certificate of probable cause. The propriety of this non-requirement is not now presented for decision.

V. There is no appropriation for the payment of the judgment. Congress seems to have made no appropriation for the payment of judgments for damages accruing from an illegal seizure and destruction of property.

Neither is there any authority to report it under the act of June 14, 1878, (20 Stats., 130,) to the Speaker of the House of Representatives for the consideration of Congress. Even, arg. gr., conceding the judg ment to be within sections 771, 989, or 3220 of the Revised Statutes, neither of these sections carries with it an appropriation for its payment. They are not under the title of "appropriations" in the Revised Statutes.

Section 3689 makes a "permanent annual appropriation" for "refunding [internal revenue] taxes illegally collected." (Act June 30, 1864, sec. 44, 13 Stats., 239, repealed by sec. 9, act June 13, 1866, 14 Stats., 111; see Steamboat Co. vs. Collector, 18 Wall., 490.)

Undoubtedly a judgment against an officer for the recovery of taxes illegally collected can be paid; at all events, the principal sum, if not costs, can be paid within two fiscal years; or, after that period, can be reported to the Speaker of the House of Representatives, under the act of June 14, 1878. (Police case, 1 Lawrence, Compt. Dec., 57; Arsenal case, Id., 147; Ashton's case, Id., 162; Keasbey's case, Id., 172; Savings-Bank case, Id., 194; Crocker's case, Id., 297.)

Construing Title XLI of the Revised Statutes, including section 3689, according to the maxim, Enumeratio unius est exclusio alterius, it follows that the specification of appropriations therein contained operates as an exclusion there from of cases which are not specifically provided for in its defining or dictionary clauses. "It is not for the court to say, where the language of the statute is clear, that it shall be so construed as to embrace cases, because no good reason can be assigned why they were excluded from its provisions." (Denn rs. Reid, 10 Pet., 527; S. P., Ogden vs. Strong, 2 Paine, 584; U. S. vs. Irwin, 5 McL., 178; Jacob vs. U. S., 1 Brock., 520.)

The Constitution provides that no money shall be drawn from the Treasury but in consequence of appropriations made by law. The appropriation act must set forth the objects for which the appropriation is made, and no other objects can, properly, be brought within its provisions by the accounting officers.

It cannot be inferred from the general provisions of the internal

revenue laws, nor from the provisions of section 9 of the act of July 13, 1866, (14 Stats., 111,) whence the permanent annual appropriation for refunding internal-revenue taxes erroneously collected was compiled, that the part of the section which authorized repayment of judgments for damages is still in force. To regard it as in force would be clearly erroneous; else why include in the permanent annual appropriations such items as "allowances and drawbacks," "refunding taxes," and "redemption of stamps," which might, under very broad construction, be swept under one general head of repayments or refunding? (Ripley rs. Gifford, 11 Ia., 367.)

There is no authority in this matter to go behind the Revised Statutes. In United States vs. Bowen, (100 U. S., 513,) it is said: "When the meaning is plain, [in the Revised Statutes,] the courts cannot look to the statutes which have been revised to see if Congress erred in that revision." In all such cases "the Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the 1st day of December, 1873." Applying these rules to the subject of permanent annual appropriations, in Title XLI, it is manifest that only the cases therein expressly provided for come under that head. It would be a violation of the rules of construction to include therein appropriations which were, before the revision, regarded as permanent. (See opinion of the Solicitor of the Treasury, January 19, 1875, House Ex. Doc. No. 27, 2d Sess. 45th Cong., January 11, 1878, page 186.)

The authority of Congress to control the expenditure of the public money should be scrupulously respected and obeyed. A latitudinarian. construction of an appropriation is by no means allowable.

It is urged that judgments similar to this have been paid out of the permanent annual appropriation referred to. There have been a few such judgments so paid, but the particular question now raised may not have been then suggested. The instances referred to are not so frequent, nor of such long standing, as to constitute or establish a precedent. A change of practice will always be reluctantly made, and only after mature consideration. As to the necessity and propriety of the present construction, there is no room for doubt.

As there is not, and never was, any appropriation applicable to this claim, it cannot be reported to the Speaker of the House of Representatives under the act of June 14, 1878. (20 Stats., 130.)

It is not necessary to decide any question of limitation under sections 3226-3228; but, from what has been already said, it would seem that this claim is not within the limitations of these sections. It is not a

claim founded upon the wrongful assessment and collection of taxes or penalties, but a claim on a judgment in damages for injuries committed under color of office, wherein no moneys were exacted from the plaintiff and paid into the Treasury. Nothing is due to the claimant.

TREASURY DEPARTMENT,

First Comptroller's Office, March 26, 1881.

After the rejection of this claim for the payment of the judgment of the circuit court, it appears that Dunnegan brought suit against the United States therefor in the Court of Claims, and that the court gave judgment that he "recover from the defendants the sum of $833.70;" that is to say, the sum allowed by the Commissioner of Internal Revenue on the judgment of the circuit court.

The Court of Claims held that, so far as the United States was concerned, the judgment of the circuit court was invalid for want of notice to the proper Government officer.

"Believing [say the court] that opportunity to be heard should be a condition precedent to liability, we hold in this case that the Government, having had no notice, actual or constructive, of the proceedings in the court, is not concluded by its judgment."

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*

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"Hitherto, we have been considering the liability of the Government under section 989, growing out of the judgment and proceedings of the circuit court. When we come to consider it under section 3220, an entirely different question is presented. Here we encounter the decision of an intervening tribunal. The Commissioner of Internal Revenue, under the advice of the Secretary, has taken jurisdiction of the claim, and decided it in favor of the claimant. We are now to pass, not upon the court decision, except, perhaps, incidentally, but upon the decision of the Secretary and Commissioner. Here we can inquire only whether these officers had jurisdiction of the case, and whether their decision is free from fraud or mistake. (Kaufman's case, 11 Ct. Cls. R., 659; 96 U. S. Rep., 570 and 571. Real Estate Savings-Bank's case, 16 ('t. Cls. R., 335; Barnett's case, 16 Ct. Cls. R., 335. The last two cases cited have been affirmed on appeal, but not yet reported.")

It was held by the Court of Claims that the claim is wholly within the provisions of section 3220 of the Revised Statutes; that, notwithstanding the adjudication of the case in the circuit court of the United States, neither the Secretary of the Treasury nor the Commnissioner of Internal Revenue is bound by such adjudication; that it is fully in their discretion to allow or disallow payment; that with them the ver dict of the jury and the certificate of the judge amount only to per suasive evidence; that they can go behind them both and inquire into

all the facts, circumstances, and allegations that may assist in coming to a correct conclusion; that they may refuse to allow the claim because no hearing was given to the Government in court, or they may waive that and consider its merits; and that with this unlimited power of review it cannot be said that the Government has not had a day in court.

COMMENTS BY THE COMPTROLLER.

The case was one within the proper jurisdiction of the circuit court, (Rev. Stats., 643;) and, admitting, arg. gr., that it could be done, the statutes have not conferred on any executive officer the power to review the judgments of any United States or other court, in suits or proceedings within judicial cognizance. Section 3220 does give to the Commissioner of Internal Revenue authority to refund, in the manner provided by law, taxes or penalties erroneously or illegally assessed and collected, (1 Lawrence, Compt. Dec., 533–548;) but it confers no authority whatever upon him to allow claims for "damages," or "costs," on account of acts done by internal-revenue officers. The jurisdiction for the ascertainment of the facts and law in respect of such damages and costs is vested solely in the courts. (Rev. Stats., 3220; Railroad Co. ts. Barron, 5 Wall., 90.) In such case the judgment is subject to review in some appellate court only. Until such review is had, a valid judgment on regular proceedings creates a liability on the part of the United States which cannot be reviewed or modified in any respect by any executive officer. No part of the judicial power can be conferred on an executive officer. (Hayburn's case, 2 Dall., 409, notes; United States vs. Todd, 13 How., 52; Beatty vs. United States, Dev. Ct. Cls., 231.) The legislative, executive, and judicial departments "are co-ordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other; but all rightfully done by either, is binding upon the others." (Dodge rs. Woolsey, 18 How., 347.)

Neither the Secretary of the Treasury nor the Commissioner of Internal Revenue, nor the Auditor, nor the Comptroller, has any authority to examine on its merits and allow a claim for such damages as are provided for in section 3220. This is the necessary effect of its language. It declares that the Commissioner shall "repay the full

amount of such sums of money as may be recovered

court

; also all damages and costs recovered."

in any

This section creates a liability on the part of the United States in cases in which section 643 confers jurisdiction on the circuit courts of the United States to adjudicate suits against internal-revenue officers,

for the recovery of damages on account of trespassés committed by them under color of office. No court has jurisdiction to adjudicate claims against the United States for damages, except the 'ourt of Claims, and its jurisdiction is limited in this respect to actions ex-contractu. "No Government has ever held itself liable to individuals for misfeasance, laches, or unauthorized exercise of power by its officers and agents. * The language of the statutes which confer jurisdiction upon the Court of Claims excludes, by the strongest implication, demands against the Government founded on torts. The general principle which we have already stated as applicable to all Governments forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties." (Gibbons vs. United States, 8 Wall., 274, 275; Story on Agency, § 319; United States vs. Kirkpatrick, 9 Wheat., 720; Morgan vs. United States, 14 Wall., 531; Reybold vs. United States, 15 Id., 202; Bank of Boston vs. United States, 10 Ct. Cls., 544.)

Congress never conferred on accounting officers, or on any other officers of the executive branch of the Government, authority to allow claims for damages on contracts sounding in tort. On the 7th of June, 1854, Attorney-General Cushing, in an elaborate opinion, held that the Comptrollers and the Auditors of the Treasury have no general authority to award damages as for tort on contract broken; their jurisdiction is confined to matters of account arising ex-contractu, or by operation of law. He shows that

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"An auditor is he who audits, and is defined to be a person appointed or authorized to examine an account, compare the charges with the vouchers, hear the parties, allow or reject charges, and state the balance. To audit is to examine and adjust an account. There is exclusion of the idea of damages, the amount of which is not the result of computation merely, but involves other considerations, and, especially, the determination of indemnity for breach of contract sounding in tort, and depending on various premises of law and fact." (6 Op., 523; 2 Op., 457; 4 Op., 112, 327, 590; 5 Op., 28, 630; Opinion of July 2, 1832, ed. 1841, p. 882; 8 Op., 298.)

In view of this well-established principle of the exemption of the Government from liability for damages on account of the unlawful acts of its officers, it would take very clear language in a statute to confer jurisdiction upon executive officers in respect of claims for such damages. There are no words in section 3220 of the Revised Statutes which could, by any rule of interpretation or construction, be considered as authorizing the Commissioner of Internal Revenue, or the Secretary of the Treasury, to adjudicate a claim for damages resulting from the wrongful act