
    McKEE’S CASE.
    (Post, p.—;— Wallace R., p.—.)
    The United States ex parte.
    
      On the defendants’ motion for Mandamus.
    
    
      The United States assume all Revolutionary claims against Virginia allowed Toy that Slate before a specified day. Colonel Vigo has a claim audited and allowed, but not within the prescribed time. Congress pass a private act by which it is “ referred” to the court below “ to adjust- and settle the same,” pursuant to the “rules and regulations heretofore adopted by the United States in the settlement of like oases.” Judgment is rendered against the defendants. They appeal. The court beloio holds that, the claim being primarily against the State of Virginia and no right of appeal being given by the private act, the case comes within the precise words of the Supreme Court’s decision in Atocha’s Case, (17 Wall., 437, 9 C. Cls. R., 38.) The application for an appeal is refused. The defendants come into the Supreme Court and ask for a mandamus.
    I. Where a claim for which the United States are not primarily liable, arising out of its statutory obligations to the State of Yirginia, is referred to the Court of Claims by a private act, an appeal lies from a judgment rendered against the Government, though it be not given by the express terms of the act. The distinction between this case and Atocha’s (9 C. Cls. R., 38,17 Wall., 437) is that there a specific mode of payment was provided out of the Mexican indemnity fund, while here the judgment must be satisfied out of the funds of the United States.
    II. The Act June 25, 1868, (15 Stat. L., p. 75, § 1,) which gives the right of appeal to the Government “from all final judgments of the said Court of Claims adverse to the United States, whether the said judgments shall have been rendered by virtue of the general or special poioer or jurisdiction of said court,” is substantially re-enacted in the Revised Statutes, (§ 707,) and gives to the United States the right of appeal in all oases where the Court of Claims is required by any general or special law to take jurisdiction and act judicially.
    III. Semble, where Congress by a private act refer a claim to the Court of Claims, with “jurisdiction to adjust and settle the same,” the court to be governed, “ in making such adjustment and settlement,” “ by the rules and regulations heretofore adopted by the United States in like cases,” the court must be deemed to act j udicially, and an appeal will lie in favor of the Government from the adjustment and settlement.
    
      
      The Reporters’ statement of the ease :
    The following is the return made by the judges of the Court of Claims to the order of the Supreme Court requiring them to show cause why a mandamus should not issue:
    “ Pursuant to the order of the Supreme Court made the 19th day of April instant, requiring the judges of the Court of Claims to show cause why a writ of mandamus should not be issued to compel the Court of Claims to allow an appeal on behalf of the United States in the case of Archibald McKee and others, claimants, v. The United States, defendants, the undersigned respectfully show the following facts as the ground upon which such appeal was by them refused, to wit:
    “ I. That the cause of action in this case was not one for the payment of which the United States were primarily liable, but the indebtedness, if any, was that of the State of "Virginia, and this action was not brought under the statute establishing the general jurisdiction of the Court of Claims, but the matter was referred to the Court of Claims by a special act of Congress to ascertains particular fact to guide the Government in the exe- • cution of its statutory stipulations with the State of Virginia, and by such reference of the matter to the Court of Claims, no mode was provided for reviewing its action, as by reference to the following act of Congress, approved June 8,1872, under which such suit was brought, will more fully appear:
    “ ‘Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of the heirs and legal representatives of Col. Francis Vigo, deceased, late of Terre H aute, Ind., for money and supplies furnished the troops under command of Gen. George Bogers Clarke, in the year 1778, during the revolutionary war, be, and the same hereby is, referred, along with all the papers and official documents belonging thereto, to the Court of Claims, with full jurisdiction to adjust and settle the same; and in making such adjustment and settlement the said court shall be governed by the rules and regulations heretofore adopted by the United States in the settlement of like cases, giving proper consideration to official acts, if any have heretofore been had in connection with this claim, and without regard to the statutes of limitations.’
    
      “II. That tbe duties devolved upon tbe Court of Claims by tbe foregoing act of Congress were sucb as were incidental to tbe adjustment and settlement of tbe claim upon tbe rules and regulations prescribed by tbe act, and were of a nature that could not be tbe subject of judicial review.
    “And the undersigned annex to this return, as a part thereof, tbe petition of the claimant by wbicb such suit was brought and upon which it was determined in the Court of Claims, and the plea thereto and the proceedings and opinion of the court thereon.
    “And the foregoing is all the cause which the judges of tbe Court of Claims have to show why a mandamus should not issue.
    “O. D. DRAKE.
    “ED. G. LORING.
    “CHARLES C. NOTT.”
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for tbe motion:
    If the court below was authorized by the act of reference to enter judgment against the United States, the defendants are entitled to an appeal by virtue of tbe first section of tbe Act June 25,18C8, (15 Stat. L., 75.)
    By the Act Marchl, 1874, (1 Laws of United States, ed. 1815, p. 473,) the United States, for a consideration moving from tbe State of Yirginia., assumed, inter alia, this debt.' Subsequently several acts of limitations were passed, the one of most importance to this question being Act August 5, 1790, (1 Stat. L., 178, 179,) which provides that no “claim of any citizen be admitted as a charge against the United States in the account of any State, unless the same was allowed by such State before 24tti September, 1788.” As stated in the opinion of the court below, this claim failed to comply with this condition. “ It is therefore evident that without the private act (June 8, 1872) the claimants bad no right of action against the Government which could have been maintained as a matter of right in a court of law. Congress appears to have recognized this fact when taking measures to give the parties relief.” (Opinion of Court of Claims.)
    To quote the language of Justice Field, in distinguishing tbe 
      Meade Case from the Atocha Case, (17 Wall., 439,) “ the special act of Congress was passed to remove the restriction of the ” third section of the Act August 5,1790, and tenth section of the Act March 3,1863, (12 Stat. L., 765.)
    “ This claim was thus placed under the jurisdiction of the court equally as though ” these sections 11 were not in existence.” The present claim is not to be paid out of any fund which the United States holds as trustee or agent for another nation, as in the Atocha Oase, but is one for which the United States has acknowledged a liability (but for the limitations) for ninety years, this liability being to the citizen mediately through the State of Virginia. Nor is there any unbalanced account between the United States and Virginia, arising out of the negotiations of 1784, to which this payment to McKee may be charged by the United States. If it be considered by this court that the court below was authorized to enter a judgment which is to be paid out of appropriations for judgments of said court, then the United States is entitled to an appeal and a re-examination of the whole case, as in Meade v. The United States, (9 Wall., 691.)
    Another view of the Act June 8, 1872, is that Congress did not refer the claim to the court below that it might enter judgment, but that it might adjust and settle the claim, reserving to itself the right to revise its decision, and giving to the court over this case only that jurisdiction which it had exercised under the Act February 24, 1855.
    If this view be correct, the court below has transcended its power, and it is the province of this court to set aside said judgment. In order to do this, the record must be brought before the court either upon appeal or by certiorari.
    
    
      Mr. T7. Penn Clarice in opposition to the motion :
    The facts bring this case within the principle laid down in the case of the United States ex rel. The Attorney-General v. The1 Court of Claims, (17 Wall., 439,) known as the Atocha Case. That case was entertained by the Court of Claims under a private act, which reads as follows:
    “AN ACT for tlie relief of Alexander J. Atocha.
    
      “ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Court of Claims be, and tlie said court is hereby, directed to examine into the claims of Alexander J. Atocha against the Government of Mexico for losses sustained by him by reason of his expulsion from the republic in eighteen hundred and forty-five; and if they shall be of opinion that the said claim was a just one against Mexico when the treaty of eighteen hundred and forty-eight was ratified, and was embraced by said treaty, they shall then fix and determine the amount of the same, and that, the loss or damage so sustained being adjudicated aud determined by said court, the same shall be paid to the said Alexander J. Atocha out of any money in the Treasury nototherwise appropriated: Provided, however, Thattheamount to be paid shall in no event exceed the balance of the three and a quarter millions of dollars provided by the fifteenth article of the treaty of Guadalupe Hidalgo for the .payment of claims of citizens of the United States against the Government of Mexico which still remains unapplied to that object.
    
      “ Approved February 14, I860.”
    And this court held that the United States was not entitled to an appeal on substantially two grounds: 1. That the United States was not primarily liable, and therefore it was not properly a case against the United States. 2. That the private act did not provide for an appeal from the decision of the Court of Claims. It is ■ proper to'say that I cite this decision from recollection and without the volume before me, and therefore only claim to give it substantially. The whole case is thus brought clearly within the decision in the Atocha Case, to which 1 have above referred.
    It may be claimed, however, that the United States is entitled to an appeal in the case of McKee, under the first section of the Act of Jane, 1868, entitled “An act to provide for appeals from the Court of Claims, and for other purposes,” which provides for appeals from all the final judgments of the said Court of Claims adverse to,the United States, whether such judgments shall have been rendered by virtue of the general or any special power or jurisdiction of said court. To this claim I reply, that this section, so far as it relates to appeals from judgments rendered in pursuance of any special power or jurisdiction of said court, has been repealed. This is the only act under which an appeal in the McKee case can be claimed, and the repeal of so much of tbe section as gives the' Government such right from judgments rendered adverse to it, when rendered under a special power or jurisdiction, will be clear from an examination of section 707, page 132, and section 5596, page 1091, of the Kevised Statutes of the United States.'
    Section 707 provides as follows: “An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said court, as provided in section 1089.” The following section requires appeals to be taken within ninety days after the judgment is rendered, under such regulations as this court may direct, and these are the only provisions the Kevised Statutes contain regulating appeals from the Court of Claims. It will be seen upon a comparison of section 707 with the first section of the Act June 25, 1868, that the former is substantially taken from the latter, and this is apparent from the marginal reference to the latter statute. Section 707, as it now stands, does not give the right of appeal to either party from judgments rendered by virtue of any “ special power or jurisdiction,” and must be construed as conferring the right of appeal only in cases where judgments have been rendered under the general jurisdiction conferred upon the Court of Claims. (Kev. Stat., 195.) The omission of the clause giving such right in cases arising under special power or authority makes it clear that it was intended to take away from parties that right.
    Section 5596, page 1091, provides that “ all acts of Congress passed prior to the first day of December, 1873, any portion of which is embraced in any section of said [this] revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof f all parts of such acts not contained in such revision having been repealed or superseded by subsequent acts, or not being general or permanent in their nature. Then follows a proviso, the last clause of which only affects the question now before the court, and which reads as follows: “And all acts of Congress passed prior to the said last-named day, [i. e., the first day of December, 1873,] no part of which are embraced in said revision, shall not be affected or changed by its enactments.” Now, a portion of the Act June 25, 1868, being embraced in. said revision, the effect of section 5596 is to repeal such portions of that act as are omitted from the said revision; and hence I contend that so much of that act as allowed the Government the right of appeal from all final judgments adverse to it, rendered by the Court of Claims by virtue of any special power or jurisdiction, has been repealed. The Court of Claims had no jurisdiction of the McKee Case under the act by which it was organized, and entertained that jurisdiction solely by virtue of the special statute of June 8, 1872. In a brief filed in this case, which is entitled “Alexander McKee et al. v. The United States” — a case not yet in this court — it is claimed that the Act June 8,1872, “ did not refer the claim to the Court of Claims that it might enter judgment, but that it might adjust and settle the claim, reserving to Congress the right to revise its decision,” &c. To this it is sufficient to say that the case of McKee v. The United States is not now in this court, and this court will not assume to review a judgment not legally before it; and that if Congress had intended to revise the adjustment and settlement which it authorized the Court of Claims to make, it would have used apt words to convey that intention. The power to adjust and settle the claim was conferred upon the court; and Congress doubtless intended that it should adjust and settle it in the manner in which it adjusts and settles all cases which come before it, by the rendition of an order, decree, or judgment showing the finding or conclusion of the court upon the law and facts submitted for ils consideration. It is only in this way that any corrt can settle and adjust any case.
   Mr. Chief-Justice Waite

delivered the opinion of the court:

On the 8th of June, 1872, Congress passed the following act:

“AN ACT referring the claim of the heirs and legal representatives of Colonel Francis Yigo, deceased, to the Court of Claims for adjustment.

aBe it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That the claim ofthe heirs and legal representatives of Colonel Francis Yigo, deceased, late of Terre Haute, Indiana, for money and supplies furnished the troops under the command of General George Kogers Clarke, in the year seventeen hundred and seventy-eight, during the revolutionary war, be, and the same is hereby, referred, along with all the papers and official documents belonging thereto, to the Court of Claims, with full jurisdiction to adjust and settle the same; and in making such adjustment and settlement, the said court shall be governed by the rules and regulations heretofore adopted by the United 'States in the settlement of like cases, giving consideration to official acts, if any have heretofore been had in connection with this claim, and without regard to the statutes of limitations.”

On the 31st October, 1873, the heirs of Colonel Vigo filed in the Court of Claims their petition against the United States, under the authority of this act, and with their petition filed “ the papers and official documents belonging” to the claim. Judgment was rendered in the action on the 18th January, 1875, against the United States for $49,898.60. From this judgment the United States asked the Court of Claims for the allowance of an appeal to this court, which was refused. The present application is for a mandamus from this court directing the judges of that to allow the appeal.

The Court of Claims, by the terms of the act under which it is organized, has jurisdiction, among other things, to hear and determine all claims which may be referred to it by either House of Congress. (10 Stat. L., 612; Bev. Stat., § 1059.) All petitions and bills praying or providing for the satisfaction of private claims founded upon any law of Congress, or upon any contract expressed or implied with the Government, are required to be transmitted, with all the accompanying documents, to the Court of Claims by the Secretary of the Senate or the Clerk of the House of Representatives, unless otherwise ordered by a resolution of the. House in which they are introduced. (12 Stat. L., 765; Bev. Stat., § 1060.) In all cases of final judgments by the Court of Claims, the sum due thereby is to be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of the judgment. {12 Stat. L., § 766; Bev. Stat., § 1089.) By the Act June 25,1868, (15 Stat. L., 75,) in force when the proceedings in .the Court of Claims were commenced in this case, it was provided that an appeal .should be allowed on behalf of the United States ufrom all final judgments of the said Court of Claims adverse to the United States, whether the said judgment shall have been rendered by virtue of the general or special power or jurisdiction of said court.” .This act is substantially re-enacted in section 707 of the Revised Statutes, and, as we think, gives to the United States the right of appeal from the adverse judgment of the Court of Claims in all cases where that court is required by any general or special law to take jurisdiction of a claim made'against the United States and act judicially in its determination.

Upon an examination of the act of Congress under which the court took jurisdiction in this case, we find that the claim, “ along with all the papers and official documents belonging thereto,” was referred to the court “with full jurisdiction to adjust and settle the same.” It i a fact of some significance that the word “referred” is here employed, inasmuch as that is the word used in the act defining the general jurisdiction of the court in respect to claims transmitted by either House of Congress.

It also appears that the bar of the statute of limitations applicable to that court is removed in this case, and that iu some respects the rules of evidence are relaxed. All this would have been unnecessary if the court was not to be governed by the general laws regulating its practice and jurisdiction, except so far as they might be modified to meet the necessities of this special case. So too we find that no provision is made for the payment of any judgment that might be rendered or for any report from the court to Congress, although it must have been expected that a judgment against the United States was at least possible. Such an omission would hardly have occurred if it had not been supposed that provision for payment had already been made in the general law regulating the payment of all judgments of that court.

From all this we think it manifest that Congress intended to refer this claim to the court for judicial determination and to confer special’power and jurisdiction for that purpose. Such being the case, the right of appeal necessarily follows.

Atocha's Case, (17 Wall., 437, 9 C. Cls. R., 38,) is materially different from this. In that, the claim of Atocha was against Mexico, and the obligation of the United States for its payment grew out of the Treaty of Cuadalnye Hidalgo. By that treaty the United States exonerated Mexico from all demands of their citizens which had previously arisen and had not been decided against that government, and engaged to satisfy them to an amount not exceeding $3,250,000. They also stipulated for the establishment of a board of commissioners to ascertain the validity and amount of the claims, and provided that its awards should be final. On the 14th of February, 1865, Congress passed a special act for the relief óf Atocha, and in. it directed the Court of Claims to examine into his claim and, if found to be just and within the treaty, to fix and determine its amount. The act also directed that the amount adjudicated and determined by that court should be paid out of any money in the Treasury not otherwise appropriated, but the amount to be paid was in no event to exceed the balance of the moneys provided in the treaty for the payment of such claims which re-rnaiued unapplied to that object. The Court of Claims was of the opinion “ that it was the intention of Congress that the court should proceed, not as a court in trying an action against the United States, bid as a commission similar to that provided by the treatyP And this court construed the act as referring the matter u to the court to ascertain a particular fact to guide the Government in the execution of its treaty stipulations,” and held that uas no mode was provided for a review of its action, it must be talcen and regarded as finalP

We think that the return of the judges of the Court of Claims to the alternative writ in this case is not sufficient, and a peremptory mandamus is ordered.  