
    R. MASON LISLE v. THE UNITED STATES.
    [No. 15773.
    Decided April 9, 1888.]
    
      On the defendants Motion.
    
    It appears on tlie face of the petition that the claim accrued more than sis years before it was filed. No disability is averred as required by Rule 70. The defendants accordingly move to dismiss. The claimant insists that the erroneous ruling of the accounting officers in similar cases misled him, and being in ignorance of his legal fights, the statute of limitations did not run against his claim.
    The erroneous ruling of the accounting officers in similar cases, whereby a claimant was misled as to the interpretation of the law and consequent existence of his legal rights, does not take his case out of the operations of the statute of limitations.
    
      The Reporters' statement of the case:
    The defendant’s motion to dismiss was made under Rule 70, and founded upon the petition of the claimant. The court, however, while granting the-motion and dismissing the petition under the rule, filed the following findings of fact:
    I. The claimant was an officer of the Navy from March 19, 1872, to May 6, 1872, of the rank of lieutenant.
    II. On March 19, 1872, he was ordered by his superior officer to proceed from Philadelphia, Pa., via New York and the Pacific mail steamer from New York on the 30th of March to Aspiuwall, across the Isthmus' of Panama, and thence to the navy-yard, Mare Island, Cal., and report for duty on board the U. S. S. Lackawanna.
    III. He proceeded by said route in accordance with said orders, completing his journey May 6,1872.
    IY. In obeying said order he traveled 0,222 miles, viz, from Philadelphia to New York, 88 miles; from New York to Mare Island, Cal., 6,134 miles.
    Y. For his traveling expenses from Philadelphia to New York he was paid $8.80, being at the rate of 10 cents per mile.
    YI. He was credited with mileage from New Pork to San Francisco, by the overland route, 3,248 miles, at 10 cents a mile, amounting to $324.80, and charged with $150 cost of transportation on the Pacific mail-steamer, and paid by Pay Director J. O. Bradford, leaving a balance by the said overland route of $174.80, which was paid by Paymaster Tuttle, of the Lacka-wanna.
    
      The claimant in pro. per.:
    Neither the claimant nor the Auditor had any knowledge that the claimant was entitled to the larger sum, until the decision in Graham’s Case in 1883; they both were under the same mistake; and in law, where both sides are ignorant — in this case, of the proper construction of a statute — it is what is technically called a ease of surprise ; hence, when the mistake is discovered by judicial decision, it is not equitable that the Government should hold the claimant bound by an acceptance under an illegal construction of an act of Congress by the Auditor, neither the claimant nor the Auditor knowing the said construction to be illegal at the time the payment was made. The law draws a well-defined distinction between a mistalce of law and a mistake arising from the construction of a statute; in the former case one is estopped, because ignorance of the law excuses no one, but in the latter case, one is not bound, and estoppel does not commence to run until the statute has received a judicial interpretation, because ignorance of the law does not mean ignorance of the proper interpretation of a statute. I ¡Story Equity Juris. (14th ed.), sections 130, 137, note 5; Bispham’s Equity (4th ed.), section 187, page 241, note 2; section 188, page 243.
    
      The statute of limitations does not apply. Graham’s Gases (18 C. Cls. B., 83).
    There are no book accounts in the case, there is no data lost, no questions of material furnished, labor performed, set-off or simple contract debt. But there has been an arbitrary misinterpretation of an act of Congress by an executive officer, and the claimant ought not to suffer by an error of a Government officer. If the statute of limitations should apply in any event, it should only run from the decision in Graham’s Case; as that cause was decided in 1883, and as the claimant made his final application to the Auditor on December 15, 1886, and filed his petition in this court on October 8, 1887, he is within the time from which the bar of the statute runs.
    
      Mr. Héber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant, an officer in the Navy, traveled by order of his superior officer from Philadelphia, by way of New York, Aspin-wall, the Isthmus of Panama, and thence to Mare Island, Cal., in the year 1872.

By the statute then in force he was entitled to • be paid 10 cents a mile for each mile traveled (act of March 3,1835, 4 Stat. L., 755), according to the decision of this court in Graham’s Case (18 C. Cls. R., 83), affirmed on appeal (110 U. S. R., 218), upon which he relies.

The accounting officers allowed him mileage only for the distance between the extreme points by the overland route. He was paid $288.60 less by that computation than he would have received if paid according to the distance actually traveled.

On the 8th of October, 1887, the claimant filed his petition in this court to recover that unpaid balance. The journey was completed and the cause of action accrued May 6, 1872, more than fifteen years before the filing of the petition. The defendants move to dismiss by reason of the limitation prescribed by Bevised Statutes, § 1069. The claimant in his petition has not averred any of the disabilities recognized by law as required by the following rule of court:

“ (70) if it appear on the face of the petition that the claim first accrued more than six years before the petition was filed, tbe claimant must aver therein the existence and period of duration of some disability, recognized by law, which prevented his filing his petition within that time; in default whereof, it will be considered that no such disability existed, and the petition may be dismissed on motion.”

The claimant appears to have been misled by the report in the Graham Case, which does not state the time of filing the petition. In point of fact it was filed within the six years’ limitation, although the case was not decided until long after-wards.

But the claimant was informed of his mistake by the motion and brief of the defendants, and did not amend his petition alleging any disabilities recognized by law, and none are therefore involved in the case.

He insists, however, in his brief that his claim is taken out of the statute of limitation because the accounting officers made a mistake in the interpretation of the law, by decisions in other like cases, that mileage was not to be computed as claimed, that it did not come to his knowledge until the decision of the Supreme Court in the Graham Case that the ruling of the accounting officers was erroneous, and that while he was in ignorance of his rights by reason of such mistake the statute of limitations did not run against his claim.

This is a novel doctrine, without the support of principle or authority. The knowledge of the law was as free to the claimant as to the accounting officers, and the court was open to him for six years in which to bring his action to test the accuracy of their decision.

The petition is dismissed.  