If the act of July 29, 1882, is mandatory in requiring payment to the persons, and in the amounts therein named, this sum must be repaid. If the purpose of Congress was to name the persons to whom repayments should be made, limit the maximum amount to be repaid, and repay only such sums as had been "collected contrary to the provisions of the circular," thus requiring an inquiry and the exercise of judgment by the accounting officers, then this sum cannot be repaid. A statute which merely "authorized" the payment of a sum of money by the head of a department is not mandatory either in fact or in amount. (8 Op. Att. Gen., 39; see French v. Edwards, 13 Wall., 511.) When the terms of a statute leave room for any administrative discretion to be exercised, it is not mandatory. (United States v. Guthrie, 17 How., 284.) The intention of the law-making power is the controlling element in the interpretation or construction of a statute. (Wilkinson v. Leland, 2 Pet., 627, 662; United States v. Saunders, 22 Wall., 492.) The intention of Congress is declared in the act of July 29, 1882, to be, to authorize and direct the Secretary of the Treasury to refund to certain citizens of Tennessee therein named "the amount of taxes collected from the said named persons contrary to the provisions of the circular numbered sixteen"; and the act then specifies the names of the persons and the amounts collected contrary to the provisions of the circular. If the act had simply provided for the repayment of "the amount of taxes sons contrary to the circular," it would have been necessary to ascertain the claim of all persons, without limitation as to name, amount, or residence. A rule of construction requires that some effect shall, if practicable, be given to every provision of a statute. (Sedgwick, Construction Stat. and Const. L., 2d ed., 200 n.) This rule may be complied with by giving to the clauses of the statute which give the names and residences of persons, and the amounts specified, the effect of limiting the authority to make repayments to the persons named and identified by residence, and of amounts of taxes collected contrary to the circular, not exceeding the amounts specified. It may reasonably be inferred that this was the effect intended, because, if the full amount specified must as to each person named be repaid to him, the purpose of Congress as stated is defeated, as in this case, by the repay. ment of a sum of money not collected contrary to the circular. The statute gives two modes of ascertaining the intention of Congress as to the amount to be repaid, first, by describing it as "the amount of taxes collected from named persons contrary to the collected from per circular;" and, second, by describing the persons and amounts. The reason of the passage of the act was the unauthorized collection contrary to the circular. Its purpose is to repair a wrong done-not to do a wrong to the government by repaying money which had been rightfully collected under the circular. It is impossible to refund in accordance with the two modes prescribed in the act for fixing the amount, because they are in conflict. In such case of conflict the reason which operated in passing the act, and the justice on which it is founded, should by every fair principle control a mere error of Congress in specifying the amount.* The effect of a stat ute is an element in construing it. (Henderson et al. v. Mayor of New York, 92 U. S., 259.) This result conforms to the rule, that when there are two descriptions given to identify an object, one correct, one erroneous, the former shall be adopted, the latter rejected. (False Description Case, ante; 1 Greenl., Ev., § 301.) And it gives effect and assigns a just purpose to those words of the statute which require a refund only of the amount of taxes collected contrary to the circular. It is just as important to give effect to these words as to those which state the amounts. If the stated amounts control, then no effect is given to the words which require a refunding only of amounts collected contrary to the circular, whereas a reasonable effect is found for both classes of words by giving the effect stated to each. This construction reconciles apparently conflicting clauses, and this should be done if possible. (Beals v. Hale, 4 How., 37.) This restrains the operation of the words stating the amounts by the prior words, which declare the purpose only to refund sums collected contrary to the provisions of the regulations issued by the Secretary of the Treasury and published in circular numbered sixteen. There is a rule of construction which requires that words in a statute are to be restrained within narrower limits than their ordinary import, when their literal meaning would extend to persons or amounts which the legislature did not intend them to include. (Lessee of Brewer v. Blougher, 14 Pet., 178.) There is a general rule in the construction of statutes, that "a thing given in particular shall not be taken away by general words." (Proceeds of Sales Case, ante, 52; Greenl., Ev., § 301; Dwarris, Stats., 2d ed., 513, 668; Sedgwick, Construction Stat. and Const. L., 2d ed., 360.) It may be said, that upon this rule the several sums mentioned in the act of July 29, 1882, are given in particular, and should not be taken away in any part by the general words in the first clause of the statute. The general rule is as stated, but it always yields when necessary to carry out the intention of Congress. The intention of Congress, as * * Lord Coke says, in Inst. 1, 19 b, in regard to an averment in the preamble of a statute that "the rehearsal or preamble of a statute is to be taken for truth, for it cannot be thought that a statute that is made by authority of the whole realm will recite a thing against the truth." Hardcastle, in his work on Statutory Law (London 1879), 241, says, that "this proposition is too wide an one to be accepted as correct at the present day "; citing Leicester v. Haydon, Plowd., 398; Stead r. Carey, 14 L. J. C. P., 182; R. v. Sutton, 4 M. & S., 532; Earl of Carnarvon r. Villebois, 13 M. & W., 313; R. v. Haughton, 22 L. J. M. C., 89; Wharton Peerage Case, 12 Cl. & F., 292; Edinbro' and Glasgow Railway r. Linlithgow, 3 Macq., 704; Shrewsbury Peerage Case, 7 H. L. Cases, 13. See Sedgwick, Construction Stat. and Const. L., 2d ed., 44, citing Duncombe r. Prindle, 12 Iowa, 1; Parmele r. Thompson, 7 Hill, 77; Elmandorff e. Carmichael, 3 Litt., 473. ascertained from all the sources recognized as proper for consideration, is the controlling element in construing an act of Congress. All other rules yield to this-it prevails even against the language of an act. (Sedgwick, Construction Stat. and Const. L., 2d ed., 196.) persons contrary to There is another view to which it may be proper to allude. Congress could provide for the payment of sums specified in an act to persons named therein for any purpose authorized by the Constitution, without describing any original claim on which to base payments. The act of July 29, 1882, does two things competent to be done: first, it directs in general terms the repayment of "the amount of taxes collected from circular numbered sixteen," and, second, it limits payments to "named" persons, and, perhaps, limits the amounts payable to each. If a construction should be given to the act which would make absolute, imperative and mandatory the payment of the full amount specified for each person named as and for "the amount of taxes collected contrary to the circular," this would amount to a decision of a question of law and a question of fact-the unlawful collection a question of law, the amount a question of fact-arising under the provision for repayment of "amount of taxes circular." It might seem to make Congress decide what the law was-that money had been collected contrary to the circular. "A legislature cannot declare what the law was, but what it shall be." (Ogden v. Blackledge, 2 Cranch, 272; Cooley, Const. Lim., 4th ed., [92], [347], 430 n.) "That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced." (Ervine's Appeal, 16 Penn. St., 266; Cooley, Const. Lim., [91].) "To compare the claims of parties with the law of the land before established is in its nature a judicial act." (Id. [92].) collected contrary to the * If Congress should, in addition to this, decide a question of fact, and award relief by statute, the question presented would be still more difficult. Congress has always exercised the unquestioned power to examine claims by a proper committee, and provide for their payment. But when, as in this case, a statute directs the payment by the Secretary of the Treasury of claims by a rule prescribed therein, it would be so unusual for Congress to adjust the claims under such rule, that it may fairly be supposed that the enumeration of claimants and the specification of amounts was not intended as a mandatory provision. This does not imply a doubt of the power of Congress, but is only an application of reasons for a particular construction. The result is, that the claimant is entitled to repayment of $1,145 for annual income tax collected contrary to the circular numbered sixteen, and is not entitled to the repayment of the amount of the special 5 per cent. war tax of $1,145. The principle thus decided applies to a large number of claims. The effect of any action already taken on these claims has not been examined. If a re-examination be required for that purpose, it can be considered.* The allowance is to pay "in accordance with said act." Payment will be made on the principles stated, and the amounts to which the claimants are not entitled will be suspended. TREASURY DEPARTMENT, First Comptroller's Office, October 21, 1882. IN THE MATTER OF CONFLICTING DESCRIPTIONS IN AN APPROPRIATION ACT OF THE AMOUNT OF SALARY DUE A PUBLIC EMPLOYÉ-COLBATH'S CASE. 1. The rule applied, that the intention of the law-making power is the controlling element in construing statutes. 2. When an appropriation act contains duplicate but conflicting descriptions of the sum to be paid a claimant, one true, and the other erroneous; when considered in connection with extrinsic facts, the true is to be adopted, and the erroneous rejected. 3. General language or words in a statute may be controlled and limited by its evident purpose. 4. S. H. Colbath acted as a messenger of the Senate from April 1, 1877, to May 5, 1879. The salary of a messenger, fixed by act of June 19, 1878 (20 Stat., 178), was at the rate of $1,440 per year. Under act of April 30, 1878 (20 Stat., 41), payment was made to S. H. Colbath of $118.70, for salary of April, 1877. The act of August 5, 1882 (22 Stat., 257, 270), appropriated $1,258.89, "to enable the Secretary of the Senate to pay S. H. Colbath the balance of salary due by law to one discharging the duties performed by him as a messenger of the Senate from April first, eighteen hundred and seventy-seven, to May fifth, eighteen hundred and seventy-nine." The salary "due by law" is not $1,258.89, but only $1,140.19. Held: That only $1,140.19 could lawfully be paid. The deficiency appropriation act of April 30, 1878 (20 Stat., 41), makes the following appropriation: "To pay S. H. Colbath the salary of a messenger of the Senate for the month of April, eighteen hundred and seventy-seven, at the rate of one thousand four hundred and forty dollars per annum, one hundred and eighteen dollars and seventy cents.” May 11, 1878, this sum of $118.70 was paid said Colbath by the Secretary of the Senate as disbursing officer. The deficiency appropriation * On the schedule of claims referred to in the foregoing opinion, and under the order of the acting Secretary thereon indorsed, the Secretary of the Treasury made the following order: TREASURY DEPARTMENT, The foregoing order of September 11, 1882, is construed to mean only that such sums shall be refunded or paid as were collected from the persons within named contrary to the provisions of the regulations issued by the Secretary of the Treasury under date of June 21, 1865, mentioned in said act, and effect is to be given to said order accordingly. CHARLES J. FOLGER, Secretary. act of August 5, 1882 (22 Stat., 257, 270), makes the following appropriation: "That the following sums be, and the same are hereby, appropriated, out of any money in the Treasury not otherwise appropriated, for the objects hereinafter stated, namely: "To enable the Secretary of the Senate to pay S. H. Colbath the sum of one thousand two hundred and fifty-eight dollars and eightynine cents, the balance of salary due by law to one discharging the duties performed by him as a messenger of the Senate from April first, eighteen hundred and seventy-seven, to May fifth, eighteen hundred and seventy-nine." August 12, 1882, the Acting Secretary of the Senate paid said Colbath said sum of $1,258.89. The account of the Acting Secretary, including a voucher for this payment, was presented to the First Auditor for settlement, and is now before the First Comptroller for final action. Salaries of Senate messengers were provided for by appropriation acts as follow: Act of January 26, 1877 (19 Stat., 226), for fiscal year 1877, at $1,200 each per annum; act of June 19, 1878 (20 Stat., 178) for fiscal year 1879, at $1,440 each per annum. Opinion by WILLIAM LAWRENCE, First Comptroller: The payment made by the Acting Secretary of the Senate, August 12, 1882, covers the services of Mr. Colbath as for "one discharging the duties performed by him as a messenger of the Senate from April first, eighteen hundred and seventy-seven, to May fifth, eighteen hundred and seventy-nine," when, in fact, he had been previously paid "the salary of a messenger of the Senate for the month of April, eighteen hundred and seventy-seven," the sum of $118.70. If the clause in the act of August 5, 1882, which makes the appropriation of $1,258.89, is mandatory, requiring payment of the whole amount to Mr. Colbath, the Acting Secretary, as disbursing officer, is entitled to credit therefor in the settlement of his account. If, however, Congress intended only to pay, as the act of August 5, 1882, declares, "the balance of salary due by law," to Mr. Colbath, for services "as a messenger of the Senate from April first, eighteen hundred and seventy-seven, to May fifth, eighteen hundred and seventy-nine," then there must be disallowed $118.70, which had been previously paid for the services of the month of April, 1877, and which was not thereafter "due by law." The intention of Congress is the controlling element in the construction of statutes. (Bishop, Written Laws, 70, 75, 76, 82, 93, 200, 231, 235, 237; Wilkinson v. Leland, 2 Pet., 662.) The act of August 5, 1882, shows that the intention of Congress was to pay, as it says, "the balance of salary due by law" to Mr. Colbath, as one having performed the duties of a messenger of the Senate from April 1, 1877, to May 5, 1879. The use of the word "balance" implies that a portion of the salary had been previously paid. If the act had fixed no amount, but had stopped with the provision quoted, there would have been a sufficient description of |