
    CHARLES H. COTTON v. THE UNITED STATES.
    [No. 17910.
    Decided April 9, 1894]
    
      On the Proofs.
    
    The Secretary of War transmits to the Treasury Department an account for Army transportation amounting to $10,886. The Second Comp - troller disallows a part and certifies a balance for $5,197. The Secretary makes a requisition for that amount, which is paid to the claimant. The claimant renews his demand in both Departments for the disallowed part, and the Secretary of War refers the claim under Revised Statutes, § 1063.
    1.The head of an Executive Department cannot transmit a claim to this court under Revised Statutes, § 1063, unless it be one over which he then has jurisdiction and which has not already been finally disposed of.
    II.When the Secretary of War makes are quisition fona balance certified by the Second Comptroller, and the amount so certified is paid to the claimant, it is a final settlement so far as the War Department is concerned.
    III. The final decision of a public officer is binding upon his successor, and the right of an incumbent to review his predecessor’s decision extends only to mistakes arising from errors of calculation and to rejected claims concerning which material evidence has been discovered.
    IV. Where a portion of an account is rejected and a balance certified for the remainder, and both the accounting officers and the claimant treat the ruling as final, the claim for the unpaid balance can not be transmitted to this court under Revised Statutes, § 1063.
    V.The refusal of the Treasury Department to reopen a claim is a final disposition of it.
    VI.In the Treasury Department the Comptroller alone makes decisions, and he only can reopen a claim. An Auditor is subordinate to the Comptroller, and his duty is merely to state accounts and transmit them to the Comptroller for decision.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. April 16,1884, claimant entered into a contract, the only part of which, material in this case, is set out in his petition.
    II. In January and February, 1885, said contractor, Charles H. Cotton, at the request of the chief quartermaster of the Department of the Missouri, transported 433,194 pounds of public stores from Caldwell, Kans., to Camp Bussell, Ind. T., a distance of 98 miles, and 92,280 pounds of public stores, in five shipments, from Fort Beno to Camp Bussell, Ind.T., a distance of 60 miles.
    All the requisitions and bills of lading stated that the shipments were made agreeably to the contract, and were to be paid for at the contract rates. The two expeditious shipments arrived within the stipulated time, and most of the others with two or three days to spare, but one shipment from Caldwell was seven days late, and one from Fort Beno five days late. No penalties were imposed.
    After there had been three shipments from Caldwell and three from Fort Beno the following letters were written and reports made:
    “HEADQUARTERS DEPARTMENT OP THE MISSOURI,
    “ Office of the Chief Quartermaster,
    
      “Fort Leavenworth, Kansas, Feb’y 14th, 1885.
    
    “ The Assistant Adjutant-General,
    
      “Headers Dept, of the Missouri:
    
    “Sir: The transportation contractor has requested that Government stores now loaded at Caldwell for Camp Bussell, I. T., be billed via Fort Beno, on the -plea of impracticability of the direct route. I have instructed my agent at Caldwell to bill the stores by the direct route, as, if they are transported by a longer route, the distance by the shortest practicable route can be settled hereafter.
    “ In order to protect the interests of the Government, I have the honor to request that the commanding officer at Caldwell be instructed to at once investigate the practicability of the direct route in case the trains of the contractor go some other way, and report to these headquarters whether the former is practicable or not for loaded wagons, and why.
    ' “ My agent, Mr. C. F. Sommer, at Caldwell will furnish information regarding the route taken by the trains when requested to do so.
    “Yery respectfully, your obedient servant,
    “James Gilliss,
    
      “Major and Quartermaster, U. 8. A.,
    
      “Chief Quarter master.”
    
    “Headquarters Dept, of the Missouri, uFort Leavenworth, Kansas, February 16th, 1885.
    
    “ Bespectfully referred to the commanding officer, camp near Caldwell, Kans., who is directed by the commanding general to investigate tbe practicability of tbe direct route from bis camp to FortBeno, I. T., and submit a report tbereon with tbe least possible delay, in accordance with tbe request of tbe chief quartermaster of tbe department.
    “J. P. Martin, uAssistant Adjutant-General.
    
    “Bespectfully returned; required report enclosed.
    “Francis Moore,
    “ Gaft. 9th Gav. Corn’d.
    
    “Headquarters Dept, oe the Missouri,
    
      “Fort Leavemoorth, Kansas, February 21st,-1885.
    
    “Bespectfully returned to tbe chief quartermaster of the department.
    “ By command of Brig. Gen’l Augur:
    “G-. B. Bussell, “Captcdn 9th Infantry,
    
    
      “Aot’g Assistant Adjutant-General
    
    
      “ QUARTERMASTER’S DEPARTMENT, U. S. A., “Oaldwell, Kansas, Feb’y 17, 1885.
    
    “Chiee Quartermaster Dept, oe the Mo.,
    
      “Fort Leavenworth, Ks.: •
    “ Sir : Beplying to your communication of 14th inst. regarding tbe nearest practicable road to Camp Bussell, I. T’y, I wish to state as follows:
    “ Tbe train, consisting of 26 horse and mule wagons, which left here Jan’y 27th, loaded with forage for Bussell, took tbe direct road, said to be about 98 miles. They have been gone 22 days to-day and not a single team has yet returned. Tbe freighters expected to make the round trip in 12 days (tbe usual time used in going, to Fort Beño and return), but took along forage for their animals for 15 days. Beports come up that although tbe ground'most of the time has been frozen and able to bold up tbe.wagons, it was impossible to travel more than 6 or 8 miles per day on account of the many gulches, ravines, and crossings of creeks, a good many of which were so steep that the wagons had to be let down by ropes and unloaded and taken apart before they could be brought up on the other side; that the freighters had to haul their loads across the Cimarron Biver on a rough sleigh by hand, and experienced so many hardships, breakages to wagons, etc., that no inducements would make them take another trip over this road.
    “ The 96 wagons loaded out for Bussell, and which started from here la,st week, took different routes. Some of the wagons went east along the State line to strike the Arkansas City road that runs south through Ponca and other agencies, which they intend to follow to the Cimarron Biver and then go along that river bottom for about 35 miles west to Russell. Others went diagonally across the Territory and through the- Nez Perce Reservation to take the same road south, while a number went down the Ft. Reno road to the Cimarron River, intending to go east along the river bottom for about 35 or 40 miles to Camp Russell.
    “ I think that the nearest practicable road would be the Ft. Reno road to Baker’s stage station (Bullfoot Ranche), and from there along the divide between Ephriam (Skeleton) Creek and the Cimarron River, and believe that a road could be laid out there that would be high and dry and not make the distance to Russell to exceed 110 miles. The main objection to the direct, so-called, road to Russell is that there is not a single ranch or feeding place on the road, and that, consequently, the teams have got to carry corn and hay for'the round trip, and thus can haul but very few stores, and are compelled to use of these when by storms, high water, or accident they are prevented from making the trip in the time expected. I understand .that the 26 wagons loaded out Jan’y 27 ran out of supplies long- before they reached Russell, and used up a good deal of the forage shipped by them.
    “ The contractor has been compelled to hire all teams sent to Russell this year by the day and allow freighters whatever they see fit to ask, making every 100 lbs. hauled down there cost him about $3.00, while he can easily get teams for Ft. Reno at $1.25 per 100 lbs.
    “Very respectfully, your obedient servant,
    “O. T, Sommer,
    
      uAgent Q. M. Dept.”
    
    
      u winter Camp, Caldwell, Kansas,
    
      “February 19,1885.
    
    “To the Assistant Adjutant-General,
    
      “Department of the Missouri, Fort Leavenworth, Ks.:
    
    “SiR: In pursuance to your endorsement of the 16th inst., on communication of the chief quartermaster Dept, of the Mo., enclosed, I have the honor to report that I am familiar with the direct route from there to Camp Russell, I. T., having recently marched a command over it, a,nd in my opinion the route is a practicable one for loaded wagons, although by no means good. It is very little traveled; in fact, it has been made principally by the contract freighters and Government wagons. There are several bad crossings on the road which could be greatly improved by a few days’ work on them. From what I can learn of the road to Fort Reno it is better, but from Ft. Reno to Oami> Russell, something near 60 miles, the road is fully as bad if not worse than the direct route from here to Camp Russell, about 90 miles. I look upon that route us out of tbe question, as it would make tbe distance traveled from Caldwell to Camp Bussell via Ft. Beno as about 170 miles, or nearly double tbe distance on tbe direct route. There is no doubt but that during tbe past two months tbe direct route to Camp Bussell has been very bad, owing principally to tbe icy and slippery condition of tbe crossings, but I believe in ordinary weather the route to be a fair one. There are no stations or ranches where bay or other supplies for freighters can be procured en route, which is no doubt a great drawback during the winter, while the road to Ft. Beno, being long established, has stations every few miles where supplies can be procured, making it no doubt much easier to get freighters than by a route so recently traveled. In my opinion supplies should be sent by the direct route, and that the freighters should during the winter months be allowed a moderate increase over that paid on a well-established route like that to Ft. Beno.
    “Yery respectfully, your ob’t servant,
    “Francis Moore, u Gapt. 9th Cavalry, Com! dP
    
    “Fort Beno, I. T., March 12th, 1885.
    
    
      11 C. H. Cotton, Esq.,
    “Caldwell, Kansas:
    
    “Dear Sir : Your letter of the 6th instant, requesting from me a statement of my opinion of the condition of the road from Ft. Beno to Camp Bussell, I. T., at hand.
    “ In reply, would state that practically there is no road from this post to Camp Bussell, for the word road implies the improvements of civilization, such as the bridging of streams, etc. There is, however, a trail, but without improvements or bridges, a portion of which was originated and used at various times by the U. S. forces in their movements after intruders. It was my fortune to leave the post with my company, under the command of Major Dewees, in January last, for Oklahoma. The season was very unfavorable — ground frozen and covered with ice and snow. The command left post on January 18th and arrived at Camp Bussell five days later; the distance traversed about sixty miles. The condition of the trail for the transportation of heavy wagons was bad. The banks of the numerous streams that we were obliged to cross en route were almost impassable, our transportation requiring the assistance of the command to help them in crossing, our teams being let down and assisted up the precipitous banks by ropes in the hands of the men. Without that assistance the movement of our train would have been very much delayed.
    “I am, sir, very respectfully, yours,
    “ C. A. Bradley,
    
      uGapt. 20th Infantry P
    
    
      “ Respectfully forwarded to Maj. James Gilliss, Ob. Qr. Mr., Dept. Mo., referring to my former letter and claim on account of slate of trail to Camp Russell from Ft. Reno, this letter being a corroboration of my statements.
    “ Chas. H. Cotton,
    “ 3-17-’85.” “ GonVr Route No. IP
    
    
      ■ ■ “Office Chief Quartermaster,
    “Department of the Missouri, uFort Leavenworth, Kas., Mch. 18,1885.
    
    “Respectfully forwarded to tbe Quartermaster-General U. S. A., in connection with tbe previous papers in tbe case forwarded from tbis office March 11, 1885.
    “ James Gilliss,
    
      “Major a/nd Quartermaster, U. 8. A.,
    
    
      “Chief QuartermasterP
    
    
      “ Caldwell, Kans., Mch. 5, 1885. “Col. Edward Hatch, Caldwell, Kas.:
    
    “ Sir : I have tbe honor to enclose herewith for your perusal a letter addressed to Major James Gilliss, Chief Qr. Mr. Dep’t Mo., requesting that you will have tbe kindness- to forward same with such endorsement as may seem proper to you.
    “ Yery respectfully, your ob’d’t servant,
    “Chas. H. Cotton,
    “ Contractor Route Nfo. IP
    
    “ Hdqrs. Troops in the Field,
    “ Caldwell, Kansas, March 6th, 1885.
    
    “Respectfully forwarded.
    “Tbe statement of shipment made by Charles H.' Cotton, contractor of Route No. 1, I believe correct.. When taking . tbis contract tbe route to Camp Russell was not an established route, and tbe service rendered was not contemplated when tbe contract was made by either party to tbe contract.
    “Assuming that tbis is true, it seems there is a plausible reason that be should be reimbursed for tbe expenditure caused by tbe emergency arising tbis winter for an unusual transportation of supplies. Incidental to tbis emergency came such a demand for teams that extreme rates were demanded. Tbe contractor is entitled to great credit for tbe prompt and energetic manner in which be has met tbe demand — not sparing expense or availing himself of any technicality attaching to tbe conditions of tbe contract. It seems reasonable, if tbe route was not suggested when tbe contract was signed, that be should be paid tbe actual cost of transportation. Should that be tbe construction placed upon the payment of supplies carried, I most cheerfully endorse bis request.
    “Edward Hatch,
    “ Colonel 9th Cav’y, ConVWgP
    
    
      “ Office Chief Quartermaster,
    “Department oe the Missouri,
    
      uFort Leavenworth, J£as., Meh. 11,1885.
    
    Respectfully forwarded to the Quartermaster-General US. A., for decision.
    “ Camp Eussell is a temporary camp, located last summer on the south bank of the Cimarron River, about 93 miles south of Caldwell, Kansas, and 65 miles northeast of Fort Beño, I. T. The records of this office show that the following shipments were made to it under Mr. Cotton’s contract during January and February, 1885, viz:
    “From Caldwell, Kans.—
    “ Jan’y 9, on B. L 83,107,173 lbs.
    “ 20, “ “ 89, 27,770 “
    “ 27, “ “• 91, 64,495 “
    Feb’y 14, “ “ 106,218,628 “
    Feb’y 17, on B.L. 108, 8,594 lbs.
    “ 21, “ “■ 110, 6,534 “
    “ From Fort Beño, I. T.—
    Jan’y 12, on B. L. 10, 21,670 lbs.
    “ 22, « “ 11, 22,300 “
    Feb’y 9, “ “ 13, 31,000 “
    “ 20, “ “ 15; 11,510 “
    “ 22, « “ 16, 5,800 “
    “ These shipments were for the supply of troops under the command of Colonel Hatch sent to eject invaders from the Oklahoma country.
    “ Bequisitions were made upon the contractor for this service under Article I of his contract, Camp Bussell being within “ 150 miles from the line of the route or from either of the points named” in the contract (Caldwell and Fort Beno). Shipments had been made over this route on July 15th, August 21st, Sept. 19th, and Nov. 11, which were all delivered at destination within the time allowed by the contract for the trip except the shipment of August 21st, which was delayed en route 2 days by heavy rains and high water in streams, and were paid for at contract rates; but the ivinter season made the route almost impassable. Loaded teams can travel almost anywhere in the Indian Territory during certain months, while in others the same journeys might be impracticable. Besides the natural difficulties of the country there are no settlers on this route from whom forage could be obtained, forage stations being absolutely n ecessary in winter. The enclosed detailed reports from the commanding officer and my agent at Caldwell set forth some of the obstacles met with during the winter.
    “However, it appears to me that the question of payment for the service at other than contract rates depends upon the interpretation of the words “practicableroute,” as used in Arti-ele I of the contract. The papers herewith show that there was no established route between Caldwell and Camp Russell; that the road had been but little traveled, and was “ made principally by the contract freighters and Government wagons.” The same facts exist between Fort Reno and Camp Russell. If “ practicable route ” means an established,'usually traveled route and not a summer road, or one that is passable only in good weather, then the routes to Camp Russell are not practicable routes, and the contractor could not have been held to transport stores over them under his contract, and it is only equity that he should be paid according to the services rendered independent of the terms of the contract. As to the rates asked for by the contractor, I know for myself that he was compelled to hire teams by the day at high rates in order to meet the demands made upon him by the Government, and I am satisfied that though high they were as low as could have been obtained by the Government under the circumstances.
    “I concur in the preceding endorsement of Colonel Hatch.
    “ James Gilliss,
    
      “Major and Quartermaster, U. 8. A.,
    
    “ Chief Quartermaster.”
    “ Quarterjmastee-General’s Oeeice,
    “Washington, D. G., March 25, 1885.
    
    “Respectfully returned to Maj. James Gilliss, chief q’r m’r Dep’t of the Mo., Fort Leavenworth, Kans.
    “The views expressed in the foregoing indorsements are approved by the Quartermaster-General.
    “The shipments from Caldwell and Fort Reno to Camp Russell in January and February, 1885, indicated in the 2d indorsement, were not, in the opinion of the Quartermaster-General, made by a practicable'route as contemplated in Article I of Mr. Cotton’s contract, and therefore it will be proper to state an account in his favor fixing a quantum meruit for his services irrespective of the contract in the case of these particular shipments, to be forwarded for final adjudication and settlement by the accounting officers of the Treasury, these papers to accompany the account.
    “ S. B. Holabird,
    “ Quartermaster-General U. 8. A.”
    “ Oeeice Chiee Quartermaster, “Department of the Missouri,
    “ JPort Leavenworth Kas., Apl. 23,1885.
    
    “Respectfully returned to the Quartermaster-General U. S. A., with receipted account in favor of Mr. Cotton for $10,886.26.
    “I have allowed the rates charged by Mr. Cotton, as I am satisfied from personal knowledge that they are as low as could liave been obtained by tbe Government for tbe service required.
    “James Gilliss,
    ' “ Major and Quartermaster, U. 8. A.,
    
    
      “ Chief Quartermaster.”
    * III. Thereafter tbe following account was made, in accordance with tbe instructions of tbe Quartermaster-General:
    
      The United States to Chas. S. Cotton, Dr.
    
    Fort Leavenworth, Kas., Mar oh 28, 1885.
    
    Dolls. Cts.
    For-the transportation of 433,194 pounds public stores from Caldwell, Kas., to Camp Russell, I. T., 98 miles, at $2.30 per 100 pounds for the whole distance, per hills of lading as follows:
    Pounds.
    B. L. No. 83, dated January 9, 1885, for. 107,173
    “ 89, “ “ 20, " “ 27,770
    “ 91, “ “ 27, “ “ 64,495'
    “ 106, “ February 14, “ “ 218,628
    “ 108, “ “ 17, “ “ 8,594
    “ 110,” “ “ 19, “ “ 6,534
    - $9,963.46
    433,194
    For the transportation of 92,280 pounds public stores from Fort Reno to Camp Russell, I. T., 60 miles, at $1.00 per 100 lbs., for the whole distance, per bills of lading as follows:
    Pounds.
    B. L. No. 10, dated January 12, 1885, for. 21,670
    “■ 11, “ “ 22, “ “ 22,300
    “ 13, " February 9, “ “.: 31,000
    “ 15, “ “ .20, “ “ 11,510
    
      “ 16, “ “ 22, “ “ 15,800
    - 922.80
    92,280 -
    $10,886.26
    “Account made in accordance with tbe following instructions of tbe Quartermaster-General U,' S. A. in endorsement of March 25,1885, upon claim of Mr. Cotton dated March 5, 1885, as follows:
    “Tbe shipments from Caldwell and Fort Reno to Camp Russell in January and February, 1885, indicated in tbe 2d endorsement, were not, in tbe opinion of tbe Quartermaster-Gen eral, made by a practicable route as contemplated in Article i of Mr. Cotton’s contract, and therefore it will be proper to state an account in bis favor fixing a quantum meruit for bis services, irrespective of tbe contract in tbe case of these particular shipments, to be forwarded for final adjudication and settlement by tbe accounting officers of tbe Treasury.”
    
      “I certify that tbe aboye account is correct and just; that tbe services were rendered as stated; that they were necessary for tbe public service, and are borne on my report of persons, &c., for tbe month of March, 1885.
    “JAMES GlLLISS,
    
      uMajor and Quartermaster, TJ. 8. A.
    
    “ Received at-r, tbe-day of-, 18 — , of- -, quartermaster-, United States Army, tbe sum of ten thousand eight hundred and eighty-six (10,886) dollars and twenty-six (26) cents in full of the above account.
    “Ohas. H. Cotton.”
    Said account, with the accompanying papers, was transmitted to the Treasury Department with the following- communication :
    “WAR DEPARTMENT,
    “ Quartermaster-General’s Oeeioe,
    “ Washington, D. O., May d, 1885. “The Third Auditor oe the Treasury:
    “ Sir : Herewith is transmitted a certified account (in duplicate), made, by Major James Gilliss, quartermaster, U. S. A., Fort Leavenworth, Kansas, and forwarded by that officer on the 23d ultimo, in favor of Charles H. Cotton, contractor, for transportation of freight from Caldwell and Fort Reno to Camp Russell, 1. T., in January and February, 1885, amounting to ten thousand eight hundred and eighty-six dollars and twenty-six cents ($10,886.26).
    “ The account is transmitted for the action of the accounting-officers of the Treasury, attention being invited to accompanying correspondence as to the rates charged. The amount which may be found due is considered properly payable from appropriations for transportation of the Army for the fiscal year ending June 30, 1885.
    “Major Gilliss has been advised of this action. •
    “Very respectfully, your obedient servant,
    “ S. B. Holabird,
    
      Quairtermaster- General U. 8. Army.”
    
    IV. The Third Auditor examined said account, and certified the same, with all the vouchers andpapers, to the Second Comptroller for his decision thereon, as follows:
    “Treasury Department,
    “Thtrd Auditor’s Oeeioe,
    “ June 15,1885.
    
    “I certify that there is due from the United States, to Charles H. Cotton for transportation services rendered the Quartermaster’s Department in January and February, 1885, tbe sum of $4,990.93, appropriation Army transportation, 1885, payable to claimant, Fort Beno, Indian Territory, as appears from the statements and vouchers herewith transmitted, for the decision of the Second Comptroller of the Treasury thereon. * <
    
    “ JNO. S. WILLIAMS,
    “ Auditor.
    
    “To Hon. I. H. Maynard,
    “ Second Comptroller of the Treasury.”
    
    The Second Comptroller added to the sum so certified the further sum of $206.19, as two of the shipments were “expeditious,” and to be'paid for at the higher rates named in the contract. He then made the following certificate thereon:
    “ Second Comptroller’s Oeeice.
    “I admit and certify a balance of $5,197.12 this 18th day of June, 1885. "
    “I. H. Maynard,
    
      “Second Comptroller.”
    
    This certificate having been transmitted to the War Department, the Secretary of War, Mr. Endicott then being the Secretary, made the following requisition:
    “War Department.
    “ To the Secretary op the Treasury :
    “ Sir : Please to cause a warrant for $5,197.12 to be issued in favor of Charles H. Cotton, Fort Beno, Indian Territory, due on settlement, as per certificate of Second Comptroller, No. 6852, to be charged to the undermentioned appropriations.
    “ Given under my hand this 24th day of June, 1885. “$5,197.12.
    “[seal.] “John Tweedale,
    
      “Chief Cleric”
    
    “ (In absence of the Secretary of War.) ”
    This requisition having been countersigned by the Second Comptroller and recorded by the Third Auditor, a settlement warrant was made and a draft- issued, as follows:
    • “Treasury Department. “To the Treasurer of the United States, greeting:
    
    “ Pay to Charles H. Cotton, Fort Beno, Indian Ty., or order, to be charged to the appropriations named in the margin, $5,197.12, due on settlement, pursuant to a requisition (No. 3290) of. the Secretary of War, dated June 24, 1885, countersigned by tbe Second Comptroller of the Treasury and registered by the-Auditor. And for so doing this shall be your warrant.
    “ Given under my hand and the seal of the Treasury Department this 25 day of June, in the year of our Lord 1885, and of Independence the hundred and ninth.
    “ [SEAL.]
    “ $5,197.12.
    “ Coon,
    
      “Assistant Secretary.
    
    
      “ Countersigned:
    “M. J. Duehabe,
    
      “First Comptroller. “By J. R. Gabbison, , uí)eputy First Comptroller.
    
    “Registered:
    “W. P. Titoomb,
    o “Ass't Register.
    
    “Appropriations, 1885. Transportation of the Army and its supplies.-. $5,197.12
    “Office of the Tbeasubeb
    “of the United States.
    “Received for this warrant the following draft:
    “No. 43013 on Treasurer.
    “ Mailed G-26. Charles H. Cotton.”
    Said draft was duly received, indorsed by the claimant, and paid.
    Y. Thereafter, during the term of office of I. H. Maynard, as Comptroller, an application for reconsideration was made in the Treasury Department by the claimant, and the following is the action of the accounting officers thereon:
    “ In the matter of the application for reconsideration in the case of Charles H. Cotton.
    “ Teeastjey Depabtment,
    “ Thibd Auditob’s Office,
    
      “January 29,1886.
    
    “Hon. I. H. Maynabd, Second Comptroller:
    
    “ Sib : I return the application for reconsideration and transmit the papers in the case.
    “No new evidence is offered, and it is not contended that there was any ‘mistake of fact.’ It is simply argued that the conclusions of the accounting officers were erroneous. Hence I do not perceive that any case for the opening1 of a settled matter is made out within tbe rules indicated by tbe First and Second Comptroller and tbe Commissioner of Customs in tbe circular issued by tbe Secretary of tbe Treasury July 28,1885.
    “And if tbe case be reonsidered I see no reason for any change in tbe decision.
    “Each of tbe eleven requisitions for transportation to Camp ■Russell notified Mr. Cotton; that tbe service was called for to be rendered ‘ agreeably to your [bis] contract with tbe United States, dated the 16th day of April, 1884.’ This was emphatic notice that tbe compensation was to be at tbe rates of tbe contract.
    “In tbe face of this reiterated notice it would be idle in him to assert that be did not understand that tbe transportation was called for as service under tbe contract, but supposed that be would be at liberty to charge whatsoever rates be might deem proper. And, if it were possible to believe that be did in fact entertain so extraordinary a supposition, it could only be said that it was utterly without pretense of foundation and outside tbe bounds of reason; and that tbe Government knew nothing of it, and can not be prejudiced by it.
    “When be received tbe requisitions two courses lay open to him: If be was satisfied that tbe service was not such as tbe contract obliged him to render be could have declined it, at his own peril of course, whether be would make himself liable in damages for breach of contract. But if be concluded to render it, be was bound to know that be could do it only upon tbe terms upon which it was asked — tbe terms and conditions of tbe contract.
    “ In respect to tbe other matters discussed in tbe application, I do not find it necessary to add to what was said in my decision of June 15,1885.
    “ I see no reason for opening tbe case, and no ground upon which any different conclusion could be arrived at.
    “ If Mr. Cotton believes that he is aggrieved by the decision of tbe accounting officers, be is not without remedy, as it is open to him to reach a judicial determination through tbe Court of Claims.
    “JNO. S. WILLIAMS,
    
      “Auditor.”
    
    “ Treasury Department,
    “Second Comptroller’s Oppice,
    
      “February 11th, 1886.
    
    “Respectfully returned to tbe Third Auditor, in whose opinion of tbe 29th of January ultimo I concur.
    “ Tbe claimant’s application for a reconsideration of tbe case and for a further allowance is therefore denied,
    “Richd. B. McMahon,
    
      “Aetg. Qomftr oiler.”
    
    
      The circular referred to by tbe Auditor in tlie above letter to the Comptroller of January 29, 1886. is as follows:
    “ Treasury Department,
    “Oeeice oe the Secretary,
    “ Washington, D. 0., July 28,1885.
    
    “ Pursuant to the provisions of section 191 of the Eevised Statutes, which declares that the balances which may from time to time be stated by the Auditor and certified to the heads of Departments by the Commissioner of Customs,-or the Comptroller of the Treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of Departments, but shall be conclusive upon the executive branch of the Department, and be subject to revision only by Congress or the courts, it is ordered, that hereafter no application for the reopening or rehearing of claims and accounts against the United States, which have been examined by the proper accounting officers and a final decision rendered thereon, will be entertained by the Secretary of the Treasury. The only power upon the subject which will be exercised by the Secretary of the Treasury is that conferred by the concluding provisions of section 191, which authorizes the head of a Department, before signing a warrant for any balance certified to him by a. Comptroller, to submit to such Comptroller any facts affecting the correctness of the balance, and requires the Comptroller to then reexamine the case, and provides that his decision thereon shall be final and conclusive.
    “ It appears from the decision of the Supreme Court in the case of the United ¡States vs. Bank of Metropolis (15 Peters, 400-401), that the accounting officers may, in a proper case, entertain an application for a rehearing of a claim or account which has been finally adjusted by them; but a rehearing should not be granted unless it is shown that mistakes in matters of fact arising from errors in calculation have occurred, or unless it is a case of a rejected claim in which material testimony has subsequently been discovered and produced.
    “ So much of the circular letter of the Treasury Department of date November 13,1871, as may be inconsistent herewith is hereby revoked.
    “Daniel Manning,
    “ Secretary.”
    
    “We concur in the views expressed in the foregoing circular as to the power of the accounting officers to enteptain applications for the rehearing or readjustment of a claim or account which has been settled and adjusted by them, and applications for such rehearing or readjustment will be entertained by tbe accounting officers only in tbe cases and upon tbe grounds therein specified.
    “ M. J. DURHAM,
    
      “First Comptroller.
    
    “ I. H. Maynard,
    
      “Second Comptroller.
    
    “ John S. McOalmont,
    
      “Commissioner of Customs.”
    YI. Subsequently, after said Maynard bad been succeeded as Comptroller by Sigourney Butler, wbo bad also been succeeded by B. F. G-ilkeson, a second application for reconsideration was made by tbe claimant, and tbe following proceedings were bad tbereon:
    “ Treasury Department,
    “Office of the Third Auditor,
    “ Washington, D. C., June 7th, ¿889.
    
    “ To Hon. Second Comptroller :
    “In tbe case of Charles H. Cotton — I return tbe papers recently presented to your office, and transmit those heretofore in tbe case.
    “ This is tbe second application for reconsideration, and now, as in tbe former application, no additional facts are brought to light, but it is merely argued that tbe conclusions of tbe accounting officers- were incorrect. Mere persistence does not entitle a claimant to repeated trials, ad libitum, >of tbe same issues. I recommend denial of tbe present application. If Mr. Cotton is really convinced that be has been aggrieved, be is not without remedy, tbe doors of tbe Court of Claims being still open to him.
    “ I see no reason to change my conclusions—
    “ First. That bis general contract of April 16, 1884, bound him to render precisely such service as that to which this claim relates, and that a refusal of it would have rendered him liable for breach of contract. A theory that tbe transportation was limited to be only to or from places where there were actually troops at tbe date of tbe contract finds no support in tbe terms of that instrument; and,
    “ Second. Even bad it been open to doubt whether tbe service came within tbe contract obligation, be is concluded from now raising tbe question. For on each occasion tbe written request expressly notified him that tbe service was called for to be rendered under, and according to tbe terms of, tbe contract of April 16,1884. If be did not consider that the contract obliged him to render it, and if unwilling to render it at tbe rates of tbe contract, be was bound to raise that objection then, or be forever waived it. If, in fact, be were not already bound to render it, his acceptance and performance under such notice would, per se, have constituted a new and special agreement, in such instance, to do the work at the rates which he was notified were the rates which the Government would pay for the work, if done by him.
    “Respectfully,
    “ JNO, S. WILLIAMS,
    
      “Auditor?
    
    “Treasury Department,
    “Second Comptroller’s Oepice,
    
      “June 12,1889.
    
    “Respectfully returned to the Third Auditor. This claim of Charles H. Cotton for wagon transportation in 1884-’5, amounting to $10,886.26, was recommended by the Third Auditor to this office June 15, 1885, for payment in the sum of $4,990.93. . The additional sum of $206.19 was allowed by the Comptroller. An application for a rehearing was made Dec. 30, 1885, and denied by the Auditor Jan’y 29, 1886, which denial was approved by the Comptroller Feb. 11, 1886.
    “ This second application, dated May 25,1889, being now also denied by the Auditor in his recommendation of the 7th inst., I concur in said action, and all the papers are herewith returned to the Third Auditor to be filed.
    “ B. F. Gilkeson,
    “ Comptroller.”
    VII. February 28, 1893, the claimant, by Ms attorney, made a request in writing to the Secretary of War, then Mr. Elkins, that his claim for payment for transportation into Oklahoma in the year 1885 be referred to the Court of Claims in pursuance of section 1063 of the Revised Statutes; and the Secretary of War, then Mr. Lamont, on March 27,1893, transmitted the same to this court.
    VIII. Camp Russell was established June 22,1884. Between July 15 and November 30, 1884, the claimant had transported four shipments from Caldwell to Camp Russell under his contract, and was paid at contract rates without any controversy; but in January and February, 1885, the routes from Caldwell and Fort Reno to Camp Russell were not “ practicable ” by ordinary means of wagon transportation. The services rendered by the claimant in those months were reasonably worth the amount found by the Quartermaster’s Department, to wit, $10,886.26, of which there has been paid the claimant $5,197.12.
    
      
      Mr. George A. King for the claimant.
    
      Mr. Charles C. Binney (with whom was Mr. Assistant Attorney- General Bodge) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of*the court:

This case is founded on a claim transmitted by the Secretary of War under the following section of the Revised Statutes:

“ Sec. 1063. 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.”

One defense set up is that the Secretary of War exceeded his authority and the court acquired no jurisdiction through his transmission.

By the above section 1063 the head of an Executive Department may transmit to'this court any claim described therein, but we hold that 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 ox otherwise barred. We so held in Armstrong’s 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 Gov-eminent might be opened by simply mating applications to the beads of the Departments against which the claims were made to have them transmitted to this court.

April 16, 1884, the claimant entered into a written contract for wagon transportation in Kansas and the Indian Territory for theWar Department. He performed services in January, and February, 1885, and a question immediately arose whether part of it was to be paid for at contract rates or, as contended by the claimant, upon a quantum meruit, as outside of the contract, which would make it $5,689.14 more than contract price. Under instructions from the Quartermaster-General that the service in question did not come within the terms of the contract, and that the claimant was entitled to an account stated in his favor upon a quantum meruit therefor, the quartermaster in charge gave a voucher for the whole amount claimed, $10,886.26.

This account and the accompanying papers were transmitted to the Treasury Department by the Quartermaster-General with this- statement : “The account is transmitted for the action of the accounting officers of the Treasury, attention being invited to accompanying correspondence as to the rates charged. The amount which may be found due is considered properly payable from appropriation for transportation of the Army for the fiscal year ending June 30,1885.”

June 15, 1885, the Auditor examined the account, and made a certificate that “ there is due the claimant the sum of $4,990.93,” as appears from the statements and vouchers herewith transmitted for the decision of the Second Comptroller of the Treasury thereon.

June 18,1885, the Second Comptroller, then Mr. Maynard, admitted and certified a balance of $5,197.12, and transmitted the same to the War Department.

June 24, 1885, during the term of Secretary Endicott, a requisition was made on the Secretary of the Treasury “to cause a warrant for $5,197.12 to be issued in favor of Charles H. Cotton, Fort Eeno, Ind. T., due on settlement, as per certificate of Second Comptroller, No. 6852, to be charged to “ transportation of Army and its supplies, 1885.”

June 25, 1885, a warrant was made in accordance with said requisition, and a draft for the amount was issued thereon by the Treasurer, which was forwarded to the claimant and collected by him.

In our opinion this action of the Secretary of War in making a requisition for the amount certified by the Second Comptroller was a concurrence in the decision of that oxScer, and a final settlement and disposition of the claim so far as the War Department was concerned. 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 (5 C. Cls. R., 55) and the Winnisimmet Company (12 O. Cls. R., 319).

But he elected to stand upon the decision of the Second Comptroller, and to settle the same without further, controversy. He thereby confirmed the settlement and lost control and jurisdiction of the claim.

No subsequent action was taken in the War Department until February 28, 1893, when the claimant, by his attorney, made application in writing to the Secretary of War, then Mr. Elkins, asking that his claim for transportation into Okla- , homa in the year 1885 be referred to the Court of Claims in pursuance of section 1063 of the Revised Statutes,” and on March 27,1893, the Secretary of War, then Mr. Lament, so transmitted the same.

This was not done until the term of office of one Secretary of War had intervened. More than eight years had elapsed after the claim first accrued, and more than seven years after it had been settled and paid, and the account had been duly received by the Third Auditor as “finally adjusted” and the requisition recorded by him accordiug to the provisions of Revised Statutes, section 283.

• In the meantime the claimant made two applications to the Treasury Department for reconsideration of the decision of the Second Comptroller.

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 afterward discovered and produced. (Jackson’s Case, 19 C. Cls. R., 504 ; Day’s Case, 21C. Cls. R., 262 ; Rollin & Presbrey’s Case, 23 C. Cls. B., 123, and numerous authorities cited in those cases.)

The Secretary of the Treasury issued a circular on the subject July 28,1885, set out at the end of finding v, in which the same doctrine was promulgated as to reopening claims previously decided by the accounting officers. We have always understood that a public officer could open and reconsider any decision made by himself, like a court, on motion for a new trial made at the same term. Whether this circular of the Secretary has any reference to such a case it is not necessary to determine, as that question is not here involved.

The first application for reconsideration was made December 30,1885, while the same Auditor and Comptroller remained in office. January 29, 1886, the Auditor returned the application to the Comptroller, with the following report, more fully set out in finding y.

“No new evidence is offered, and it is not contended that there was any mistake of fact.’ It is simply argued that the conclusions of the accounting officers were erroneous. Hence I do not perceive that any case for the opening of a settled matter is made out within the rules indicated by the First and Second Comptroller and the Commissioner of Customs in the circular issued by the Secretary of the Treasury July 28,1885. * * * •

“ I see no reason for opening the case and no ground upon which any different conclusion could be arrived at.

“If Mr. Cotton believes that he is aggrieved by the decision of the accounting officers, he is not without remedy, as it is open to him to reach a judicial determination through the Court of Claims.”

February 11, 1886, the Second Comptroller concurred in the opinion of the Auditor and said: “ The claimant’s application for a reconsideration of the case and for a further allowance is therefore denied.”

Another application for reconsideration was filedMay25,1889; after Mr. Maynard, the Comptroller who made the decision, had been succeeded first by Mr. Butler and afterwards by Mr. Gilkeson, but while the same Auditor, Mr. Williams, remained in office. The Auditor made the following report, more fully set out in finding VI:

“ This is the second application for reconsideration, and now, as in the former application, no additional facts are brought to light; but it is merely argued that the conclusions of the accounting officers were incorrect. Mere persistence does not entitle a claimant to repeated trials, ad libitum, of the same issues. I recommend denial of the present application, if Mr. Cotton is really convinced that he has been aggrieved, he is not without remedy, the doors of the Court of Claims being still open to him.”

June 12, 1889, the Comptroller concurred in the action of the Auditor and said:

“ This claim of Charles H. Cotton for wagon transportation in 1884-’8o, amounting to $10,886.26, was recommended by the Third Auditor to this office June 15,1885, for payment in the sum of $4,990.93. The additional sum of $206.19 was allowed by the Comptroller. An application for a rehearing was made Dec. 30,1885, and denied by the Auditor Jan’y 29,1886, which denial was approved by the Comptroller Feb. 11,1886.
“ This second application, dated May 25, 1889, being now also denied by the Auditor in his recommendation of the 7th inst., I concur in said action, and all the papers are herewith returned to the Third Auditor to be tiled.”

It is contended by the claimant’s attorney that the Comp-troller having allowed only part of the claim suspended action on the balance involved in this suit, and neither allowed nor disallowed the same. Thus he argues that the claim was kept alive until it was referred to this court by the Secretary of War, March 27,1893.

The difficulty in the claimant’s position is that both he and the accounting officers treated that which is now claimed as rejected. The claimant twice applied to those officers for reconsideration and twice the Auditor made adverse reports, and the Comptroller decided against him as upon a rejected claim. If it was not rejected in the first instance, it certainly was when the Comptroller denied the claimant’s application for reconsideration, February 11, 1886. At that time this was the only claim in controversy, and the Comptroller’s decision was then upon that alone, in these words : “Application for a reconsideration and for further allowance is therefore denied.” It is doubtful at least, even if the claim was reopened in the Treasury Department, whether such reopening would be of any avail in the War Department unless the same were returned, to the latter, which was not done in this instance.

The defendants contend that the claim was barred by statute before it was sent here. Devised Statutes provide:

u Seo. 1069. Every claim against tbe United States, cognizable by tbe Court of Claims, shall be forever barred unless tbe petition setting forth a statement thereof is filed in tbe court, or transmitted to it by tbe Secretary of tbe Senate or tbe Cleric of the House of Eepresentatives, as provided by law, within six years after tbe claim first accrues: Provided, That tbe claims of married women first accrued during marriage, of persons under tbe age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond tbe seas at tbe time tbe claim accrued, entitled to tbe claim, shall not be barred if tbe petition be filed in tbe court or transmitted, as aforesaid, within three years after tbe disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of tbe said disabilities operate cumulatively.”

This is more than an ordinary statute of limitation, which applies only to tbe remedy, and leaves tbe obligation of tbe contract in foree for some, purposes, as, for instance, to support a mortgage or other security, and which must be pleaded to be availed of (Angelí on Limitations, secs. 22, 285). It forever bars .the claim itself, and need not be pleaded (Finn's Case, 123 U. S., 227, 232; Cape Ann Granite Co. Case, 20 C. Cls. R., 1, 17).

Tbe claimant seeks to avoid tbe effect of this statute by citing United States v. Fletcher (147 U. S., 667), where tbe court say:

“We understand tbe court to have decided ” (Clyde v. United States), “ in substance, that tbe action of tbe auditing department, either in allowing or rejecting such a claim, was not an essential prerequisite to tbe jurisdiction of tbe Court of Claims to bear it,” as quoted from tbe opinion of tbe court by Mr. Justice Miller, and adding: “But if such claims are presented to tbe Department for allowance, and tbe Department, in tbe exercise of its discretion suspends action upon them until proper vouchers are furnished, or other reasonable requirements are complied with, tbe courts should not assume jurisdiction until final action is taken. So long as tbe claim is pending and waiting final determination in tbe Department courts should not be called upon to interfere, at least unless it ignores such claim, or fails, to pass upon it within a reasonable time. This was tbe rale applied by this court with respect to .a pending survey of lands in New Orleans v. Paine (147 U. S., 261).”

Tbe effect of tbe decision is that tbe pendency of tbe claim in tbe Department in tbe manner indicated by tbe court operates by way of abatement of tbe suit in court or by way of suspension of the entry of judgment while the same claim is thus pending elsewhere. Whether such condition of the claim would suspend the statute of limitation as to the commencement of a suit in this court is not decided.

But that was a case entirely different from the present one. There the accounting officers expressly suspended action on certain items until proper vouchers were furnished. Nothing-like that took place in this case. Here the accounting officers, examined the whole account of the claimant as referred to themby the Quartermaster-G-eneral and certified a balance due thereon,, and said that if he believed he was aggrieved by their decision he was not without remedy, as it was o].)en to him .to reach a judicial determination through the Court of Claims.

As we hold that the case was finally disposed of in the War Department when the Secretary drew his requisition of June 24, 1885, and in the Treasury Department when Comptroller Maynard, February 11,1886, denied the application to reopen the case, the limitation of the statute began to run even on the claimant’s theory at one of those times and had run out when the claim was transmitted to this court in 1893.

The claimant insists that his claim was not finally disposed of in the TreasuryDepartment until June 12,1889, when Comptroller Gilkeson acted upon the application of May 25,1889, for reopening. The answer to that position is that his application was too late. It was not only after the certified balance was paid, but after Mr. Maynard, the Comptroller who made the decision, had gone out of office, and had been succeeded by Mr. Butler, and who had also been succeeded by Mr. Gilkeson.

It is urged for the claimant that his application-was made while the same Auditor, Mr. Williams, remained in office; but he was not the officer by whom the decision was made.

In the organization of the TreasuryDepartment, as between the accounting officers, the Auditor is subordinate to the Comptroller. His duty is to state accounts in detail and to certify to the Comptroller, for his decision thereon, such balances, or none, as the facts and the law appear to him to warrant, with such reasons for his action as will lay the whole matter before the Comptroller; but he decides nothing. His conclusions are not binding upon the Comptroller nor upon anybody else. In this very case the Comptroller did not concur in the balance certified by the Auditor, but added $206.19 thereto.

The Comptroller alone makes decisions, and he only can open the same for reconsideration. Such is the understanding and practice in the Department, as may be seen by the circular of the Secretary in relation to the reopening of decided claims printed at the end of finding v, to which is attached a concurrence, in writing, by the First and Second Comptrollers and the Commissioner of Customs, who is a comptroller of customs under another name, in which-the auditors did not join. This relation of subordination of the Auditor to the Comptroller is also recognized in the statutes.

In the Act of March 3,1809, chapter 30 (2 Stat. L., 538), entitled “An act to further amend the several acts for the establishment and regulation of the Treasury, War, and Navy Departments,” it is provided:

“Seo. 2. And be it further enacted, That it shall be the duty of the Comptroller of the Treasury, in every case where in his opinion further delays would be injurious to the United States, and he is hereby authorized to direct the Auditor of the Treasury, and the accountants of the War and Navy Departments, at any time, forthwith to audit and settle any particular account which the said officers may be respectively authorized to audit and settle and to report such settlement for his revision and final decision.” * * *

A singular oversight occurred when the provisions of that section of the act of 1809 were reproduced in Eevised Statutes, section 271. At the time of its passage there was but one Comptroller in the Department, who comptrolled all the accounts except those in the Post-Office Department, and the fact that subsequently a second comptroller had been provided for, to whom was transferred the duty of comptrolling most of the accounts of the War and Navy Departments, was overlooked. But that is immaterial in this case. The enactment is referred to only for the purpose of showing Congressional recognition of the subordination of the Auditor to the Comptroller.

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