considering whether any other ground for affirming the decree exists, it is sufficient to say that this case is disposed of by the decision which has just been announced in that referred to. Decree affirmed. (132 U. S. 260) low the court to make it certain by construction, and to remove ambiguity upon the presumption of a legislative intent contrary to the fixed presumption where the rights of the public are involved. In short, there can be no uncertainty in the result when the language used is construed, as it must be, in accordance with thoroughlyDAHL V. RAUNHEIM.2 settled principles. After stating the exemption in controversy, section 8 concludes (November 25, 1889.) as follows: "And when the period of ex- LOCATION AND ACQUISITION OF MINing Ground. emption herein prescribed shall have expired 1. Rev. St. U. S. § 2333, provides that when the property of said railroad may be taxed one applies for a placer patent, who is in possesat the same rate as other property in this sion of a vein or lode within its boundaries, he state. All of said taxes to which the prop-tain sum more for such lode than for the placer shall state that fact, and be required to pay a cererty of said company may be subject in this claim; and that where a lode is known to exist, state, whether for county or state, shall be and the application for a placer claim does not incollected by the treasurer of this state, and clude it, this will be held a conclusive declaration paid into the state treasury, to be dealt that the applicant has no right of possession therewith as the legislature may direct; but said to; also that, where the existence of a lode in a company shall be exempt from taxation by placer claim is not known at the time of applicacities and towns." Since upon the expira- and other deposits within the boundaries of the tion, the patent will convey all valuable mineral tion of the period of exemption it would claim. In an action to quiet title to a placer claim have followed that the property of the com- patented to plaintiff, defendant claimed title to a pany would be subject to taxation at the portion of the land as a lode claim. The court same rate as other property, it may be that charged that if, at the time of plaintiff's applica the object of the final clause was to create tion, there was no known lode or vein within the a scheme of taxation peculiar to the road. boundaries of the land, the verdict should be for Upon the comprehensiveness and validity tiff was conclusive that no known lode existed on plaintiff. Held, that a general verdict for plainof such scheme we do not undertake to the premises at the time of his application. pass. It was not to take effect until the 2. Rev. St. U. S. § 2325, provides that, where exemption expired, and the terms in which no adverse claim is filed to mineral land for which it was couched do not render the commence- an application for a patent is made, it will be asment of the exemption other than the su-sumed that no adverse claim exists, and that therepreme court held it to be. The case is clearly controlled by our decision in Railway Co. v. Dennis, supra, and the judgment must therefore be affirmed. (132 U. S. 190) after no objections shall be heard, except it be the requirements of the law. Held that, where an shown that the applicant has failed to comply with applicant for a patent for land as placer mining ground has complied with all legal requirements, one who has set up no adverse claim cannot complain that the applicant did not show that the Yazoo & M. V. R. Co. v. BOARD OF LEVEE ground claimed was placer mining ground. COMMISSIONERS et al.1 (November 18, 1889.) Appeal from the circuit court of the United States for the southern district of Mississippi. James Fentress and W. P. Harris, for appellant. Marcellus Green, for appellees. In error to the supreme court of the territory of Montana. W. H. De Witt, for plaintiff in error. FIELD, J. This is an action to quiet the title of the plaintiff below to certain placer mining ground, 40 acres in extent, situated in Silver Bow county, Mont., of which he claims to be the owner, and in a portion of FULLER, C. J. This is an appeal by plain- which the defendant claims to have some tiff in the suit from the decree of the circuit right and interest, and for which portion court for the southern district of Mississip- he has applied for a patent. The plaintiff pi, dismissing its bill of complaint filed in asserts title under a location of the ground that court against the appellees, the Board as a placer claim on the 22d of February, of Levee Commissioners and certain sher-1880, by parties from whom he purchased. iffs and tax collectors, to enjoin the collec- The defendant asserts title to a portion of tion of taxes levied under an act of the leg- that ground, being 3 acres and a fraction islature creating such board of commission- of an acre in extent, as a lode claim under ers, for the purpose of providing for the pay-a location by the name of the "Betsy Dahl ment of the principal and interest of bonds authorized to be issued by the board, the proceeds of which were to be applied to the construction and repair of levees on the Mississippi river. The bill set up the same exemption relied on in Railroad Co. v. Thomas, ante, 68, and it was insisted that the taxes sought to be collected were unau-quired for the period of 60 days. All the thorized and illegal by reason of such exemption, and that the law imposing the taxes impaired the obligation of the alleged contract of exemption, and thus violated the constitution of the United States; the litigation therefore, making a controversy arising under that constitution. Without Affirming 87 Fed. Rep. 24. Lode," made subsequently to the location of the premises as placer mining ground, and subsequently to the application by the plaintiff for a patent therefor. That application was made on the 16th of July, 1881, and the register of the local land-office caused notice of it to be published as re other provisions of the law on the subject were also complied with. See Smelting Co. v. Kemp, 104 U. S. 636, 653. To this application, no adverse claim to any portion of the ground was filed by the defendant or any other person, and the statute provides that in such case it shall be assumed that Affirming 9 Pac. Rep. 892. ⚫262 the applicant is entitled to a patent upon | The court instructed them to the effect that certain prescribed payments, and that no if they believed that the premises were loadverse claim exists. The statute also de-cated by the grantors and predecessors in clares that thereafter no objection of third parties to the issue of a patent shall be heard except it be shown that the applicant has failed to comply with the requirements of the law. No such failure was shown by the defendant. He is therefore precluded from calling in question the location of the claim, or its character as placer ground. interest of the plaintiff as a placer mining claim in accordance with law, and they continued to hold the premises until conveyed to the plaintiff, and the plaintiff continued to hold them*up to the time of his application for a patent therefor, and at the time of such application there was no known lode or vein within the boundaries of the premises claimed, their verdict should be for the plaintiff. The jury, having found a general verdict for the plaintiff, must be deemed to have found that no such lode as claimed by the defendant existed when the application of the plaintiff for a patent was filed. We may also add to what is thus concluded by the verdict that there was no evidence of any lode existing within the boundaries of his claim, either when the plaintiff made his application, or at any ant of the Dahl lode, two or three hundred feet outside of those boundaries, does not, as observed by the court below, create any presumption of the possession of a vein or lode within those boundaries, nor, we may add, that a vein or lode existed within them. The only position on which the defendant can resist the pretensions of the plaintiff is that the placer ground, for a patent of which he applied, does not embrace the lode claim. The effect to be given to that position depends upon the answer to the question whether, at the time of his application, any vein or lode was known to exist within the boundaries of the placer claim, which was not included in his application. Section 2333 of the Revised Stat-time before. The discovery by the defendutes provides that, when one applies for a placer patent who is at the time in the possession of a vein or lode included within its boundaries, he must state that fact; and then, on payment of the sum required for a vein or lode and 25 feet on each side of it, at $5 an acre, and $2.50 an acre for the placer claim, a patent will issue to him covering both the placer claim and the lode. But it also provides that, where a vein or lode is known to exist at the time within the boundaries of a placer claim, the application for a patent, which does not also include an application for the vein or lode, will be construed as a conclusive declaration that the claimant of the placer claim has no right of possession to the vein or lode; and also that, where the existence of a vein or lode in a placer claim is not known at the time of the application for a patent, that instrument will convey all valuable mineral and other deposits within its boundaries. It is earnestly objected to the title of the plaintiff that he did not present any proof that the mining ground claimed by him was placer ground. It appeared that the ground had been surveyed and returned by the surveyor general of Montana to the local land-office as mineral land; and the defendant, in asserting the possession of a lode upon it, admits its mineral character. That it was placer ground is conclusively established, in this controversy, against the defendant, by the fact that no adverse claim was asserted by him to the plaintiff's application for a patent of the premises as such ground. That question is not now open to litigation by private parties seeking to avoid the effect of the plaintiff's proceedings. (132 U. S. 267) YOUNG et al. v. EWART. (December 2, 1889.) It does not appear in the present case that a patent of the United States has been issued to the plaintiff; but it appears that Several questions presented by the plainhe has complied with all the proceedings tiff in error in his brief we do not notice, essential for the issue of such a patent. He because they arise only upon the motion is therefore the equitable owner of the min-made by him for a new trial. The rulings ing ground, and the government holds the upon such a motion are not open to conpremises in trust for him, to be delivered sideration in this court. Judgment afupon the payments specified. We accord-firmed. ingly treat him, in so far as the questions involved in this case are concerned, as though the patent had been delivered to him. Being entitled to it, he has a right to ask a determination of any claim asserted against his possession which may throw doubt upon his title. When it can be said that a lode or vein is known to exist in a placer mining claim, within the meaning of section 2333 of the Revised Statutes, was considered to some extent in Reynolds V. Mining Co., 116 U. S. 687,6 Sup. Ct. Rep. 601, and Mining Co. v. Reynolds, 124 U. S. 374, 8 Sup. Ct. Rep. 598, and also in Noyes v. Mantle, 127 U. S. 348, 353, 8 Sup. Ct. Rep. 1132; and some of the difficulties in giving an answer that would be applicable to all cases were there stated. In the present case no difficulty arises, for the question was left to the jury, and decided by them.ginia. 1 Rev. St. U. S. § 2325. REMOVAL OF CAUSES-DIVERSE CITIZENSHIP. 1. Under Rev. St. U. S. § 639, (Act March 2, 1867,) relating to removal of causes to a federal court for local prejudice, all the necessary parties on one side must be citizens of the state where the suit is brought, and all on the other side must be exist when the action is commenced, as well as citizens of other states, and such citizenship must when the petition for removal is filed. 2. Where it does not appear from the petitions and affidavits for removal, or from the record, that the necessary diverse citizenship existed at the proper time, the removal is improper and the state court never loses its jurisdiction. Appeal from the district court of the United States for the district of West Ver T. B. Swann, for appellants. S. A. Miller and J. F. Brown, for appellee. 269 * FULLER, C. J. In December, 1865, Milton | vit of the said C. G. Hussey, this day filed, Parker filed his bill in the circuit court of the sufficiency of which affidavit and bond Kanawha county, W. Va., against John is hereby approved by this court." The N. Clarkson and some 70 other defendants, affidavit referred to is as follows: "Your seeking the marshaling of assets, and the petitioners, C. G. Hussey and Charles subjection of Clarkson's property to the Avery, partners in trade, using the name, satisfaction of certain judgments held by firm, and style of C. G. Hussey & Co., and the complainant against him, which ap- citizens and inhabitants of the state of pears to have been treated, and may be Pennsylvania, respectfully represent unto considered, as having been intended to your honor that they are parties defendbring all Clarkson's creditors into con- ants, and also parties plaintiffs, on petition course, and, after the adjustment of the and bill of review in a cause pending on the liens of those having security, to devote chancery side of your honor's court in any remaining property, or any surplus Kanawha county, West Virginia, in which arising upon the securities, to the discharge Milton Parker is complainant, and John of his liabilities. The cause was referred to N. Clarkson & al. are defendants; that a commissioner to take, state, and report among the defendants are E. Hemmings, an account of the property owned by Clark-A. H. Beach, H. Chappell, J. A. Brown, son, and the liens thereon, and their priori-J. D. Lewis, J. M. Laidley, all of whom ties; and various reports were made in the are citizens and inhabitants of the state premises. On the 8th day of July, 1871, C. of West Virginia; that said suit and bill G. Hussey & Co. and John Johns, assignee of review therein are now pending in said of John N. Clarkson in bankruptcy, de- court for Kanawha county, W. Va.; that scribed in an order of the circuit court of in said suit and bill of review there is a that date as defendants, filed their petition controversy between your petitioners, in and affidavit, sworn to by "J. N. Clark- different rights, and the aforesaid parties, son, a party to the above-mentioned suit," citizens and inhabitants of the state of for the removal of the cause into the Unit- West Virginia, in which state said suit is ed States court for the district of West Vir-pending; that the matter so in controverginia, in these words: "Your petitioners, sy and dispute exceeds the sum of $500, exJohn Johns, assignee of J. N. Clarkson in clusive of costs. Your petitioners have bankruptcy, and a citizen and inhabitant reason to and do believe that from prejuof the state of Virginia, and C. G. Hussey dice or local influences they will not be able! and Charles Avery, partners in business, to obtain justice in said state court. They using the name of C. G. Hussey & Com-file this petition for the removal of said pany, and citizens and inhabitants of the cause of Parker v. Clarkson et al., now state of Pennsylvania, respectfully repre- pending in the circuit court for Kanawha sent unto your honor that they are parties county, West Virginia, unto the district defendants, and also plaintiffs, on a bill of court of the United States for the district review and petition in a suit pending in of West Virginia, (having circuit court chancery in your honor's court in Kana-powers,) held at Charleston, West Virginia, wha county, in which Milton Parker is same being in the district where this suit is complainant, and John N. Clarkson and now pending." others are defendants; that among the defendants are E. Hemmings, S. Thornburg, A. H. Beach, Henry Chappell, J. H. Brown, Ann Thomas, J. M. Laidley, and J. D. Lewis, and J. C. Ruby, all of whom are citizens and inhabitants of the state of West Virginia; that said suit is now pending in said circuit court of Kanawha county, and in said suit there is a controversy between your petitioners, in different rights, and the aforesaid parties, citizens and inhabitants of the state of West Virginia, in which said suit is pending; that the matter in dispute exceeds the sum of $500, exclusive of costs. Your petitioners have reason to and do believe that from prejudice or local influence they nor either of them, will not be able to obtain justice in such state court. They file this petition for the removal of said cause of Parker v. Clarkson and others, now pending in the circuit court for Kanawha county, West Virginia, into the district court of the United States held at Charleston, West Virginia; the same being in the district where this suit is pending," etc. The cause was thereupon ordered to be removed as prayed. On the 10th day of April, 1872, another order was entered in the case by the state circuit court, reciting that a mistake had been made in respect to the filing of a bond upon removal; and, the bond being now filed, the court directs such removal on the petition of July 8, 1871, and "on the affida January 21, 1873, the record was filed and the cause docketed in the United States court. Various proceedings were afterwards taken therein, and a decree was rendered on the 12th day of December, 1885, determining the amounts due to, and priorities of, some of the creditors, and directing the sale of certain real estate. From this decree the pending appeal was prosecuted. The record is in a confused and imperfect condition, but it shows, among other things, that C. G. Hussey & Co. were judg- | ment creditors of Clarkson, and Hussey and his partner are described in both petitions as citizens and inhabitants of the state of Pennsylvania. In the first petition nine persons, and in the second six, are designated from among the defendants as citizens and inhabitants of the state of West Virginia. It is stated in the first petition that Clarkson's assignee in bankruptcy was at the time of filing it a citizen and inhabitant of the state of Virginia. The assignee did not join in the second, although his name is signed by attorney to the bond given on removal. There was no separable controversy here, (Insurance Co. v. Huntingtou, 117 U.S. 280, 6 Sup. Ct. Rep. 733; Ayers v. Chicago, 101 U. S. 184, 187;) but, if there were, the provision as to the removal of such a controversy has no application to a removal on the ground of local prejudice, under the act of March 2, 1867, (chapter 196, 14 St. p. 558,) •271 In error to the circuit court of the United upon which these petitions were based, (Jefferson v. Driver, 117 U. S. 272, 6 Sup. Ct. Rep. 729.) The provisions of that act are reproduced in the third subdivision of section 639 of the Revised Statutes; and it was and is essential, in order to such removal, where there are several plaintiffs or several de- FIELD, J. This action is brought by the fendants, that all the necessary parties on United States to recover from the defendone side must be citizens of the state where ants, subcontractors for carrying the mail, the suit is brought, and all on the other moneys paid to them under a mistake of side must be citizens of another *state or fact caused by their false representations as states, and the proper citizenship must ex-to the services. It appears that on the 15th ist when the action is commenced, as well of March, 1878, one Luke Voorhees entered as when the petition for removal is filed. into a contract with the United States, repSewing-Machine Cases, 18 Wall. 553; Van-resented by the postmaster general, to nevar v. Bryant, 21 Wall. 41; Society v. carry the mail over a route designated as Grove, 101 U. S. 610; Iron Co. v. Ashburn, 'No. 38,146," from Garland to Ouray, in the 118 U. S. 54, 6 Sup. Ct. Rep. 929; Hancock v. state of Colorado, passing by Lake City Holbrook, 119 U. S. 586, 7 Sup. Ct. Rep. 341; and several other places mentioned, and Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. back, seven times a week, for $19,000 a year, Rep. 426. It does not appear from either for a term beginning July 1, 1878, and endof these petitions and affidavits, or else- ing June 30, 1882.* On the 28th of Septemwhere in the record, that diverse citizenship ber, 1878, Voorhees made a subcontract as to the parties therein named existed at with the defendants, Barlow and Sanderthe time of the commencement of the suit, son, by which they agreed to transport the nor that diverse citizenship existed be-mails over the route mentioned for the petween the complainant and all the necessary riod designated, and to perform the serv defendants at the time the petitions and ice required by his contract with the United affidavits were severally filed. The cause was not properly removed, and the state court has never lost jurisdiction. Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. Rep. 518; Crehore v. Railway Co., 131 U.S. 240, 9 Sup. Ct. Rep. 692, and cases cited. The decree is reversed, and the record remitted to the district court, with a direction to remand the cause to the state court. (132 U. S. 271) UNITED STATES V. BARLOW et al.1 (December 2, 1889.) POST-OFFICE-MAIL CONTRACTS-EXPEDITING States; in consideration whereof they were to receive the pay which was or might be come due to him. They were recognized and accepted by the post-office department as subcontractors for the service. The distance between Garland and Lake City was 150 miles, and the time prescribed for the service over it was 27 hours, or 5 miles and 55-100 of a mile per hour. The distance between Lake City and Ouray by the route designated was 46 miles, and the time prescribed by the contract for the transportation of the mails over it was 30 hours. that is, 1 mile and 53-100 of a mile per hour. The portion of this latter line, which lay between a place known as "Mineral Point" 1. Under the regulations of the post-office de- and Quray, a distance of only 10 miles, partment of 1873, providing that "the postmaster passed over mountains upon which the general may order an increase or extension of serv-mails could be carried only a part of the ice on a route by allowing therefor a pro rata in-year,-in the winter only by men on snowcrease on the contract pay," the postmaster gen- shoes, and at other times only by packeral may increase the service by changing a route, horses. There was, in consequence, great and enlarging the distance to be traveled, without irregularity in the delivery of the mails upadvertising for bids, where the carrying of the mails between the original termini is thereby fa- on this portion of the route, and much complaint followed, leading, in October, 1878, to its abandonment, and the substitution in its place of a line making a detour around the mountains of 110 miles, passing by way of Barnum, which afforded a good, practicable road, easily traveled with wagons. The present action has grown out of the orders of the post-office department in making this change of line, and expediting the service over it, and providing increased compensation for the additional service. The compensation allowed by the original contract, as mentioned above, was $19,000 a year; which, the distance being 196 miles, was at the rate of about $96.93 a mile. At that rate the compensation for the additional service was allowed, amounting to $10,663.26 a year. The time prescribed by the original contract for the service between Point, across the mountains,-30 hours, Lake City and Ouray, by way of Mineral! that is, at the rate of 1 mile and 53-100 of a mile an hour,-was owing to the great diffi culties attending the crossing of the mount ains, as already mentioned. When the ne cilitated. * 2. Rev. St. U.S. § 3961, provides that "no extra allowance shall be made for any increase of expedition in carrying the mail, unless thereby the employment of additional stock and carriers is made necessary. Section 4057 provides that "in all cases where money has been paid out of the funds of the post-office department under the pretense that service has been performed therefor, when, in fact, such service has not been performed, * and in all other cases where money of the depart ment has been paid to any person in consequence of fraudulent representations, or by the mistake, collusion, or misconduct of any officer or other employe in the postal service, the postmaster general shall cause suit to be brought to recover such wrong or fraudulent payment." Held, that payments made for expediting the mail service under a mistake as to the additional number of men and animals required, and in ignorance that none were employed, could be recovered back by the govern tent. 3. Where such mistake was caused by fraudulent representations of the contractors, it is immaterial whether or not such fraud was participated in by the subordinate officers of the department. 'Reversing 26 Fed. Rep. 903. *275 was changed to one making a detour of the mountains by way of Barnum, over a road easily traversable by wagons, it was an obvious duty to the public that the service at the rate of 1 mile and 53-100 of a mile per hour should be expedited. no greater number was necessary to perform it within the 36 hours mentioned, and that he never afterwards corrected his estimate, but continued to draw pay from the government as though the additional horses and men were employed. It appears that the sums thus allowed and paid to the subcontractors for stock and carriers, which were never required and never employed, aggregated $59,592.98, constituting the principal item in the amount claimed in this action. Petitions for a change of that portion of the route which led over the mountains came from officers of the counties of Ouray and Hillsdale, in which the proposed new line was to run, and they represented that over its whole distance there was a wagon road by which the mail could be carried the On the trial, the plaintiffs requested the year round. On the 30th of September, court to instruct the jury, among other 1878, while the post-office department had things, to the effect-First, that if they before it the question of opening a new line believed that service on a portion of the between Lake City and Ouray, the defend-route between Lake City and Ouray by ant Sanderson addressed a letter to the way of Barnum was expedited, and extra second assistant postmaster general, sug-compensation allowed for such expedition, gesting that, in lien of the temporary service upon the supposition that 66 horses and 22 ordered between Barnum and Ouray, such men would be necessary to carry the mail service should be made by embracing Bar- on that portion upon a schedule of 36 num in the route No. 38,146 between Garland hours, and there was in fact no increase in and Ouray, increasing the distance 110 miles, the number of horses and men required 66 and expediting the schedule from the pres-above the number which the defendants ent, at the pro rata rate of seventy-two swore were necessary to perform the servhours, to thirty-six hours between Lake ice upon a schedule of 72 hours, then the City and Ouray." On the same day San- plaintiffs were entitled to recover the sums derson was consulted by the post-office de- paid upon such allowance, for in that event partment, or at least was requested to give they were paid in violation of law; and, an estimate, as to the additional number of second, that, in determining the questions horses and men which would be required in issue, the jury could only consider the for the increased expedition proposed, and number of horses and men actually necesIn response to the request he wrote to the sary to carry the mail, irrespective of the department the following letter, verified by number of men and horses required by the his oath: 'Washington, Sept. 30, 1878. defendants as carriers of passengers and Hon. Thomas J. Brady, Second Ass't Post- freight. The court refused to give these inmaster General,-Sir: To perform the serv-structions, and charged the jury substanice on route No. 38,146, between Lake City tially as follows: That if the agreement and Ouray, on the present schedule of for compensation for the additional service seventy-two hours, requires twenty-two was made without authority of law, and horses and eleven men, and to perform the in excess of all provisions of the statute, same service on a schedule of thirty-six the government could not recover any part hours it will require (66) sixty-six horses of the consideration paid the defendants and twenty-two men. [Signed] J. L. for carrying the mail, unless in the making SANDERSON. Subscribed and sworn to be- of the contract there was fraud, participatfore me this 30th day of September, 1878. ed in and countenanced by the officers of [Signed] J. H. HERRON, Notary Public." the department who acted in the matter; There was no existing schedule prescrib- that if they were of opinion that the paring 72 hours for carrying the mail between ties combined and agreed to raise the comLake City and Ouray, as assumed by San-pensation to an extraordinary figure, with derson. As the schedule of time prescribed a view to benefit the defendants, knowing in the original contract between those places over the mountains was at the rate of 1 mile and 53-100 of a mile an hour, he assumed that rate as the existing schedule for the new and easily traversable line of 110 miles, which would require at the same slow pace 72 hours. Notwithstanding the obvious error of this assumption, the evidence tended to show that the post-office department acted upon his representations and estimates. Having extended the route 110 miles, and allowed the additional compensation provided by the statute upon Buch extension, it also allowed compensa-structions given, the plaintiffs excepted. tion for expediting the service on the new line, upon this extravagant estimate, at the rate of $15,994.77 a year. That sum for the increased expedition was regularly paid during the term of the original contract. It is admitted that no additional horses and men for which this allowance was made were ever employed. Neither the horses nor the men exceeded the number originally employed to perform the service, and the defendant Sanderson testified that that the compensation was excessive, the government could recover it back; but if they were of opinion that those parties acted honestly and fairly, and in the belief that they were dealing fairly with each other, and that the compensation for the services to be performed was reasonable, there could be no recovery, without reference to what the service actually cost, and without reference to what turned out afterwards with respect to the force required. To the refusal of the court to give the instructions requested, and to the in The jury found a verdict for the defendants, upon which judgment was rendered in their favor, to review which the case is brought to this court. The statutes upon which the government relies to recover in this case, upon the facts presented, are contained in sections 3960, 3961, and 4057 of the Revised Statutes. Those sections are as follows: "Sec. 3960. Compensation for additional service in carrying the mail shall not be in excess of the 2 |