
    CHORPENMING’S CASE.
    George Chorpenning v. The United States.
    
      On the claimant's Demurrer.
    
    
      Congress passed the Joint Resolution 15th July, 1870, (16 Slat. L.,p. 673,) “ authorizing the Postmaster-General to investigate and adjust the claims of George Chorpenning.” 0 ne is the subject-matter of Ms former suit, decided adversely to Mm by this court, (3 C. Cls. B.,p. 140;) another is neto matter. The resolution also provides that “ the right of appeal from the findings of the Postmaster-General is reserved and allowed to said claimant.” The Postmaster-General investigates the claimand malees an aioard in favor of the ■ claimant for $443,010.60. Before it is paid Congress repeal the resolution. The claimant, brings his suit on the award. The defendants plead the repealing act in bar. The clamant demurs.
    
    I. A submission to an arbitrament is a contract, whereby the parties agree to submit matters in dispute to be finally decided by the award of judges chosen by themselves, called arbitrators.
    II. To clothe a person with the authority of an arbitrator, the parties must mutually agree to be bound by his decision of the matter in controversy. An arbitrament which concludes only one of the parties would be an anomaly in the law.
    III. A reference by Congress to the Postmaster-General, directing him “ to investigate and adjust the claims” of a mail-contractor, making no provision for the satisfaction of his award, and exacting no reciprocal submission from the claimant, is not an arbitrament. No action can bo maintained on such an award where Congress repealed the referring act after the award was made and before it w,w«
    
      The Reporters' statement of tbe case:
    The record upon which this case was considered by the court was materially modified by agreement of parties after the decision, and the case was then carried to the Supreme Court bv appeal, where it is now pending. The opinions set forth the legal questions determined.
    
      Mr. Joseph Casey for the demurrer.
    
      Mr. John 8. Blair and Mr. E. M. Eastings opposed.
   Drake, Oh. J.,

delivered the following opinion :

On the 15th of July, 1870, Congress passed the following 11 joint resolution, authorizing the Postmaster-General to adjust the accounts of George Ohorpenning,” (16 Stat. L. 673 :)

“That the Postmaster-General is hereby authorized and directed to investigate and adjust the claims of George Ohor-penning, under the first section of an act for his relief, approved March 3, 1857, on the basis of compensation allowed by said act for the regular service, and the claim growing out of the curtailment and annulment of his contract on route number 12,801, on the basis of his agreement with the Postmaster-General for the service, to be settled as provided for the services named in said act of March 3, 1857; and the right of appeal from the findings of the Postmaster-General to the Oourt of Claims is reserved and allowed to said claimant.”

In pursuance of the authority conferred by this resolution, the Postmaster-General proceeded to act, and on the 23d of December, 1870, signed, and sealed with the seal of the Post-Office De-imrtment, apaper, in which he reviewed the evidence presented before him, and sets forth the conclusions of fact and of law at which he had arrived, and closes it with the following paragraph :

“ Whereupon I, John A. J. Ores well, Postmaster-General of the United States, do hereby certify that, in performance of the duty enjoined upon me by the joint resolution of Congress, approved July 15, 1870,1 have investigated and adjusted the claims of George Ohorpenning, under the first section of an act for his relief, approved March 3,1857, on the basis of compensation allowed by said act for the regular service; and the claim growing out of the curtailment and annulment of his contract on route number twelve thousand eight hundred and one, on the basis of his agreement with the Postmaster-General for the service; and that I do hereby award and determine that there is due and owing to said George Ohorpenning from the United States, for and in full satisfaction and discharge of said claims, the sum of four hundred and forty-three thousand and ten dollars and sixty cents, ($443,010.60.)
“As witness my hand and seal of the Post-Office Department this twenty-third day of December, 1870.
[SEAL.] (Signed) “JlsTO. A. J. ORESWELL,
Postmaster- General.”

.Before payment of the amount thus found in favor of the claimant, Congress, on the 9th of February, 1871, passed another joint resolution, (16 Stat. L., 702,) repealing the resolution of July 15, 1870. Thereupon the claimant sues in this court to recover the amount found in his favor, claiming that the above paper signed by the Postmaster-General was a valid and binding award and judgment against the United States in favor of the claimant for the amount therein stated.

To the claimant’s petition the defendants plead, 1, a general traverse; 2, limitation ; and 3, a special plea, setting up the repeal of the joint resolution of July 15, 1870, in bar of this action.

To thesepleas the claimant demurs; and the grounds on which he rests the demurer are: 1. That the joint resolution of July 15, 1870, was a submission by the Government of a controversy between it and the claimant to the arbitrament and award of the Postmaster-General; 2. That under that resolution the Postmaster-General was a judge or arbitrator invested with judicial power; 3. That his decision was a finality, or res adju-dicata; 4. That the submission by that resolution and the acquiescence and concurrence of the claimant in the Postmaster-General’s decision constitute a mutual settlement and adjustment, that binds the parties until set aside for cause or until shown to be erroneous or inequitable.

We gave very careful attention to the elaborate argument of the claimant’s counsel, but were unable to concur in his positions, for the reasons which we will now proceed to state.

In the first place, it will be observed that the joint resolution in question was passed, as claimant alleges in his petition, at his instance. It is, therefore, a fit case for the reiteration of the previously-expressed opinion of this court, that private acts of Congress are always to be strictly construed and never to be forced beyond their plain import. Most especially are they to be so construed as to prevent the entrapping of the Government by fixing upon it liability where the intention of Congress was only to authorize an investigation and adjustment. (Roberts Case, 6 C. Cls. R., p. 84.) Guided by this rule of construction, let us see whether the resolution of 1870 was, indeed, a submission by the Government of the matters therein mentioned to arbitrament and award.

A submission is a contract, by which parties agree to refer matters which are in. dispute, difference, or doubt between them, to he finally decided by the award of judges named by the parties, and called arbitrators. (Morse on Arbitration, 36.) And in order to clothe a person with the authority of au arbitrator, the parties must mutually agree to be bound by the decision of the person chosen to determine the matter in controversy. (Gordon v. United States, 7 Wall., 188.) An arbitrament and award which concludes one party only is certainly an anomaly in the law. (Ibid.)

Beyond question, to constitute a submission there must be-words used which are apt to express the intention of both parties to make the submission. In Carmick & Ramsey's Case, (2 C. Cls. R., p. 126,) where an act of this description was construed, and where the Comptroller was authorized not only to “ adjust,” but also to “ adjudge and award according to the principles of law, equity, and justice,” this court held the words to constitute a submission to arbitration. Whether in this case words of such import have been used will now be considered.

It was contended that in the light of the decision of the Sa-íneme Court in Kendall v. United States. (12 Pet., 524,) the resolution here involved should be considered as using apt words to constitute a submission. Let us examine that case.

Stockton & Stokes were contractors for carrying the mail. The Postmaster-General made certain credits and allowances in their favor, which a succeeding Postmaster-General withdrew. The contractors memorialized Congress on the subject, and an act for their relief ivas passed, authorizing and directing the Solicitor of the Treasury “ to settle and adjust the claims” of the contractors, “and for this purpose to inquire into and determine the equity of the claims of them, or any of them, for or on account of any contract or additional contract with the said [late] Postmaster-General, on which their pay may have been suspended by the present Postmaster-General, and to make them such allowances therefor as, upon a full examination of all the evidence, may seem right, according to the principles of equity.” And the act then proceeded thus : “And the Postmaster-General be, and he is hereby, directed to credit such mail-contractors with whatever sum or sums of money, if any, the said Solicitor shall so decide to be due to them for or on account of any such service or contract.” The Solicitor performed his duty under this act, and reported to the Postmaster-General bis decision and award in favor of Stockton & Stokes, allowing them $161,503.89. The Postmaster-General carried into eifect the act of Congress, so far as to cause them to be credited with the sum of $122,102.46, and refused to credit them with the remainder; whereupon they proceeded by mandamus to compel him to credit them with that remainder. The Supreme Court held the Solicitor to have been au arbitrator; that his -decision was final; that the Postmaster-General could not review it; that the crediting Stockton & Stokes with the amount of the award was a mere ministerial act, the performance of which by the Postmaster-General could be compelled by mandamus ; and it was so compelled.

It is quite impossible, as we conceive, to overlook the great difference between the comprehensive power conferred in that case upon the Solicitor and the limited one granted here to the Postmaster-General. There the Solicitor was authorized to do •three things which the Postmaster-General was not authorized to do here: 1. To settle as well as adjust the claims; 2. To determine the equity of the claims; and, 3. To make the parties such alloioanees as to him might seem right, according to the ■principles of equity. And to clothe his action with that finality which is of the essence of every award by an arbitrator, the act laid upon the Postmaster-General the imperative mandate to credit the parties with such allowances.

Contrasted with this we have here the simple, naked power “ to investigate and adjust.” There is no power to “settle,” no power to “determine” equities, no power to make “allowance” otherwise than upon the rules of adjustment laid down in the joint resolution; but the whole capacity conferred is merely to adjust. And what is it to adjust"? According to Worcester, it is “ to prepare and put in order for settlement; ” and, according to Webster, “to settle or bring to a satisfactory state, so that parties are agreed as to the result.” Manifestly, every arbitration contains an adjustment and more; but equally manifestly, every adjustment does not contain an arbitration. In no sense are the words “adjust”and“ arbitrate”convertible terms. It is, therefore, quite in vain to contend that the joint resolution involved in this case was a submission by the Government to an arbitrament and award.

But the claimant takes still higher ground, and insists that the power to adjust includes the power to adjudicate. This position is less tenable than the other. To adjudicate is to try and determine as a court — to render a judgment or sentence upon a case presented.

We know of no case in which it was ever held that that high power was included in the word adjust. The nearest to it that we have observed is Vigo’s Case, (21 Wall., 648,) where the Supreme Court decided that a reference by Congress of a claim to this court, “with full jurisdiction to adjust and settle the same,” was a reference of it “for judicial determination;” and that from our decision of the cláim under such a reference an appeal would lie. But, obviously, the ruling there does not touch this case; for even if we leave out of view the effect of the word “settle,” in connection with “adjust,” which might-possibly be considered to have a material bearing upon the scope of the authority granted, there is this essential difference between the cases, that in Yigo’s the power was conferred upon a body having already the capacities and attributes of a judicial tribunal, and presumably the legislature intended it to exercise them in making the adjustment and settlement; while in this case the naked power to adjust was conferred upon an officer having no such capacities or attributes, and therefore incapable in law of rendering a judicial judgment. Where a reference in a case of this description is made to such an officer, if it be intended that he shall exercise functions other than those appertaining to his office, that intent must be suitably expressed, or he cannot exercise them. Hence in Kendall’s Case, as in others, such language was used, while here it was not. When the legislature fails to clothe an officer, in terms, with judicial faculties, it is not for this court to infer them from language apparently having a different intent.

But the closing words of the resolution seem to us cumulatively conclusive against the Postmaster-General’s action being regarded either as an award in arbitration or as an adjudication. Those words are, “ and the right of appeal from the findings of the Postmaster-General to the Court of Claims is reserved and allowed to said claimant.” The use here of the word “ findings ” indicates what Congress intended in this resolution. That word has a well-known legal meaning -wholly distinct from that of either award or adjudication. It is the equivalent of verdict, and means an ascertainment of a fact or facts, as the basis of' further action by the authority, executive or judicial, which-authorized the finding. The use of that word, instead of award or adjudication, makes the resolution consistent in its terms, while the use of either of the latter would have made the concluding clause express inferential!? what the preceding terms did not express or recognize.

Every view that we have been enabled to take of the matter leads us to the conclusion that the Postmaster-General was not, by the joint resolution, constituted either an arbitrator or a judge, but was invested with a mere ministerial function, which, to be sure, required the exercise of his judgment, but neither required nor authorized the making of an award nor the rendition of a judicial decision. (Gordon v. United States, 7 Wall., 188.)

If, then,-he was neither an arbitrator nor a judge, it seems to us to follow, of necessity, that when he passed out of the province of a mere ministerial adjuster, and exercised judicial functions, his acts were unauthorized and null. When, therefore, he declared that he did “award and determine that there is due and owing to said George Ghorpenning, from the United States, for and in full satisfaction and discharge of said claims, the sum of $443,010.60,w if he meant anything more than a mere announcement of his adjustment, he transcended his lawful authority, and no force or effect can be given to his action, either as an award under an arbitrament or as a judicial determination.

But the claimant urges that if the resolution neither created a submission to arbitration nor authorized an adjudication, yet, as it empowered the Postmaster-General to investigate and adjust, and as he did investigate and adjust, and found in favor of the claimant, his finding must be paid by the Government. In its bearing on the operations of the Government this is a rather serious proposition, for, if tenable in this case, it is equally so in every case where the accounting-officers investigate and adjust a claim under the general laws. If it be true that the Government is bound to pay this finding of the Postmaster-General, notwithstanding the repeal by Congress of the resolution under which he acted, it would, as we conceive, be equally true that a finding and allowance by the accounting-officers made under the general law would have to be paid, though Congress, after it was made, should, by law, have set aside the finding and allowance. It is not for a moment to be supposed that Congress could ever intend, by any legislation, general or special, to place the Government in any such position. In fact, the claimant’s right to payment of the amount found by the Postmaster-General in his favor did not, by that finding, become a vested right, but was still in fieri. On the one hand, he could reject it and appeal to this court; and, on the other, the Government could reject it, as it did by repealing the resolution of 1870.

As to the legal effect of that repeal, we can see no substantial difference between this case and that of Gordon, (1 C. Cls. R., p. 1,) in which the judgment of this court was affirmed by the Supreme Court, (7 Wall., 188.) There, under authority of a joint resolution of-Congress, the Secretary of War had made an allowance in favor of a claimant; after which Congress repealed the resolution under which he had acted, and declared that all proceedings under it should be null and void. The Supreme Court held, as this court had, that the Secretary’s allowance was no award by an arbitrator; and the concluding-sentences of the opinion of that court apply as well to this case as to that. “The joint resolution of June 1, 1860,” say the court, “gave the appellant a tribunal before which his claims might be investigated. The repeal of that resolution only deprived him of that tribunal. It was competent for Congress to abolish the tribunal it created for the adjustment of the appellant’s claims, or it might have committed them to some other authority. In either event the claimant’s right -would not have been violated; only his remedy for the enforcement of those rights would have been taken away or changed. The power that created this tribunal might rightfully destroy it, unless some rights had accrued which were the result of the creation of such tribunal and inseparable from it. Here no such rights had resulted from the passage of this resolution. The appellant was left where that resolution found him. His right to importune Congress for more was not at all impaired by its repeal.”

The fact that there the repealing resolution declared all proceedings under the former resolution null and void, does not make any essential difference between that case and this. The vital point there was, that the authority to the Secretary of War had ceased to exist, and his action could not survive his authority. The well-settled principle in such cases is that inchoate rights conferred by statute are destroyed by the abro■gation of the statute. The repealing' resolution, therefore, made the Secretary’s proceedings no more certainly null by declaring them so, than they would have been by the simple repeal without such declaration.

The result of the conclusions we have expressed is that there is nothing in the claimant’s case of which this court can take jurisdiction. His action is upon the Postmaster-General’s allowance, which he assumes to be “ a valid and binding award and judgment,” and he asks judgment upon it as the foundation of his right, and for the amount of it as a liquidated and fixed debt. As it is neither an award nor a judgment it is not a contract, expressed or implied, -with the Government of the United States; and, as the resolution is repealed under which it was made, it is not a claim founded upon a law of Congress; and, as it is not founded upon a regulation of an Executive Department, there is nothing in it which brings the case within the range of our jurisdiction.

In our opinion the demurrer ought to be overruled and the petition dismissed.

Nott, <J.,

concurring:

The joint resolution for the relief of George Ohorpenning is an exceedingly obscure enactment, embracing different and incongruous subjects, and containing provisions hitherto unknown to our statutory law. The resolution referred to the Postmaster-General a new and "substantial cause of action, which was a proper subject for investigation and adjustment, or for arbitrament and award; it also, and without discrimination, referred another matter which had been j udicially determined to be at an end, and as a cause of action to have no legal existence. (Chorpenning’s Case, 3 C. Cls. R., p. 140.) If it were intended that the Postmaster-General should act as an arbitrator, the intention is met by the fact that the Supreme Court had then decided that as to half the ’ matter here referred he could only act ministerially. If the intention was that he should act as an accounting-officer, it is likewise met by the fact that an appeal was allowed to a judicial tribunal, and that the Supreme Court had also decided that an appeal cannot be given to a court of the United States from the acts of an officer acting ministerially. (The United States v. Fereira, 13 How., p. 40.) If it be said that the appeal was intended to be to the judges as commissioners, the suggestion is negatived by the fact that it is in express terms to the “court,'” and that the Supreme Court has decided that the reference of a power to a court, eo nomine, precludes the judges from acting in the capacity of commissioners. (The United States v. Todd, 13 How., 52, note.) As to the right of appeal which the joint resolution gives, there is no remedy prescribed,, no time fixed, nor does the resolution refer it to any established system, nor does any such system, indeed, exist. In short, it-is impossible to administer this statute until it is holpen out by a species of judicial legislation. When such judicial legislation is applied in one way, it will be very easy to say that Congress manifestly intended the reference to the Postmaster-General should be a mere accounting, binding nobody; and when the judicial legislation is applied in another way, it will be equally easy to say that Congress manifestly intended the-reference to be an arbitrament, final and conclusive, and mutually obligatory in its character; but until some such help is-applied to the enactment, there are no two judges who can agree as to what it does mean, or indeed that it means anything.

Assuming that two duties were devolved upon the Postmaster-General by the resolution, and that the one was a ministerial re-adjustment of an account under Gordon’s Case, (7 C. Cls. R., p. 46,) and the other an arbitrament under Kendall v. Stokes,. (12 Peters’ R., p. 524,) and that the so-called award of the Postmaster-General can be so divided as to lay out of sight the-matter of accounting, and to bring before ns simply the matter of arbitrament, the case will then present the very question-suggested by Mr. Justice Thompson in Kendall v. Stokes, viz, the effect of a repeal of the referring act before the payment and ratification of the award.

I regret that this question is not to be exhaustively examined and finally determined, for it is a question which for many years-has been appearing and disappearing and re-appearing; and for many reasons it is desirable that the rule in regard to it be authoritatively declared. The examination which I have been able to give to it is trivial, but I am inclined to think that the rule must be substantially as follows: These statutes, referring a claim to a public officer to settle and adjust or to investigate and award, continue to lack that mutuality of obligation which is essential to bind either party, until the reference reaches the point where it receives a mutual and final ratification by the payment of the award on the one side and acceptance thereof on the other. In the ordinary arbitrament of individuals the award is conclusive from the moment it is made, not because of the judicial character of the umpire, but because the parties,, by express agreement, have imparted to his decision that finality which is inherent without agreement in the decisions of judicial tribunals. I have no doubt that if Congress were to so frame a private act as to pledge the Government on the one hand and require from the claimant an express agreement on the other, there would ensue a binding submission, and that aD award made in pursuance thereof would confer a vested right and be in itself a good cause of action, not revocable at the pleasure of either party and not affected by the subsequent repeal of the enactment. (Twenty-per-cent. Cases, 9 C. Cls. R., p. 103.) But under statutes like the one now under consideration there is no such binding mutuality of submission. The claimant is not bound to go before the arbitrator; he is not bound to remain there if he goes, nor to await his decision, nor to abide by it when it comes, and, in the absence of his express agreement, no' estoppel will arise binding him until he has received a benefit y in other words, until he has accepted an award. If the award be against him or for a trifling amount, he can say that he never agreed to be bound by it; that the tribunal was not judicial y and that Congress never provided that its decision should be obligatory upon either party. What the one party may do in such a case the other may do; what does not bind both does not bind either, and the disaffirmance by the Government in this case appears to me to be nothing more than the exercise of a right which both parties possessed, and which either, up to-the time of final ratification, could resort to at pleasure.

Loring-, J.,

dissenting:

I think that this case is distinguished from the case of Gordon v. The United Stales, (7 Wall., 188,) and from the other cases cited, by the last sentence of the joint resolution of 15th July, 1870, which is as follows: “The right of an appeal, from the findings of the Postmaster-General to the Court of Claims, is reserved and allowed to the petitioner.”

From the difference in nature between judicial and ministerial powers, neither can perform the function of the other; and, therefore, as decided in the case of The United States v. Fereira, (13 How., 40,) an appeal cannot be given to a court of the United States from an officer acting ministerially or from ministerial action, and I think it a necessary implication that the intent of the resolution giving an appeal here, was that the Postmaster-General should act judicially; for where the áctíon of.Oongressis referable to an intent within its powers, it cannot be referred to an intent not within its powers.

And unless the Postmaster-General was to act j udicially, the purpose of the resolution — which was to give to the claimant a judicial determination of his case — could not be executed at all; for the appeal is given, not to the judges of the Court of Claims, but, in express terms, to the Court of Claims. And by the decision of the Supreme Court in the case of The United States v. Todd, (13 How., 52, note,) where a power is given by statute to a court, eo nomine, it can be used only by the court, acting as such, and cannot be exercised by the judges acting as commissioners and ministerially out of court.

And 1 find nothing in the resolution which indicates to me that the Postmaster-General was not to act judicially. Where claims of money for services are referred to an accounting-officer, the presumption is that he is to act as such, and, therefore, ministerially. But, where the reference is not to an accounting-officer, the presumption does not arise, and then the act of reference is to be construed by its terms, as it ■would be if made between individuals.

And the Postmaster-General is no more an accounting-officer of the Government than is the President of the United States. The Postmaster-General may understand especially well matters relating to the mail-service, and that would quality him to be an arbitrator, but it would not make him an accounting-officer. And the terms of the resolution are 11 to investigate and adjust the claims,” &c. And I think that these terms would be efficient to constitute a submission to arbitration between individuals.

And if the Postmaster-General acted judicially, then his find-, ings, which were to include the whole case before him, and its Jaw as well as its facts, were an award, and I think it was not revoked by the resolution of February 9, 1871. That does not purport to do any such thing; for by its terms it merely repeals the resolution 15th July, 1870, and thus revokes the powers of the Postmaster-General from the date of the repealing resolution. And that would no more revoke an award previously made by him than the repeal to-day of the statutes organizing this court would revoke all the judgments it had ever rendered. And if Congress has the power to revoke an award already made, it has not used it in the resolution of 1871, and the inference from that is that it did not mean to do it.

For the reasons stated, I think that under the resolution of loth July, 1870, the Postmaster-General acted judicially; that, therefore, his findings were an award; that that was not affected by the repealing resolution of 9th February, 1871, and is now a ground of action here under our general jurisdiction over awards.

My conclusion is that the demurrer to the defendants’ pleas should be sustained.

At the hearing of this case some stress was laid on the pleadings and conclusions from them. But we have no pleadings in this court, and, therefore, I think the rules of common-law pleadings cannot be used here to affect the rights of any party. It is true that our rules recognize pleas and demurrers, and, therefore, their use; but this is only a convenience to court and counsel in obtaining a concise statement of the case to be adjudged. And I think all that the pleas and demurrer in this case amounted to was, that the case was to be adjudged on the facts shown in the petition and pleas without taking evidence.

Bicitardson, J., concurred in the opinion read by the Chief-Justice.  