and the amount, no such construction can be given to it as would prevent the refunding of anything because the whole amount had been paid before the issuing of the regulations; and, if anything is to be paid, the whole must be. If there is discretion confided to any officer or Court to enquire whether the claimant's taxes were collected contrary to the regulations, there would be like discretion to enquire whether such taxes were embraced in the letter of June 19th, 1873, and whether the claimant had filed his claim before June 6th, 1873. No such construction is applicable to a statute of this character.

It is not an improper inference, from the language of the statute, that Congress intended to refund the taxes covered by the recommendation of the Secretary of the Treasury, in his letter of June 19th, 1873. That letter covers taxes described as those which, under the circular, "should not have been collected," though collected before it was issued. Congress may, therefore, have included some taxes collected before the circular was issued, but which it thought should not have been, or ought not to have been, collected, in the sense intended by the Secretary. The judgment of the Court of Claims is affirmed.


1. The accounting officers of the Treasury Department will not generally take any final action on a claim presented to them, on which suit is pending against the United States in the Court of Claims.

2. When a claimant, alleging a right to payment monthly for continuous services to the Government, sues the United States in the Court of Claims and recovers judgment, which is not appealed from, for services for four months, such judgment does not operate as a res adjudicata, to estop the United States or accounting officers in the Treasury Department on its behalf, from controverting in such Department the legal right of the claimant to payment for services of the same character subsequently rendered.

3. The decisions of the Court of Claims are not "guides" to the executive officers of the Government, and do not furnish “precedents” for the Executive Departments in any "like cases," except so far as accepted, concurred in, and adopted by such officers, and so made their own decisions, or announcements of the law.

The facts material to a correct understanding of this case are stated in the decision.


This case presents two questions: First, whether the accounting of ficers of the Treasury Department will consider a claim on which an

action is pending in the Court of Claims; and, Second, whether, when a claimant has sued the United States in the Court of Claims to recover an instalment of compensation under a continuous contract for services of a specified character, and recovered judgment thereon which is not appealed from, such judgment is conclusive on accounting officers, so as to impose on them the duty to allow to the claimant a claim for payment for subsequent services of a similar character. These questions arise on the following facts:

February 2, 1885, the Acting Secretary of the Interior, by letter addressed to the First Auditor, transmitted, for settlement in his office, statements of the account of Gen. M. C. Meigs, Supervising Engineer, and Architect of the Fire-proof Building for the Pension Office for services rendered and unpaid for, from March 1, 1884, to and including January 31, 1855-337 days at $10 per day-in all, $3,370. The Auditor did not make a statement of account, and report to the First Comptroller in the usual form, but made an indorsement on said letter of transmittal, as follows:

"FIRST AUDITOR'S OFFICE, February 5, 1885. Respectfully referred to the First Comptroller. The enclosed account is disallowed in this office for reasons stated in Report No. 242688. R. M. REYNOLDS,


February 17, 1885, the First Comptroller made an indorsement on said letter of February 2, 1885, as follows:

"This does not come to this office with the usual evidence of the action of the First Auditor, which seems requisite to give the First Comptroller jurisdiction. In addition to this the Court of Claims hav ing taken jurisdiction of the claim made by General M. C. Meigs, and having rendered judgment in his favor against the United States for the full amount thereof no further action will now be taken thereon by the First Comptroller."

The report, No. 242688, rejected a claim of General M. C. Meigs for services from March 1, to August 15, 1884, because:

"This officer's salary is fixed by law, and under the restrictions of section 1765, Revised Statutes, no additional pay, extra allowance, or compensation can be certified as due him." (Meigs's case, 4 Lawrence, Compt. Dec., 588).

September 30, 1884, the First Comptroller certified on this report: "That there is nothing due or owing to M. C. Meigs




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shown in Meigs's case, 4 Lawrence, Comptroller's Decisions, 588, and because the contracts made by said Meigs and other papers show that he acted in his official capacity as an army officer."

February 5, 1885, the letter of the Acting Secretary of the Interior of February, 2, 1885, and papers transmitted therewith to the First Auditor, were received in the office of the First Comptroller. On the same day, said M. C. Meigs filed a petition in the Court of Claims against the United States to recover said sum of $3,370 for the same services above mentioned, and on the same day defendant was duly notified thereof and an order was made to take testimony.

February 11, 1885, the case was submitted to the court.

February 16, 1885, the court rendered judgment in favor of the claim. ant for the amount of his claim.*

*The following report of the case is from the Washington Law Reporter, Vol. XIII, p. 122 (February 21, 1885):



1. A judgment of the Court of Claims, not appealed from, estops the parties from ever after controverting with each other, either there or in the Treasury Department, the same questions of law and fact which were put in issue, tried and determined in the case wherein such judgment is rendered.

2. The Court of Claims exercises all the functions of a court, and is one of those courts which Congress authorizes, having jurisdiction of cases of contracts between the government and its citizens. Its judgments, where no appeal is taken, are absoTutely conclusive of the rights of the parties unless a new trial is granted; as much so as are the judgments of the Supreme Court.

3. The decisions of the Court of Claims are also guides to the executive officers of the government, and furnish precedents for the executive departments in all like


Chief Justice RICHARDSON delivered the opinion of the court.

The claimant brings this action to recover ten dollars a day for his services from March 1, 1884, to January 31, 1885, as supervising engineer and architect for the erection of a building for the Pension Bureau of the Interior Department.

A former suit for like services for the four months immediately preceding the time covered by this action, was brought in this court by the present claimant against the present defendants, in which the defendants appeared, issue was joined, a trial had, and every question of law and fact on the merits controverted in this case was raised, considered and determined in that case. Judgment was entered in favor of the claimant. An appeal was first taken by the defendants, but was subsequently withdrawn and not prosecuted. The judgment was paid under an appropriation therefor by Congress (19 Ct. CI, 497; Act of July 7, 1884, Ch. 334, 23 Stat., 241).

In our opinion the defendants are estopped from setting up, either here or in the Treasury Department, any defences against the claimant's demand for services as supervising engineer and architect of the Pension Bureau, which were raised, litigated and determined in the former action between the same parties. They have had their day in court, they have submitted their defences to a court of competent jurisdiction, and the issue has been decided against them. That issue is forever settled between the parties in all future litigation. Such is the well settled law in cases between citizens, as decided by the Supreme Court in elaborately considered cases. (Beloit v. Morgan, 7 Wall., 619; Cromwell . County of Sac, 94 U. S., 351.)

The judgment of this court might have been reviewed by the Supreme Court had the Attorney-General so elected. But he abandoned an appeal at the request, it is understood, of both the Secretary of the Interior and the Secretary of the Treasury, and his action is the action of the defendant. (United States v. Babbitt, 104, U. S., 767.) The accounting officers of the Treasury should have followed that decision in the future settlement of the claimant's accounts, because the United States are estopped from further controverting the issues adjudicated by the judgment of this court.

In Klein's Case (13 Wall., 125 & 7 Ct. C. R., 241), the Supreme Court held that the Court of Claims exercises all the functions of a court, and is one of those courts which Congress authorizes, having jurisdiction of contracts between the government and the citizens, from which appeal lies to the Supreme Court.

In O'Grady's Case (22 Wall., 641, and 10 Ct. Cls. R., 134) the Supreme Court said: "It is equally certain that the judgments of the Court of Claims, when no appeal is taken to this court, are, under existing laws, absolutely conclusive of the rights of the parties unless a new trial is granted." And again, in the same case, “The judgment of the Court of Claims, from which no appeal is taken, is just as conclusive under existing laws as the judgment of the Supreme Court, until it is set aside on a motion for a new trial."

Moreover, the decisions of the Court of Claims in general, not appealed from, are guides to the executive officers of the government, and furnish precedents for the executive departments in all like cases. It was with that view apparently, as stated in the preface to the first volume of the Court of Claims Reports, that Congress passed the act of March 17, 1866, ch. 10 (14 Stat. at L., 9), the third section of which, as is incorporated into the Revised Statutes, is as follows:

"Sec. 1057. And at the end of every term of this court, he [the clerk of the Court of Claims,] shall transmit a copy of the decisions to the heads of departments, to the solicitors, the comptrollers, and the auditors of the Treasury; to the Commissioner of the General Land Office, and of Indian Affairs, to the chiefs of bu

May 5, 1884, General M. C. Meigs recovered judgment (19 Ct. Cl., 497), against the United States, in the Court of Claims, for $1,210 for his services as supervising engineer and architect of the Fire-proof Building for the Pension Office at $10 per day from November 1, 1883, to February 29, 1884, both days inclusive. No appeal was perfected from said judgment. This service, like that now in question, was rendered under the direction of a letter of the Acting Secretary of the Interior to said Meigs dated September 9, 1882, purporting to appoint him such engineer and architect and which provided that his "compensation will be at the rate of ten dollars per day from September 1, 1882," and which is payable according to usage in monthly instalments at the end of each month (Meigs's case, 4 Lawrence, Compt. Dec., 588).

In the first action in which said Meigs recovered judgment, his right to recover was denied, by the United States, on the ground that he was

reaus, and to other officers charged with the adjustment of claims against the United States."

By the act of June 25, 1868, ch. 71, § 7 (15 Stat. at L., 75) Congress provided, as the same is incorporated into the Revised Statutes, as follows:

"Sec. 1063. Whenever any claim is made against any executive department, involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases without regard to the amount involved in the particular case, or where any authority, right, privilege or exemption is claimed or denied under the Constitution of the United States, the head of such department may cause such claim, with all the vouchers, papers, proofs and documents pertaining thereto, to be transmitted to the Court of Clains, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant; and the Secretary of the Treasury may, upon the certificate of any auditor or comptroller of the Treasury, direct any account, matter or claim of the character, amount or class described in this section, to be transmitted with all the vouchers, papers, documents and proofs pertaining thereto, to the said court, for trial and adjudication."

In more recent legislation, the "Act to afford assistance and relief to Congress and the executive departments in the investigation of claims and demands against the government," (22 Stat. at L., 485,) commonly called the "Bowman Act," it is expressly provided that in every case from a department under that act, the court shall report its findings and opinion to the Department from which it was transmitted for its guidance and action.

So in the still later act of July 7, 1884, ch. 334 (23 Stat. at L., 257 & 19 C. Cls. R., xviii, Adams' Case 20 C. of Cls. R.,) Congress appropriated $182,432.82 conditionally for the payment of a large number of claims of a particular class against the United States, subject to the following provision:

Provided, That no part of the money appropriated in this paragraph shall be paid to any of the claimants until the Court of Claims shall have heard and determined all of the questions involved, and the liability of the United States Government therefor, in at least one test case, which case shall be preferred in the order of the docket of said court.

Thus the course of legislation unmistakably indicates the intention of Congress that the decisions of the Court of Claims shall be guides and precedents for the executive departments in all like cases.

The wisdom of such legislation and of the intention of Congress indicated thereby is manifest. Here all cases are tried upon issues joined by the parties; the court has the benefit of the arguments of counsel on both sides, the Attorney-General or his assistants appearing and defending the interests of the United States, and cases are heard and determined by a bench of five judges, three of whom must concur to [in] the decision of any case. (R. S., § 1052. Act of June 23, 1874, ch. 468; 1 Supplement to R. S., 105). While in the Treasury Department claims are finally passed upon by a single person, the comptroller, without any defence made by the Attorney-General or other officer appearing for the United States, and generally without argument on either side. (See report and circular of Secretary Sherman printed in McClure's Case, 19 C. of Cls. R., 26.)* The judgment of the court is, that the claimant recover the sum of $3,370, and it will be so entered of record.

*Note by the First Comptroller.-The court makes no reference to the following provisions of the Revised Statutes either in the above case, or in McClure's case, to wit: SEC. 183. Any officer or clerk of any of the Departments lawfully detailed to investigate frauds or attempts to defraud on the Government, or any irregularity or mis

a retired Army officer, having a salary fixed by law, and that, by force of section 1765 of the Revised Statutes, he was prohibited from receiv ing "additional pay " for the services in question. Other grounds of defense have been suggested (Meigs's case, 4 Lawrence, Compt. Dec., 588), in addition to which it may now be said, that is is possibly more than doubtful whether the Secretary of the Interior, or even Congress, can command au Army officer, in the performance of a civil service-such officer being subject to the orders of the Commander-in-chief of the Army. conduct of any officer or agent of the United States, shall have authority to administer an oath to any witness attending to testify or dépose in the course of such investigation.

SEC. 184. Any head of a Department or Burean in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any State, Dist. ict, or Territory, to issue a subpoena for any witness being within the jurisdiction of such court, to appear at a time and place in the subpœna stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim.

SEC. 185. Witnesses subpoenaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States. SEC. 186. If any witness, after being duly served with such subpoena, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpœna, or to punish the disobedience, in like manner as any court of the United States may do in case of process of subpœna ad testificandum issued by such court, SEC. 187. Whenever any head of a Department or Bureau having made application pursuant to section one hundred and eighty-four, for a subpoena to procure the attendance of a witness to be examined, is of opinion that the interests of the United States require the attendance of counsel at the examination, or require legal investigation of any claim pending in his Department or Burean, he shall give notice thereof to the Attorney General, and of all facts necessary to enable the Attorney-General to furnish proper professional service in attending such examination, or making such investigation, and it shall be the duty of the Attorney-General to provide for such


* In the case in which the Court of Claims first rendered judgment for General Meigs, May 5, 1884 (19 Ct. Cl., 497), the brief for the claimant contains the following: “Congrèss has not the power to impose new duties upon 'an officer, and to appoint and assign him by name to their discharge.

It may attach new duties and power to an office and authorize the President to appoint or assign thereto. (Message of President Buchanan of June 25, 1860.)

The President shall be Commander-in-Chief of the Army and Navy of the United States.' (Art. II, sec. 2, Const., U. S.)


General Meigs is an officer of the Army. The Army of the United States shall consist of the officers of the Army on the retired list.' (United States vs. Tyler, 105 U. S., 244; Rev. Stat. U. S., sec. 1094.)

Congress can impose conditions upon the expenditure of money by directing it to be done under the supervision of some officer, but Congress can't compel the President to make the assignment of the officer.

A retired officer cannot be assigned to the discharge of any duty except at the Soldiers' Home upon a selection by the commissioners of that institution, which is not a branch of the public service. (Revised Statutes, section 1259.)

If the act of August 7, 18-2, is, as to General Meigs, a repeal of section 1259, Revised Statutes, then quood the new duty he is on the active list of service and subject to executive authority and assignment.

He has not been ordered by any executive authority [that of the President] to do this work and can't be so ordered under the law. He can't be court-martialed for not doing it. It is not in the line of military service, and is conceded to be a civil work."

See President Arthur's veto message of July 2, 1881, on the bill for "An act for the relief of Fitz John Porter" and the opinion of Attorney General Brewster on the same subject June 23, 1884.

If Congress cannot assign General Meigs to any civil duty, the Secretary of the Interior cannot. If that is done which the Constitution prohibits, no right of action can arise therefrom.

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