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these regulations in a way that will prove satisfactory without official supervision, I have the honor to inquire whether there is [67] any *appropriation or any general provision of law authorizing the expenditure of money by this department needed to procure such supervision."

From the Secretary to the Commissioner, October 5, 1894:

further action in the matter for the present."

In consequence of this last letter a circular was issued by the Commissioner, November 24, 1894, stating:

"In view of the fact that this department has been unable to formulate effective regulations for carrying out the provisions of section 61 of the act of August 28, 1894, re"Yours of the 3d instant, inquiring wheth-lating to the rebate of tax on alcohol used in er there is any appropriation or general provision of law authorizing the expenditure of money by the Treasury Department or by the Commissioner of the Internal Revenue to provide supervision of manufacturers using alcohol in the arts, etc., under section 61 of the act of August 28, 1894, is received, and in response I have the honor to state that no appropriation whatever, either special or general, has been made by Congress for the purpose mentioned, or for any other purpose connected with the execution of the section of the statute referred to."

From the Commissioner to the Secretary, October 5, 1894:

"I have the honor to acknowledge the receipt of your letter of the 5th instant, in reply to my letter of the 3d instant, in which you state that no appropriation whatever, either special or general, has been made by Congress authorizing the expenditure of money by the Treasury Department or by the Commissioner of Internal Revenue to provide supervision of manufacturers using alcohol in the arts, etc., under section 61 of the act of August 28, 1894, or for any purpose connected with the execution of the section of the statute referred to.

"In reply I would suggest that, inasmuch as I have been unable, as stated in my letter of the 3d instant, after thorough consideration of the matter, and upon consultation by letter and by personal interview with a large number of the most prominent manufacturers, to prepare any set of regulations which would yield adequate protection to the government and the honest manufacturer without official supervision, which has not been provided for by Congress, the preparation of these regulations be delayed until Congress has opportunity to supply this omission."

From the Secretary to the Commissioner, October 6, 1894:

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the arts, or in any medicinal or other like compounds,' collectors of internal revenue will, on receiving notice from manufacturers of the intended use of alcohol for the pur poses named, advise such manufacturers that, in the absence of regulations on the subject, no official inspection of the alcohol so used or the articles manufactured therefrom can be made, and that no application for such rebate can be allowed or entertained."

Finding 8 was:

"On December 3, 1894, the Secretary of the Treasury transmitted to the Congress the annual report on the finances, containing the following statement:

"Owing to defects in the legislation the Treasury Department has been unable to execute the provisions of section 61 of the act of August 28, 1894, permitting the use of alcohol in the arts, or in any medicinal or other like compound, without the payment of the internal tax. The act made no appropriation to defray the expenses of its administration, or for the repayment of taxes provided for; and after full considera-[69] tion of the subject and an unsuccessful attempt to frame regulations which would, without official supervision, protect the gov ernment and the manufacturers, the depart ment was constrained to abandon the effort and await the further action of Congress.

"It is estimated in the office of the Commissioner of Internal Revenue that the drawbacks or repayments provided for in the act will amount to not less than $10,000,000 per annum, and that the expense of the necessary official supervision will not be less than $500,000 per annum. For the information of Congress the correspondence between the Secretary and the Commissioner of Internal Revenue upon this subject will accompany this report. (Finance report, 1894, LXVI.)'

"Appended to this report was a draft of regulations proposed for carrying out section 61, copies of communications from the Commissioner of Internal Revenue explaining the estimates of the appropriations required, and copies of the official correspond. ence between the Secretary and the Commissioner, given in the preceding finding, show

"Your communication of yesterday, in reference to the execution of section 61 of the [68] act of August 28, 1894, and advising me that, for the reasons therein stated, you are unable to prepare any set of regulations which would yield adequate protection to the government and the honest manufacturer without official supervision, which has not been provided for by Congress,' is received. I have also given much attention to the sub-ing the action of the department. The project, and have fully considered all the arguments and suggestions submitted by parties interested in the execution of the section of the statute referred to, and have arrived at the conclusion that, until further action is taken by Congress, it is not possible to establish and enforce such regulations as are absolutely necessary for an effective and beneficial execution of the law.

"You are therefore instructed to take no

posed regulations were as follows:"

[These regulations, consisting of thirtythree articles and including many subdivisions, were set forth at length.]

The ninth finding was to the effect that the amounts appropriated in the urgent deficiency act of January 25, 1895, chap. 43 (28 Stat. at L. 636), aggregating $245,095, were the amounts of the Secretary's estimate transmitted to Congress December 4, 1894,

as necessitated by the income tax provisions of the act of August 28, 1894.

The case is reported 33 Ct. Cl. 135.

Messrs. George A. King, Joseph H. Choate, B. F. Tracy, and William B. King for appellant.

Messrs. Charles C. Binney and John W. Griggs, Attorney General, for appellee.

[70] *Mr. Chief Justice Fuller delivered the opinion of the court:

Section 61 of the act of August 28, 1894, read as follows:

"Any manufacturer finding it necessary to use alcohol in the arts, or in any medicinal or other like compound, may use the same under regulations to be prescribed by the Secretary of the Treasury, and on satisfying the collector of internal revenue for the district wherein he resides or carries on business that he has complied with such regulations and has used such alcohol therein, and exhibiting and delivering up the stamps which show that a tax has been paid thereon, shall be entitled to receive from the Treasury of the United States a rebate or repayment of the tax so paid."

The court of claims held that as the rebate provided for was to be paid only on alcohol used "under regulations to be prescribed by the Secretary of the Treasury," and as this alcohol had not been so used, there could be no recovery, and, speaking through Weldon, J., among other things, said:

"The right of the manufacturer to a rebate being dependent on the regulations of the Secretary, such regulations are conditions precedent to his right of repayment, and therefore no right of repayment can vest until in pursuance of regulations the manufacturer uses alcohol as contemplated by the statute. The statute having prescribed certain conditions upon which the right of the claimant is predicated and from which it originates, there can be no cause of action unless it affirmatively appears that such conditions have been complied with on the part of the claimant. This is a proceeding based upon an alleged condition of liability upon the part of the defendants, and it must be shown that all the essential elements of that condition exist before any liability can accrue. Conceding that it was the duty of the Secretary to prescribe regulations consistent with the purpose and requirements of the law, his failure to do so will not supply a necessary element in the cause of the claimant."

Alcohol has for years been used in the arts and in medicinal and other like compounds, [71] and has been taxed and *no rebate allowed, but by this section manufacturers who used alcohol in the arts, etc., under regulations prescribed by the Secretary, were granted a rebate on proof of such regulated use and of the payment of the tax on the alcohol so used.

There were no regulations in respect to the use of alcohol in the arts at the time this alcohol was used, but it is contended that the right to repayment was absolutely vested by the statute, dependent on the mere fact

of actual use in the arts, and not on use ir compliance with regulations. So that dur ing such period of time as might be required for the framing of regulations, or as might elapse if additional legislation were found necessary, all alcohol used in the arts would be free from taxation, although the exemp tion applied only to regulated use. But if the right of the manufacturer could not inure without regulations, and Congress had left it to the Secretary to determine whether any which he could prescribe and enforce would adequately protect the revenue and the manufacturers, and he had concluded to the contrary; or, if he had found that it was not practicable to enforce such as he believed necessary, without further legislation, then it is obvious the right to the rebate would not attach. In any view the right was not absolute, but was conditioned on the performance of an executive act; and the absence of performance left the condition of the existence of the right unfulfilled.

The distinction between the one class of cases and the other is clear, and has been observed in many decisions of this court.

By the eighth section of the act of June 12, 1866, chap. 114 (14 Stat. at L. 60), it was provided "that when the quarterly returns of any postmaster of the third, fourth, or fifth class show that the salary allowed is ten per centum less than it would be on the basis of commissions under the act of eighteen hundred and fifty-four, fixing compensation, then the Postmaster General shall review and readjust under the provisions of said section" (namely, § 2, act July 1, 1864, chap. 197, 13 Stat. at L. 336); and in United States v. McLean, 95 U. S. 750 [24: 579], it was held that the law imposed no obligation on the government to pay an increased salary, though warranted by the quarterly returns of an office, until read- [72] justment by the Postmaster General. Mr. Justice Strong, delivering the opinion, after reniarking that the "readjustment was an executive act, made necessary by the law in order to perfect any liability of the government," said:

"But courts cannot perform executive duties, nor treat them as performed, when they have been neglected. They cannot enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he has failed to perform. The right asserted by the claimant rests upon a condition unfulfilled." And see United States v. Verdier, 164 U. S. 213 [41: 407].

On the other hand, in Campbell v. United States, 107 U. S. 407 [27: 592], it was ruled that where a statute declares that there shall be a rebate or drawback of a tax under certain circumstances, the amount to be determined under regulations prescribed by the Secretary of the Treasury, the inaction of the Secretary is immaterial, and the drawback must be paid whether ascertained under the Secretary's regulations or not, because the right to the drawback depends on the statute, and not on the Secretary's regu lations, which relate merely to the ascertainment of the amount. The difference between

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to derive more revenue from spirits used as beverages being perfectly clear; and the general intention to forego the revenue that had been previously derived from spirits used in the arts could only be carried out in consistency with the general tenor of the whole body of laws regulating the tax on distilled spirits, which undertook to guard the revenue at all points, and which required from the officers of the government evidence that everything had been correctly done. The regulations to insure the bona fide use in the arts, etc., of all alcohol on which a rebate was to be paid, and to prevent such payment on alcohol not so used; and these were to be

the statutes in regard to drawbacks, and the
wording of section 61, is very marked.
Drawback laws relate to an article after it
is manufactured. The mere use of imported
materials in manufacturing does not entitle
the manufacturer to a drawback, and it is
only when the manufactured goods are ex-
ported that the reason for the repayment of
duty arises. In such instances the exporta-
tion and the ascertainment of the character
and quality of the imported materials exist
ing in the manufactured article are subject-regulations contemplated by section 61 were
ed to regulation, but not the process of man-
ufacture. The case of Campbell only con-
cerned the ascertainment of the amount of
drawback, and it was held that inasmuch as
the amount had been proved to the satisfac-specific regulations under that section, and
tion of the court as completely as if every
reasonable regulation had been complied
with, a recovery could be sustained.

If we compare section 61 with the statute involved in Campbell v. United States (act of August 5, 1861, chap. 45, § 4, 12 Stat. at [73] L. 292), the distinction between this case and that will be clearly discernible.

[74]

61, Act of August 28,

1894.

Any manufacturer finding it necessary to use alcohol in the arts, or in any medicinal or other!!ke compound, may use the same under regulations to be prescribed by the Secretary of the Treasury, and on satisfying the collector of internal revenue for the district wherein he resides or carries on business that he has complied with such regulations and has used such alcohol therein, and exhibiting and delivering up the stamps which show that a tax has been paid thereon, shall be entitled to receive from the Treasurer of the United States a rebate or repayment of the tax so paid."

84, Act of August 5,
1861.

"From and after the
passage of this act,
there shall be allowed,
on all articles wholly
manufactured of ma-
terials imported, on
which duties have been
paid, when exported, a
drawback, equal in
amount to the duty
paid on such materials
and no more, to be as
certained under such
regulations as shall be
prescribed by the Sec-
retary of the Treas
ury; provided that
ten per centum on the
amount of all draw:

backs, so allowed, shall
be retained for the use
of the United States
by the collectors pay-
ing such drawbacks re-
spectively."

By the act of 1894 Congress required that the thing itself should be done under official regulations; by the act of 1861, simply that proof of the doing of the act should be made in the manner prescribed.

In the case before us the first condition was that the alcohol should have been used by the manufacturer in accordance with regulations; and as that condition was not fulfilled, it is difficult to hold that any justifiable right by action in assumpsit arose. This is the result of the section taken in its literal meaning, and as the rebate constituted in effect an exemption from taxation, we perceive no ground which would justify a departure from the plain words employed.

*Nor are we able to see that the letter of the statute did not fully disclose the intent. This section was one of many relating to the taxation of distilled spirits, which imposed a higher tax and introduced certain new requirements in regard to regauging, general bonded warehouses, etc., the object

could not otherwise be framed than in the exercise of a large discretion based on years of experience in the Treasury Department.

Since, as counsel for government argue, the peculiar nature of alcohol itself, the materials capable of being distilled being plentiful, the process of distillation easy, and the profit, if the tax were evaded, necessarily great, had led in the course of thirty years to a minute and stringent system of laws aimed at protecting the government in every particular, it seems clear that when Congress undertook to provide for refunding the tax on alcohol when used in the arts, it manifestly regarded adequate regulations to prevent loss through fraudulent claims as absolutely an essential prerequisite, and may reasonably be held to have left it to the Secretary to determine whether or not such regulations could be framed, and, if so, whether further legislation would be required. It is true that the right to the rebate was derived from the statute, but it was the statute itself which postponed the existence of the right until the Secretary had prescribed regulations if he found it practicable to do so.

*Without questioning the doctrine that de- [75] bates in Congress are not appropriate sources of information from which to discover the meaning of a statute passed by that body (United States v. Trans-Missouri Freight Association, 166 U. S. 318 [41: 1020]), it is nevertheless interesting to note that efforts were made in the Senate to amend the bill by the addition of sections which, while making alcohol used in the arts free from the tax, sought to secure the government from fraud by provisions for the methylating of such spirits so as to render them unfit for use as a beverage; that these proposed amendments were rejected (26 Cong. Rec. 6935, 6936); and that subsequently section 61 was adopted as an amendment, it being urged in its support that "if the Secretary of the Treasury and the Commissioner of Internal Revenue think they cannot adopt any regulations which will prevent fraud, then nothing will be done under it; but if they conclude they can adopt such regulations as will prevent fraud in the use of alcohol in the manufactures and the arts, then there will be relief under it." 26 Cong. Rec. p. 6985.

As soon as the act of August 28, 1894, became a law, without the approval of the President, Congress adjourned, and at its

first meeting thereafter the Secretary reported a draft of the regulations he desired to prescribe, stating that their enforcement would cost at least half a million of dollars annually, for which no appropriation was available, and that therefore he could not execute the section until Congress took further action, and he transmitted the correspondence between himself and the Commissioner, including his letter of October 6, 1894, instructing the commissioner to take no action regarding the matter.

Congress was thus distinctly informed that no claims for rebate would be entertained in the absence of further legislation, but none such was had, and finally, on June 3, 1896, section 61 was repealed, and the appointment of a joint select committee was authorized to "consider all questions relating to the use of alcohol in the manufactures and arts free of tax, and to report their conclusions to Congress on the first Monday in December, eighteen hundred and ninety[76] six," with "power to "summon witnesses, administer oaths, print testimony or other information." 29 Stat, at L. 195, chap. 310.

right could not vest so as to create a cause of action by reason of the unregulated use. The decisions bearing on the subject are examined and discussed in the opinion of the [77] court of claims, and we do not feel called on to recapitulate them here. Judgment affirmed.

Mr. Justice Brown, Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissented.

UNITED STATES, Appt.,

v.

ANTHONY F. NAVARRE and Eighty-nine Other Members of the Pottawatomie Tribe of Indians.

(See S. C. Reporter's ed. 77-79.)
Indian claims for depredations.

The act of Congress of March 3, 1891, referring to the court of claims for adjudication the claims of the Pottawatomie Indians for depredations committed by others upon their property. includes depredations committed by other Indians as well as those committed by white men.

Numerous other provisions of the act called for regulations by the Secretary of the Treasury, such as those relating to the collection of customs duties and the free list; to the importation or manufacture in bond or withdrawal from bond free of tax; to drawbacks on imported merchandise; to the collection of internal revenue, and some Submitted January 9, 1899. Decided Febothers; but these related to matters for whose efficient regulation the Secretary of

the Treasury was invested with adequate power, and their subject-matter was different from that of section 61.

If the duty of the Secretary to prescribe regulations was merely ministerial, and a mandamus could, under circumstances, have issued to compel him to discharge it, would not the judgment at which he arrived, the action which he took, and his reference of the matter to Congress, have furnished a complete defense? But it is insisted that by reason of the exercise of discretionary power necessarily involved in prescribing regulations as contemplated the Secretary could not have been thus compelled to act. We think the argument entitled to great weight, and that it demonstrates the intention of Congress to leave the entire matter to the Treasury Department to ascertain what would be needed in order to carry the section into effect. Nothing could have been further from the mind of Congress than that repayment must be made on the unregulated use of alcohol in the arts, if in the judgment of the Department, as the matter stood, such use could not be regulated.

All this, however, only tends to sustain the conclusion of the court of claims that this was not the case of a right granted in præsenti to all persons who might, after the passage of the law, actually use alcohol in the arts, or in any medicinal or other like compounds, to a rebate or repayment of the tax paid on such alcohol, but that the grant of the right was conditioned on use in compliance with regulations to be prescribed, in the absence of which the

[No. 393.]

ruary 20, 1899.

A Claims in favor of the petitioners, the
PPEAL from a judgment of the Court of

appellees in this court, allowing claims for
depredations committed upon their property
by other Indians to the amount of $5,890,
under the act of Congress of March 3, 1891,
referring the claims of the Pottawatomie
Indians for depredations to the Court of
Claims for adjudication. Judgment of the
Court of Claims affirmed.

See same case below, 33 Ct. Cl. 235.
The facts are stated in the opinion.
Messrs. L. A. Pradt, Assistant Attorney
General, and Charles C. Binney for appel-
lant.

Messrs. J. H. McGowan and John
Wharton Clark for appellees.

*Mr. Justice McKenna delivered the [77] opinion of the court:

Claims for depredations committed on members of the Pottawatomie tribe of Indians were referred to the court of claims for adjudication, by the acts of Congress hereafter quoted.

The appellees in pursuance of said acts of Congress filed a petition setting forth claims for depredations committed on them by white men, and prayed judgment therefor.

The proof showed depredations committed by Indians as well as by white men, and the court of claims gave judgment accordingly, and the United States appealed.

Only the claims allowed for property taken by Indians are contested. They amount to the sum of $5,890.

*The right to recover was based on the tenth [78]

article of the treaty with the Pottawatomie | between them. If the meaning of the treaty Indians, proclaimed August 7, 1868. 15 Stat.at L. 533. It provided as follows: "It is further agreed that upon the presentation to the Department of the Interior of the claims of said tribe for depredations committed by others upon their stock, timber, or other property, accompanied by evidence thereof, examination and report shall be made to Congress of the amount found to be equitably due, in order that such action may be taken as shall be just in the premises.

The court below found that "under said treaty these claims were by the Secretary of

was doubtful, it was competent for Congress
to resolve the doubt and accept responsibility
for all claims. It was natural enough for it
to adopt the interpretation of the Interior
Department. At any rate, it did not distin-
guish between the claims. Its language
covers those which came from the acts of In-
dians as well as those which came from the
acts of white men.
Judgment affirmed.

the Interior transmitted, with the evidence JOHN W. COLLIER, Admr. of James E.
in support thereof, to Congress for its action
thereon; and by Congress, under the acts of

Ranck, Deceased, Appt.,

v.

March 3, 1885, and March 3, 1891, said UNITED STATES and the Apache Indians.
claims, with all evidence, documents, re-
ports, and other papers pertaining to same,
were referred to this court to be adjudicated

(See S. C. Reporter's ed. 79-83.)

and determined." 23 Stat. at L. 372; 26 Claim for Indian depredations-competent Stat. at L. 1011.

Nothing was done under the act of March 3, 1885. It seems to be conceded that the reason was because the act required strictly legal evidence of the claims.

1.

2.

evidence.

In a claim against the United States for damages for the destruction of property by Indians, if the Indians who committed the depredation were not in amity with the United States the court is without jurisdiction. Official reports and documents made competent evidence by the act of Congress of March 3. 1891, in the adjudication of such claim, are legally competent on the issue of amity.

The act of March 3, 1891, is as follows: "That the claims of certain individual members of the Pottawatomie Nation of Indians, their heirs or legal representatives, for the depredations committed by others upon their stock, timber, or other property, reported to Congress under the tenth article of the treaty of August 7, 1868, be, and the same are hereby, referred to the court of Submitted January 9, 1899. Decided Febclaims for adjudication. And said court shall, in determining said cause, ascertain the amounts due and to whom due by reason of actual damage sustained.

[No. 252.]

ruary 20, 1899.

APPEAL from a judgment of the Court of

Claims dismissing for want of jurisdiction a claim filed by one Ranck, since deceased, for the destruction of property in 1869 by Indians near the line of Texas and Mexico. Affirmed.

The facts are stated in the opinion. Messrs. A. H. Garland and Heber J. May for appellant.

"And all papers, reports, evidence, records, and proceedings relating in any way to said claims, now on file or of record in the Department of the Interior or any other department, or on file or of record in the office of the secretary of the Senate or the office of the clerk of the House of Representatives, shall be delivered to said court, and in considering the merits of the claims presented (79] to the court all testimony and reports *of special agents or other officers, and other papers now on file or of record in the depart-ion ments of Congress, shall be considered by the court, and such value awarded thereto as in its judgment is right and proper."

ers."

The contention of the United States depends on the meaning of the words in the act, "for the depredations committed by othExactly the same words are used in article 10 of the treaty, and the Secretary of the Interior, exercising his duty, reported claims for depredations by both Indians and white men, to Congress for its action. They were, therefore, claims for depredations "reported to Congress under the tenth article of the treaty of August 7, 1868." But it is argued, and ably so, that claims for depredations by other Indians were improperly reported.

We do not think it necessary to review the argument in detail. It is sufficient to say that Congress had before it when it legislated all the claims, and did not discriminate

Mr. John G. Thompson, Assistant Attorney General, for appellee.

*Mr. Justice White delivered the opin- [80] of the court:

This appeal brings up for review a judg ment of the court of claims, dismissing, for want of jurisdiction, a claim originally filed in that court by one Ranck, since deceased, to recover for damages alleged to have been sustained on March 2, 1869, by the destruction of property of the claimant by Indians near the line of Texas and Mexico.

The finding of the court is that "the alleged depredation was committed on or about the 2d day of March, 1869, in the southeastern part of the territory of New Mexico, by Mescalero Apache Indians, who at the time and place were not in amity with the United States." Upon its finding of the ultimate facts thus stated, the court below rested the legal conclusion that it was without jurisdiction of the cause. This court accepts the findings of ultimate fact made by the court below, and cannot review them. Mahan v. United States, 14 Wall. 109 [20:

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