
    CHARLES H. ARMSTRONG AND 158 OTHERS v. THE UNITED STATES.
    [No. 16767.
    Decided March. 5, 1894.]
    
      On the Proofs.
    
    In June, 1863, citizens of Pittsburg cooperate with the War Department in the construction of the fortifications around the city. They are informed by the Department that these fortifications do not come within the scope of its general plan, and that the work must be done by them at their own expense. Subsequently the claims are presented to the War and Treasury Dapartments. There are repeated adverse decisions and renewed applications. In 1890 a Secretary of the Treasury refers the claims to this court under Revised Statutes, § 1063.
    I.The words of the Revised Statutes (§ 1063) “ Whenever any claim, is made against any Mxeeutive Department” imply that the claim must be pending there.
    II.It is only by virtue of the pendency of a claim that an Executive Department has power to refer it to this court for adjudication.
    III. In cases referred by the Executive Departments (Rev. Stat., § 1063) jurisdiction is acquired, if at all, by virtue of the reference, and not by the filing of the petition.
    IV. If the disallowance of a claim by a Comptroller is not opened for fraud, mistake in calculation, or the filing of material new evidence, the decision is final, and it is not within the power of the Secretary to transmit the claim to this court; and, if transmitted, the court will acquire no jurisdiction thereby.
    
      V. Where new additional evidence is filed in an Executive Department for the purpose of reopening a case, and the Department holds the new evidence to he substantially the same as that on which the claim was considered and rejected, the court cannot review the evidence. It is conclusive on the question of jurisdiction that such was the decision of the Department, and that the case was not reopened.
    
      The Reporters' statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I.' On. or about tbe month of May or early in June, 1863, tbe citizens of Pittsburg, Pa., became alarmed for tbe safety of tbe place because tbe Confederate forces were invading Pennsylvania, West Virginia, and southern Obio. They appointed a committee of their number to wait on tbe Secretary of War and General Halleck, and requested that skillful engineer officers be detailed to superintend tbe construction of fortifications around tbe city, which was done. Tbe committee were at tbe time informed by tbe Secretary of War that tbe fortifications around tbe city of Pittsburg constituted no part of tbe plan or purpose of tbe War Department; that tbe men and money at tbe disposal of tbe Department were needed to carry out other purposes of tbe Government, and that neither men nor money could be furnished them, but that tbe citizens must do tbe work themselves at their own expense.
    II. Thereafter tbe following orders were issued:
    «War Department, «Adjutant-General’s Oettce,
    « Washington, June 9,1863.
    
    « General Orders, No. 172.
    «The Department of tbe Monongabela will embrace that portion of tbe State of Pennsylvania west of Johnstown and Laurel Hill range of mountains, and tbe counties of Hancock, Brooke, and Obio, in tbe State of Virginia, and tbe counties of Columbiana, Jefferson, and Belmont, in tbe State of Obio.
    «Major-General William T. H. Brooks is assigned to tbe command of this department, headquarters at Pittsburg.
    «By order of tbe Secretary of War:
    “ E. D. Townsend,
    
      «Assistant Adjutant-General.”
    
      “War Department,'
    •“ Washington City, June 9,1863.
    
    “ Order 1. * * *
    “Order 2. A department army corps of volunteer infantry, artillery and cavalry, to be designated tbe Army of tbe Monon-gabela, will be enrolled and organized, in accordance with tbe regulations of United States service, for tbe protection and defence of public property witbin that department. * * *■
    
    “By order of tbe President:
    “ Edwin M. Stanton,
    “ Secretary of WarP
    
    III. Gen. W. T. H. Brooks assumed command of said department on tbe morning of June 11, 1863, and three days thereafter received a telegram from tbe general in chief, of which tbe following is a copy:
    “United States Military Telegraph,
    “War Department,
    “ Washington, D. C., June 14,1863.
    
    “ Gen. W. T. EL Brooks, Pittsburg, Pa.:
    
    “ Lee’s army is in motion towards tbe Shenandoah Valley. Pittsburg and Wheeling should be put in defensible condition as rapidly as possible.
    “ EL W. Halleck,
    “ General in ChiefP
    
    Upon bis arrival at Pittsburg be found another telegram from tbe Secretary of War, of which tbe following is a copy:
    “ War Department,
    “ Washington City, June 10, 1863.
    
    “Maj. Gen. W. T. EL Brooks, Pittsburg:
    
    “ You will receive by mail an appointment of major-general. Gen. Couch goes to Harrisburg and has command of tbe Department of the Susquehanna. Intelligence received this evening of tbe enemy’s design make it certain that you can not be too early or too busily at work, as Pittsburg will certainly be tbe point aimed at by Stuart’s raid, which may be daily expected. You should frankly inform tbe people of Pittsburg that they must be at work.
    “ Edwin M. Stanton,
    “ Secretary of WarP
    
    Immediately after tbe receipt of tbe telegram from tbe General in chief, Gen. Brooks notified such of tbe leading manufacturers and business men of Pittsburg as be could reach to meet him that night at tbe Monongahela House for a conference, at which conference, after an explanation by Gen. Brooks as to tbe necessity for immediate action, tbe following resolutions were adopted by tbe citizens present:
    “ At a meeting of tbe manufacturers and business men of tbe city, assembled at tbe Monongahela House on Sunday evening, Tbomas Bakewell, esq., was called to the chair, and G-. H. Thurston was requested to act as secretary. Tbe object of tbe meeting having been stated, it was then—
    “1. Resolved, Whereas Maj. Gen. Brooks has informed a meeting of manufacturers and business men, held on Sunday evening, that there is an imperative necessity for 2,000 men to commence work upon tbe fortifications of tbe city at 8 o’clock to-morrow (Monday) morning: Whereupon be it unanimously
    “ 2. Resolved, That all business be temporarily suspended, ' so that there may be a general rally of all able-bodied men in front of tbe Monongahela House at 8 o’clock on to-morrow (Monday) morning, for tbe purpose of placing tbe city and neighborhood in a proper state of defense against an invasion of tbe enemy now hourly imminent.
    “3. Resolved, That Tbomas Bakewell, Gen. TbomasM. Howe, S. F. 'Va-nbinkorst, and John H.Harper, esqrs., be a committee to urge tbe President to instruct Maj. Gen. Brooks to declare martial law forthwith.
    “4. Resolved, That tbe manufacturers and business men hereby pledge themselves to stop their establishments to-morrow (Monday), and that they will obtain and place at the disposal of Maj. Gen. Brooks all the men they can from their different establishments for the purpose of fortifying the city; and, further, that they pledge themselves to the persons engaged at their respective establishments that they will keep an account of their time and pay at the rate of $1.25 per day for said labor.
    “ 5. Resolved, That the directors of the Pittsburg, Steuben-ville and Pennsylvania and other railroads be requested to transfer their laborers and implements to the orders of the commandant of the department.
    “6. Resolved, That the manufacturers present inform those not present to-night of the action of the meeting, and that they be requested to conform to the resolutions adopted.
    “ 7. Resolved, That the proceedings of the meeting be pub- , lished in the morning papers.”
    Promptly nest morning, at the time and place agreed upon, ' the operatives required were furnished, and assigned to duty ■under the direction of Gen. John G. Barnard and Capt. Craig-hill, engineer officers, U. S. Army, whose services upon the fortifications were paid for by the claimants, and when the work was completed Gen. Brooks reported to the War Depart- ' ment, among other things, as follows:
    “In answer to my call for labor on defensive works and intrenchments tbe whole community has responded in the most gratifying manner. Mills, factories, and works of various kinds have been closed and the employés sent to the intrench-ments. Stores, both wholesale and retail,, were closed and represented on the works. Liquor dealers of various kinds were at work, as were miners, builders, etc.
    “ The colored population were well represented and did their share. I know of no class of people or business that-was unrepresented. I doubt not when the hour of danger comes the same hands that; made the intrenchments will be there to defend them. TJntil the engineers have time to make a survey, that will be forwarded, I can only say that rifle pits have been made by miles and batteries and forts constructed sufficient to mount guns by the hundred.
    “ Yery respectfully,
    “W. T. EL Brooks,
    
      “Major- General.”
    
    IV. Some time after the completion of the work vouchers were made out in the form following:
    
      “The United States to Drown & Co., Dr. ■
    
    “For amount money disbursed for work on fortifications from June 16, 1863, to July 3, 1863, as per statement below:
    193 men worked within these dates, June 16, 1863, to July 3, 1863, inclusive, equaling 2,060| days, at $1.26. $2,575.95
    19 men worked 28 days, at $2, as watchmen. 56. 00
    2 men, with horses and carts, worked 7$ days, at $2.50. 18.75
    5 hoys worked 29 days, at $1.... 29. 00
    2 hoys worked 7 days, at 83$ cents. 5.85
    2 hoys worked 8 days, at 66$ cents. 5. 35
    7 hoys worked 74 days, at 50 cents. 37.00
    2, 727. 90
    The affidavits attached to the voucher are omitted, as there is no controversy as to the services rendered or the amounts paid by the claimants severally.
    To each of which vouchers Gen. Brooks attached his certificate in the form following:
    “ I hereby certify that I believe the above account is correct and just; that the labor was furnished on an appeal from me to the citizens of Pittsburg to put the place in a state of defense when the State was being invaded, and that the labor was necessary for the public service.
    “(Interlined before signing.)
    “W. T. EL Bkooks, M. G.”
    
    (The words in italics are the words interlined by Gen. Brooks.)
    All of the claims are of the same character, differing only as to the amounts claimed. The services claimed for were performed and the several amounts paid by the claimants, as set forth in the amended seventh paragraph of their petition, are correct. ,
    Pittsburg was at the time a military depot for the Government, and within the limits of Allegheny, adjoining Pittsburg, was located the Allegheny arsenal, a depository for the distribution of army supplies belonging to the Government.
    H. W. Halleck, General in Chief, addressed to Brig. Gen. Barnard the following letter of instructions:
    “ Washington, June 8,1863.
    
    
      u Brig. Gen. Barnard,
    
      u Washington, D. C.:
    
    
      u General : You will immediately proceed to Pittsburg, Pa., and advise Capt. Comstock, Corps of Engineers, in regard to the best means to be adopted for the defense of that place. It is not anticipated that any hostile demonstrations will be made against Pittsburg other than a mere raid, and as any projected works must be constructed by the voluntary labor of the citizens, the projected defenses should be of limited extent and of the most simple character — mere earth batteries and rifle pits.
    
      “ Capt. Comstock is charged with laying out these works, and you will remain there only long enough to give him the benefit of your advice and experience, after which you will return to Washington, where your presence is deemed necessary at the present crisis.
    “Brig. Gen. Brooks has been appointed to the command of the Department of the Monongahela, of which Pittsburg is the headquarters. Should he arrive there in time, it will be proper for you to show him these orders.
    “ I would also suggest the propriety of your calling on and consulting the mayor and municipal authorities.
    “ It should be distinctly understood that there is no appropriation for fortifying Pittsburg, and no troops which can probably be spared for garrisoning that place. The sole object of your mission and that of Capt., Comstock, at the present time, is to give to the citizens of Pittsburg such assistance and instruction as may be practicable in preparing themselves against a possible rebel raid.
    “Yery respectfully, your obedient servant,
    
      u H. W. Halleck,
    “ General in Chief.”
    On the receipt of said letter Gen. Barnard proceeded to Pitts-burg to comply with such instructions, and Gen. Brooks caused the following letter of instructions to be issued to Lieut. Col. O. Cross:
    
      “Headquarters Department op the Monongahela,
    
      “Pittsburg, Pa., June 14,1863.
    
    “Lt. Col. O. Cross,
    “ Depty. Qr. Mr. Gen’l Pittsburgh, Pa.:
    
    “Sir: Major-Gen’l Brooks directs that tlie requisite transportation be furnished by you to supply subsistence to the troops in the different camps and working parties employed on the fortification in this vicinity and to haul guns from the Allegheny arsenal to the forts as they may be designated; also whatever dirt carts that may be required in the construction of the defensive works around this city.
    “Very respectfully your obd’t serv’t,
    “T. Brent Swearinger,
    
      “A. A. Gen’l.”
    
    In compliance with the instructions there given, teams, carts, and drivers were employed and rendered service, for which regular vouchers were made out and were paid. To each of said vouchers a certificate was attached in the form following:
    “I certify that the above account is correct and just; that the services were rendered as stated; that they were necessary for the public service.
    “ O. Cross,
    “ Lt. Gol. and Deputy Qr’mr Gen’l. ”
    
    
      Y. The following is the action in the several Departments:
    The claims were first presented to the War Department in March, 1866, and were referred to the Chief of Engineers, U. S. Army.
    April 17, 1866, the Chief of Engineers, U. S. Army, made an adverse report.
    September 3,1866, the claims were referred by the Secretary of War to the claims commission of the War Department, and on October 17, 1866, that commission decided against their validity.
    October 25, 1866, Secretary of War Stanton approved and confirmed the decision of the claims commission.
    June, 1872, one of the claimants resubmitted his claim to the Secretary of War, and it was referred to the Chief of Engineers, U. S. Army, who reported that he could see “no good reason for payment of this claim or of the remaining 158 * * * of similar character,” and on July 5,1872, the Secretary of War decided to adhere to the adverse decision of Secretary Stanton, rendered in October, 1866.
    
      November 24,1872, another of the claimants asked to have the Chief of Engineers, U. S. Army, reconsider his claim, and on November 26,1872, that officer again stated his objections to it and declined again to entertain it.
    March 11,1875, George H. Thurston, attorney in fact for the claimants, made an affidavit setting forth reasons for reopening the case in the War Department.
    May 11, 1875, the assistant judge advocate-general made a report to the Secretary of .War of his opinion on the application and these claims, and in his report said:
    “ There is nothing in the papersnow filed to justify areversal of the opinion heretofore expressed, that no liability exists on the part of the War Department, it appearing that the labor and expenditures were' voluntary acts on the part of the claimants; and therefore it is respectfully recommended that all the papers be returned to the accounting officers of the Treasury, inviting attention to this report.”
    Juné 22, 1875, the Secretary of War made the following-indorsement on said report and opiuionof the assistant judge-advocate-general :
    “All the papers, including this report, will be sent to the accounting officers of the Treasury. On the application of the attorney for the claimants attention is called to the certificate of Gen. Brooks (the commanding general of the department) on the vouchers filed.”
    September 23,1875, the Second Comptroiler, at the request of the Secretary of War, sent the claims and papers to the latter officer.
    Subsequently they were investigated by the Quartermaster-General, by direction of the Secretary of War, and on November 8,1875, he made an adverse report to the Secretary.
    Afterwards counsel for claimants asked the Secretary of War to refer the case to the Attorney-General on the question of the power of the commanding general of the department, Gen. Brooks, to make a contract with thé citizens of Pittsburg for the construction of'the fortifications in question; andón December 18, 1875, the Secretary of War, on the advice of Judge Advocate .Goodfellow, denied the request, and returned the papers to the Second Comptroller.
    All the foregoing proceedings took place before any decision was made on the claims by the Second Comptroller of the Treasury Department.
    
      August 17, 1875, tbe Third Auditor, G-angewer, made a report to Second Comptroller Brodhead, recommending' that the claims be allowed.
    June 14,1876, Second Comptroller Carpenter made a report upon said Auditor’s report to the Secretary of the Treasury, recommending that the claims, with all the proofs, vouchers, etc., be transmitted to the Court of Claims under section 1063, Bevised Statutes.
    On this report the following action was had in the case: June 19, 1876, the Assistant Secretary of the Treasury, Conant, returned it to the Comptroller, suggesting that the “War Department is the proper Department to take action on this case under section 1063, Revised Statutes.”
    June 21,1876, the Second Comptroller referred this report, the claims, and said suggestion of their reference to the Court of Claims, to the Secretary of War.
    July 10, 1876, the Secretary of War declined to make the reference to the Court of Claims, and returned the report, claims, etc., to the Secretary of the Treasury.
    July 27,1876, the Second Comptroller (Carpenter) took final official action on said report of the Third Auditor, and, reviewing the action of the Department and the case, among other things, said:
    “ Treasury Department,
    
      “ Second Comptroller’s Office,
    
    
      11 July 27, 1876.
    
    “In the matter of the claim of Charles H. Armstrong and 158 others, citizens of Pittsburg, Pa., to bereimbursed for expenses incurred and labor furnished in the construction of fortifications around Pittsburg in 1863. Claim No. 37643. Total amount claimed, $73,828.26.
    “ Sir : This claim has been so often considered, and the facts so fully stated in the several reports already made and on the files in the case, that I shall not recapitulate.
    “This claim was first presented to the War Department in 1866; the facts were carefully examined by the Chief of Engineers, who made an able report to the Secretary of War, recommend ing the rejection of the whole of the claims.
    “The matter was then taken before the claims commission; all of the facts were again carefully considered. On the 17th of October, 1866, the board decided the claims Go be utterly unfounded and therefore rejected.’
    “The claimants afterwards applied to Congress for relief.
    “ The matter was pending there for some time, was not finally
    
      acted on, but was withdrawn to be further prosecuted before the War Department and accounting office. The Judge-Advocate-General made careful examination of the legal and other questions involved, and recommended that the claims be not allowed.
    “Thus the matter came to the accounting officers. The Third Auditor, in May, 1875, made a favorable report, holding that a contract with Gen. Brooks was proven, and that, though such contract was not approved at the War Department, he considered the telegraphic instructions of the Secretary of War to Gen. Brooks, in the sudden emergency and pressing exigency of the case, warranted the general in contracting with the claimants without approval of the Department.
    “ The matter then came to this office and was fully examined; but before final decision was made the claimants requested that the whole matter might be sent to the Court of Claims for further proceedings therein.
    “ The case was accordingly sent to the War Department, with the request that the same be referred to that court.
    u The Secretary of War declined to transmit the case to the court at the present state of proceedings. He, however, authorized a special agent of the Quartermaster’s Department to reexamine the whole matter. The agent made very full examination at Pittsburg and in the War Department, and reported that whether a contract between Gen. Brooks was proved or not, he (Gen. B.) was wholly unauthorized, and even expressly prohibited, to make any such contract, and that payment could not be authorized by the War Department.
    “ The case was accordingly returned to this office for final decision.
    I have carefully examined and now reexamined all the paper and proofs in the case; and am clearly of opinion that the claims are not such as can be allowed or paid by the accounting officers. * * *
    “ Yery respectfully, your obedient servant,
    “ O. O. Carpenter,
    
      u Comptroller.
    
    
      “ Hon. Horace Austin,
    “ Third Auditor.”
    April 15,1885, the claimants, through their attorneys, filed an application with the Secretary of the Treasury to reopen the case, and the Secretary referred said application to Second Comptroller Upton, who made a report to the Secretary of the Treasury of the former action on the claims, and said:
    # # * > oppg claimants now, by Wells and Mitchell, their attorneys, present additional evidence, and ask that the case be reopened for further consideration by the accounting officers. * * *
    
      “If tbe case shall be reopened for further consideration, it should be certified to the Court of Claims in pursuance of section 1063, Revised Statutes, as was recommended by Comptroller Carpenter in his letter of date June 14, 1876.»
    April 30,1885, Assistant Secretary of the Treasury Fairchild made the following indorsement on said report of Comptroller Upton:
    “Respectfully returned to Second Comptroller for such further action upon the claim as in his judgment the additional evidence herewith presented will justify.»
    Second Comptroller Upton, on May 2,1885, referred his said report to the Third Auditor by the following indorsement:
    “ Second CoMpteollee’s Oeeice,
    
      “May 2, 1885.
    
    “Respectfully referred to the honorable Third Auditor, the new evidence, with the arguments of counsel, etc., in claim, 37643 of one hundred and fifty-nine citizens of Pittsburg, Pa., the same having been reopened for further consideration by the Secretary. As the Auditor’s report of August 17,1875, was interlocutory merely, and a large amount of new testimony has been since presented, the case is now returned for the Auditor’s action, his attention being invited to the last paragraph of the within letter of this office.
    “W. W. Upton,
    “ Comptroller.”
    
    The last paragraph referred to by the Comptroller (Upton) reads as follows, viz:
    “It is my opinion that, if the case shall be reopened for further consideration, it should be certified to the Court of Claims, in pursuance of section 1063, Revised Statutes, as was recommended by Comptroller Carpenter in his letter of date June 14,1876.
    “W. W. Upton,
    “ Comptroller.’’
    October 27,1885, Third Auditor Williams addressed a letter to the Second Comptroller (Maynard) in reply to the foregoing report and the indorsements, in which he held that the new evidence offered was substantially the same as the old evidence, and that the decision of the Second Comptroller disallowing the claims July 27,1876, “ should not be disturbed.”
    October 28,1885, the attorney for the claimant, Lewis S. Wells, was officially notified of this action.
    
      More than tliree years after this action another application was made by the attorneys for the claimants to have the case reopened by Second Comptroller (Butler), but on January 1(^ 1889, he examined and refused to reopen the case. March 8, 1889, Comptroller Butler made the following indorsement on a letter of Mr. Thurston, claimants’ attorney, which was referred to the Third Auditor:
    “This case will take its usual course. Upon the filing of newly discovered testimony or the showing that there has been an error in computation the case will be reopened.”
    The claimants’ attorneys were informed of this action on the same day.
    July 10, 1889, after the retirement of Comptroller Butler from office, the attorneys for claimants addressed a letter to Second Comptroller (Gilkeson), stating, among other things, that they (the attorneys) had been officially notified by Comptroller Butler that “upon filing of newly discovered testimony the case will be reopened.”
    July 18,1889, Comptroller Gilkeson referred to Third Auditor Hart an application made to the former the previous day (17th) by claimants’ attorneys asking for a reconsideration oi the claim, and he made thereon the following indorsement:
    “The within application of Lewis S. Wells, esq., attorney in the Pittsburg defense claims, for a reconsideration thereof, dated July 10 and 17, 1889, are, together with new evidence and other papers herewith, referred to the Third Auditor for his recommendation, inviting attention to the reference March 8,1889, of this case by my predecessor to him.”
    The new evidence offered was for the purpose of showing that Gen. Brooks was authorized to contract with the claimants, and that he had so contracted; but October 24,1889, Third Auditor Hart addressed a letter to Second Comptroller Gilke-son, and, referring to the action of his predecessor, held that the new evidence offered was of the same tenor as the old evidence, and declined to make any recommendation in regard to the case.
    May 19,1890, Second Comptroller Gilkeson addressed to the Secretary of the Treasury the following letter:
    
      “ Treasury Department,
    “Second Comptroller’s Oeeice,
    “ Washington, D. G., May 19,1890.
    
    “Hon. William Windom,
    
      “Secretary of the Treasury:
    
    “Sir: I have the honor to transmit herewith 159 claims, aggregating .over $73,000, for reimbursement of moneys expended in 1863 in erecting fortifications for the defense of Pittsburg and Allegheny, Pa. These claims were presented to the War Department for allowance in 1866, and I respectfully request that they be forwarded to the Court of Claims for trial and. adjudication.
    “I certify that these claims involve disputed facts and controverted questions of law, and that the amount in controversy exceeds $3,000. I also certify that the decision of the court thereon will affect a class of cases and furnish a precedent for the future action of this Department in the adjustment of a class of cases.
    “All of the vouchers, papers, documents, and proofs pertaining to these claims (noted on the accompanying abstract) are herewith transmitted.
    “Very respectfully,
    “B. F. Gtliceson,
    
      u Comptroller.”
    
    May 21,1890, the Secretary of the Treasury, pursuant to the recommendation of the Comptroller, referred the claim to this ' court, as follows:
    “ Treasury Department,
    “ Oeeice oe the Secretary,
    “ Washington, D. G., May 21,1890.
    
    “ To the honorable the Chief Justice of the Court of Claims:
    
    “Pursuant to the provisions of section 1063 of the Revised Statutes of the United States, I herewith transmit to your honorable court, with the certificate and recommendation of the Second Comptroller of the Treasury, dated May 19,1890, 159 claims, aggregating over $73,000, for reimbursement of moneys expended in 1863 in erecting fortifications for the defense of Pittsburg and Allegheny, Pa.
    “The Second Comptroller says that these claims were presented to the War Department for allowance in 1866, and he certifies that they involve disputed facts and controverted questions of law, that the amount in controversy exceeds $3,000, and that the decision of the court thereon will affect a class of cases and furnish a precedent for the further action of this Department in the adjustment of a class of cases.
    “Accordingly these claims, together with all of the vouchers, papers, documents, and proofs pertaining thereto, accompanied by a list of the same, are herewith transmitted to yonr honorable court for trial and adjudication.
    “ Respectfully, yours,
    “ W. WlNDOM,
    “ Secretary.”
    The court finds the ultimate fact, so far as it is a question of fact, that the claims involved in this action were not pending- in the Treasury Department at the time of their transmission to the court.
    Upon the foregoing findings of fact the court decided, as a conclusion of law, that the case was res judicata in the Treasury Department at the time of its transmission here, and the Secretary therefore had no authority to transmit the case to the court for trial and adjudication under Devised Statutes, section 1063, and the petition is dismissed.
    
      Mr. L. 8. Willis and Mr. V. B. Bdioards for the claimants.
    1. It is made an express condition in the Bowman and Tucker acts that claims must be pending to be referred to the Court of Claims, but xinder section 1063, Devised Statutes, they may be referred whether pending or not. Their reference can be made under this section by the head of a Department against which the claim is made either when it is first presented to the Department or after decision thereon by the Auditor and Comptroller, and whether the decision rendered is for or against the Government. (Delaware Steamboat Case, 6 C. Cls. D., 63.)
    This decision, affirmed in the Winnisimmet case, in which the court say that “the reference of the claim to us gives us jurisdiction, which we should proceed to exercise, unless there be some other objection than the fact of the previous action by the Auditor or Comptroller.” (12 C. Cls. D., 321.) Held in the Lippitt case that the purpose of the section was to give the head of an Executive Department “ a judicial means of investigation,” and that the court “ acquires jurisdiction exclusively by the transmission of a claim by a Secretary.” (14 C. Cls. B., 154.)
    This section provides as follows: Whenever a claim is made against an Executive Department Exceeding $3,000, involving-disputed facts or controverted questions of law, or, without regard to the amount involved, where the decision will affect a class of claims or furnish a precedent for the future action of any Executive Department.
    2. When any authority or right is claimed or denied under the Constitution, the head of the Department against which the claim is made may refer the claim to the Court of Claims for adjudication, or the Secretary of the Treasury may, “upon the certificate of any Auditor or Comptroller,” direct the reference to be made not only of any claim, but also of any “matter or account” of the character, amount, or class described in this section. This section is section 7 of the Act of June 25, 1868 (15 Stats. L., p. 76).
    Just before the passage of this act Congress had passed the Act of March 30, 1868 (15 Stats. L., p. 54, now sec. 191, Dev. Stats.), whereby the decisions of the Comptroller were made conclusive upon the heads of Departments, subject only to “revision by Congress or the proper courts;” but there was no way provided in the act by which the “revision” could be obtained. Section 3063, Revised Statutes, was intended, as the court say in both of the cases first cited, to supply this omission, and to authorize the heads of Departments or the Secretary of the Treasury, upon the happening of any one of the conditions named in the section, to make the reference whenever in their judgment the decision rendered required a judicial revision.
    3. It is for the head of the Department or the Secretary of the Treasury to determine, regardless of the action of either the Auditor or the Comptroller, whether the claim (being of the character, amount, or class described in the section) requires judicial revision for the guidance of the Executive Departments as a precedent, or for any of the' other purposes mentioned in the section, and, as the court say in the Lippitt case, the court “ acquires jurisdiction by the references by a Secretary.”
    The fact that an Auditor or Comptroller may have decided for or against the claim cuts no figure. It is to be presumed that the Comptroller must have rendered some decision upon the claims, otherwise there would be nothing to revise and nothing upon which the court could exercise its revisory power authorized by the act of June 25, 1868. In both of the cases first cited the court took jurisdiction after the Comptroller had allowed the claims. The authority of the Secretary of War to make the reference was never Questioned. The decision of the Secretary of War in this case was that it should not be referred to the Court of Claims until after the Comptroller had rendered his decision thereon.
    This claim was referred to the court by the Secretary of the Treasury upon the certificate of the Comptroller, who asks for a decision thereon by the court as a precedent for his official guidance. His request is strictly in compliance with the statute, and, upon his certificate, authority is conferred upon the Secretary to refer to the court for adjudication “any matter” of the character, amount, or class described in the statutes, whether it be a claim or an adjusted account, public or private.
    
      Mr. Felix JBrarmigm (with whom was Mr. Assistant Attorney- General Dodge) for the defendants.
    If ever there was a -case in which the action of the accounting officers should be held final and conclusive upon their successors it is the case af bar. If old adverse adjudications by these officers may be reopened upon such flimsy grounds as those relied on by the other side, then let the doctrine be stated that there is no finality whatever in such matters in the Treasury Department.
    But the executive rule res judicata is well settled.
    Per Attorney-General Wirt, on the question of the right of the executive to review acts of predecessors:
    “ I have understood it to be a rule of action prescribed to itself by each administration to consider the acts of its predecessors conclusive, as far as the Executive is concerned.” (2 Op., 8.)
    Per Attorney-General Black, in the Oollins Steamship Line Case, which had been once heard and decided by the proper officer:
    “There must be an end sometime or other even of a claim against the Government.” (9 Op., 34.)
    All the Attorneys-General who have given opinions upon this question have adhered to the principle res judicata, as announced in United States v. Bcmk of Metropolis (15 Peters, 401): Taney, Attorney-General, 2 Op., 464; Nelson, Attorney-General, 4 Op., 3415 Toucey, Attorney-General, 5 Op., 29; Johnson, Attorney-General, 5 Op., 123; Black, Attorney-General, 9 Op., 34, 101, 301, 387; Stanbery, Attorney-General, 12 Op., 358; Hoar, Attorney-General, 13 Op., 33, 226; Aker-man, Attorney-General, 13 Op., 387; Williams, Attorney-General, 14 Op., 275, 344; ¿evens, Attorney-General, 15 Op„ 315, 423.
   Peelee, J.,

delivered the opinion of the court:

The several claims involved in this action arose in June and July, 1863, for money paid for labor in the construction of fortifications around the city of Pittsburg, which were erected at the request of the citizens thereof, under the direction of skillful military officers of the United States, to protect said city against an attack from the Confederate forces then invading Pennsylvania, West Virginia, and southern Ohio.

The Department of the Monongahela, within the limits of which were located the city of Pittsburg and the Allegheny arsenal, was created by General Orders, No. 172, issued by the Secretary of War June 9,1863, andMaj. Gen. W. T. H. Brooks, U. S. Army, was assigned to the command of the department, while Brig. Gen. Barnard, an engineer officer, was assigned to advise and direct as to the fortifications to be constructed. The citizens of Pittsburg, on an appeal from Gen. Brooks so to do, furnished the necessary labor from their factories and other places of business and paid for the same. They subsequently procured certain vouchers covering the services so performed and the amounts paid by each, about which there is no controversy, to each of which was attached a certificate from Gen. Brooks in the form set forth in the findings.

These vouchers, .in the form of claims against the United States, were presented to the Secretary of War for payment in March, 1866, and by his direction were investigated by the claims commission of the War Department, which, on October 17,1866, decided against the validity of said claims; the Secretary of War approved and confirmed said decision on the 25th October, 1866. Sundry other action was taken in the War Department looking to areopeningof the case without avail, and the claims were, on the 22d June, 1875, referred by the Secretary of War to the accounting officers of the Treasury Department, as set forth in the findings. Sundry action took place in the Treasury Department prior to July 27,1876, but on that day the Second Comptroller, Carpenter, in considering the claims and the report of the Third Auditor, who had previously recommended their allowance, finally rej ected said claims. The action in tbe Treasury Department subsequent to that date will be noticed hereafter.

The claims were referred to this court by the Secretary of the Treasury, on the recommendation of the Second Comptroller, on the 21st day of May, 1890, under the provisions of Bevised Statutes, section .1063, as involving “disputed facts and controverted questions of law.” The original petition was filed January 20,1892. Several questions are presented by the findings for the consideration of the court, the first of which is: Were the claims pending or were they res judicata in the Treasury Department at the time they were transmitted here by the Secretary of the Treasury?

The answer to this question depends upon the action of the Treasury Department subsequent to July 27,1876, when the Second Comptroller disallowed said claims. The action in the Department subsequent to that date is set forth in the findings.

It will thus be seen that the claims were first disallowed in the War Department October 25,1866, and by the Second Comptroller July 27,1876. The first application for a reopening of the case was made April 15,1885, and while the Comptroller, in his report to the 'Secretary of the Treasury, stated that if the case should be reopened it should be certified to the Court of Claims, the Secretary did not, even if he had the power so to do, authorize the case to be reopened, but returned the Comptroller’s report, with direction “for such further action upon the claim as in his judgment the additional evidence herewith presented will justify.” The Comptroller then, on May 2,1885, referred his report to the Third Auditor, saying, among other things, “the same having been reopened for further consideration by the Secretary,” and he then adds: “ As the Auditor’s report of August 17,1875, was introductory merely, and a large amount of new testimony has since been presented, the case is now returned for the Auditor’s action * * *.» The Third Auditor, in response to that reference, however, on October 27,1885, after reviewing the additional evidence submitted, concludes:

“ Therefore I do not find that it adds anything to the evidence.
“ Some slips cut from newspapers are presented; but I do not perceive that they show anything not already an acknowledged part of the History of the transactions.
u Tbe case, therefore, rests substantially upon the same showing as when before considered.
“ In their indorsement made upon the circular issued by the Secretary of the Treasury July 28,1886, the First Comptroller, the Second Comptroller, and the Commissioner of Customs united in stating the principles which should govern the question of opening and reconsidering a settled claim or account. Applying those principles, I think the decision by the Second Comptroller of July 27,1876, should not be disturbed.
“ Respectfully,
u Jno. S. Williams,
“AtuMtor”

Applications subsequently made for a reopening of the case were referred to Third Auditor Hart; but on October 24,1889, that officer reported to the Second Comptroller, reciting the action of his predecessor, who, on August 17,1875, had recommended the allowance of the claims, holding that the new evidence offered was of the same tenor as the old and declining to make any recommendation in the case.

The Second Comptroller then, May 19,1890, addressed the letter set out in the findings to the Secretary of the Treasury, recommending that said claims be referred to the Court of Claims. It will be observed that, while the Second Comptroller states to the Secretary that the claims were first presented to the War Department for allowance in 1866, he omits to make any mention to the Secretary of the action in either of the Departments thereon. In that reported condition of the case the Secretary of the Treasury transmitted the claims to the courb for trial and adjudication.

The new e vidence offered was for the purpose of showing that G-en. Brooks was authorized to contract with claimants for the services so rendered and that he had so contracted; but the Third Auditors held that such new evidence was substantially the same as that heretofore presented and considered; so that no action was taken by any of the Auditors by which the case was reopened. On the contrary, Third Auditor Williams, in his report of October 27,1885, held that the action of the Comptroller (Carpenter) in disallowing the claims, July 27, 1876, “should not be disturbed,” while Third Auditor Hart, October 24, 1889, declined to make any recommendation in the case. Therefore the case was not reopened subsequent to its final disallowance, July 27,1876, and was not pending in the Department when it was transmitted to this court.

Tlio claimants contend that Revised Statutes, section 1063, differs from the acts of March 3, 1883 and 1887, known as Bowman and Tucker acts, in this, that in each of the latter acts the head of a Department can only transmit to the court pending claims, while under said section 1063 no such condition is imposed, and a claim may be transferred by the head of a Department “ whether pending or not,” and in support of that contention cites the Delaware Steamboat Case (5 O. Cls. R., 63). In that case a claim had been filed in the War Department, and. was referred to the accounting' officers of the Treasury Department for adjustment. A balance was found due and certified to the Secretary of War for payment. The Secretary refused payment,' and transmitted the claim to the court under the provisions of section 7, Act of June 25, 1868 (15 Stat. L., 76, now Rev. Stat., sec. 1063), for revision, under the Aet of March 30,1868 (15 Stat. L., 54, now Rev. Stat., sec. 191), which provides in substance that the balances which may be certified by the accounting officers to the heads of Departments shall be final and conclusive upon the executive branches of the Government, and “ be subject to revision only by Congress or the proper courts.” .

When the balance was certified to the Secretary of War and he refused payment, it was still a claim made upon the War Department, and in that same case it was said:

“A requisition for a warrant for the payment of the claim is demanded of the Secretary of War; and it is therefore a claim, a demand, made upon his Department. And if such it be, it is competent for him, if it exceed $3,000 and involved disputed facts or controverted law, to send it here for revision.”

To the same effect also is the Winnisimmet Company Case (12 O. Cls. R., 319), cited by claimants.

In the case at bar no balance was certified, and the same could not therefore be transmitted here for revision because of an erroneous allowance, as was done by the Secretary of War in the cases cited. The difference between the Bowman and Tucker acts and said section 1063 in this respect in brief is this: The latter provides that “ Whenever any claim is made against any Executive Department,” etc., while the other acts (substantially the same) provide that when a claim or matter is pending in any of the Executive Departments,” etc. We attach no importance, as the claimants do, to the absence of the word 11 pending'17 in said section 1083, for the words “whenever any claim is made against any Executive Department” necessarily imply that the claim is pending in such Department until allowed and paid or finally rejected; otherwise no claim could be made, as official or other executive business is not transacted orally.

It is only the pendency of a claim or matter in an Executive Department that gives the head of such Department jurisdiction to transmit the same to the court; and this is true whether the claim be transmitted for trial and adjudication under section 1003 or for findings of fact merely as advisory to such Department.

In speaking of these several acts it was said in The State of Illinois Case (20 C. Cls. R., 348,349):

“The Bowman Act is exceptional and peculiar in its provisions, and the jurisdiction conferred by it is very different from that granted by sections 1059 and 1083, Revised Statutes, being in its nature advisory.”

It is because the claim is pending, undisposed of, that the head of a Department seeks the aid of the court to advise him as to the settlement of the disputed facts and controverted questions of law, while under section 1003, when the case is transmitted to the court, the Department ceases thereafter to have jurisdiction over the claim.

The claimants also contend that under the decision in Lip-pitffs Case (14 O. Cls. R., 148-154) the court acquires jurisdiction exclusively by the transmission of the claim, and that the court .should proceed to determine the case on its merits. In this case the court, in speaking of the amended Court of Claims Act of March 3, 1863 (12 Stat. L., 765) and the Act of June 25, 1868 (supra), use this language:

“In a word, the two statutes were enacted for entirely different purposes. The one conferred on the claimant a right of action against the G-overnment; the other conferred on the ExecutiveDepartments a judicial means of investigation against claimants. Under the former the court acquires jurisdiction only by the filing of a petition either directly by himself or indirectly by one of the Houses of Congress. Under the latter it acquires jurisdiction exclusively by the transmission of the claim by the Secretary, the subsequent petition of the party performing merely the office of a pleading.”

What was meant there is, that if jurisdiction is acquired at all, it is by virtue of the reference and not by the subsequent filing of tbe petition. It would not be contended that the head of a Department could confer jurisdiction on the court by the transmission of a claim under said section 1063, “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.” Nor would the transmission of a claim by the head of a Department, which he had no power to settle and pay, confer jurisdiction on the court to render judgment. (Hart v. United States, 118 U. S., 62, affirming the decision of this court in 16 C. Cls. It., 459; Chesapeake and Ohio R. R. Co. Case, 20 C. Cls. R., 49; 15 id., 414; 12 id., 319.) And the same rule was held to apply to cases transmitted under the Bowman Act. (McClure’s Case, 19 C. Cls. R., 18, 30.) The same rule applies to claims transmitted by the head of a Department which were not filed therein within six years after they had accrued. (Finn v. United States, 123 U. S., 231; The Savage Case, 23 C. Cls. R., 255.)

If the disallowance of the claims by the Second Comptroller, July 27,1S76, was not thereafter reopened by reason of fraud, mistake in calculation, or the filing of material new evidence, the decision was final and conclusive, and the case was res judicata in the Department; and it was not, therefore, within the power of the Secretary or his successor in office to transmit the claims to this court, and, having no power to transmit, the court acquires no jurisdiction thereby.

There was no contention of fraud, and, being a rejected claim, no mistake in calculation could have arisen in the Department. The new or additional evidence filed therein, with an application to reopen the case, was held to be substantially the same as that theretofore filed and considered, and was not, therefore, material new evidence. The court can' not review that evidence to ascertain whether or not such holdin g was correct. It is enough for the court to know that such was the decision, and that for that reason the case was not reopened.

The doctrine of res judieata as applied to the Executive Departments has long been sustained both by the courts and by the Attorneys-General of the Government. No rule of law has been more consistently adhered to.

The court in the case of the United States v. Bank of the Metropolis (15 Peters, 390, 401), in speaking of the fight of an executive officer to review the action of his predecessor, said such right “ extends to mistakes in matters of fact arising’ from errors in calculation and to cases of rejected claims in which material testimony is afterwards discovered and produced,” and it was there held that the successorin office had the same power and no more than his predecessor. (Jackson Case, 19 C. Cls. R., 504; Day, Adm’x Case, 21 C. Cls. R., 263.) To the same effect, also, is the Waddell Case (25 C. Cls. R., 323, 327), and the State of Illinois Case (20 C. Cls. E., 342). It was said in the Waddell Case (supra), “ the law has been too well settled to be in doubt at this time that public officers can not open and reexamine cases decided by their predecessors, except for fraud, mistakes in matters of fact arising from errors in calcution, or newly discovered material evidence.”

In Jackson’s Case (19 C. Cls. R., 504) a claim was filed in the Treasury Department by an informer claiming' $7,500 of the amount recovered, but the Secretary decided, as a matter of law, that he was only entitled to $5,000 under section 4, Act of Dime 22,1874 (IS Stat. L., 186), which was paid; and a subsequent Secretary transmitted the claim for the balance to this court under the act of March 3, 1883, known as the Bowman Act. It was held that the action of the Secretary was conclusive on his successor, aud that no further action could be taken by the Department.

In that same case it was held:

“ It is a settled rule of administrative law that the final decision of a matter before the head of an Executive Department is binding upon his successor if no material testimony be afterwards discovered and produced.”

In the State of Illinois Case (supra), where the authorities on this question are admirably grouped, the court said:

“As early as 1825, Mr. Wirt, then Attorney-General, in a letter to the Secretary of the Eavy, said that he had understood it to be a ‘ rule of action prescribed to itself by each administration to consider the acts of its predecessors conclusive as far as the executive is concerned.- The Supreme Court, in the case of the Bank of the Metropolis, decided in 1841 (15 Peters, 401), limited the right of an executive officer to review his predecessor’s decisions 1 to mistakes of fact arising from errors of calculation, and to cases of rejected claims in which material testimony is afterwards discovered and produced.’ In 1849, Mr. Attorney-General Toucey held (5 Op., 29) that the principle oí res judicata applied to claims ‘ thus deliberately considered and rejected.’ His successor, Mr. Reverdy Johnson (5 Op., 240), ruled that the decision of a Secretary of tbe Interior, ‘whether right or not,’ could not be overruled by his successor; and these decisions were followed consistently by other Attorneys-General, among them Mr. Black (9 Op., 300 and 387); Mr. Stanbery (12 Op., 169 and 356); Mr. Hoar (13 Op., 33 and 226); Mr. Akerman (13 Op., 387); Mr. Bristow (13 Op., 457); and Mr. Williams (14 Op., 275). Even the opinion of Mr. Attorney-General Bates, in the Sot Springs Case (10 Op., 61), cited as a departure from this line of authorities, does not seem to be such; but if it be, Mr. Bates, retraced his steps the next year in the Bart Case (10 Op., 255),wherein he reviewed and followed the opinions of his predecessors.
“ In 1864 (Lavallette v. The United States, 1 C. Cls. R., 149), this court decided ‘that the head of a Department can not, in a matter involving judgment and discretion, reverse the decision and action of his predecessor even in a matter relating to the general affairs and management of the business of the Depart-ment;’ and the Supreme Court held in Stone v. The United States (2 Wall., 535) that one ‘officer of the Land Office is not competent to cancel or annul the act of his predecessor; ’ finally, this court, at the last term, in Jackson’s case, followed the path so clearly defined by sixty years of consistent rulings, and held that the Secretary of the Treasury could not reopen a claim adjusted by his predecessor. ”

The claimants have cited a number of authorities on the point that the vouchers given to the claimants are sufficient evidence to entitle the claimants to recover the several amounts, but inasmuch as the services rendered, as well as the several amounts covered by the vouchers, are not questioned, and we have reached conclusions adverse to the claimants on other grounds, we need not review them.

Authorities are also cited on the point that a commanding officer in time of emergency has power to' make a contract to bind the Government to pay the expenses of erecting fortifications. But holding, as we do, that the case was res judicata in the Department, it was not within the power of the Secretary of the Treasury to transmit the claims, and the court is therefore without jurisdiction to adjudicate the case on its merits.

The petition is dismissed.  