
    GEORGE C. FOSTER v. THE UNITED STATES.
    [No. 18108.
    Decided February 1, 1897.]
    
      On the defendants’ Demurrer.
    
    Claimant alleges that lie entered a quarter section of land in Oregon in December, 1886, within the boundaries of a grant to the Northern Pacific Railroad Company, and paid $2.50 an acre for it; that it was part of an even section raised to the double minimum price by reason of the land grant; that the line of road was not fixed within the time prescribed by law, and that, in consequence of this default, under the Act September 29,1890 (26 Stat. L., 496), the grant was forfeited, and that he has been refused repayment of $1.25 per acre, as provided for by the act 16th June, 1880.
    I.'Where Congress create a class of claims, such as custom cases, or internal-revenue cases, or pension cases, and provides a jurisdiction for their ascertainment and allowance, that jurisdiction is exclusive.
    II.Where an officer clothed with authority to investigate and allow, determines the facts of a case and refers it to this court for the determination of a question of law, or where the officer, having allowed a claim, transmits it to the accounting officers for payment, and they or the Secretary of the Treasury refuses to give effect to the award, an action thereon will lie in this court.
    III.Whore Congress create a class of claims, such as for horses and vessels lost or destroyed in the military service, and refer the claims for investigation and settlement to the accounting officers, no jurisdiction to finally determine a legal right is created. The accounting officers simply act in their usual capacity of auditing officers, and this court has jurisdiction of the claims.
    
      IV.Where Congress create a class of claims, such as claims for a surplus in the Treasury derived from property sold for taxes, or the direct-tax cases, with directions to the Secretary of the Treasury to pay the amount found due to the persons entitled thereto, no special jurisdiction is thereby created, and an action will lie in this court.
    V.Where Congress pledge the faith of the United States in consideration of a person doing some act, such as that in the drawback cases or in the sugar-bounty cases, presenting thereby an obligation in the nature of an implied contract, the action of the accounting officers is not conclusive, and suit will lie upon the statutory obligation of the Government.
    VI. Where a claimant entered land within the boundaries of a railroad grant and paid the price fixed by the statute, and both parties regarded that as the value of the land, but the Government did not guarantee performance on the part of the grantee, a suit can not be maintained because Congress annulled the grant in consequence of the railroad company’s inaction.
    VII. No remedy in such cases existed at common law or by statute prior to the Aot June, 1SS0 (21 Stat. L., 287). The claim was created exclusively by that act, and the forum provided by it is exclusive.
    
      The Reporters’ statement of tbe case:
    Tbe grounds of tbe defendants’ demurrer are stated in the opinion of tbe court.
    
      Mr. George H. Gorman (with whom was Mr. Assistant Attorney-General Dodge) in support of tbe demurrer:
    Tbe various laws which relate to tbe disposition of tbe public domain form a comprehensive system, in' which it is impossible to touch upon any branch without in some wise affecting the whole system. The administration of these affairs has, by the Congress, been delegated to the Interior Department, from which has emanated nearly all the laws that have been passed in relation to the subject. It is, therefore, of the utmost importance, so far as possible, to confine all questions relating to the public domain to the consideration of the Interior Department. (See Donalson’s History Public Domain, 11G et seq.). And such has been the uniform policy and intent of the Congress, as gleaned from the history of the various acts that it has passed on this subject; and a better exemplification of this truth can not be found than appears in the legislative history of this very act of June -16, 1880, under which the claimant seeks recovery in this action.
    
      The object and intention of a legislative act is the supreme judicial inquiry. The intention of the legislature is the thing to be enforced by the courts, either affirmatively by giving a remedy, or negatively by denying one. All rules of construction are mere aids to this end. The intent is always the vital part, the essence of the law, the thing to be enforced by the courts. (Sutherland Stat. Con., §§234, 235, and cases cited.)
    The complete legislative history of the act of June 10,1880, is to be found in Oong. Bee., vol. 10, part 1, p. 20; part 3, p. 2108; part 4, pp. 3594 to 3590 and pp. 3032, 3052, 3793; part 5, p. 4513.
    From the foregoing legislative history it is entirely clear that the Congress not only did not inténd to invest the courts with any jurisdiction over the subject-matter of this act, but, on the contrary, that the act was passed for the very purpose of confining the matters therein treated to the exclusive cognizance of the Secretary of the Interior and the Commissioner of the General Land Office and of preventing them from becoming the subjects of litigation in the courts.
    This is shown by the entire absence of all mention of or reference to the courts, not only in the act itself, but also in any offered amendment or in anything said in the progress of the debates on the bill. And this nonallusion to the courts is especially significant when we remember that this statute is a declaratory one, of a remedial character, passed for the purpose of setting at rest the doubts entertained and the limitations placed upon section 2305 of the Bevised Statutes by the Secretary of the Interior, which said former statute related wholly and exclusively to the powers and duties of that officer. In introducing it, the author of the bill said that “section 2362 of the Bevised Statutes was intended to cover cases of this kind, but under the construction of the Secretary of the Interior the Department refuses to refund the money in these cases.” He then reads said section 2362, states the character of the Secretary’s objection, and continues:
    “I suppose, perhaps, under the present law the Secretary would be authorized to return the excess of payment, but in drawing up this bill it toas the purpose to remove all doubts, so that the Secretary of the Interior should not construe, etc.”
    If it had been the intention to invest the courts with jurisdiction, if there had been any purpose to test the correctness of the'Secretary’s construction of the former law, would not the Congress have provided for it1? Would there not, at least, have been some suggestion to that effect by some one during the six months that this bill was pending before the Congress? There was no such intent; there was no such purpose. On the contrary, the act was passed, and it is so stated by its author, for the express purpose of confining these matters to the Interior Department and of keeping them out of the courts.
    This truth is further manifested by the language employed and the spirit manifested in every section of the act.
    In the first section it is provided that “in all cases where it shall, upon due proof being made, appear to the satisfaction of the Secretary of the Interior * # * the Secretary of the Interior is authorized to repay,” etc.
    In the second section it is provided that “the Secretary of the Interior shall cause to be repaid,” etc. ,
    Section 3 is as follows:
    “The Secretary of the Interior is authorized to make the payments herein provided for out of any money iu the Treasury not otherwise appropriated.”
    Section 4 is as follows:
    “The Commissioner of the General Land Office shall make all necessary rules and issue all necessary instructions to carry the provisions of this act into effect; and for the payment of the purchase money and fees herein provided for the Secretary of the Interior shall draw his warrant on the Treasury and the same shall be paid without regard to the date of the cancellation of the entries.”
    The language of this statute, therefore, is not general, but special, and limited to the Secretary of the Interior and the General Land Office. But even if it had been general, it should be remembered that language, though apparently general, may be limited in its operation and effect, where it may be gathered from the object and purpose of the whole statute that the language was designed to apply only to certain persons or things or was to operate only under certain conditions or be enforced only by certain officers. (Jones v. Jones, 18 Maine, 308; Murray v. Gibson, 15 How., 421; Brewer v. Blanger, 14 Peters, 198; affirmed and followed on this point in McKee v. U. 8., 164 U. S., 287; United States v. Saunders, 22 Wall., 492; Torrence v. McBougall, 12 Georgia, 526; Greenhow v. James, 80 Ya., 636, 641.)
    
      Therefore it is manifest that the Congress not only did not design that the courts should assume jurisdiction over the subject of this statute, but, on the contrary, intended that the jurisdiction of. the Secretary of the Interior should be exclusive. It is the same as if the Congress had added to the statute this proviso:
    
      uProvided, however, That nothing herein contained shall be construed as giving any court jurisdiction over the subject of this act.”
    This being true, it remains to be determined whether this intention of the Congress and its general policy of confining all these matters to the Land Department has been repealed or superseded by the passage of the Tucker Act which, inter alia, gives this court jurisdiction over “claims founded upon any law of Congress, except for pensions.”
    In making this inquiry, there are a few well-seated canons of construction that should be constantly borne in mind.
    First. The creation of a new jurisdiction is not to be presumed, in the absence of adequate language. (Wanoiclc v. White, Bunb., 106; Kite's Oase, 1 B. & 0., 107; Rex v. Baines, 2 Ld. Baym., 1269; Fx parte ¡Story, 32 B. Div., 166; James v. Railroad Company, L. B., 7, Ex., 296; Street v. Rothschild, 12 Daly (N. Y.), 96; In re Contested Flection, 111 Penn. Stat., 235; Druse v. Darter, 67 Wise., 644; Sender son's Case, 39 Maine, 476; Pittman v. Flint, 10 Pick (Mass.), 506, where it is said that “a failure of justice would not be sufficient ground for construing statutes against their clear meaning so as to give a court jurisdiction.”)
    Nor will a construction be adopted which enlarges the jurisdiction of courts, in the absence of express words or necessary implication. (Fx parte Story, 3 Q. B., Div. 166; Kite's Case, 1 B. & C., 107; Thomas v. Adams, 2 Port. (Ala.), 108; Inspectors v. Peoria, 20 Ill., 532; Thompson v. Coy, 8 Jones (No. Oa.), 311; Druse v. Sarter, 57 Wise., 644; Daffm v. State, 11 Tex. App., 76.)
    And, a fortiori, is this true when we remember that the Government can not be sued without its express consent, and that all statutes permitting such suits, being in derogation of the rights of the sovereign, are to be strictly construed. Nothing is to be taken by intendment, and only such jurisdiction is given as is set forth plainly and expressly. (Clyde's Case, 
      13 Wall., 39; Finn’s Case, 123 U. S., 227-233; Schillinger’s Case, 155 U. S., 163-166; Green v. Graham, 29 Ala., 61.)
    Second. Statutes which create liabilities where none existed before are always strictly construed, and the liability will never be extended beyond the plain and express provisions of the statute. (Holister v. Bank, 27 N. Y., 393-399; Kohn v. Deices, 40 Wise., 393; Moyer v. Slate 'Co., 71 Penn. Stat., 293; Lane’s Appeal, 105 Penn. State, 49; Detroit v. Ghaffre, 70 Mich., 80; Detroit v. Putnam, 45 Mich., 265.)
    Third. When a right is given by statute and a specific remedy provided, or a new power and also the means of executing it are therein granted, the power can be executed and the right vindicated in no other way than that prescribed by the act. This rule does not conflict with the general rule that the jurisdiction of a court is not impaired by statutes conferring upon other tribunals jurisdiction of the same kind and to reach the same redress, unless the statute expressly takes away the former jurisdiction; nor with the other well-settled rule that if a statute gives a remedy in the affirmative without a negative, express or implied, for a matter which was actionable at common law, the party may sue at the common law as well as upon the statute. In the cases to which these rules are applied the right existed, and its enforcement lay within the appropriate existing jurisdiction. Statutes affirmative of the right and prescribing other than the usual remedies for its enforcement, or conferring cognizance of it upon other tribunals, not negativing the preexisting remedies or jurisdiction, are, in their very nature, merely cumulative, and not exclusive. But when a right is solely and exclusively of legislative creation, when it does not derive its existence from the common law, but from statute only (such as the right conferred by this act of June 16, 1880), then jurisdiction may be limited to particular tribunals and new specific remedies provided for its enforcement; and the jurisdiction can be exercised and the remedy pursued only in the precise forum and in the exact manner provided in the statute. The same legislative power that created the right also creates the remedy and the forum for its enforcement. These three things are one — a legislative trinity which is inseparable and indivisible. No other tribunal can enforce the right, for in any other tribunal there is no right to enforce. (Wells v. Supervisors, 102 U. S., 625, 631, 632; Janney v. Betvell, 55 Ala., 408; Phillips v. Ash, 63 id., 414; Chandler v. Hanna, 73 id., 390; Dudley v. Ma-heto, 3 N. Y., 9; Hollister v. Hollister Banh, 2 Keys (N. Y. Ct-App.),245, 249; Dickinson v .Van Warmer, 39 Mieb., 141; Matter of opening House avenue, 67 Barb., 350. See, on whole subject, Sutherland Const. Stats., § § 399, 454-459; Sedgw. on Stat. and Const. Law, 343.)
    The right to repayment conferred by the act of June 16,. 1880, is solely and exclusively the creation of the statute, and the right can only be conferred in the precise manner mentioned in the statute. The statute authorizes the Secretary of the Interior, and him only, to make such repayment. The statute has not authorized any court to make the repayment. The claimant has no rights whatever outside of those given and created by the statute, and the statute only gives him a right to apply to the Secretary of the Interior for the repayment. It lias not given him a right to make any such application to this or any other court, but, on the contrary, and for the reasons given afore, has expressly denied him that right. Expressio unius est exclusio alterius; and claims for repayment under this act are as much excluded from the jurisdiction of the courts as they are granted to that of the Secretary of the Interior.
    With these thoroughly settled and indisputable rules of law before us, there is no hesitation in saying that the Congress did not intend to and did not in any wise change, modify, alter, or repeal the restrictive provisions of the act of June 16,1880, by conferring upon this court jurisdiction over the subject-matter of that statute merely because in the Tucker Act they iirovided that this court should have jurisdiction over claims “founded on any law of Congress, except pensions.”
    There is nothing in the Tucker Act upon which to base such a contention, save the language “ any law of Congress.” I have already shown that language apparently general may be limited in its operation and effect if, from a consideration of the whole act and acts in pari materia, it can be gathered that it was the intention of the legislature that they should be so limited (see authorities cited, supra), and a fortiori may general words be cut down when a different application of them would antagonize a settled policy of the State. (Green-how v. James, 80 Va., 636, 641; United States v. Healey, 160 U. S., 136,146, bottom; see also pp. 138,139; Wells v. Supervisors, 102 U. S., 625, 631.)
    In Healey''s Case (supra), tbe question presented to tbe Supreme Court was whether section 2357 of tbe Bevised Statutes (wbicb tbe revisers embodied in tbe codification as tbe result of tbe policy and intent of Congress to charge $2.50 per acre for all lands within tbe limits of a railroad grant, see opinion, pp. 138,139) was amended, superseded, or repealed by tbe desert act of 1887, wbicb, in broad, general, and seemingly limitless language, reduced tbe price of all lands of this character to $1.25 per acre, irrespective of location. But tbe court said (pp. 146, 147):
    “As tbe statute last enacted contains no words of repeal, as repeals of statutes by implication merely are never favored, our duty is to give effect to both the old and tbe new statute. * * # In tbe absence of some declaration that Congress intended to modify the long-established policy indicated by the proviso of section 2357 of the Bevised Statutes, we ought not to suppose that there was any purpose to except from tbe proviso any public lands therein described.”
    And, for the same reasons, tbe act of June 16,1880, was not in any wise repealed, added to, modified, or superseded by tbe passage of tbe Tucker Act. The Tucker Act does not relate to tbe same subject and contains no reference whatever to tbe act of June 16,1880. It was not designed' to affect it in any wise. It contains no words of repeal, and to say that tbe policy and intent of Congress to confine these applications for repayment to tbe Land Department, as shown in tbe act of June 16,1880, is nullified and reversed merely because, some years later, in passing a statute on a wholly, different subject tbe Congress conferred upon this court jurisdiction over claims “founded upon any law of Congress,” would not only be a ruthless ravishment of every canon of statutory interpretation, but a brutal assault upon common sense.
    In organizing tbe powers of government there is a definite and precise scheme or plan and a unity and singleness of means employed to carry it into effect. There is but one Chief Magistrate, one legislature, one judiciary. Tbe exercise of power by one over tbe other must be authorized by law. Its possession and scope will be such as is specifically granted. When granted, if tbe mode of its exercise be also prescribed, it must be followed strictly and can not be exercised in any other way. In grants and in the regulation of the mode of exercise, there is an implied negative — an implication that no other than the expressly granted power passes by the grant; that it is to be exercised only in the prescribed mode. Affirmative words may and often do imply a negative, not only of what is not affirmed, but of what has been previously affirmed, and that, too, as strongly as if the negative were expressed. An affirmative enactment of a new rule implies a negative of whatever is not included or is different; and if by the language used a thing is limited to be done in a particular form or manner, or a remedy is to be executed by a particularly designated person, court, or commission, it includes a negative that it shall not be done otherwise. An intention will not be ascribed to the lawmaking power to establish conflicting and, perhaps, hostile systems upon the same subject, whereby legislation would become an idle ceremony, and the law subjected to the reproach of uncertainty and unintelligibility.
    
      Messrs. Harvey and Edwin W. Spalding opposed:
    While it is true that the public land laws constitute a special and complicated body of laws, and that they are intrusted primarily to the Secretary of the Interior for enforcement, it is by no- means true that there is no appeal to any court from the decisions of the Secretary. The rule laid down by the Supreme Court is that to the Secretary is intrusted the final determination of facts in such cases as may come before him, and that his decisions as to facts are conclusive upon all the courts, but that his interpretation of the law is always subject to review and to-reversal in a court of competent jurisdiction. (Cunningham v. Ashley, 14 How., 377; Lindsey v. Hawes, 2 Black, 554-563.)
    All the cases involving the construction of the grants to railway companies are to the same effect, and show that counsel’s contention is not well founded. In the case at bar there are no questions of fact involved. All the facts alleged by the claimant are of record in the Interior Department, and are admitted by the Secretary in his decision rejecting the application for repayment and in his return made to this court. What is involved here is simply the right of the claimant, as a question of law, to the repayment asked for. It was for the purpose of deciding just such questions that this court was instituted. This case is not peculiar or different in any way from the ordinary cases coming before this court. Every case coming here must have arisen in its inception in some Department of the Government and in some body of laws peculiar to that Department and intrusted to that Department for execution, just as this case originated in the Interior Department and in the laws relative to the public lands. Unless there is some positive provision of the law creating this court, or of some subsequent law depriving the court of jurisdiction in cases arising under the public land laws, this court must have jurisdiction in this case, and it is needless to say that no such provision has been or can be brought forward. We need only refer to the cases arising under the land laws in which this court has taken jurisdiction, such as the class of claims represented by the cases of Benjamin Healey, Frederick Southworth, and Daniel Yan Iderstine, to show how contrary to the practice of this court is the claim now made by counsel for the United States, and how little it is warranted by either principle or precedent.
    The second ground assigned for the demurrer — that the act of June 16, 1880, devolves the special duty of making the payments therein provided for upon the Secretary oí the Interior, and that in no event can this court enforce the rights conferred by that law — is equally without just foundation.
    The form of the act is not different from most acts of Congress by which rights or claims against the Government are created. The Government necessarily acts primarily through its agents, the heads of the different Departments, and, accordingly, nearly every act which can ever come before this court tor construction will be found to be directed to the head of some Department. It is not contemplated in these laws that the Secretary to whom the order may be directed will refuse or fail to take the action therein contemplated, and hence there is no provision in any of them conferring jurisdiction upon this court in the event that the Secretary acts erroneously or not at all. Such jurisdiction is conferred by the general-act defining the jurisdiction of this court. To hold that this court ha.s no jurisdiction in a case because it arises under a law in which the court is not mentioned would be to deprive the court of jurisdiction in every case not especially referred to the court by the act of Congress, such as the Indian depredation, French spoliation, and other claims, referred to the court by special acts from time to time, as in none of the general acts fixing salaries, fees, or creating rights against the Government is the court expressly mentioned. And yet no one can doubt that behind every such act is the Court of Claims, instituted for the very purpose of enforcing rights conferred by law when such rights are denied or misconstrued by the executive officers intrusted with the execution of the law.
    The act of J une 16,1880, was enacted, as are other laws, with a full knowledge on the part of Congress of the existence of this court, and of its jurisdiction in such matters, and no especial mention of the court is necessary to give it jurisdiction here. Such jurisdiction could only be taken away by a special provision in the law that the court should not have jurisdiction, otherwise the general jurisdiction of the court in such cases will prevail. We need not point out that there is no foundation for the assumption that Congress designed to leave the question of repayment entirely with the Secretary. There would be no reason for any such action. In fact, the reasons would be all against such action, as we can conceive of no class of cases in which a judgment of a court would be more desirable than the class represented by the act of June 16,1880, which provides simply for the repayment of purchase money paid for land entries to which the Government could not give title, and for the repayment of $1.25 per acre overcharged when it is apparent that there has been such an overcharge. When such repayments are denied by the Secretary, no reasons can be given why this court should not inquire into the legal rights of the claimant and give judgment accordingly.
    The court has rendered judgments in many cases founded upon acts of Congress similar in form and purpose to the act of June 16,1880. The Act of March 2,1891 (chap. 496, vol. 26, Stat. L.), for the refund of the direct tax collected under the act of 1861, is a case in point. That act provided “that it shall be the duty of the Secretary of the Treasury to pay to such persons as shall in each case apply therefor,” etc., and it is well known that in default of action by the Secretary of the Treasury the claimants have brought suit iu this court and recovered judgments in many cases.
    
      The case of United States, appellant, v. Charles M. Taylor (104 U. S., pp. 216,222) is another instance. That case arose under the act of June 7,1862, making it the duty of the Secretary of the Treasury to repay, upon application being made, the moneys in the Treasury which had been realized by the sale of real property for taxes in excess of the taxes for which the sale had been made. In Taylor’s Case the Secretary refused to make the payment, and suit was brought in this court to recover judgment for the amount due under the statute, and this suit was successful. The Supreme Court affirmed the judgment, holding that a right of action in this court accrued when the Secretary refused to make the payment. Similar to this was the decision of the Supreme Court in Law tort’s Case (110, p. 146), wherein the court said:
    “The application made to the Secretary for the surplus not having been complied with, the appellee was entitled to bring this suit as on an implied contract to pay over the surplus.”
    The reason for the assumption of jurisdiction by this court in such cases is plain. It is that a right has been created by act of Congress and that this right should not be permitted to fail by reason of the opposition of the officer whose duty it is to carry out the will of Congress. The legal ground of the jurisdiction is stated by the Supreme Court in the case of United States v. Kaufman (96 U. S., 567-572), in which the court said:
    “But here the case is different. The claim has been presented to and allowed by the proper officer. The claimant has pursued the statutory remedy to the end. No special remedy has been provided for the enforcement of the payment, and consequently the general laws which govern the Court of Claims may be resorted to for relief if any can be found applicable to such a case. This is upon the principle that ‘A liability created by statute without a remedy may be enforced by an appropriate common-law action * * * and as against the Government there are no common-law actions, any appropriate action within the scope of the jurisdiction of the Court of Claims may be resorted to unless specially prohibited. Here the right has been given and a liability founded upon a law of Congress created. Of such liabilities the Court of Claims has jurisdiction, and no other remedy has been provided.”’
    It is clear, then, that under the decisions referred to, and many others not mentioned, with which the court will be familiar, that the court has jurisdiction in this case. Of the right of the claimant to the repayment under the act of June 16,1880, we think there can be no doubt. The claimant shows that he paid double minimum price for his land and that this land is now found not to be within the limits of a railroad land grant, and he is therefore entitled to the repayment of the $1.25 per acre excess paid by him at time of entry on the understanding that the land entered was within the limits of a railroad land grant. The intention of Congress, and the reason for the passage of the act is strikingly shown by counsel for the United States in his quotation from the proceedings in Congress prior to its passage. Among these quotations we find the following:
    “Mr. Berry. I do not know that I can refer directly to any written opinion of the Commissioner or the Secretary of the Interior, but I called upon the Commissioner myself and he informed me that he could not refund this money for the reason, I believe it was, that at the time of the sale the Government regarded that as a double minimum.”
    From this it appears that the Department refused to make repayment of the overcharge in such cases prior to the passage of the act of June 16,1880, for the reason that at the time of entry the land was properly held at that price, notwithstanding that subsequent developments brought the land outside of a grant. The act of June 16,1880, was designed to give the Secretary the authority and to make it his duty to make repayment in just such cases. We are not prepared, therefore, to find the Secretary rejecting an application made under the act of June 16, I860, for the very reason announced for the rejection of such claims prior to its enactment. And yet on page 317, volume 12, P. L. D., where this case was considered, we find the following:
    “The purchase in question was made in 1886, when the price was double minimum, and it can not be said that the double minimum was erroneously charged. Such price was properly charged, and there is no authority for repayment of any part of said amount under the act of June 16,1880, or any other act.”
    This court would never uphold such a practical nullification of the act of June 16,1880, as the Department here attempts, and consequently we find the counsel for the United States vainly endeavoring to show that the court has no jurisdiction, and making no defense to the merits of the claim itself.
   Nott, Ob. J.,

delivered tbe opinion of (¡be court:

The petition in this case alleges that in December, 1886, tbe claimant entered a quarter of a section of land in tbe State of Oregon and within tbe boundaries of a grant to tbe Northern Pacific Eailroad Company ; that be paid $2.50 per acre for tbe land contained in his entry; that it was part of an even section raised in price to the double minimum by reason of the railroad land grant; that tbe railroad company never definitely fixed tbe line of tbe road as required by tbe statute authorizing tbe grant, or file a plat thereof, or construct tbe road within tbe time prescribed by law; and that in consequence of this default Congress passed tbe Act 29th September, 1890 (26 Stat. L., 496), forfeiting tbe grant and declaring all lands so forfeited part of tbe public domain. The petition also alleges that tbe claimant has applied to tbe Commissioner of tbe General Land Office for tbe repayment of $1.25 per acre under tbe provisions of tbe second section of tbe act of June 16,1880, which provides that “ in all cases where parties have paid double-minimum price for land which has afterwards been found not to be within tbe limits of railroad land grant, in excess of $1.25 per acre, shall in like manner be repaid to tbe purchaser thereof, or to bis heirs or assigns.” It is also alleged that the Commissioner transmitted the application to tbe Secretary of tbe Interior, who on tbe 2d of April, 1891, denied tbe application.

To this petition tbe defendants have demurred, on tbe ground that tbe cause of action is not within tbe jurisdiction of tbe court. Tbe reason assigned for this by tbe defendants is that tbe remedy afforded tbe claimant by tbe act 16th June, 1880, is exclusive.

This act for tbe relief of certain settlers on tbe public lands and to provide for tbe repayment of certain fees, purchase money, and commissions paid on void entries of public lands (21 Stat. L., 287) enacts that “in all cases where it shall, upon due proof being made, appear to tbe satisfaction of tbe Secretary of tbe Interior that innocent parties have paid tbe fees and commissions and excess payments required upon tbe location of claims,” etc., “tbe Secretary of tbe Interior is authorized to repay to such innocent parties tbe fees and commissions and excess payment paid by them,” etc.

The statute also enacts (§2)-that where entries “shall hereafter be canceled for conflict, or where from any cause the entry has been erroneously allowed and can not be confirmed, the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excesses paid upon the same,” etc., “ and in all cases' where parties have paid double-minimum price for land which has afterwards been found not to be within the limits of a railroad land grant, the excess of $1.25 per acre shall in like manner be repaid.” The Secretary of the Interior is authorized to make the payments out of any money in the Treasury not otherwise appropriated; and the Commissioner of the General Land Office is to make all necessary rules to carry the provisions of the act into effect.

In support of the demurrer the counsel for the Government contends that where a right is given by statute and a specific remedy provided the right can be vindicated in no other way than that prescribed by the act; that if the statute gives a remedy in the affirmative without a negative, express or implied, for a matter actionable at common law, the party may sue at the common law as well as upon the statute; but when a right is solely and exclusively of legislative creation, such as the right conferred by this act of June 16,1880, then jurisdiction is limited to the particular tribunal provided for its enforcement, and jurisdiction can be exercised and the remedy pursued only in the precise forum and in the exact manner provided in the statute. The counsel for the claimant contends that the action can be maintained in this jurisdiction because the claim which is its subject is founded upon a law of Congress. It is urged that a right has been created by Congress which should not be permitted to fail by reason of the opposition of the officer whose duty it is to carry out the will of Congress. The cases of the United States v. Taylor, 104 U. S. R., 216; United States v. Kaufman, 96 id., 567, and others are relied upon to sustain this position.

The grant of jurisdiction to this court of all claims founded upon any act of Congress (Rev. Stat., §1059; the Tucker Act, 1887, 24 Stat. L., 505, § 1) is broad and general in terms and at first sight seems to include every claim created by statute; but at an early day it was beld that this grant of jurisdiction did not extend to cases for wbicli a specific jurisdiction bad been provided by an earlier statute. (Nicoll's Case, 7 Wall. R., 122.) Since then many questions bave arisen relating to these exceptions to jurisdiction and to exceptions to the exceptions; and many decisions have consequently been rendered. They may be classified as follows:

1. Where Congress create a class of claims such as the customs cases, the internal-revenue cases, the pension cases, and provide a jurisdiction for the ascertainment and allowance of such' claims, that jurisdiction is exclusive. (Nicoll’s Case, 7 Wall., 122; Turner’s Case, 9 C. Cls. R., 367; Boughton’s Case, 12 C. Cls. R., 330; Ramsey’s Case, 14 id., 367; Kellogg’s Case, 15 id., 372; Mayes, admr., v. United States, 12 Wall., 177; Daily’s Case, 17 C. Cls. R., 144.)

2. But where the officer clothed with authority to investigate and allow determines the facts of a case and refers it to this court for the determination of a question of law thereby presented, or where the officer, having allowed a claim, transmits it to the accounting officers for payment and they, or the Secretary of the Treasury, refuse to give effect to the award, an action thereon will lie in this court. (Kaufman’s Case, 11 C. Cls. R., 659; affirmed, 96 U. S., 567; Stotesbury’s Case, 23 C. Cls. R., 285; affirmed, 146 U. S., 196; Brigg’s Case, 15 C. Cls. R., 48; Bank of Greencastle’s Case, 15 ib., 225; Real Estate Savings Bank’s Case, 16 C. Cls. R., 335; affirmed, 104 U. S., 728; Nixon’s Case, 18 C. Cls. R., 448; Dupasseur’s Case, 19 id., 1; Sybrandt’s Case, 19 ib., 461; Ramsey’s Case, 21 id., 443; Horton’s Case, 31 id., 148.)

3. Where Congress create a class of claims, such as for horses and vessels lost or destroyed in the military service, and refer the claims for investigation and settlement to the accounting-officers of the Treasury, no jurisdiction to finally determine a legal right is created, and the accounting officers act simply in their usual capacity of auditing officers, and this court has jurisdiction of the claims. (Powell’s Case, 1 C. Cls. R., 400; Bogert’s Case, 3 id., 18; Shaw’s Case, 9 id., 388; affirmed, 93 U. S., 235; New Mexico Horse Cases, 16 id., 550, 559.)

4. Where Congress create a class of claims, such as claims for a surplus in the Treasury derived from property sold for taxes, or tbe direct-tax cases, with directions to the Secretary of the Treasury to pay the amount found to be due to the persons entitled thereto, no special jurisdiction is thereby created and an action will lie in this court. (Irene Taylor’s Case, 14 C. Cls. R., 339; affirmed, 104 U. S., 216; Sams’s Case, 27 C. Cls. R., 266; affirmed in McKee’s Case, 164 U. S., 287; Glover’s Case, ib., 294; Elliott's Case, 373.)

5. Where Congress pledge the faith of the United States in consideration of a person doing some act, such as that in the drawback cases, or in the sugar-bounty cases, presenting thereby an obligation in the nature of an implied contract, the action of the Secretary of the Treasury, or of the revenue officers, is not conclusive, and an action will lie upon the statutory obligation of the Government. (Campbell’s Case, 107 U. S., 407; Glynn’s Case (ante, p. 82); United States v. Realty Co., 163 U. S., 427; Swift’s Case, 105 id., 691; Swift’s Case, 111 id., 22.)

If in the case now before the court there had existed a right of action at common law, or a claim created by some statute anterior to the act of June 16, 1880, the proceedings prescribed by that act before the Interior Department would be regarded as an auxiliary remedy — as a quick and simple proceeding to enable claimants speedily to procure redress. But the court is of the opinion that no such right existed. The claimant’s land was within the purview of a railroad grant at the time of his purchase; the statute fixed the price of such land at $2.50 per acre; both parties regarded $2.50 per acre as the value of the land at that time and in its then condition, and the Government did not guarantee performance on the part of the railroad grantee. When Congress annulled the grant and the reserved sections dropped back into the public domain, it was the result of the railroad company’s inaction, and not an act of voluntary interference on the part of the Government.

If the claim was created exclusively by the act of 1880, it seems equally clear to the court that the case comes within the first snbdivision of jurisdictional cases above set forth; that the statute provided a forum for the prosecution of the claim; that that forum was not intended to be auxiliary, and that it must be held to have exclusive jurisdiction of these claims. As was said by the Supreme Oourt in the Nicoll Case, the means afforded by the statute for obtaining redress “constitute a system,” and the claimants whose rights depend entirely upon that statute can obtain redress only by the means which it has provided.

The judgment of the court is that the demurrer be sustained and the petition of the claimant be dismissed for want of jurisdiction.  