
    George Chorpenning v. The United States.
    
      On the Proofs.
    
    
      A private act for the relief of a mail contractor requires the Postmaster General “ to adjust and settle the claim,” as shown by the affidavits and proofs on file in the House of Representativas. The Postmaster General settles the claim, hut does not allow the increased compensation given by a subsequent section of the act. The contractor accepts and receives the award. The “ affidavits and proofs.” referred to by the act, do not contain specific statements leaving the duty of the Postmaster General simply one of calculation, but a mass of testimony requiring the facts to be deduced as from ordinary evidence.
    
    I. When an act of Congress requires the Postmaster General “ to adjust and settle ” a claim for postal services “as shown by the affidavits and proofs on file in the House of Representativesand when “ the affidavits and proofs," referred to, contain no specific statements, hut a mass of testimony from which the facts must be deduced, as from ordinary evidence, so that the duty of the officer is more than mere calculation and involves an exercise of judicial discretion, then the award is final and conclusive, and cannot be reviewed or corrected in tjie Court of Claims.
    XI. An award by a public officer who has been required by Congress “to adjust and settle ” a claim, as shown by certain “ affidavits and proofs, ” which involve the exercise of a judicial discretion, is final and conclusive; hut it is not yet determined in the Court of Claims whether such an adjustment is to be deemed the award of an arbitrator, or the decision of a special tribunal, clothed with exclusive jurisdiction. No decision has yet been rendered against the government on any such award.
    Messrs. Hughes, Denver and Pecií for the claimant:
    This is an action brought by George Ohorpenning, in his own right, and as surviving partner of Woodward & Cborpenning, to recover certain allowances to which' he is entitled, under an act of Congress for his relief.
    The Postmaster General, in pursuance of this act, has made two separate allowances to the petitioner, but he claims that in these findings there are numerous errors, both in the construction of the act and testimony, as well as in the calculations made by that officer.
    The first point to be considered is the jurisdiction of this court. The acts of 1857 and 1863, organizing the court, give it jurisdiction over claims founded upon any act of Congress ; and it has been decided in the case of Gordon that such an act as the one passed for the relief of this claimant, does not confer special exclusive jurisdiction of a judicial character upon an officer who is directed to adjust- and settle accounts.
    Mr. Cborpenning has acquired a legal right to the allowances named in the act; if the action of the Postmaster General fails to grant him those allowances, he must seek his remedy in this court, which has been organized .to furnish relief in such cases. The only ground upon which you could decline jurisdiction would he, that this controversy is res adjudicata by the decision of- the Postmaster General; but this ground is entirely removed by the ruling in Gordon’s case. (1 C. Ols. E,p. 1.)
    With regard to the moneys received by Mr. Cborpenning on the findings of the Postmaster General,' it is to be observed that the first allowance did not purport to bean adjustment or settlement; and with regard to the second allowance a reference to the report of the Postmaster General to Congress for the year 1857, p. 26, will show that it also was not intended to be a finality. That officer states that there was a doubt about the construction of the law, and he therefore declined to base the increased compensation upon the basis of $30,000, until he had some further intimation from Congress.
    Mr. Chorpenning claimed—
    1st. For carrying mails under the first contract, the increased distance, via San Pedro.
    2d. For supplying the post office at Carson Valley.
    3d. For carrying part of the Eastern or Independence mail.
    4th. Damages for the unjust annulment of the contract.
    5th. An increase of pay on the resumption of service during the last year of the first contract.
    6th. And the further increase allowed the other contractors on account of Indian hostilities, during the term of the second contract.
    
      These claims were presented to Congress, and having been duly considered by it, that body passed the act,.approved March 3, 1857, and is to be found in vol. 11, chap. 176, of the Statutes at Large.
    The fourth item, the damages for annulling the contract, has been satisfactorily adjusted; and the fifth item, fixing the increase of pay, so far as it concerns the regular service, has been allowed. The only points of controversy now, are the first three items, viz :
    The increased distance via San Pedro, under the first contract;
    The supply of Carson’s Yalley;
    And the carrying of Eastern or Independence mails.
    The first section of the act has settled distinctly that the petitioner should be compensated for these services; and laid down the rule which should govern the Postmaster General in making the allowances, to wit: “ A z>ro rata increase of compensationwhich can only mean an increase of pay at the same rate at which he should be paid for performing the regular services under the contract.
    The principle which governed the Postmaster General seems to imply that an act comes into operation by sections. That when the first section was adopted, the pay was $14,000 and $12,500 per annum. Congress afterwards placed in lieu of those sums $30,000 per annum, and therefore the fro rata increase for the extra services is to determine, as the matter stood, when the first section became operative, and before the third section was brought into existence.
    In passing to the extra services, we here propose, in order to simplify the case, to consider them in the order in which they were considered by the department in the payments of May and November, 1857, and will endeavor to show'to your satisfaction that the proof of these extra services does not rest upon the admission of the Postmaster General; that his findings were far more than supported by the evidence, and that there is strong ground for urging upon you the highest amount claimed in the petition.
    The Assistant Solicitou for the defendants:
    This suit is brought into this court by original petition, and the claimant seeks by it to recover the sum of $198,006 89. The cause of action set forth in the petition results from the failure of the Postmaster General to execute a certain act of Congress, which it is claimed was passed for the relief of the claimant.
    The prominent facts of this case will readily suggest the defence which the government must interpose to this claim here.
    
      1st. That the evidence transmitted by Congress to the Postmaster General, and by him certified to this court, is not competent evidence, to establish the’claimant’s case here.
    This court has already held that ex-poste affidavits and other matter, which may be transmitted to this court by Congress, are not thereby made evidence. William Clark v. The United States, 1 C. Cls. R., 246, McKee v. Same, ibid., 336.
    It may he replied to this, however, that inasmuch as the affidavits and other certificates which are presented in the record were by the act of Congress, referring their claim to the Postmaster General, made evidence before that officer, they are, therefore and thereby, made competent evidence of this court.
    This construction of this statute would make it operate to change the rule of evidence by which this case might b.e heard in this court. It would make it result in taking away the rights of the government, by construction or inference, where that intention was not clearly expressed. This court held in the case of Jones fy Brown v. The United States. (1 C. Cls. R., p. 383,) that “ an act of Congress does not take away a prerogative of the government, except by special and particular words.” That rule must be applied here. This act cannot be construed beyond the case to which Congress intended to apply it, and that was to a case which the Postmaster, and not this court, was “ to hear and determine.” It is a statute too in derogation of the common law ; and for this additional reason should he strictly construed.
    2d. This case is res adjudicata. The act of Congress required the Postmaster General to “adjust'and settle” the demands of the claimant against the United States. He did so, and the claimant received the money awarded to him upon such adjustment. The case is therefore in principle analogous to the cases of Gilbert v. The United States. 1 O. Cls. R., IOS ; Kellogg v. Same, ibid., 310.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover #176,576 37 for services in carrying the United States mails in California and Utah during the years 1S52 and 1853. The facts, so far as it is necessary to consider them, are these:

Between the years 1851 and 1854 the claimant, or the firm of which he is the surviving partner, were engaged in certain mail services which involved them, it is alleged, in great loss, injustice, and personal danger. Of the truth of these allegations he seems to have convinced . Congress, for in 1857 a private act was passed for his relief, which is the basis of this action. The statute is so peculiar that it is necessary to quote it in full:

“ Chapter CLXXVI. An act for tire relief of George Chorpenning, jr.
“Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, That the Postmaster General be, and he is hereby, required to adjust and settle the claim of said Chorpenning, as surviving partner of Woodward & Chorpenning-, in his own right for carrying the mails by San Pedro, and for supplying the post office in Carson’s "Valley, and also for carrying part of the Independence mail by California, allowing a pro rata increase of compensation for the distance by San Pedro, for the service to Carson’s Valley, and for such part of the eastern mail as was carried by California during all the time when said services were performed, as shown by the affidavits and proofs on file in the House of Representatives.
“ Sec. 2. And be it further enacted, That the Postmaster General he, and he is hereby, required to adjust and settle the claim of said Chorpenning, as surviving partner of Woodward & Chorpenning, for damages on account of the annulment or suspension of Woodward & Chorpenning’s contract for carrying the United States mail from Sacramento, in California, to Salt Lake, in Utah Territory, as shown in the affidavits and proofs on file in the House of Representatives.
“ Sec. (3) 4. And be it further enacted, That the Postmaster General be required to allow and pay to said Chorpenning his full contract pay during the suspension of Woodward & Ohorpen'ning’s contract, from the 15th day of March, 1853, to the 1st of July of the same year; and also, to allow and pay to said Chorpenning $30,000 per annum from the 1st day of July, 1853, when he resumed service under the contract of Woodward & Chorpenning, down to the termination of his present contract, which said sum of $30,000 per annum shall be in lieu of the contract pay under both contracts. And the sums in this act authorized to he allowed shall be paid out of the treasury.
“Approved March 3, 1S57.” (11 Stat. L.,p 521.)

When the subject was brought before Postmaster General Brown, several of the items specified in the act were adjusted to the satisfaction of the claimant. He also made to the claimant an allowance under the first section of the act for the increased distance, via Ban Pedro, for the supply of Carson’s Valley and for the Eastern or Independence mails. But the “pro rata increase of compensation,” as the first section terms it, was not reckoned by the rate-awarded by the third section.

Without passing upon the correctness or incorrectness of this construction it is sufficient to say, that when the report of the Postmaster General came before Congress the committees of both houses on post offices, being the same committees which had previously reported the bill, adopted a resolution wherein it is said that the act “ shall be construed so as to allow said Chorpenning for the extra services mentioned in the first section, a pro rata increase of pay to be calculated, upon the basis of the pay allowed him by the same act for services under the contract But before Postmaster General Brown could reconsider his award he died. Since then the subject has been brought before successive Postmasters General and successive Attorneys General, but without effecting a revision of the award, or a re-examination of it upon the merits. The prevailing opinion seems to have been that the decision of one Postmaster General was conclusive upon his successors.

The claimant has now come into this court under that provision of the act to establish a Court of Claims, (Act 24th Feb., 1855, 10 Stat. L., p. 612,) which gives us jurisdiction of a claim “founded upon any law of Congress,” and has put in evidence the contracts,' certificates, and affidavits which were before Congress when the private act was passed, and the decision or award of the Postmaster General thereon. To this the defendants answer: First, that the ex parte affidavits and papers which were before Congress are not evidence in this court; and second, that the decision of the Postmaster General, followed by the claimant’s acceptance of the amount awarded, was final and renders the case res adyudicata.

There is no doubt, under the previous decisions of the court, that these ex parte affidavits and certificates are not competent evidence to sustain an action founded upon contract, (Clark’s case, 1 C. Cls. It., p. 246; McKee’s case, ib., p. 336.) We do not understand the claimant to have offered them -for that purpose. He, on the contrary, is understood to set them up as a part of his case, and to request the court to award that relief upon them which the private act of Congress gives, and which the Postmaster General has refused.

The second objection occasions more doubt. It is a matter of daily practice in this court, that an ordinary decision of- an accounting officer in the adjustment of accounts does not hind the claimant in an action. It was also a matter of early decision, that when Congress by special enactment directed an accounting officer to restate an account, bis statement did not bind the defendants. (Gordon’s case, 1 C. Cls. R., p. 1.) But, on the other hand, it was also early held that where Congress by special enactment “directed” an Auditor “to ascertain the damages and losses ” sustained by a contractor “ in the ‘particulars mentioned in the report of the Committee on Claims,” the award, it being accepted, was conclusive and binding upon the claimant. (Gilbert’s case,' 1 C. Cls. R., p. 108.) And to the same effect is the .more recent case of Carmick and Ramsey v. The United States, 2 C. Cls. R., p. 126, where the previous decisions are reviewed and reaffirmed.

In all of these cases the defendants have recovered. The various opinions of, the court have treated the question as though it were one of arbitration and award between ordinary suitors; and hence the belief prevails that such references by Congress (other than to mere accounting officers) are arbitrations, and the decisions subject to all the rules and principles applicable to and governing awards. But it is to be noted, on the contrary, that no decision has yet been rendered against the government on any so-called award, and the question is still entirely an open one whether such an award can be made the subject of an action against the government, or be given in evidence under the rule in the Duchess of Kingston case. The decision in each of the cases before cited may have been right, but the reasoning wrong; and it remains to be determined, when the proper case shall present the question, whether the court should treat these references as arbi-trations established by the consent of the parties and limited only by the terms of the submission, or as special tribunals established by express legislative enactment, and possessed of that exclusive jurisdiction which has recently received a full and careful exposition in the case of Meade v. The United States, 2 C. Cls. R., p. 226.

The case at bar, however, is different from all the others. The claimant does not sue upon the award, for he has received the full amount thereof, but attacks it as erroneous. Neither does he sue upon an express or implied contract, but seeks to evade the award as the mere statement of an accounting officer. He, in effect, comes into court and asks the court, first, to review the decision of the Postmaster General, and second, to assume the duty with which he was charged and become the minister of Congress in carrying out the intent of this particular law.

It is not necessary that an action here be founded upon contract either express or implied. For the statute has authorized actions “founded upon any law of Congress,” of which a familiar example are the pension cases. Yet there, a party gives evidence to show that he is entitled to tbe benefits of tbe law, and tbe court find the facts accordingly. But here, there is no evidence to establish any facts constituting statutory conditions. All that tbe court can do is to take up the papers referred by Congress to tbe Postmaster General and act as be should have acted — as an arbitrator, if be was to have been an arbitrator, or as an accounting officer, if be was to have been an accounting officer.

Tbe case which most closely resembles tbe claimant’s in this particular is that of Riley v. The United States, 1 C. Cls. R., p. 299. There Congress by special enactment bad required “ the accounting officers of the treasury ” to credit General Riley on the settlement of bis accounts with certain disbursements, of which he should produce the proper vouchers. In the settlement of these accounts the accounting officer of the treasury did not do this, but disallowed certain items which had been clearly allowed by Congress. The claimant sought to recover those items by an action in this court, and all of the judges regarded the action as well brought and acquiesced in rendering a judgment. We may, therefore, conclude in this case that if the Postmaster General acted in a ministerial capacity and as the chief accounting officer of his department to allow the items which Congress had rendered fixed and certain, then that the action will lie and that the court may re-examine the claimant’s case. If, on the contrary, the Postmaster General acted or was to act in a judicial or quasi judicial character, either as arbitrator or as a special tribunal invested with the sole jurisdiction of the claim, then Ms award was final and conclusive, and its errors cannot be corrected by an action in any other tribunal.

The language of the private act is not so decisive and clear as might be wished. The first and second sections say the Postmaster General “is required to adjust and settle the claim of said Ohorpenning;” the third, that he “ be required to allow and pay to said Ohorpenning his full contract pay,” &c. The first and second sections relate to damages outside of his written and formal contract, viz : For services in carrying the mails an increased distance by San Pedro; for supplying the post office in Carson’s Valley; for carrying an increased amount of mail matter; and for damages caused by the annulment and suspension of his formal contract. The third section relates simply to the claimant’s “ contract pay,” giving it to him in full during the suspension of his contract, and increasing it after he recommenced his services.

The duty assigned to the Postmaster General by the third section is .manifestly ministerial. He is simply to “ allow and pay ” to the claimant a certain fixed compensation under certain express contracts,. and the language “ allow and, pay” is appropriate to such purely ministerial action. But the claims now before us do not spring from the third section, but from the first. The language there is different and seems to impart a different duty in the contemplation of Congress. There has-been no fixed form of language on the part of Congress in these private acts; and in the cases where the court have held the award of the officer binding and conclusive the wording has varied. In Gilbert’s case, (1 C. Cls. R., p. 108,) it is “ to ascertain the damages and losses on just and equitable principles.” In Kellogg’s case, (2 ib., p. 310,) it is “ to settle and adjust “ on principles of justice and equity.” In Carmick and Ramsey’s'case, (2 ib., p. 126,) it is to '‘adjust the damages ” and “ adjudge and award to them according to the principles of law, equity, and justice.”

The character of the reference does not depend on the precise form of the language employed by Congress, but on the nature of the duty assigned to the officer. In this case the duty assigned by the first section of the act was “ to adjust and settle ” a claim for services at a rate prescribed by the same statute. The rate of compensation was fixed and certain; but the services were undetermined, being such as were “ shown by the affidavits and proofs on file in the House of Representatives.” This would imply that the officer must exercise a judicial discretion, and from “the affidavits and proofs” deduce, like a jury, the ultimate facts to which the statute might be applied. Still, as the statute did not allow these ultimate facts to be determined upon ordinary evidence, but limited the officer to certain “ affidavits and proofs on-file” it was possible that those affidavits and proofs contained specific statements of the services and were referred to by ■Congress as mere accounts and vouchers, leaving - the duty of the Postmaster General simply one of calculation, and involving no discretion or judgment as arbitrator on his part. But on looking into the “ affidavits and proofs ” we find they are, as their description imports, a mass of testimony from which the facts -would have to be deduced as from ordinary evidence, and from which very different conclusions might be drawn by different tribunals. We find, also, that it would be difficult and perhaps impossible for any tribunal to act intelligibly upon them without an extrinsic knowledge of the transactions and business pf the Post Office Department. In his decision upon this claim the Postmaster General says : “ The settlement of this claim has not been made without considerable embarrassment. The act of Congress was peremptory to adjust and settle, not according to the proofs that might be taken before the final action, but as shown by the proofs and affidavits on file in tbe House of Representatives. These were to be tbe sole guides in tbe settlement, and neither tbe records of tbe department nor any contradictory or explanatory testimony could be taken by the government to assist in attaining what might be considered exact justice in the case.” These facts and this opinion strengthen tbe conviction that it was tbe intention of Congress to commit tbe discretion of settling tbe claimant’s demands to an officer peculiarly able to reach a just and intelligible conclusion, and possessed of all the knowledge and experience necessary to enable them to be adjusted according to tbe established usage of tbe department. It, therefore, seems to us that the Postmaster General was invested with an exclusive jurisdiction of .the case which was necessarily final. In the important case before cited (Meade v. The United States, 2 C. Cls. R., p. 226) a majority of the judges were agreed that the special tribunal committed an extraordinary error of law, and that the claimant there had been subjected to needless vexation and injustice. Yet we were also agreed that if the special tribunal had jurisdiction of the cause of action its decisions could not be reviewed or questioned here, and that it absolutely concluded and determined the rights of the parties. The principle seems applicable to this case, and we think it cannot be inquired into upon its merits.

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

LoeiNG, J.,

concurring:

I think the act of Congress of March 3,1857, made the Postmaster General an arbitrator. The second section of the act authorizes him to assess damages for the suspension of a contract. This is the function of an arbitrator, and is not the function of a mere accountant. And it is not inconsistent with the office of an arbitrator that, in connection with his proper duties, he should state an account upon term's prescribed, relating to the same subject-matter. There is, therefore, no reason for supposing that the Postmaster General was to be an arbitrator under one section of the act and an accountant under the others, so that litigation should be closed as to one subject of the act and left open as to the other subjects of it. And in this connection it is observable that all the sums allowed are all alike directed to be paid out of the treasury on his allowance of them.

And I think that the Postmaster General in his action on the subjects of the first section applied the rule given by the act. The subjects of the first section are two contracts with different rates of compensation, and tbe allowance is to be made for extra services and is required to be a fro rata compensation, and necessarily at a different rate on eacb contract, This is express, and the terms of the first section must be carried out, unless overruled expressly or by necessary implication in the third section. And I think they are not.

The sum of $30,000 specified in the third section is declared to be “in lieu of the contract pay on both contracts,” and relates to what it is substituted for, and that is the pay for contract services as distinguished from extras. So that the first and third sections relate to different things. Then the $30,000 is a gross sum for both contracts, and there is no rule or authority for dividing it equally or otherwise apportioning it between them, so as to ascertain the different compensation on each and a fro rata allowance on them. And the terms of both sections may be carried out by allowing the $30,000 as the price for contract services for the time specified in the third section, and a fro rata compensation at the different rates of the original contracts for the extras specified in the first section. And this the Postmaster-General did.

Casey, C. J.,

dissenting:

I am unable to give my assent to the conclusions arrived at by the majority of the court in this case.' The. act passed for the relief of the claimant on the 3d of March, 1857, in my opinion, was not a submission of the case to a referee so as to give to the award of the Postmaster General any binding or conclusive effect.

Congress, in the law, defines and prescribes the exact measure and kind of relief to which the claimant shall be entitled. It determines the principles upon which it shall be based, and the evidence by which the amount shall be ascertained. Nothing is left to the judgment and discretion of the Postmaster General. His duties in the premises are neither judicial nor quasi judicial. They are simply those of an executive, accounting, and disbursing agent or official carrying into execution the will of Congress, definitely and specifically expressed. A submission to arbitration necessarily implies the duty to hear tbe case, and the right to decide it according to the opinion and judgment of the referee. But here that element of the case is wanting. Where it is referred to a party to make the calculations and fix the amount upon a designated basis, or according to a prescribed standard, the case is wholly divested of all semblance of submission and award. In the case of Kelly v. Crawford, (5 Wall., p. 790,) the Supreme Court of the United States say : “Nor was anything to be submitted to the judgment or discretion of Quigg. The books of accounts of the defendants were to determine the amount due. About these there was no controversy. The only duty of Quigg was to examine them as an accountant and to state what they exhibited.” So far as the allowances to be made under the first and third sections is concerned this doctrine, in my opinion, and with great deference to my brethren, clearly applies. As to the assessment of damages provided for in the second section of the act, the allowance may be conclusive. For, in determining the amount of these damages, the Postmaster General is to exercise his power of judging and deciding, and not only that of computing by a prescribed rule and fixed data. As to that part the report is probably conclusive. But nothing is claimed in respect of that section, or in the shape of damages. As to the allowances under the first and third sections, they are mere matters of calculation that were directed to be made in a particular manner and upon data given in the act itself. The claimant was entitled to have this computation made in this way and upon these principles. If the Postmaster General refuses to execute the law or mistakes its provisions, does that deprive the claimant of his right? Olearly not, because there was no agreement, either express or implied, that such mistake should be waived or the claimant’s rights be thereby concluded.

The remaining inquiry is whether we have jurisdiction. This is dependent, as I think, entirely on the solution of the other question. If the reference to the Postmaster General was not in the nature of an arbitrament, and his report does not partake of the character of an award, then it is not conclusive of the rights of either the claimant or the United States. And if the claimant has not received what he was fairly entitled to under.the law, that right still remains. He still holds a claim against the United States for it. That claim is founded upon an act of Congress, and, therefore, comes within both the letter and spirit of the act of 1855 and 1863, conferring jurisdiction upon this court.

In my opinion the Postmaster General erred in giving a construction to this law. In computing the allowance for the increased distance and service mentioned in the first section, it was manifestly intended that the computation should be made upon the basis of the increased compensation allowed by the third section, in lieu of that stipulated in the original contracts.

■ In rejecting this view of the case I think an error was committed against the claimant. There was nothing in the proceedings which made tbem final or wbich barred or extinguished bis right. Accruing as a right and claim against the United States, under an act of Congress, it comes within the express terms and meaning of the acts conferring our jurisdiction, we should now adjudge him what was denied through the mistake of the officer intrusted with the execution of the expressed will and purpose of Congress.  