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United States, respectively. All other officers residing within said northern district as hereby constituted shall continue to be and act as such officers within their respective jurisdictions in said northern district as hereby constituted until their successors, respectively, are duly appointed and qualified under the provisions of existing law.'

"This office, under date of October 1, 1904, wrote to the Attorney-General requesting an expression of his views on the subject of reopening this account. In reply, the AttorneyGeneral suggested that it was uncertain as to the Auditor's authority to make a revision on legal error, but that if the Auditor did revise said account, that when the warrant in payment of same came before the Comptroller for signature, that officer could pass upon the authority of this office to revise the said account.

“ This revision is made under authority of your decision in the Clark Campbell case (4 Comp. Dec., 303), and your recent decision in the case of Statson, clerk circuit court of appeals at Boston (11 Id., 321).”

The Auditor's original settlement was made under section 19 of the act of May 28, 1896 (29 Stat., 184), as construed in McGowan's case (9 Comp. Dec., 167), when apparently it should have been made under section 4 of the act of January 22, 1901, and in this connection, in the reply referred to by the Auditor, the Attorney-General said:

“This section (section 4, supra) should be construed with section 6 of the same act. Section 6 declares that:

All other officers residing within said southern district of West Virginia, as constituted by this act, shall continue as such officers until the expiration of their respective terms, and until their successors, respectively, shall be duly appointed and qualified.'

"The two sections construed together seem to show a deliberate purpose on the part of Congress to continue certain officers (including United States commissioners) in office until their respective successors should be duly appointed and qualified.

“In view of this fact, apparently the fees charged for services rendered between August 3 and October 29, 1901, should not have been deducted by this Department, nor disallowed by your office.”

This later enactment had not been called to the attention of the Department of Justice or the Auditor when the account was originally acted on and settled, hence the misapplication above.

It has been suggested that such misapplication of the statute might be considered a mistake of fact, and the Auditor's action justified on that ground, but upon careful consideration I am satisfied that it is not such mistake, but a mistake of lawr; therefore the sole question involved is whether the Auditor had the right or legal authority to reopen and restate this account and revise his former disallowance.

In the Campbell case, cited supra by the Auditor, the act of July 31, 1894 (28 Stat., 205, 211), in so far as it related to our accounting system, was carefully considered, and it was held that the right of the accounting officers to reopen accounts, which had been exercised under prior laws, was not taken away by that act, and that where the Comptroller had revised an account he alone had jurisdiction to reopen it, and where an account had been settled more than a year without revision the Auditor alone had such jurisdiction. In the body of the opinion (p. 306) it was said:

It was therefore never held that the balances certified by the Comptrollers were final as to themselves, so that they could not correct their own errors, although they were officers in the executive branch of the Government (see 15 Opin. A. G., 192).

"Prior to 1894 each Comptroller claimed and exercised the right to reopen and review settlements made by himself, to correct any errors of law or of fact. So long as he was in office this complete control was considered as continuing (Rollins and Presbrey v. United States, 23 Ct. Cls. R., 106, 123). But when an application related to a settlement made by a former Comptroller the jurisdiction was more limited.



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"Generally speaking, it may be said that a Comptroller would reopen his predecessor's settlement for fraud, mistake of fact, to correct errors in calculation, or upon the production of newly discovered material evidence.

There is nothing in this decision limiting the jurisdiction of the Comptroller or the Auditors to reopen and review their own settlements to questions of fact, but, on the contrary, it clearly implies jurisdiction to reopen on questions of law as well.

There are, however, decisions of this office which take different views of the matter.

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In 1 Comp. Dec., 27, it was held, quoting from the syllabus:

“Under the act of July 31, 1894, an Auditor has no jurisdiction to review his own final action in the settlement of an account, but such settlement can be reopened only upon a revision thereof by the Comptroller of the Treasury within a year, as provided in section 8 of said act."

In Montgomery's case (2 Comp. Dec., 210) it was also held, quoting from the syllabus:

“An Auditor who has once settled an account is not authorized, under the jurisdiction conferred upon him by section 8 of the act of July 31, 1894, to subsequently recharge items which he has errcieously allowed upon such settlement."

These decisions oust the Auditor of any jurisdiction whatever with respect to any final action by him, but in this regard they were modified by the Campbell case, supra. They also related to settlements which had not been made more than a year, and to which the right of appeal still attached; and, as to the case last quoted, the Comptroller revised the settlement and affirmed the Auditor's action.

In Rankin's case (6 Comp. Dec., 91) it was held, quoting from the syllabus:

“The accounting officers of the Treasury are not authorized to reopen accounts for the purpose of correcting decisions upon questions of law subsequently held to be erroneous.

And the same general doctrine is laid down in Kittelle's case (8 Comp. Dec., 24, 25), Caldwell's case (MS. Dec., vol. 7, p. 241), and Andrews's case (Id. 17, p. 1219.) In the Rankin case, supra, it was said (p. 92):

There is no doubt in my mind that the Auditor has a right to reopen accounts that have not been revised by the Comptroller when a year has elapsed since their settlement, provided that the case comes within the well-known rules for reopening accounts.

“A reopening, however, can only legally be made on the presentation of newly discovered material evidence-an error in computation, or where fraud or collusion has been shown. No officer of the Government, so far as I am aware, and no court has ever held that there was authority to reopen accounts in cases of disallowances on questions of law. To admit that proposition would bring endless confusion into the settlement of accounts and substitute the judgment of one officer for that of another on doubtful questions of law.”

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The last clause of this quotation manifestly has no application here, and can apply only to the reopening of a predecessor's settlements.

No reference is made in this decision to the Campbell case, or the authorities therein cited, therefore it is presumable that they were not considered.

For the purposes of this opinion it is not necessary to further cite the opinion of the Attorney-General, referred to supra, except to say that a careful reading of that opinion clearly authorizes the conclusion embraced in the quotation taken from the Campbell case, supra, that balances certified by Comptrollers were not final as to themselves—that is, to the Comptrollers who originally certified the accounts.

The Rollins and Presbrey case, however, is more directly in point. In that case it was held, quoting from the syllabus:

“Any public officer in an Executive Department may correct his own errors and open, reconsider, or reverse any case decided by himself.”

Briefly stated, the claim in this case was presented to and partially settled by Mr. Delano, Secretary of the Interior; that his successor, Mr. Chandler, finally settled and disposed of it, but before going out of office reopened it, and that Mr. Teller, who succeeded Mr. Chandler, transmitted it to the Court of Claims, who took jurisdiction, and upon the point raised said (pp. 122, 123):

“It is urged on the part of the defendants that the controversy involved in the case was finally determined and settled by a former Secretary of the Interior, and could not be reopened, reexamined, and reconsidered by his successor in office, and that this court can do no more under such a transmission than to make a finding to that effect, and to decide and report to the Secretary of the Interior for his guidance and action that the matter is res judicata and he has no further jurisdiction therein.

** It has long been held in the Executive Departments that when a claim or controversy between the United States and individuals therein pending has been once fully considered, and final action and determination had thereon by any executive officer having jurisdiction of the same, it can not be reopened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the proceedings, such as a mathematical miscalculation or newly discovered evidence, presented within a reasonable

time and under such circumstances as would be a sufficient cause for granting a new trial in a court of law. This ruling and practice of the Departments has been approved elsewhere and has been sustained by the courts. [Here follows a list of authorities.

“But it has never been doubted that any public officer in the Departments may correct his own errors, and open, reconsider, and reverse, in whole or in part, any case decided by himself.”

This case clearly recognizes the right of the Comptrollers to reopen and reconsider their own settlements upon questions of either law or fact.

In Stetson's case, supra, cited by the Auditor, the question related to the liability of claimant as clerk for certain moneys collected by him during periods for which accounts had been finally settled and determined by the Auditor, it was held, quoting from the syllabus:

“Fees and costs collected by the clerk of a circuit court of appeals prior to June 6, 1900, in cases commenced before, but not disposed of until after that date, must be accounted for in the fiscal year in which they were earned and collected; and the Auditor is authorized to reopen accounts which have been settled more than a year for the purpose of charging such fees and crediting amounts inadvertently included in such settlements."

The inadvertencies alluded to were the result of errors of law.

In the course of the opinion it was said, inter alia (pp. 323, 324):

I think it is the duty of the accounting officers in all matters of account between the Government and its officers to see that equal justice is done, if they can do so without violating the rules of law and good accounting.

Whether this would require the reopening of the accounts, already settled, for those years I can not decide, because more than a year has elapsed since they were settled, but I am free to say that if I had jurisdiction I would not hesitate to reopen them for the purpose of crediting claimant with nonofficial emoluments included and charged therein, upon

the theory that they were inadvertently so included and charged, and I have no doubt of the Auditor's power and authority, under the principles announced in Campbell's case (4 Comp. Dec., 303), to reopen these accounts for the purpose of correcting these inadvertent errors.

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