the amount is now much greater than then. But, unless bonuses come clearly within the definition of “royalties,” and I have shown they do not, would it not be greatly in the interest of the child if this fund arising from bonuses, like other funds covered by the act, should be conserved' by being deposited on interest until the child had reached its majority? Why did Congress provide for the payment of some of the child’s money to the parents, and for the deposit of the remainder during the child’s minority, unless it was intended that only so .much as was necessary for the purposes of the child should be available to the parents ? Considering the statute in the light of these circumstances I do not think it can be correctly, said that the Secretary acted arbitrarily in holding that it would be more in keeping with the congressional purpose, as expressed in the act, to treat bonuses as a fund, not to be distributed as royalties, but to be deposited in the Treasury as other funds are required to be deposited under the act, or to be conserved in some other way, during the minority of the child.
The proviso giving- to the Commissioner of Indian Affairs the right to withhold payments from the parents if he becomes satisfied that the money is being misused or squandered, carries with it the inciden*877tal right to make such rules and regulations as may be necessary to effectively carry out the purposes of the act. “Misused-’ means not used for the proper purpose. It is the minor’s money that is paid to the parents, and, if used for the benefit of any one else, it is misused. To require that an account should be rendered to the Commissioner showing the purposes for which the money was spent seems to be within the scope of the Secretary’s authority under the statute, and hence he would be justified in withholding payments so long as the parents refused to make such statements.
Believing that the Secretary did not act arbitrarily, but within the discretion lodged in him by Congress, 1 think the judgment of the lower court should be reversed, and hence I dissent.