
    THE BALTIMORE AND OHIO RAILROAD COMPANY v. THE UNITED STATES.
    [No. 14850.
    Decided. October 23, 1899.]
    
      On the Proofs.
    
    Tbe claim, wbicb is for transportation services during tbe civil war, is referred to tbe court by tbo Secretary of War under Revised Statutes, section 1063.
    I. Where tbe court is without jurisdiction of tbe claim in suit a counter claim falls with it.
    II. Where an account has been passed by tbe Comptroller and bis allowances paid on tbe requisition of tbe War Dexiartment, it will be a final settlement in tbe Department.
    III. Although tbe decision of tbe Comptroller is final, tbe bead of tbe proper Department, before signing the warrant for a balance certified to him by tbe Comptroller, may submit to tbe Comptroller any facts in bis judgment affecting tbe correctness of such balance. (Rev. Stat., § 191.)
    IV. When tbe Comptroller has made a final settlement of a claim, tbe direction of tbe Secretary of War to have the accounts reexamined by tbo Quartermaster-General has no validity.
    V.Where a claim has been disallowed in part and tbo balance certified for tbe residue paid on requisition of tbe bead of tbe Department, be can not refer tbe disallowed portion to tbe court.
    VI.Where a claim is transmitted to tbe court by tbe bead of a Department without authority, it will, if then treated as brought voluntarily by tbe claimant, be subject to tbe bar of tbe statute of limitations, of wbicb the' court is bound to take notice.
    
      The Reporters' statement of the ease:
    This ease went off on two • statutory grounds. First, the Secretary of War was without power to refer the case to this court, it having been finally settled by the Comptroller within the intent of certain statutes. Second, that more than six years having elapsed after the cause of action first accrued before tbe bringing of tbe suit, and tbe reference of tbe Secretary of War being inoperative and void, tbe case was barred by tbe statute of limitations.
    Tbe following are tbe findings of tbe court so far as tbey relate to these questions:
    IY. Tbe accounts for services so rendered by the claimant and upon which advances bad been made as hereinbefore stated, were thereafter received and duly examined by tbe proper officers of tbe War and Treasury Departments, as were tbe other accounts for services so rendered, and after having been so examined, considered, and passed upon were allowed either in whole or in part, or in part rejected, as to tbe several items of said accounts, and tbe amounts found due thereon were paid to tbe claimant and by it accepted without protest or objection at tbe time.
    At tbe time of such payments no statements were transmitted to said claimant showing in detail what items bad been allowed or rejected or tbe grounds thereof, though such information was open to tbe claimant and could have been obtained by it upon inquiry of tbe officers aforesaid.
    Y. After tbe close of tbe war, and after such accounts bad been settled as aforesaid, tbe claimant applied to tbe Quartermaster-General for tbe privilege of revising its accounts with tbe view of securing additional allowances thereon, which request was denied, and thereafter application was made by it to the Third Auditor of tbe Treasury to reopen said accounts and review the samé, for tbe purpose of having tbe disallowed portions of tbe several items thereof reconsidered and allowed, as appears in a letter from tbe auditor of claimant company to tbe Secretary of War, dated July 17,1872, in which, after treating of various matters connected with said accounts, says:
    “ After tbe close of tbe war we applied to tbe Quartermaster’s Department for tbe privilege of revising tbe accounts to enable us to collect tbe amount due. That Department declined our request. We applied to the Third Auditor of tbe Treasury, who was in possession of tbe accounts, who referred the matter to the Secretary of tbe Treasury, who. directed that tbe accounts be transmitted to Baltimore, in charge of an officer to be designated by tbe Third Auditor for tbe purposes for which we desired them.
    
      “ We received back the accounts, and from tbe original vouchers made up our revised accounts and submitted them, to be examined in connection with the officer’s accounts, to tbe Third Auditor of the Treasury, who caused the same to be examined in accordance with the basis of settlement pursued by the accounting officers of the Treasury. Previous, however, to entering upon a settlement which wouldfinally close the accounts and to the end that the whole matter might be clearly understood by both parties, the G-overnment and the company, the Third Auditor was respectfully requested on the part of the company to state definitely the general principle under which the company was entitled to compensation.
    “ Under date of April 20,1869, that officer called upon the president of our company to transmit the public tariffs of the company, and the basis upon which its accounts had been made out, and all correspondence had with the War Department upon the subject, which was responded to under date of June 10,1869, by our vice-president. * * * The Quartermaster-General having been called upon by the Auditor to furnish such correspondence as was in his possession on the subject, and, having complied, the Auditor took the matter under advisement and determined it by giving directions that the account should be closed on the basis of his instructions, A and B, a copy of which is before you.
    **##*#*
    “It was further understood that no new matter was to be introduced in the accounts. The examination was to be made on the basis of the original vouchers only, and simultaneously with the examination to be made of the officer’s accounts in the Treasury, and when revised by the Comptroller the accounts were to remain closed. To this procedure we offered no objection, and the settlement proceeded accordingly.”
    The first three series of these accounts were such as had been paid by Captains Dunan, Newport, and Bradley, respectively, of the Quartermaster-General’s Bureau of the War Department, in respect of which the auditor of the claimant company further says :
    “The residue due on the accounts of Captains Dunan and Newport, which were the first examined, amounting to $38,.-914.38 and $34,732.52, respectively, were passed upon by the Comptroller and paid October 6, 1870, and March 18,1871, respectively, by requisition of the Quartermaster-General, and the accounts finally closed.”
    By like process there was allowed upon a reexamination of the revised accounts of Captain Bradley, who succeeded Captain Newport, the sum of $128,065.71, which balance was certified by the Comptroller for payment, and on reference by the Secretary of War to tbe Quartermaster-General was reported upon by that officer, in so far as material to the question, as follows:
    “Was. Department,
    “ Quartermaster-General’s Ofeice,
    “ Washington, D. 0., August 22,1872.
    
    “To the Honorable the Secretary oe War.
    “ Sir : I have the honor to return herewith the papers in the case of Award No. 9845 to Baltimore and Ohio R. R. Go., and to invite the attention of the Secretary to the papers marked “Y,” which have been procured, among others, from the Treasury, and which will enable him to understand the nature of the claims made by the company and of those allowed and disallowed by the Treasury accounting officers in the settlement under consideration, and those cited in the report of this office of the 8th instant.
    “The papers obtained from the Treasury are in all about ten times the bulk and weight of the few sheets now forwarded as samples of the whole.
    “They enable the Quartermaster-General to make in general terms the further report required by the instructions of the 18th instant.
    “1st. The corrections and additional allowances are generally the result of allowing the company what they have claimed for greater distances than had been paid for by the United States.
    “2nd. Greater number of cars, greater weights, greater number of men, higher classifications by which the company endeavored to secure higher prices at various times by attempting to remove military stores and supplies from the lower and cheaply freighted classes to higher and more costly classes than those adopted by the Quartermaster’s Department in settling and paying tbe accounts.
    “3rd. The sheets received from the accounting officers, of which samples are herewith, give in greater details the items. The larger sheets are the claims as presented by the B. and O. R. R. Co., based upon the vouchers paid by Oaptain Bradley. The smaller sheets are the differences from these, as established by the Treasury, in settlement. * * *
    “To go through all the sheets is unnecessary. It is to be assumed that if the principle of the allowances is correct the clerks of the company, who have so laboriously gone over all these voluminous accounts, and those-of the 3rd Auditor and 2nd Comptroller, who have revised each sheet of the claims, have arrived at arithmetical correctness.
    “The defense of the U. S. is that the account has been once already settled and paid; that the company, receiving from the Q. M. Dept, during the war about $14,835,000.00, was well paid for its services, which, were valuable, but for which it demanded all it could get, and sometimes more than could be allowed. * * *
    “I find no written protest in this case, except one dated 16th December, 1862, addressed to the Secretary of War, in which the president of the company protested against the award made by the commissioners to whom Secretary Stanton referred the questions of difference between the Q. M. General and the company, and whose decision he confirmed against any overruling the report of the Q. M. General. In this case the protest was directed only against the rate fixed by that commission as the passenger rate on the Washington branch.
    “This general protest would, it is believed, be of no avail, but in fact the accounting officers appear to have disregarded or overruled it, and to have allowed on the Washington branch the passenger rate fixed by the Secretary, on advice of the commission, and actually paid by the Q. M. Dept, and receipted for by the company.
    “With this report and the other papers I enclose a memorandum prepared by the chief clerk of the R. R. transport branch of this office in regard to the nature of the claims and allowances.
    “Very respectfully, your obedient servant,
    “M. G. Meigs,
    “ Quartermaster-General, Bvt. Major-General, U. Army.”
    
    The several sums so found to be due upon a reexamination of said revised accounts, aggregating $201,712.61, and for which the Comptroller had certified balances, were paid, on requisitions from the Secretary of War, to said claimant and by it accepted without protest.
    YI. Long thereafter — to wit, in 1880 — the Secretary of War, upon the application of the claimant to that effect, directed a reexamination of all of these accounts in the office of the Quartermaster-General, with the result that the same were examined, and there was found due the sum of $62,038, which was referred to the Third Auditor of the Treasury Department; but that officer, under date of Marcn 2, 1882, refused to reopen and reexamine said accounts for the reasons, among others, that “ when these settlements were from time to time made the company accepted the payments, and neither made any protests nor complained of any errors.” And when, in giving his reasons for such refusal, he further said: “ The company has, of course, limited its showing to such alleged errors as worked to its advantage,” and that “ a revision could not, of course, be conducted on that one-sided principle,” the claimant company thereupon applied to the Secretary of the Treasury to cause said accounts to be returned to the Quartermaster-General with the request that they be there reexamined with reference to whether any errors had been made in the former settlements against the United States, and that application being referred to the Third Auditor he again, under date of April 10,1882, declined to reopen and reexamine said accounts for the reasons before stated.
    Thereafter the Secretary of the Treasury referred the claimant’s petition for a hearing, with other papers, to Hon. John C. New, Assistant Secretary of the Treasury, for reexamination, and he reported thereon as follows:
    “Treasury Department,
    “Oeeice oe the Secretary,
    
      li Washington, D. G., October 16,1882.
    
    “ Hon Charles J. Folg-er,
    
      “Secretary of the Treasury.
    
    “ Sir : The petition for a rehearing, with the other papers in the matter of the claim of the Baltimore and Ohio Eailroad Company, referred to me for “consideration and report to yourself,” together with a detailed statement of the accounts of said company against the United States, have all been carefully considered by me.
    “ From the papers and accounts it would appear that the said company has an equitable claim against the United States.
    “ The amounts allowed by the accounting officers .so far as now shown by the papers which I have been able to find appear to have been arbitrarily fixed in many instances and for less than would seem to be due the company under the contracts and tariffs arranged and made between the company and the United States.
    “Thése accounts were passed upon and settled many years since, and good reasons may have existed and been shown to or known by the accounting officers for the reductions and dis-allowances which are not now manifest upon the face of the papers, and it is probably fair to presume such was the fact.
    “It has not been the policy or rule of the Department to reopen cases that have been once heard or adjudicated by former officers of the Treasury.
    “ The amount in controversy or claimed by the railroad company is quite large, and a rehearing would involve the reexamination of all the accounts of said company against the Government in the Treasury, as well as those in the office of the Quartermaster-General of the Army.
    
      Reporters’ statemont of the case.
    “It must be for tbe Secretary of the Treasury, therefore, to determine whether he will make this case an exception to the general practice of the Department.
    “ Most respectfully submitted.
    “ Jno. C. New,
    “ Assistant Secretary.”
    YII. In September, 1885, an application was made by said claimant company for a reopening and reexamination and adjustment of said accounts on the ground that the settlements theretofore made had not been upon the basis of the tariff rates agreed upon, which application was denied by the Comptroller, he giving his opinion thereon as follows:
    “Treasury Department,
    “Second Comptroller’s Opeioe,
    Washington, JD. 0., Sept. 9th, 1885.
    
    “In the matter of the application of the Baltimore and Ohio B. B. Có. for a reopening of their accounts with the United States during the war of the rebellion. Memorandum.
    “It appears from the books and records of the War Department and the Treasury Department that during the period which intervened between April, 1861, and April, 1867, the Baltimore and Ohio Bailroad Company rendered transportation services for the Government to a vast amount, and for which they have received payments aggregating from eighteen to twenty millions of dollars.
    “Their accounts with the Government were closed some fifteen years ago, and they now seek to have the same reopened, alleging not so much errors in computation as an erroneous basis adopted by the Government in adjusting their accounts.
    “The matter has received very careful attention and a thorough investigation at the hands of the Quartermaster-General and the Third Auditor, and both of these officers have reported adversely to the prayer of the company.’
    “Under these circumstances, unless very strong reasons can be shown why their decisions should be overruled, it would be, I think, my duty to concur in their recommendations.
    “But, after reading the briefs of the learned counsel for the company, the report of Mr. Freeman, of this office, and the papers in the case bearing upon the question in controversy, I am fully satisfied that the ends of justice would not be promoted by the granting of this application.
    “ During the war period the railroad companies of the country were the recipients of a very large transportation business at the hands of the Government, and much of it was of a peculiar, unusual, and extraordinary character; and in order that a just basis of compensation to be made by the Government for such •service might be established a convention of railway managers met at Washington early in the history of the war and agreed upon a tariff of rates to be paid by the United States for military transportation.
    “I am unable to find in the papers presented any satisfactory evidence that these rates were not adhered to by the Government in the settlement of the accounts of the Baltimore and Ohio Railroad Company; but their claim, if I correctly understand it, is that they were excepted from the operation of this tariff and were entitled to full rates from the Government. But this claim is not sustained by the record presented.
    “The resolution of the convention upon which the company base their claim of exemption will not bear such a construction. It is as follows:
    “ Resolved, That it is the opinion of this convention that the Secretary of War should make such compensation as will be equitable to those roads whose expenses are enhanced'by reason of being in or near the seat of war.’
    “The company insist that, inasmuch as their property was exposed to greater risks, and their road must necessarily be operated at a greater expense on account of its proximity to the seat of war, that it came to within the scope of this resolution, and should receive an equitable compensation for its services as therein recommended, and that under the circumstances nothing short of full rates would be an equitable compensation.
    “But it seems to me that there are other considerations which can properly be taken into account.
    “The company derived great benefit from the protection afforded by the military power of the Government during the period in question. Its vast and magnificent property was saved from the destruction which inevitably awaited it had that protection been withdrawn. What would have happened to it in such an event was foreshadowed in the loss which it sustained when the rebel forces temporarily intercepted its lines of communication, as, for example, in the destruction of its bridge at Harper’s Ferry. Ho railroad company in the loyal States had a greater stake in the successful prosecution of the war.
    “Again, the company enjoyed a larger patronage at the hands of the Government than any other railroad company in the country. Their lines are so situated that the Government transportation over all the railroad lines of the Eastern and Middle and many of the Western States must, of necessity, pass over them, and the sums paid by the Government, which are given above, adequately illustrates its magnitude.
    “Under such circumstances I can discover nothing inequitable in requiring the company to accept the same rates for transportation which other companies deemed sufficient compensation.
    
      “The convention of railway managers above referred to also appointed a committee, consisting of Hon. Erastus Corning, Samuel M. Felton, and Thomas L. Jewett, to confer and cooperate with the Secretary of War and the Quartermaster-General, from time to time, with authority to take such action as might be necessary to produce harmonious and satisfactory results in the business relations of the Government with the railroads of the United States, and to this committee the accounts of the Baltimore and Ohio Bailroad Company were from time to time referred, and the same were examined and adjusted by them, and it does not seem to be questioned but what the Government paid the amounts reported by the committee to be due.
    “It also appears that the Government, at the instance of the railroad company, reopened the settlement of its accounts from time to time for the correction of alleged errors, and on Oct. 25,1870, over «$38,000 were allowed; and on March (>, 1871, over $30,000; and on June 29,1872, $128,065.71, for the correction of such errors.
    “If the maxim that it is for the good of the Commonwealth that there should be an end of controversy is to have any application, these repeated settlements, deliberately made, should not at this late day be disturbed.
    “ There is also a failure, I think, to satisfactorily establish that any substantial error was committed to the prejudice of the company in any of these settlements.
    “So far as it can be gathered from the papers, the principal grounds of complaint related to the compensation allowed for the transportation of hay and horses. It would appear that the company has been paid for all the transportation of this character actually performed by them, and if the report of the Quartermaster-General is to be relied upon they have in some instances at least been paid for transporting twice the quantity which was actually carried, and he cites an item in one account where the United States had, for the transportation of3,424,635 pounds of hay, paid for the transportation of twice as much as was actually moved, or 6,848,000 pounds, and the company claimed that they should be paid for 8,476,000 pounds.
    “It seems that the tariff agreed upon provided for a certain rate per one thousand pounds, and the estimated capacity of each car was to be 16,000 pounds, without reference to the amount .actually transported, and the company originally charged and was paid at this rate, but the company after-wards discovered, as they claim, that the capacity of the cars was actually 20,000 pounds, and they should be paid at that rate.
    “In all cases of alleged errors of any importance they do not seem to be mistakes in computation, but errors of judgment in the application of legal rules to the facts which were before the accounting officers, and such, errors, if any existed, can not be corrected by any subsequent action of the accounting officers themselves.
    “The Supreme Court of the United States, in Ex parte Randolph (2d Brockenbrough’s, 447) and in The United States vs. The Banlc of Metropolis (15th Peters, 401), as well as the head of the Treasury Department, in a recent circular order, have held that the accounting officers have no jurisdiction to reopen the settlement of accounts for the correction of the errors complained of in this case.
    “The application for a rehearing must therefore be denied.
    “ I. H. Maynard,
    “ Comptroller P
    
    YIII. Thereafter, in November, 1885, the claimant renewed its application to the Secretary of War to have said accounts reopened and reexamined for the reasons before stated, with a view of having an additional allowance made thereon, claiming that there was then due the claimant company the sum of $141,662.62, which application was referred by the Secretary of War to the Quartermaster-General, who reported thereon as follows:
    “ War Department,
    “ Qr. M. General’s Office,
    “ Washington, E. C., November 10,1885.
    
    “ Respectfully returned to the honorable the Secretary of War.
    “The claims herein referred to are recognized as those which by special orders of the Secretary of War were examined in this office during the years 1880, 1881, and 1882, and referred to the accounting officers of the Treasury.
    “They are for balances alleged to be still due for transportation services performed during the war, upon accounts settled through this office and the Treasury, and are prepared in detail, every item of difference being designated and the account to which it pertains being indicated, with reasons stated why a larger sum should have been allowed in each case.
    “The examination in this office was made by comparing each item as actually allowed with the corresponding item as claimed by the railroad, the paid accounts having been sent to this office by the Third Auditor at request of the Secretary of War for the purpose.
    “In this examination all decisions and orders of the War Department, all special and general arrangements touching rates for transportation made between the railroad company and the military authorities, all tariffs applicable, and all clerical errors in computations, distances, etc., were considered in arriving at results which brought the Government into debt to the railroad company to the amount of $62,038.85, and left accounts amounting to $31,223.10 not so closely examined as to fix the precise amounts accruing in each case.
    “The records of this office seem to show that $142,491.03 (not $141,662.62, as stated) was claimed by the railroad company.
    “These accounts were submitted to the Secretary of War after examination, and by the Secretary of War transmitted to the accounting officers of the Treasury for action, who have declined to reopen the settlements heretofore made.
    “Whether the Secretary of War can legally refer this case to the Court of Claims under section 1063, Rev. Stats., is a question for the consideration of competent authority. The Delaware River Steamboat Company versus The United States, Court of Claims Reports, vol. 5, p. 55, is the only case which has been found which seems to touch on the question.
    “S. B. Holabird,
    “ Quartermaster-General U. 8. Army?
    
    In February, Í886, the Secretary of War, at the request of the attorney of said claimant, made inquiry of the Secretary of the Treasury concerning the settlement and payment of the said sum of $62,038 theretofore transmitted to the Third Auditor as aforesaid, and the matter having been referred to the Comptroller, that officer gave his opinion thereon as follows:
    “Treasury Department,
    “Second Comptroller’s Oeeice,
    “ Washington, 1). O., Feb. 10th, 1886.
    
    “Hon. Daniel Manning,
    “ Secretary of the Treasury.
    
    “Sir: Referring to the enclosed letter of the Secretary of War, of date the 8th instant, transmitting a copy of a letter of date November 9,1885, from the Hon. W. W. Belknap, attorney for the Baltimore and Ohio Railroad Company, relating to the claims of that company for additional allowance for transportation services from 1861 to 1867, and the report of tlie Quartermaster-General, of date November 10, 1885, thereon, all of which have been referred to the Second Comptroller for report by the Assistant Secretary, by Department endorsement of February 9,1886, I have the honor to say that the claims of said railroad company for the services specified have been repeatedly presented to the accounting officers of the Treasury for settlement and have been fully adjusted, as will appear from the records and papers on file in the office of the Third Auditor, and all sums which, in the judgment of the accounting officers, were due the company have been adjusted and the amounts thereof paid to and received by the company.
    “In September last, upon an application which had been previously made by the railroad company for a reopening and reexamination and adjustment of their accounts, a decision was rendered by the Second Comptroller denying suet application, and the grounds and reasons for such denial are stated in a memorandum filed in this office at that time, a copy of which is herewith enclosed.
    “No new or additional facts are now presented, and nothing has transpired since the former decision was rendered to lead me to change or modify the views which I then expressed.
    “It seems that the proposition which is now submitted to the Secretary of War for his consideration and determination is whether, under section 1063 of the Bevised Statutes, that officer shall cause this claim of the railroad company to be transmitted to the Court of Claims for trial and adjudication.
    “ I do not deem it my province to discuss the question whether the Secretary of War has jurisdiction, under the circumstances of this case and in view of the proceedings which have already been had therein, to transmit it to the Court of Claims under the section of the statute above referred to.
    “ Certainly grave doubts must be entertained whether such jurisdiction exists, and I have been unable to find any case which will serve as a precedent or authority for such a procedure.
    “The case of the Delaware Diver Steamboat Co. vs. United States (5 Ct. of Olms. B., 55) differs from the present case in many essential respects. In that case the accounting officers had found a large balance due the claimant upon a claim originating in the War Department, and had reported the balance thus found due to the Secretary of War, in order that he might provide for its payment by causing a requisition to be issued.
    “That officer not being satisfied of the justice or validity of the claim refused to issue a requisition, and transmitted the case to the Court of Claims for trial and adjudication, under section 1063, and it was held that he had authority to do so under that section.
    “In the present case the .accounts of the claimant have been transmitted by the War Department to the accounting officers of the Treasury for final settlement and allowance.
    “These officers, after repeated examination and reexamination of the accounts, have finally settled and adjusted the balance due to the railroad company and reported the sums so found due to the Secretary of War, who has issued requisitions for their payment, and payment has been made to the claimant accordingly.
    “Under the decision of the Supreme Court in Baird vs. 
      United States (96 U. S. R., 430), it must, I think, be held that this proceeding, unless reopened in the manner prescribed by law, operated as a liquidation and satisfaction of the entire claim, and it is difficult to perceive how, thereafter, it can be properly said that there is any claim pending in the War Department on account of the matters contained in the former claim, which have been finally adjusted and paid.
    “If, after accepting of the benefits of the former adjustment, the claimant can, by filing a new claim for some of the identical matters contained in that account, reinvest the War Department with jurisdiction to consider his claim, then there can be no end to the process of adjustment of accounts in the Executive Departments of the Government.
    “In the Delaware steamboat case, supra, the Secretary of War arrested the proceeding at the point where he was called upon to issue a requisition for the payment of the balance found due by the accounting officers, and for the protection of the Government invoked the aid of another tribunal in the investigation of the merits of the claim.
    “In the present case the action of the accounting officers in the adjustment of this claim has been approved by the Secretary of War and the proceeding consummated by payment and satisfaction of the claim as adjusted in the Treasury Department.
    “The claim must therefore be deemed to be extinguished, and it is not believed that the claimant can, by any act of its own, resuscitate it so as to confer upon the War Department jurisdiction to act under section 1063.
    “Very respectfully,
    “I. H. Maynakd,
    “ Comptr oiler.”
    IX. In March, 1886, an application was made to the Secretary of War for a hearing before him in respect of said claim, and ex parte hearing was had before him, the result of which was that the matter was referred to the court by him under Revised Statutes, section 1063, as involving “disputed facts.”
    
      Counterclaim. — After the first, settlement of claimant’s accounts as set forth in the findings aforesaid, said accounts were reopened in the manner heretofore set forth, and there were allowed and paid to the claimant additional sums thereon at the dates and in the amounts following:
    
    October 6,1870. $38,914.38
    March 18,1871 .. 34,732.52
    June 29,1872. 128,065.71
    Total 201,712. 61
    
      for which, sum the defendants ask judgment on the facts here-inbefore found.
    
      Mr. George A. King for the claimant.
    
      Mr. M. 0. Burch (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claim in this action was referred to the court by the Secretary of War, under Revised Statutes, section 1063, as involving disputed facts,” which section reads as follows:

“ Whenever any claim is made against any executive department involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States, the head of such department may cause such claim, with all the vouchers, papers, proofs, and documents pertaining thereto, to be transmitted to the Court of Claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant; and the Secretary of the Treasury may, upon the certificate of any auditor or comptroller of the Treasury, direct any account, matter, or claim of the character, amount, or class described in this section, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the said court, for trial and adjudication: Provided, That no case shall be referred by any head of a department unless it belongs to one' of the several classes of cases which, by reason of the subject-matter and character, the said court might, under existing laws, take jurisdiction of on such voluntary-action of the claimant.”

The claim, as made in the War Department and the one sought to be referred to the court, was for $142,491.03, claimed as balances due on accounts theretofore presented and adjusted for services rendered by the claimant at the request of the War Department in the transportation of troops and military supplies; and such was the claim made in the original petition filed herein, but by the amended petition the claimant seeks to recover only $91,311.48.

The facts in the case, which are voluminous, consisting of official communications, reports, and orders, may be briefly summarized as follows:

1. From March, 1861, to March, 1867, the claimant company performed services for the defendant, at the request of the War Department, in the transportation of troops and military supplies aggregating about fifteen millions of dollars.

The accounts rendered for such services were so voluminous that the accounting officers could not adjust them as they were presented, and as a matter of comity lump sums were advanced, and the accounts upon which such advances were made were thereafter adjusted and the balances found due were paid to the claimant.

While the accounts so rendered were under consideration many questions arose concerningtherates of tariff to be charged for such services, resulting in a lengthy correspondence, set out in the findings, by which the basis of settlement was agreed upon.

In February, 1862, the President, as commander in chief of the Army and Navy of the United States, appointed a military director and superintendent of the railroads in the United States, with “ authority to enter upon, take possession of, hold, and use all railroads, engines, cars, locomotives, etc.,” required for the transportation of troops and military supplies, and in May thereafter the President, by virtue of the authority vested in him by act of Congress, took military possession of all the railroads in the United States.

At the request of the Secretary of War a convention of railroad managers was held in February, 1862, in the city of Washington, to confer in respect of “a just and efficient railroad transport that would secure the Government energetic action, with a fair tariff of charges.”

At that convention, John W. Garrett, president of claimant company,' was present, and was one of fifteen members appointed as a “ business committee.” A short time thereafter that committee made a report in the form of resolutions for the action of the convention, which were unanimously adopted, and, after fixing the rate at which they offered to transport passengers and freight, “Resolved, That it is the opinion of this convention that the Secretary of War should make such compensation as will be equitable to those roads whose expenses are enhanced by reason of being in or near the seat of war.”

Upon the basis of the rates agreed upon the settlement of the claimant’s accounts proceeded, but at the urgent request of the claimant, made from time to time therefor, such accounts were, by order of the Secretary of War, practically settled upon the basis of the company’s regular tariff rates in force at the time the services were rendered up to about January 1, 1863, and thereafter upon the basis of the rates agreed upon as set forth in the findings. The several items of the accounts were passed upon and allowed in whole or in part, and as thus settled the balances found due thereon were paid to the claimant and accepted by it without protest at the time.

2. After the close of the war and after the settlements and payments aforesaid had been made, the claimant applied to the Quartermaster-General for the privilege of revising its accounts, with a view to securing additional allowances thereon, which request was denied, whereupon application was made to the Third Auditor of the Treasury, in whose custody said accounts were, and that officer referred the matter to the Secretary of the Treasury, who directed that said accounts be transmitted to the company for revision, which was done, and the accounts as revised were again submitted to said Third Auditor, and that officer, after stating the basis upon which he would settle said accounts, which was acquiesced in by the claimant,reexamined said accounts, whichexaminationresulted in allowing to the claimant company $38,914.38, $34,732.52, and $128,065.71, or in all $201,712.61, which sums were paid to the claimant October 6,1870, March 18,1871, and June 29,1872, respectively, and by said company received and receipted for without protest or objection.

3. Long thereafter — to wit, in 1880 — the Secretary of War, upon the application of claimant to that effect, directed a reexamination of all of these accounts in the office of the Quartermaster-General, with the result that the same were examined and there was found due thereon the sum of $62,038, which was referred to the Third Auditor of the Treasury Department, but payment thereof was refused on the ground that the settlements of said accounts, made from time to time, upon which payments had been made were accepted by the claimant and no protest was made nor errors complained of; that the settlements so made, as set forth in finding vi, were upon the basis of the rates agreed upon, and the Third Auditor therefore declined to reopen the accounts for any further adjustment.

And. later, when it was suggested by the Third Auditor that the readjustment sought was a one-sided affair and that there was as likely to be errors in favor of the defendants as in favor of the claimant, the claimant then asked that such reexamination might be made for the purpose of ascertaining whether such errors existed, but such application was also denied, and in giving his reasons therefor, as set forth in said finding vi, the Third Auditor says:

“ When these settlements were from time to time made the company accepted payments and neither made any protests nor complained of any errors.”

In October, 1882, the Secretary of the Treasury referred the claimant’s petition for rehearing to the Assistant Secretary of the Treasury, and that officer reported that “from the papers and accounts it would appear that the said company has an equitable claim against the United States,” but, he says, “ it has not been the policy or rule of the Department to reopen cases that have been once heard or adjudicated by former officers of the Treasury,” and that it was for the Secretary of the Treasury “to determine whether he will make this case an exception to the general practice of the Department.”

In September, 1885, the claimant renewed its application for a reopening and reexamination of said accounts on the ground that the settlements theretofore made had not been upon the basis of the rates agreed upon, but such application was denied by the Comptroller, as set forth in finding vii, who, in his opinion, among other things, says: “ There is also a failure, I think, to satisfactorily establish that any substantial error was committed to the prejudice of the company in any of these settlements f and further, that “in all cases of alleged errors of any importance they do not seem to be mistakes in computation, but errors of judgment in the application of legal rules to the facts which were before the accounting officers, and such errors, if any existed, can not be corrected by any subsequent action of the accounting officers themselves.”

In February, 1886, the Secretary of War, at the request of the claimant’s attorney, made inquiry of the Secretary of the Treasury concerning the settlement and payment of said sum of $62,038, theretofore transmitted to the Tljird Auditor, which was referred to the Comptroller, in which, after referring to his previous opinion denying a reopening and a reexamination and adjustment of said accounts, says: “No new or additional facts are now presented and nothing has transpired since the former decision was rendered to lead me to change or modify the views which I then expressed.” And, further, that by reason of the settlements and adjustments made as aforesaid that the claim had ceased to be a pending claim in the War Department, and that by reason thereof the claim must “be deemed to be extinguished, and it is not believed that the claimant can, by any act of its own, resuscitate it so as to. confer upon the War Department jurisdiction to act under section 1063.”

4. In March, 1866, an application was made to the Secretary of War for a rehearing before him in respect of said claim, and an ex parte hearing was had, the result of which was that the claim was referred to this court under section 1063 as involving “ disputed facts.”

The defendants ask judgment on their counter claim for the payments made in 1870,1871, and 1872, aggregating $201,712.61, on the ground that accounts of claimant had theretofore been settled and adjusted and should not have been reopened.

The questions presented are not free from embarrassment, especially in view of the fact that after the accounts of the claimant had been first settled and the amounts found due thereon had been paid, as set forth in finding iv, the Secretary of the Treasury, on the application of the claimant therefor, directed that the accounts so settled be returned to the claimant for revision, which was done, after which the accounts so revised were again presented to the Third Auditor and settled on a basis satisfactory to the claimant, resulting in allowing on said accounts the additional sum of $201,712.61, which was approved by the Comptroller and certified for payment, and payment was made on requisition from the War Department.

While we are inclined to the opinion that the accounts as originally settled were practically upon the basis of the rates agreed upon, yet there was a difference of opinion between the defendants’ officers and those of the claimant company in respect of the proper construction of the tariff rates, and particularly the rates for the transportation of hay and live stock, as disclosed by the correspondence, and it was doubtless to remove that objection that the Secretary of the Treasury pursued the course he did.

The resolution of the convention convened at the request of the Secretary of War, to the effect “that the Secretary of War should make such compensation as will be equitable to those roads whose expenses are enhanced by reason of being in or near the seat of war,” had, in our opinion, much to do with the controversy over rates, and perhaps also with the revision of the accounts and the additional allowance made thereon.

It was quite natural, however, for the officers of the claimant company to entertain different views from those of the Secretary of War as to what such equitable compensation should be, but it was left with the Secretary of War in the exercise of good judgment to determine such rates; and thus it was that he allowed said claimant practically its regular tariff rates in force at the time of the rendition of tho service up to January 1, 1863, as prior thereto the company had, by reason of “ being in or near the seat of war,” suffered its principal loss in the destruction of its bridges and other property at the hands of the Confederate forces. But while this is true, it is also true that it was by reason of the protection afforded to the claimant company by the military arm of the Government that it was enabled to operate its lines of road at all.

However, inasmuch as the last settlement resulted in allowing to the claimant company additional sums aggregating $201,712.61, so made on the accounts as revised, with the approval of the same Comptroller who had previously passed upon the accounts (Rollins & Presbrey Case, 23 C. Gis. R., 106) and, too, upon the basis of rates acquiesced in by the officers of the claimant company, we are inclined to give the claimant the benefit of the doubt in respect of the finality of the first .settlement.

But in our view of this case it is unnecessary for us to further consider the question of the defendants’ right to recover on their counterclaim, for if the court is without jurisdiction to consider the claim sought to be referred to it by the Secretai’y of War, then the, counterclaim, though it maybe well founded, falls with it, as was held in the Boehm Case (21 C. Cls. R., 290), and Looney's Case (18 O. Cls. R., 8), in which latter case, being an action against the District of Columbia, the court said:

“The defendants now insist that we shall proceed to give judgment in their favor against the claimant for this amount upon the counterclaim. This, in our opinion, we are not authorized to do. The Court of Claims has no original jurisdiction of actions in behalf of the District of Columbia against its alleged debtors. The District can not primarily institute any suit in this court, and so can not, of its own motion, bring parties here to answer to claims against them.”

The same rule is applicable to the United States, as there is no statute authorizing them to bring actions in this court in the first instance against their alleged debtors.

As regards the last settlement, however, we think that must stand as haviug been finally settled both in the Treasury and War Departments, for the reasons that the accounts so settled were passed upon by the Comptroller, and the additional allowances made thereon were paid on requisition of the War Department and a reopening denied.

Under Revised Statutes, section 236, “all claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are con-' cerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury.”

While in such settlements the decision of the Comptroller, under Revised Statutes, section 191, is final and “ conclusive upon the executive branch of the Government,” still it is also provided that “the head of the proper Department, before signing a warrant fdr any balance certified to him by a Comptroller, may, however, submit to such Comptroller any facts in his judgment affecting the correctness of such balance; but the decision of the Comptroller thereon shall be final and conclusive, as hereinbefore provided.”

Thus it will be seen that while it is the duty of the head of aDepartment to issue his requisition for payment of the amount certified, he may, before signing such requisition, submit facts affecting the correctness of such balance to the Comptroller, whose decision thereon is “final and conclusive;” but it will be noted that there is no provision for the head of a Department submitting facts to the Comptroller affecting the correctness of his decision in rejecting a claim, though that may be implied, and this view is sustained by the decision in the case of the Delmvare River Steamboat Company (5 O. Cls. R., 55).

However, “whenever any claim is made against any Executive Department ” over which it has jurisdiction, such Department may, without action in the Treasury Department, refer such claim to this court, provided it be one which the “ court might, under existing laws, take jurisdiction of on such voluntary action of the claimant.” That is to say, the bead of a Department can not confer jurisdiction on the court by the mere reference of a claim. Such jurisdiction must inhere under existing laws.

The balances certified by the Comptroller to the Secretary of War were not subject to be changed or modified, but were conclusive upon him. Therefore his direction to have the settled accounts reexamined by the Quartermaster-General before the same had been reopened by the Comptroller was premature and of no validity.

Such settlements being conclusive, as defined in section 191, there was nothing the Secretary could do in respect thereof, and hence be could not by such reexamination give life to the claim or thereby constitute it a pending one, “ involving disputed facts,” as such dispute had become finally merged in the award on the acceptance of the payment thereof and the refusal of the Comptroller to reopen the accounts.

His functions in the premises ended with the issuance of the requisition for the payment of the balances so certified by the Comptroller.

The time to invoke the aid of the court in revising the balances certified by the Comptroller to the heads of Departments is before such settlements have reached the stage of finality or res judicata.

The settlement of the claimant’s accounts, therefore, by the Comptroller being final, the same could not be reopened by his successor in office, except to correct “ mistakes in matters of fact arising from errors in calculation and in cases of rejected claims in which material testimony is afterwards discovered and produced,” as was long ago ruled in the familiar case of The United States v. Bank of the Metropolis (15 Peters, 377-401), since which time it has become the settled rule of administrative law, as held by this court in Jackson's Case (19 O. Cls. B., 505-509).

The claimant’s accounts were first settled as a whole, and reopened only in respect of such accounts as had been settled by the Quartermaster-General through quartermasters acting as disbursing officers, and the reopened accounts having been revised and again passed upon by the Comptroller, and the balance certified and payment thereof made on requisition of tbe War Department, sucb accounts, as also those previously-settled and not reopened, must be held to have been finally settled and come within the decision in the Armstrong Case (29 C. Cls. B., 148-169), wherein the court said: “If the disal-lowance of the claims by the Second Comptroller * * *

was not thereafter reopened by reason of fraud, mistakes in calculation, or the filing of material new evidence, the decision was final and conclusive and the case was res judicata in the Department; and it was not, therefore, within the power of the Secretary or his successor in office to transmit the claims to this court.”

Such being the case, the revised accounts so settled could not, nor could such of the settled accounts as had not been so revised, be reopened, for in the meantime there had been a change in the office of the Comptroller, and more than six years had elapsed, and no “mistakes in matters of fact arising from errors in calculation” were shown to exist, nor was it shown concerning the disallowed portions of such accounts that any “material testimony” was “afterwards discovered or produced,” all of which was for the Comptroller to determine, as we held in the Armstrong Case (supra).

Hence the claim became res judicata in both the Treasury and War Departments, and that being so the Secretary of War had no authority to settle or pay the claim, and having no authority to pay he had no jurisdiction to refer the claim to this court. (Hart v. United States, 118 U. S., 62, affirming the decision of this court, 16 C. Cls B., 459.)

And the same rule was held applicable to cases referred under the Act March 3,1883, known as the Bowman Act, McClure's Case (19 C. Cls. B., 18,30); also to claims referred which were not filed in the Department from whence they came within six years after they had accrued. (Finn v. United States, 123 U. S., 231; Savage’s Case, 23 C. Cls. B., 255.)

True, the facts in those cases differ from the case at bar, and in the Hart Case there was a resolution having the force of law prohibiting the payment of the claim referred, but nevertheless the principle is the same — i. e., that if the Department had no jurisdiction to settle and pay, the head of such Department had no jurisdiction to refer the claim to this court.

The Armstrong Case was followed by the decision in the Cotton Case (29 C. Cls. B., 207-223), wherein the Secretary of War bad transmitted to the Treasury Department for payment an account for $10,886 for army transportation. The Second Comptroller disallowed a part of the claim and certified a balance of $5,197, which was paid on requisition of the Secretary of War. Afterwards, and after the head of the War Department had changed, the claimant renewed its demand in both Departments for such disallowed portion, and the Secretary of War referred the claim to the court under section 1063. One defense was that the Secretary of War had exceeded his authority and that the court had acquired no jurisdiction, in reference to which the court said:

“By the above section 1063 the head of an Executive Department may transmit to this court any claim described therein; but we hold it must be a live claim — that is, one over which he has jurisdiction and which has not already been 'finally disposed of, settled, and become res judicata, or otherwise barred. We so held in the Armstrong Case, decided at the present term.
“Were it not so, then all claims finally rejected by the Departments or otherwise barred since the establishment of the Government might be opened by simply making applications to the beads of the Departments against which the claims were made to have them transmitted to this court.”

To so hold would be constituting this court the medium by which settled accounts could be opened at the will of the head of a department, and would in effect nullify the provision of section 191 in respect of the finality of such settlements.

In the Cotton Case it was also said: “It has repeatedly been held by this court and the Supreme Court that the final decision of a matter by a public officer is binding upon his successor, and that the right of an incumbent to review a predecessor’s decision extends only to mistakes in matters of fact arising from errors in calculation and to cases of rejected claims in which material evidence is afterwards discovered and produced.” {See the authorities there cited.)

If, therefore, the precedent conditions essential to a reopening of the case were not present, as decided by the Comptroller, whose decision, as held in the Cotton Case as well as in the Armstrong Case, is controlling, then the Secretary of War was without authority in the premises.

The claim had ceased to be a live claim; it was not a claim pending in the War Department, and certainly the head of a Department bas no authority to refer to the court a claim not pending in such Department, and in this respect we said in the Armstrong Case that the words, “ Whenever any claim is made against any Executive Department” necessarily imply that the claim is pending in such Department until allowed and paid or finally rejected.”

When the Secretary of War made requisition for the payment of the amount certified by the Comptroller he thereby concurred in the decision of that officer, as was held in the Cotton Case; and, further, that he might have refused to issue a requisition and have transmitted the claim to this court, as was done in the cases of the Delaware River Steamboat Company (supra) and the Winnisimmet Company (12 C. Cls. B., 319).

In which cases the court had authority to pass upon the merits of the claims, for the reason that the claims so referred were made after the Comptroller had certified balances, for the payment of which the Secretary of War had refused to issue requisitions.

But where such claims have been rejected, or where claims have been disallowed in part and the balances certified for the residue and such residue paid on requisition from the head of the Department in which such claim originated, and a reopening of the accounts has been denied by the Comptroller, we are aware of no case sustaining the authority of the head of such Department in referring to this court á claim for such disallowed parts, even though he may have caused such settled accounts to be reexamined, resulting in finding a balance in favor of the claimant.

The amount found due, and upon which the Secretary of War based his reason for sending the claim to this court, is not even prima facie evidence of the amount due, as was held in the McKnight Case (13 O. Cls. B., 292).

That provision of section 1063 which gives the Secretary of the Treasury authority, upon the certificate of the Auditor or Comptroller to refer “ any account, matter, or claim, of the character, amount, or class described in this section,” to the court for “trial and adjudication” does not apply to any other Department.

It was by virtue of that provision, that the claim in the New Yorle Case (26 C. Cls. B., 467) was referred to this court.

In that case, however, it was held that the claim had never been formally rejected by the accounting officers and that it was a pending claim, not res judicata in tbe Department at the time of its reference, and consequently tbe court took jurisdiction and tbe case proceeded to trial on its merits.

There is little, if any, analogy between that case and tbe one at bar, for in tbe case at bar there was not only a formal settlement of tbe accounts and payment of tbe amounts found due, but tbe Comptroller bad refused to reopen tbe accounts.

While in tbe settlement of the claimant’s accounts there was a controversy between it and the accounting officers, and also between tbe accounting officers and tbe Quartermaster-General, as to tbe amount due, as is manifest from tbe correspondence and tbe claimant’s contention in this case; still, when tbe accounts were settled, tbe balances certified were paid to tbe claimant and by it accepted, and for more than six years thereafter was acquiesced in without further action in any department.

Therefore, for the reasons we have given, we must bold that tbe Secretary of War was without jurisdiction to refer tbe claim to tbe court; and that if this be considered an action brought voluntarily by tbe claimant, it must be held to be barred by the statutes of limitations, of which the court is bound to take notice, and which can not be waived by any officer of tbe Government. Finn v. The United States (123 U. S., 227); Fendall v. The United States (107 U. S., 123). Tbe petition and counterclaim are, therefore, both dismissed.  