
    LUDING-TON’S CASE.
    Samuel C. Ludington v. The United States.
    
      On the Proofs.
    
    
      During the war officers of the Army take private property for public use in West Virginia. The Commissary- General, December 4,1875, reports the amount of the claim to the Third Auditor and recommends payment thereof. The Atiditor and Second Comptroller concur. The Secretary of the Ti-easury reports it to Congress, where no action is taken. The claimant brings his action on the report or award of the Commissary-General.
    
    I. This court canuot entertain jurisdiction of an action on an award made by certain executive officers when it is prohibited from entertaining jurisdiction of the original cause of action by the Act 4th July, 1864 (13 Stat. L., 381).
    II. The section of the Act 4th July, 1864 (13 Stat. L., 381, § 1), which prohibits this court from entertaining jurisdiction of certain cases, has . become a proviso to § 1059, Eev. Stat.
    
      III. A claimant to maintain an action in this court must establish a contract, express or implied, or a statutory liability.
    IV. The Act 14W1 June, 1874 (18 Stat. L., 75, § 2), which requires that the reports of certain executive officers upon claims made under the Act Ath July, 1864 (13 Stat. L., 381), shall be submitted to Congress for consideration, takes away whatever character of an award such reports may previously have had.
    V.Where certain executive officers are authorized by law to examine certain classes of claims and report upon them, but their reports are to -be submitted to Congress for consideration, the officers do not act as arbitrators, nor in a quasi judicial character, but simply as accounting officers, and the final determination of liability is with Congress.
    VI.The Act to correct errors and to supply omissions in the Revised Statutes, 1875 (18 Stat. L., 317), amends the Revised Statutes by adding- to them certain provisions of existing statutes, but these amendments are not in the nature of new enactments, and are to be construed as though the Revised Statutes were originally adopted with these alterations incorporated therein.
    VII.The Revised Statutes did not affect statutes passed between December 1, 1873, and June 22, 1874.
    VIII.Where one statute expressly excludes certain cases from the jurisdiction of a court, a subsequent one which indicates that the court is then supposed to have jurisdiction of them is insufficient to confer it.
    
      The Reporters1 statement of tbe case:
    The following are the facts of this case as found by the court:
    I. On or about the 4th day of December, 1875, the Commissary-General of Subsistence made the following report to the Third Auditor of the Treasury: .
    “War Department,
    “Opei'ce Commissary-General op Subsistence,
    “ Washington, December 4,1875.
    “ Sir : The enclosed claim in favor of Samuel C. Ludington, of Greenbrier Co., West Ya., having been examined under Section 300, B, Appendix to the Bevised Statutes of the United States (act of February 18, 1875), is respectfully transmitted to you, with the recommendation that claimant be paid the sum of six thousand five hundred and twenty dollars for—
    160 head beef cattle, $40 ea. $6,400 00
    40 “. sheep $3 “ .. 120' 00
    6,520 00
    
      taken during the year 1863 for Army use by Capt. James A. Umpleby, 2d West Ya. Cay., and Lieut. David E. McGinnis, 6th West Ya. Oav.
    “ The date (1862) given by Cap. Umpleby in his affidavit is regarded as a clerical error merely, and not fatal to the general tenor of the affidavit.
    “M. McEuen, att’y, advised.
    “Yeryrespectfully, &c.,
    “B. Maceeeley,
    “ üom. Gen’l Subs.
    
    “The Third Auditor oe the Treasury.”
    II. The following action was taken by the Third, Auditor and the Second Comptroller on said claim and report;
    “Treasury Department,
    “Third Auditor’s Oeeioe,
    
      “December 10,1875.
    “ Sir : I respectfully recommend that the sum of six thousand five hundred and twenty dollars be allowed to Samuel C. Lud-ington, Greenbrier County, W. Ya., for the following stores received of him at Greenbrier Co., W. Ya., in the months of Aug., Nov., and Dec., 1863, by James A. Umpleby, Capt. Co. D,2 Begt. W. Ya. Oav., and other officers and soldiers of the u. S. A., and actually furnished the Army of the United States, viz:
    160 head of beef cattle, valued at $40.00 per head.. $6,400 00
    40 “ “ sheep, “ “ 3.00 “ “ .. 120 00
    6, 520 00
    in accordance with the recommendation of the Commissary-General, dated December 4, 1875, under the act of July 4,1864, chap. 240.
    “Allan Butherpord,
    “ Auditor.
    
    “Hon. Second Comptroller.”
    “I concur in the foregoing recommendation of the Third Auditor, this 28th day of December, 1875.
    “ J. M. Brodhead,
    “ Comptroller?
    
    III. The Secretary of the Treasury made report of said claim thus allowed, with others, to the Speaker of the House of Bep-resentatives, who laid the same before Congress.
    IY. The allowance made by the Commissary of Subsistence, the Third Auditor, and the Second Comptroller, has not been paid by the defendants nor acted upon by Congress.
    
      
      Mr. P. P. Bye for the claimant:
    
    The implied promise on the part of the United States is, that they will pay any judgment or award made by the Commissary-General, within the scope of his jurisdiction and within the meaning of the statute. The object of the law was to provide a tribunal for a large class of cases where the property of citizens had been taken during the war for the Army, and for which, owing to peculiar circumstances, no payments had been made at the time.
    Now, if it should turn out that the Act of the 4th of July, 1864, confers special judicial powers, and imposes the exercise of judicial discretion in this officer in this class of classes, then it follows that, when he is moved upon to exercise the discretion and powers imposed upon him, and does exercise the discretion and power, in strict conformity to the statute and the rules and regulations of the War Department made in conformity to the law, such action and award on a claim in favor-of the claimant becomes a binding judgment upon the United States in favor of the claimant, from which there is no appeal. Such an award can only be impeached for fraud. Whether the judgment be in favor of or against the claimant, or in favor of' or against the United States, it is conclusive on all parties, and all parties are concluded by it.
    
      Mr. A. B. Bóbmson (with whom was the Assistant Attorney-General) for the defendants ••
    The action is barred by the statute of limitations. The act of Congress allowing such claims to be presented was passed July 4,1864. It could have been presented July 5,1864. It was not till July 30,1874, over ten years. See the opinion in Lippitt’s Case, decided at the present term of the Supreme Court.
    The government is not liable, as no final adjudication or award has yet been made. Although the military and accounting officers have recommended the payment of the claim, Congress reserved the final adjudication to itself by the act of' June 16,1874, and it has not passed upon it as yet.
    By the act of July 4,1864, Congress refused jurisdiction to the Court of Claims in cases like the present.
    
      Whatever may have been the effect of the act of July 4,1864,. as to the payment of such claims, the act of June 16, 1874, precluded all payments by the Treasury till passed upon by Congress, and therefore the allowance of military and accounting officers was not a finality. Not being so, there is no cause of action, because the government cannot be liable till the claimant was entitled to be paid.
    The language used in the act of June 16,1874, above mentioned, requiring the Secretary to transmit the claims and papers to the Speaker of the House, and he to “lay the same before Congress for consideration,” is almost identical with the language used in the act establishing the Southern Claims Commission, where it requires them to do the same with reference to claims presented to them. (16 Stat. L., 525.) It was there? fore undoubtedly intended by the act that the findings by the military and accounting officers thereafter should not be a finality, as well as so clearly expressed. '
    AH'the cases decided in this court, and referred to in the opinion in the Bank of G-reencastle Case, show that it must be a final decision, on which a suit can be maintained. There can be no pretense of jurisdiction in this court unless it finds a valid and binding award.
   Bichakdson, J.,

delivered the opinion of the court:

This action is brought upon a report of the Commissary-General of'the Army, under date of December 4, 1875, to the Third Auditor of the Treasury, recommending the payment of the sum of $6,520 to the claimant for cattle and sheep taken during ■the year 1863, in Greenbrier County, West Yirginia, for Army use, by officers of the Second and Sixth West Yirginia Cavalry. On the 10th of December, 1875, the Auditor recommended the payment of the claim as reported by the Commissary-General, and on the 28th of December, 1875, the Second Comptroller concurred in the recommendation.

The original claim upon which this report was thus made was one of those first referred to the Commissary-General by the Act July 4, 1864 (13 Stat. L., 381), ch. 240, § 3. That act made it the duty of the Commissary-General of Subsistence to cause each claim to be examined, and if convinced that it was just, and of the loyalty of the claimant, and that the stores bad been actually received or taken for tbe use of and used by said Army, then to report each case for payment to tbe Third Auditor of tbe Treasury, with a recommendation for settlement.

Upon the authority of Kaufman’s Case (11 C. Cls. 11., 659, affirmed on appeal, 96 U. S., 567), Woolner’s Case (13 C. Cls. R., 355), and tbe case of tbe First National Bank of Greencastle (ante, p. 225), tbe court might have bad jurisdiction of an action upon such a report or allowance (if it could be held to be an award), but for tbe first section of the act of 1864 before cited, which is as follows:

“ Tbe jurisdiction of tbe Court of Claims shall not extend to or include any claim against tbe United States growing out of tbe destruction or appropriation of, or damage to, property by tbe Army or Navy, or any part of tbe Army or Navy, engaged in tbe suppression of tbe rebellion from tbe commencement to tbe close thereof.”

This section was omitted from tbe Bevised Statutes, but was not repealed. By the Act February 18, 1875 (18 Stat. L., 318), ch. 80, it was added as a proviso to section 1059 of tbe Bevised Statutes, and is there printed in tbe second edition.

Tbe present action, although founded upon tbe report of tbe Commissary-General, is in fact brought to enforce a claim growing out of the appropriation of property by tbe Army engaged in tbe suppression of tbe rebellion, and so comes within tbe terms of tbe act restricting tbe jurisdiction of this court. (Lindsley’s Case, 4 C. Cls. R., 359; Patterson’s Case, 6 ib., 40.)

In Filor’s Case (9 Wall., 45, and 7 C. Cls. R., 119), Mr. Justice Field, in delivering tbe opinion of tbe Supreme Court, said:

“The manner of tbe appropriation, whether made by force or upon consent of tbe owner, does not affect tbe question of jurisdiction. Tbe consideration of any claim, whatever its character, growing out of such appropriation is excluded. Tbe term “appropriation is of the broadest imj>ort; it includes all taking and use of property by the Army or Navy, in tbe course of tbe war, not authorized by contract with tbe government. Tbe use may be permanent or temporary, and it may result in tbe destruction of or tbe mere injury to tbe property. If tbe right to tbe property, or to its use, is not obtained by valid contract with the government, the taking or use of it is an appropriation of it within tbe meaning of tbe act of Congress.”

There is another objection to the enforcement of tbe present claim in this court. In order to maintain tbe action, it is necessary for the claimant to show a contract, express or implied, or a statute liability on the part of the defendants.

He relies upon the report of the Commissary-General. But that officer had no authority to make the United States liable, unless it was given by the act of 1864. That act required him to report every claim of which he was convinced of the justice, and of the loyalty of the owner, to the Third Auditor for payment, with a recommendation for settlement. It is not clear that this provision constituted an implied contract with claimants to pay them whatever sums the Commissary-General should report, and thus created a liability on the part of the United States for the amount reported. But if it did, the implication was removed by the Act June 14, 1874 (18 Stat. L., 75, ch. 285, § 2), which, after directing that the balances of appropriations made for the payment of such claims should be covered into the Treasury, makes this provision:

“ The Quartermaster-General, Commissary-General, and Third Auditor of the Treasury shall continue to receive, examine, and consider the justice and validity of such claims as shall be brought before them under the act of July fourth, eighteen hundred and sixty-four, and the acts amendatory thereof; and the Secretary of the Treasury shall make report of each claim allowed by them, at the commencement of each session of Congress, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration.”

This provision indicates with clearness that Congress intended to constitute the public officers there referred to, not as arbitrators or quasi-judicial officers to decide upon the liability of the gw eminent, but as accounting officers to make report upon the claims submitted to them under the former act; and that the final determination as to whether or not the United States should pay any of the claims should be reserved to Congress alone.

That provision was in force when the present claim was acted upon by the Commissary-General-, unless it was superseded or modified by the Act February 18, 1875 (18 Stat. L., 317, ch. 80), the purpose of which is declared to be that “ of correcting errors and supplying omissions in an act to revise and consolidate the statutes of the United States in force on the thirty-first day of December, anno Domini one thousand eight hundred and seventy-three, so as to make the same [the Revised Statutes] truly express such laws.” By this act sections 2 and 3 of the act of 1864, ch. 240, were added to chapter 4 of the revision as sections 300 A and 300 B.

In our opinion, this amendment was not in the nature of a new enactment, but is to be taken and construed as though the Révised Statutes had been originally adopted with the alterations thus made incorporated into them in their proper places, as has been done in the second edition ; and that they are all subject to the provisions of §§ 6595 and 5601. The former provides that u the foregoing seventy-three titles embrace the statutes of the United States, general and permanent in their nature, in force on the first day of December, one thousand eight hundred and seventy-three.” The latter is as follows :

. The enactment of the said revisi on is not to affect or repeal any act of Congress passed since the first day of December, one thousand eight hundred and seventy-three, and all acts passed since that date are to have full effect as if passed after the enactment of this revision, and so far as such acts vary from or conflict with any provision contained in said revision, they are to have effect as subsequent statutes and as repealing any portion of the revision inconsistent therewith.”

The Revised Statutes were enacted June 22,1874, expressing the laws as they existed December 1, 1873. Between those dates Congress had passed many acts inconsistent with the provisions contained in the revision, but by the section referred to they were all saved from repeal by the later statute. The act of June 16, 1874, ch. 285, requiring the Secretary óf the Treasury to report these claims to Congress, was one of the acts passed between those dates and is not modified by the Revised Statutes as amended, but remains in force.

There is some language in the Act April 30, 1878 (20 Stat. L., 524, ch. 77), which seems to indicate that it was supposed by the Forty-fifth Congress that the Court of Claims had, or might have in some form, jurisdiction of claims mentioned in the act of 1864, but we do not think it is sufficient to confer jurisdiction of cases expressly excluded from this court by other acts, and of claims which Congress has otherwise manifested the purpose of taking final jurisdiction of to themselves.

The judgment of the court is that the petition be dismissed.  