
    Gordon v. United States.
    ( l. An act of Congress referring a claim against the government to an officer of one of tne executive departments, to examine and adjust, does not, even though' the claimant and government act under the statute, and the account is examined and adjusted, make the case one of arbitrament and award in the technical sense of these words, and sq as to, bind either party as by submission to award.
    Hence a subsequent act repealing the one making the reference (the claim not being yet paid), impairs no right and is valid. De Qroot v. United States (5 Wallace, 432) affirmed.
    2. Semble that the court does not sanction the allowance of interest on claims against the government.
    Appeal from the Court of Claims; the case having been thus:
    The legal representatives of George Fisher, deceased, by petition represented to the court just named, that during the lifetime of the said George,1 and in the year 1813, a • large amount of his property in Florida was taken or destroyed by the, troops of the United States. That before his decease, the. said Fisher made application to Congress for compensation for the loss and destruction of his property. That after his- decease this application was renewed by his legal representatives. That after a delay of several years, Congress, in 1848, passed • an act for the relief of such representatives, authorizing and requiring the Second Auditor of the Treasury Department to examine and adjust their claims on principles of equity and justice, having due regard to the proofs, for the value of the property taken or destroyed; providing that the said representatives should be paid for the sanie out of any money in the treasury not otherwise appropriated. This law also enacted, that if it should be found impracticable for the claimants to furnish distinct proof as to the spedific quantity of property destroyed by the troops, and by the Indians, respectively, it should be lawful for the accounting officer to apportion the losses caused by the two respectively, in such manner as the proofs should show to be just and equitable, so as to afford a Jutl- and fair indemnity for all losses occasioned by the troops; but nothing was to be allowed for property destroyed by -the Indians.
    That this act of Congress was accepted by the claimants, and that the auditor proceeded to examine and adjust the claims under it. That the auditor refused to receive and consider certain depositions presented by the claimants, because he did not consider them properly authenticated." That the auditor made what the petition states to be “ an award” on the 22d April, 1848, allowing one-half of the value of such property as he considered the- proof established had been destroyed, assuming, as is alleged, that-one-half of the destruction was occasioned by the Indians, and not by the troops. This award amounted to $8878, and did not, as was alleged, include interest or compensation foi; the losses and injuries sustained.
    That in December, 1848, the auditor (at whose instance did not appear) reconsidered the case, corrected an error in calculation of $100 in favor of the claimants in his former report, and allowed interest on the amount as corrected by him, bein¿\$8978,' frota 1832, the date of the first application for relief, to the date of the allowance in 1848, which interest ■ amounted to, $8997.94. !Not satisfied, the complainants, demanded interest .from the time of the loss until' the awafd, at the rate of interest allowed in Florida. "What that rate was did not appear^ This renewed controversy was ■ submitted by the auditor and the claimants to the attorney- ■ gen eral of. that day, who gave an opinion that interest at the¡ rate of 6 per cent, should be allowed from the date of the loss-to the time of the allowance. Upón this a further allowance of interest was made by the ¿uditor, amounting to $10,004.89. All . which allowances were granted under the original act of April 12, 1848, and were paid to the claimants as fast as the auditor furnished his statements.
    ' The claimants,.still feeling aggrieved1, renewed their application1 to Congress, and asked relief from, the l'uling of the ^ auditor; 'complaining that he1 had excluded certain depositions, which he deemed not properly, authenticated.- Thereupon, oh December 22,1854, Congress passed a supplemental act, directing the auditor to re-examine the ease, and to allow the’ claimants the benefit of the depositions theretofore reacted, provided they were then.legally authentipated; the-' adjustment under this supplemental act to be made iii strict ..accoi’danee'with the previous act. ■ What steps, ifprjy,' were ’taken' under this supplemental act by the, auditor, was not stated'.
    On' the'3d of June, 1858, a joint resolution was passed, devolving upon the Secretary of War the execution of the Supplemental,act above referred to, directing him to proceed- ' de noto to execute the 'act knd its supplement according to ’ their plain and obvious meaning, bpit to deduct from any -'amount which might be found 'justly and 'equitably- due to the '-claimants all sums whi.eh had been previously paid.'
    
      ’■, ■ The Secretary of War proceeded to examine the case, and' ■ estimated' the value of the property destroyed at a sum higher by $158 than the auditor had done; but- he alsb found th$t all the property had been destroyed/by the troops, and • none of it by the .Indian's.- Thereupon he allowed, for the entire value of the property, instead of half its value, and-added interest from the date of the (destruction, making a further sum of $89,217.50. This sum was also paid, to the claimants.
    Still dissatisfied, another petition was presented by the •claimants to Congress, and on the 1st of June, 1860, another joint resolution was passed, authorizing and requiring the Secretary of War.to revise his execution of the supplemental act aforesaid, and on such revision to give effect to all the testimony filed, including the depositions formerly rejected by the auditor, and to restate and resettle the account, and to make such corrections in his former statemeiit and settlement, and such further .allowances, if any, as, in his opinion, justice to the claimants should require. The Secretary of War (then Mr. Floyd) did revise his statement and resettle the account; and on the 23d November, 1860, stated his conclusions in favor of the claimants, making a'further allowance ' of .$66,519.85.
    
    The object of the.petition now filed in the Court of Claims ■ was, to obtain from this court a judgment for this further allowance of $66,519.85.
    It appeared, however, that on the 2d of March, 1861,' Congress had passed a joint resolution declaring the resolution of the 1st of June, 1860, under which the Secretary .of War had made'the last allowance, rescinded,-and pronounced the same and all the proceedings under it null and void.
    But the petitioners averred, that this repealing resolution was passed without.their knowledge or consent,.'and without notice to them. 1 By reason of it: they had not been paid-
    The petition was demurred to by the United States.
    The court below, considering that there was no cause of action set up in the petition save that founded upon-the'finding of. the Secretary of War, under the resolution approved June 1, 1860, styled an award, and holding that that resolution, and all action under it, became null,by. tbe repeal of March 2, 1861, sustained the demurrer and dismissed the petition.
    'The only question, therefore, presented here, was, whether the court below gave a proper construction to the repealing resolution of March 2, 1861. ■ It was, however, asserted by the claimant, that if this construction was erroneous, this court ought to give the same-judgment which, the court below should have given, to wit: a judgment for the amount of the award with interest. The whole subject of interest, as allowed in the awards, was 'also made a matter of discussion;
    
      Mr. Bennett, for the appellant,
    
    contended, that an award having been made under the law of 1860, the repeal of the law of 1861 could not divest it. Eights had vested.' “ In such a case,” says Dr. Bouvier, “the rights acquired are left' unaffected.”- That in fact the arbitrator having made and published his award, the resolution of June 1st, 1860, .was executed, apd nothing remained to be repealed. The case came thus within the principle of Bayne v. Morris.
    
    
      As respected interest: All money due and unpaid properly draws interest. An exception'is made in favor of governments,because they arc presumed to be always ready to pay, and that any non-payment is owing to the fault of the creditor in not presenting his claim. Here the presumption Is rebutted in every part of the case. , As respected the awards of interest (though they were not'now in question) they were’ right, both on general principles and under the statute. The case was to be settled “on principles of equity and justice.’’'' There was to be “a full and fair indemnity.”
    
      Mr: Norton, contra,
    argued, that Bayne v. Morris was'.the case of an “award” in its proper/sense, and was not applicable to this case; that on the contrary, the finding of the secretary in cases like this had bpen decided in De Groot v. United States
      
       not to be an “ award*” nor in that sense binding.'
    
      . The whole matter of interest was therefore unimportant,' though the court could hardly fail to disapprove such allowances as had been made here.
    
      
       The entire sum thus Allowed, it was said by the court below, was com- ' posed of interest. But this statement was alleged by the claimant to be á . mistake. — Br?.
    
    
      
       Law Dictionary, title “Repeal.”
    
    
      
       1 Wallace, 97.
    
    
      
       5 Id. 432.
    
   Mr. ¡Justice GRIER

delivered the opinion of the court.

The case of Ferreira was the first to bring before us these claims,,under the treaty with-Spain in 1819. This was in. 1857, more than- thirty years after the date of the treaty. In the opinion of the Chief Justice in that ease, will be found a concise history of the previous legislation of Congress on this subject. That case was brought here by way of appeal as from the j udgment of the District Court of Florida. And .this court was importuned to give some' utterance by which the Secretary of the Treasury might be justified in a depar-1' , ture from-the rule adopted on the subject, with regard to the allowance of interest.'. In the argument of the case tbe Attorney-General said, stating the matters as historical facts: "

“The first of these claims was presented to the Sectetary of, the Treasury for payment in the year 1825, and others have been constantly and successively presented from that time to the present. ' The number of claims thus presented was about two hundred,'and the amount paid-lias exceeded one million of dollars.But from the first, and in every ease where interest has been allowed by the Florida" judge, the principal only' was paid, and the interest disallowed, by the Secretary of' the Treasury. For the last twenty-five years this has been the unvaried and uniform.'' course of decision and action by .every successive Secretary of the/ Treasury who has -acted on the subject, sustained by the official opinions of several, attorney-generals, without tbe express dissent of any one of them officially declared.”

But notwithstanding the persistent importunity of the parties who brought forward those stale claims,-to obtain some dictum or hint.of an opinion that interest for more than thirty years should be pajd this court refused to take jurisdiction and pronounce any opinion, on the subject.

Sipce that time' it appears- that the treasury has been thought to labor* under the. very unusual disease, of a plethora, and the Attorney-General, unwilling to “follow in the footsteps of hfs! predecessors,” has discovered a mode of relief for its depletion by allowing forty years’- intérest to these claimants, as a reward for their laches in not pursuing them in proper time.

As respects the .effect of the repealing statute of March 2,18,61, the whole argument urged on behalf of the appellants is founded on a false assumption. It is asserted’ that this-is’ a cáse of arbitrament and award, and Was binding as ■ such on the' government, and that the repeal of the resolu tion of Congress could not affect or invalidate rights; vested by the award previously made under it. But the Secretary ' of-War was. not an- arbitrator. An arbitrator is defined as “ a- private extraordinary judge chosen by the parties who have a matter in dispute, invested with power to decide the same.” -The Secretary of War acted ministerially. . The resolution .conferred no judicial-power upon h'im. In order to clothe a person'with'the authority of an arbitrator; the parties must mutually agree, to be'bound,by the-decision-of the person ''chosen to determine1 the matter in -controversy. The resolution. under -which thé secretary; assumed to-act-did not authorise him to ..make a.final 'adjustment of the matter em'sbfaeed, ip it. It did not bind the appellant, to an acceptance - of the. amount -.reported by the secretary, or that he would cease to claipor for more, after, being a fifth time paid the 'amóuht of damages awarded to and áecepied by- him.

The'joint resolution of June 1st, 1860, was the fourth resolution. which had been passedfor the adjustment of the claim of the legal representatives of George Fisher against the .United States, for injuries done tó his property by the Uni..ted.States-troops in 1813., In pursuance of the'first three bbf -these resolutions, five different allowances were made in • favoP .of, and paid ,to the appellant, amounting in all to sixty- six thousand, eight hundred and three dollars and thirty-three cents. If the finding of the Secretary of War, under the joint resolution of June 1st, 1860, was final and conclusive, so also must have been the finding and allowance of ,the second auditor of the treasurj', under the joint resolution of April 12th, 1848. Yet the appellant insisted that he was not con-' eluded by the finding of the second auditor. He claimed and received after this allowance four additional allowances: ■

An arbitrament and award which concludes.one party only is certainly an anomaly in the law. The various acts and resolutions of Congress' in this case emanated from a desire to do justice, and to obtain the proper information as a basis of action, and were not intended to be submissions to the arbitrament of the accounting officer. They were designed' as instructions to the officer by which to adjust the accounts, Congress reserving to itself the power to approve, reject, or ■ rescind, or to otherwise act in the premises as the exigencies-of the case might require. In other words, these references only require the officer to act in a ministerial, not a judicial capacity.

. The joint resolution of June 1st, 1860, gave the appellant, a tribunal, before which his claims might be investigated. The repeal of that resolution only deprived him of that tri-bunal.. It was competent for Congress to abolish the tribunal it created for the adjustment of the appellant’s claims, or it might have committed them to some other, authority. In either event the claimant’s right would not have been violated, only his' remedy for the enforcement of those rights would have been taken away or changed. The power that created this tribunal might rightfully destroy it, unless some rights had accrued which were the result of .the creation of such tribunal, and inseparable from it. Here no such rights had resulted from the passage of this resolution. The-appellant was left where that resolution found him. His right, to importune Congress for more was not at all impaired by its repeal.

Judgment aeeirmed. 
      
       13 Howard, 40.
     
      
       Page 45.
     
      
       Bouvier’s Law Dictionary, title “Arbitrator.”
     
      
       De Groot v. United States, 5 Wallace, 432.
     