
    VICTORIA GERDING, Administratrix of Vaux, v. THE UNITED STATES.
    [No. 16844.
    Decided Nov. 27, 1893.]
    
      On the Proofs.
    
    This is the same case decided on demurrer 26 C. Cls. R., 319.
    I.The jurisdiction given by the Tuolcer Act, 1887 (24 Stat. L., p. 505, § 3), which allows any person who “ is or has leen indebted to the United, States” and whose “aecomits still remain unsettled and ivnadjnsted” to bring suit in this court does not authorize a judgment against the Government. The utmost that the court can determine in favor of the claimant is that he owes nothing.
    II.In such cases the facts will be found as established by the evidence, but simply for the purpose of showing that there is nothing due to the United States.
    III.The liability of the claimant to the Government is settled by the result of this proceeding as long as it remains unreversed.
    
      
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbis case as found by tbe court:
    I. Tbe claimant served as a commissioned officer in tbe IT. S. Army, to wit, as chaplain from August 17,3864, to June 8,1880, on tbe active list, and from then to July 22,1882, on tbe retired list.
    II. Claimant served as chaplain under section 18 of tbe act of July 5, 1838, not then being a commissioned officer, from September 29,1849, -to July 12,1861.
    III. By a resolution of tbe council of administration of Fort Laramie, Missouri Territory (under section 18 of act of Congress approved July 7, 1838, section 2, act July 17, 1838, 5 Stat., 259 and 308; section 3, act March 2,1849, 9 Stat., 351), dated September 29.1849, and approved by Secretary of War. Rev. William Yaux was employed as chaplain of tbe post with tbe compensation of $40 per month and four rations per day and tbe allowances of quarters and fuel as a captain. He was so borne on tbe official records and remained on duty until July 12,1860, when be left tbe post on leave of absence for twelve months. His name appears on tbe post return for May, Í862, with tbe remark absent without leave since July 12, 3861.”
    IY. He.was appointed hospital chaplain at Columbia Hospital, Washington, ID. C., August 17,1864; was commissioned May 3, 1865, to rank from August 6, 1864, and served until April 29,1867, when be was honorably mustered out of service., He was commissioned post chaplain IT. S. Army April 19,1867, to rank from March 26,1867. He accepted commission April 29, 1867. At bis own request, being over 62 -years of age, was retired from active service June 8,1880, and died July 22, 3882, at Santa Cruz, Cal., while chaplain IT. S. Army, retired.
    If tbe claimant is entitled to be credited with the time served by him as post chaplain under tbe act of July 7, 1838, in calculating longevity pay, tbe account of tbe late William Vaux, post chaplain, IT. S. Army, would stand as follows:
    Cb.
    Pay not drawn from Sept. 29 to Oot. 31,1819, at $10 per month_ $42.66
    Four rations per day during same period, at 20e. per ration.. 26.40
    Pay not drawn from July 1 to 12, 1861, at $60 i>er month. 24.00
    Four rations per day during same period, at 30c. per ration.. 14.40
    
      Pay from July 1, 1882 (dalfe tip to which he was last paid as post chaplain. U. S. A. retiree]), to July 22, 1882 (date of death), at $157.50 per month. 115.50
    Two longevity rations per diem, as hospital chaplain from August 17, 1864, to April 28,1867, for ten years’ services as chaplain under act of July 7, 1838; August 17, 1864, to March 2, 1865, rations, at 30c..:... 118.80
    March 3, 1865, to July'27, 1866, 1,024 rations, at, 50c. 512.00
    July 28, 1866, to April 28,1867, 550 rations, at 30c. 165.00
    Less tax. 39.79
    Short paid in third longevity increase one month and fourteen days (for service from Sept. 29 to Oct. 31, 1849, and from July 1 to 12, 1861), 3 rations per day from Nov. 3 to Dec. 17, 1867, 132 rations, at 30c., $39.60, less tax, $198 . 37.62
    Short paid in fourth longevity increase from Nov. 3 to Dec. 17, 1872, 1 month 14 days, at $50 per month. 73.33
    Longevity increase under the “Tyler decision” for 15 years’ service, July 15,1870, to Nov. 1,1872, $106.82, less tax for July, 1870, . 10c. 106.72
    From which deduct overpayment in first longevity ration, August 6 to 16, as per Second Comptroller’s statement of account, $3.30, less 16c. tax...1. 3.17
    1,193.47
    VI. — Action in the Department.
    “ Santa Cruz, Cal., August. 1st, 1882.
    
    “ To Second Auditor,
    
      “ Treasury Department, Washington, D. C.
    
    “(Thro. Paymaster-General U. S. Army.)
    “ Sir : I have the honor to request that I may receive the settlement of my husband’s, Chaplain William Vaux’s, account at as an early a date as convenient. I believe pay was due him from the 1st to the 22d of July, 1882.
    “Respectfully yours,
    “Mrs. Eliza Vaux.
    “ [Form 119.]
    “ Treasury Department, Second Auditor’s Office,
    
      “ Washington, D. G., August, 1882.
    
    
      “ Respectfully returned. It can not well be determined whether any pay is due in the case of Rev. Win.. Vaux, deceased, late chaplain, U. S. A., until a claim has been presented and an examination of the muster and pay rolls is made in connection with th5 evidence contained in the application and reports which may he received from the War Department.
    “ If you desire to present such a claim, the inclosed blank form will answer your purpose.
    “H. C. Haemon,
    
      “Acting Auditor.
    
    “H. A. W.
    
      “ Mrs. Eliza Yaux, Santa Cruz, Cal.”
    
    “Treasury Department,
    “Second Auditor’s Oeeice,
    “ September 11th, 1883. .
    
    “I certify tbat I bave examined tbe claim of Eliza Yaux, widow of Rev’d Wm. Yaux, dec’d, for service increase pay as chaplain of U. S. Army, and find that there is nothing due claimant from the United States, and that said claim should be disallowed. The officer has been overpaid on account of service increase of pay in excess of the amount due him under the decision of the Supreme Court, U. S. vs. Tyler.
    “Said claim and all the vouchers and papers are transmitted, with this certificate, to the Second Comptroller for his decision thereon.
    “H. C. Harmon,
    “ Acting Second Auditor.
    
    “Treasury Department,
    “Second Comptroller’s Oeeice,
    “ August 5th, 1886.
    
    “The action of the Second Auditor in reporting against the allowance of the above-described claim is approved, and said claim is-hereby disallowed. The claim of Eliza Yaux, widow of William Yaux, deceased, for arrears of pay and other allowances on account of the services of William Yaux, post chaplain, U. S. A., retired, is disallowed, but in case a decision favorable tb the claimant shall be rendered by the courts in the case óf Chaplain John Woart, it may be reconsidered. The claim for bounty is disallowed for the reason that there is no law authorizing the payment of bounty to chaplains.
    “I. H. Maynard,
    “ Second Comptroller.
    
    “ J. W. B.”
    
      [Office of the Second Auditor of the Treasury.]
    
      Dr, The United States to Hev’d Wm, Vaux3 decd} late chaplain, TJ, 8, A,
    
    
      
    
    “ [Indorsement.]
    “Treasury Department,
    “ SECOND Comptroller’s Oeeice,
    
      u August 5,1886.
    
    “ From Noy. 1,1849, to July 1,1862, and from Aug. 17,1864, to Ap’l 28, 1867, inclusive, the claimant was employed under the provisions of the 18th section of the act of July 5, 1838 (5 Stat., 256), authorizing the officers composing the council of administration at any post from time to time to employ such person as they may think proper to officiate as chaplain, who shall also perform the duties of schoolmaster at such post.’ It is held that he was not entitled to be credited with any part of that period in computing his service for longevity purposes after he became an officer of the Army. He has taken credit for service under the act of July 5, 1838, and has drawn longevity allowances based thereon, in an amount exceeding the aggregate of all credit'to which he is entitled under his claim. His claim is therefore disallowed, but the question of his right to recover thereon will be further considered if a decision favorable to the claimant shall be rendered in the case of Chaplain John Woart, which was referred to the Court of Claims by the Secretary of the Treasury under section 1063, R. S., upon the certificate of the Second Comptroller, in April, 1864.
    “P. A. Auer,
    
      “Revising GlerkP
    
    
      Mr. Joseph W. Stryker, for the claimant.
    First, as to the question “whether the proof shows that application was made to 'the proper Department requesting an adjustment and settlement of the account,'as required by section 3 of the Tucker act,” that the letter in the evidence for claimant reading:
    “ Santa Cruz, Cal., August 1,1882.
    
    
      u To Second Auditor,
    “ Treasury Department, Washington, D. 0.:
    
    “ Sir : I have the honor to request that I may receive the settlement of my husband’s, Chaplain William Yaux’s, account. # * #
    “ Respectfully, yours,
    “ Mrs. Eliza Yaux.” (R., p. 12.)
    shows such an application was made; and, further, that the evidence shows this letter was then, for four years, so acted upon and considered by the Treasury Department.
    Second, as to the question “Is the claim within the jurisdiction of this court under section 3 of the Tucker act?” Defendant’s brief generally states the object of this section 3 correctly so far as it goes, yet it “sticks in the bark” and does not give its chief object, which is that a party shall be permitted thereunder, when the accounting officers of the Government issue an arithmetical decree proclaiming him virtually a defaulter to the United States, to come, if he deems the decree arbitrary, erroneous, or unjust, into this court and, if a just and correct accounting in his case will entitle him to it, get removed the consequent injury to his reputation, just as Plutus is permitted to go into a court of equity and get removed, if so entitled, the cloud upon his title to a corner lot; that as the question of official integrity, thus brought here under review, cornerstones the structure of all free government, the very functions of the court are by this section 3 much exalted.
    
      Further, that for all the purposes of this section an officer is. placed in tbe category of those who “ are or may be indebted to the United States” whenever the appropriate Government officers have issued against him a decree of indebtedness, or have their boohs in such, shape that it may be issued therefrom, and that it makes no manner of difference if it is liable to or does eventually turn out that a person suing under this section in this court really has or has had a claim against the United States upon which he can or can not demand a judgment, accordingly as it is or is not under six years old; that if he has had such a demand, and by his laches has rested on it for six years, his right to ask for a judgment is lost; but if the Government, through its officers, keeps or puts him, as aforesaid, in the class of those “ who are or may be indebted to the United States,” his right to demand an accounting under this section 3 all the same exists or remains, i. e., tb determine his right to this accounting no inquiry or look to his laches, or to what may be his real status as a debtor or creditor to the Government, is useful, nor can it be useful to look beyond the petition, or to any argument on merits — as the defendants suggest — to determine a jurisdictional point.
    Third. As to the question, “ if this case were within the jurisdiction of this court, under section 3 of the Tucker act, could any finding in favor of the claimant be made,?’ that the words, of said section 3, “ to ascertain the amount, if any, due the United States on said 'account,” should be obeyed by the court, not technically and literally, but according to' their reason and spirit; for example, just as the boy answers, when asked how much, if any, he is taller than his playmate, “why he (the playmate) is a head taller than I am;” as the bank bookkeeper, when asked by the paying-teller how much, if any, has Mr. Smith overchecked his account, “it is good for a $1,000' yet”; and further, even if the court should find the decedent has not overdrawn his account with the United States, but that it is good for $1,000 yet, no liability would thereby be fixed upon the Government to pay this sum to him unless it first chose to say so by passing a private bill in .his behalf through Congress; hence this was no attempt “to put an old claim in a new garb,” or “to revive any dead claim,” for the-claimant could go and appeal to Congressional clemency if the Court of Claims and this section 3 had never been born.
    
      That a finding by the court “No balance due the United States ” would be an affirmation that neither party owed the •other 'anything (Tillou Case, 1 O. Cls. It., 220); and that, as to the Government’s demand of $3,900, the claimant set up one indivisible offset of $5,100, an allowance of $3,900 of the latter •sum would carry with it a determination in favor of the remaining $1,200 of it (1 C. Cls. It., 220), and, in this event, a finding of “No balance .due the United States” would deceive, be a falsehood which certainly should not enter into statements which are “to import absolute verity;” that a finding of a balance, if any, due the claimant “ on said account” thus arises •ex necessitate rei, and is sanctioned by the proceedings of the United States circuit court in Freeman’s Case (United States v. Wm. H. Freeman, Yol. 1, Woodbury and Minot’s C. C. Reports, p. 45, Levi Woodbury, associate justice United States Supreme Court, presiding), and the full proceedings of which are given in House Report No. 821, Twenty-ninth Congress, filed among the papers of this ease; that there is of course a •close analogy between this case (in which a party becomes nominally plaintiff in this court under section 3 of the Tucker act, instead of being made at his own request defendant in a federal court, U. S. Rev. Stat., section 1766) and that of a set-off pleaded in an action by the United States against an-•officer in a Federal court, where a balance in the defendant’s favor can be judicially ascertained though no judgment can be rendered for it (De Groot v. The United States, 5 Wal., 431; The United States v. Felcford, 6 Wal., 484, latter of which is the same as the Tillou Case, supra) and that the claimant could set up as offset to the Government’s demand any demand of his own against it, though over sis years old (13 O. Cls. R., 311; 6 Wheaton, Í35); and, finally, that it could not be held that the whole proceeding should fail; for, as the claimant would unquestionably be entitled to relief, under this section 3, if he had drawn upon his account more money of the Government, i. e., so as to bring it down to evenness, this would make the whole proceeding fail because he has actually drawn less than"his dues — a startling contrast to the position often ■of the rejected suitor in equity who is denied relief because he has done (not too much, but) not enough equity.
    
      
      Mr. Charles. C. Binney (with whom was Mr. Assistant Attorney-General Bodge) for the defendants:
    1. Is the claim within the jurisdiction of this court under -section 3 of the Tucker act?
    Before the passage of the Tucker act the general jurisdiction •jof this court extended to two classes of cases:
    (1) Claims, arising from certain specified causes, for the recovery of money from the United States.
    (2) Claims of disbursing officers for relief from liability, ■arising from certain specified causes, to the United States.
    Claims of the first class were subject to a statutory limitation of six years from the time they first accrued, except in the •case of persons under certain disabilities. Those of the second ■class were not subject to such limitation until the right to relief had been denied by the proper officer or officers.
    The Tucker act enlarged the jurisdiction of this court by adding to the first-class claims arising from certain other causes (with a proviso extending the six-year limitation to all suits against the United States under that act), and also by establishing a new branch of jurisdiction, a third class of cases, viz, cases where parties who either were or might be indebted to the United States could have their accounts settled and a judgment rendered for the amount, if any, due the United States, payment of which judgment should discharge the obligation, while all liability to the United States on any account so adjudicated should be barred unless suit were brought within three years from the date of final judgment.
    Under this new branch of jurisdiction a means is provided whereby persons who are or may be indebted to the United States may have their accounts adjusted so that they can pay what is due and be relieved of their liability. Its purpose is to, obviate the hardship under which debtors to the United States had labored, viz, that they never could receive the protection of a statute of limitations. It effects this purpose by enabling such persons to force a settlement of their accounts and to forever bar all further action by the United States after three years from the time such settlement is finally made. Those persons, whether officers, agents, or contractors, or their guarantors, sureties, or personal representatives, in favor of whom or of whose principals balances do or may exist, are not withurthis section 3 of the Tucker act, because they do not need its relief. They have claims against the United States,, and can sue without regard to this section. They do not need to force the United States to make good a claim against .them,, which is the object of this section. More than this, if a person has any claim against the United States, within the jurisdiction of this court, even though such claim be less than a set-off or counterclaim which the United States may have against him, he can come into this court independently of this section. It is only persons who have no claims whatever which they can prosecute in this court independently of this section who-can relieve themselves of liability by resorting to it.
    The present case is simply that of a claim against the United States founded on a contract of service, to which claim the Second Auditor of the Treasury has alleged a set-off, viz, certain sums paid to the decedent as longevity allowances in excess of what was really due him. Such a claim belongs to the above-mentioned first class of cases of which this court has jurisdiction. The right of the decedent’s personal representative to sue in this court was complete at the date of the decedent’s-death, July 22,1882, no prior application .to the Treasury Department being required {Clyde v. United States, 13’ Wall., 38); and suit not having been brought on this claim within six years from the time it accrued, it is now barred.
    It is to get around the bar of the statute that a petition has been filed under section 3 of the Tucker act, and the old claim for arrears or pay appears in a new garb as an unsettled account between the United States and the decedent in his office of chaplain. Certainly the fact that the decedent’s representative slept on her rights until November 18,1890, for more than two years over the six allowed her by statute, can give her no new and additional rights. Her claim was, in law, as complete on July 22,1882, as it has been at any subsequent time. Her laches can not change the character of her claim, though it can and does deprive her of her remedy.
    Even' though the claimant’s petition might possibly be regarded as so worded as to give some color of a right to relief under section 3, the arguments advanced for the claimant at the prior hearing have disclaimed that right. She denies, as a matter of law, all liability to the United States, except for $3.17, longevity ration overpaid, and she claims that there is a balance due of $1,193.47. In other words, she makes .a claim for $1,197.64, and concedes a set-off of $3.17. This shows, that she is really seeking to recover money, not to be relieved of liability. But even if she had admitted that a balance was due the United States on account of overpayment, yet so long as her proceeding was based on any claim against the United States, if only for the decedent’s pay between July l and 22, 1882, she still would not be within section 3 of the Tucker act. It is only by abandoning all claim against the United States, and by seeking merely to have its claim against her ascertained, that she can make use of that section.
    It follows from what has been above stated that this case is outside the.jurisdiction of this court under section 3 of the Tucker act, and hence that the application for arrears of pay made by Mrs. Eliza Yaux, widow' of the decedent, on September 5,1882, to the Second Auditor of the Treasury, was not and could not have been an application for the adjustment and settlement of an account, as required by that section.
    2. If this case were within the jurisdiction of this court, under section 3 of the Tucker act, could any finding in favor of the claimant be made?
    Even if it could be maintained that the allegation of overpayment of longevity allowances, set up by the Treasury Department and denied by the claimant, entitled the claimant to come into this court under section 3 of the Tucker act, no finding could possibly be made in her favor. This court is authorized, in cases properly before it under that section, “ to ascertain the amount, if any, due the United States ” on account, and to give judgment accordingly. No other finding or judgment than one in favor of the United States is mentioned in that section, nor can any other have been contemplated in view of the evident purpose of the section, which, as already stated, is to enable persons liable to the United States to force a discharge from such liability. In this respect cases under this section are somewhat analogous to those of the second class above mentioned (under the disbursing officers’ act, Eev. Stat., §§ 3 059,1062), where “ the plaintiff asks, and, by the very terms of the statute under which the Court of Claims acts, can obtain no judgment for money against the United States, nor fix any liability on the Government to pay him anything” (United States v. Glorie, 96 U. S. B., 37,43); but here the analogy ceases, for in those’ cases the plaintiff, if adjudged free from fault or negligence, can have, under Eev. Stat., § 1062, a decree entitling him to a credit in the settlement of his accounts, whereas, under section 3 of the Tucker act, there is no provision for any finding which will enable the claimant even to obtain a credit. The reason is obvious; where a balance is due from the United States, the party to whom it is due has a. claim against the United States which can and must be prosecuted independently of this section.
    But there is another reason why no finding can be made in the claimant’s favor, viz, because nothing is due her. The-right to every item claimed by her accrued, if at all, more than six years before November 18, 1890, when this suit was begun, and hence the statute of limitations, in section 1 of.the Tucker act, is a complete bar. Granting for the sake of the argument that the claimant had a right to seek relief from liability to-the United States under section 3, and that this proceeding has been properly instituted, it can not be the means of furthering any claim against the United States, and still less can it have the effect of reviving a dead claim. The only possible finding that this court could make under section 3 in this case, is that something or nothing (as may have been determined in consequence of the argument previously had) is due the United States.
    There is no analogy between the present case and that of a set-off pleaded in an action by the United States, where a balance in the defendant’s favor can be judicially ascertained, even though no judgment can be rendered for it. Here all remedy for what might once have been due the claimant is-barred by her own laches, and, apart from that, nothing due any claimant can be judicially ascertained in a proceeding of this character.
   WeldoN, J.,

delivered the opinion of the court:

On the 27th day of April, 1891, the court announced an opinion in this case (26 C. Cls. R., 319) in which it was in substance decided, that inasmuch as the claimant did not admit an indebtedness to the defendants there was no jurisdiction in this court under the statute authorizing suits to be brought against the United States.

That opinion was delivered on demurrer to the petition, and. the following order was made:

“The order of the court is that the x>etition be dismissed with leave to the claimant to have this order set aside for the-purpose of amending ber petition if sbe so elects on or before tbe 3d Monday of May next.”

A motion was then made “ for further findings of fact.”

Upon tbe argument of that motion a new trial was granted, and the case is now presented as upon an original trial. Upon a reconsideration of tbe case tbe court determines, notwithstanding tbe failure of tbe petition to allege or admit an indebtedness to tbe United States, to state tbe facts as set forth in tbe findings hereto attached.

Upon tbe facts so found we simply decide, as a conclusion of law, that nothing is due tbe United States. In tbe opinion of the court that is tbe extent of tbe jurisdiction of tbe court under tbe third section of the act of March 3, 1887 (24 Stat. L., 505), which reads as follows:

“ That whenever any person shall present bis petition to tbe Court of Claims alleging that be is or has been indebted to tbe United States as an officer or agent thereof, or by virtue of any contract therewith, or that be is tbe guarantor, or surety, or personal representative of any officer, or agent, or contractor so indebted, or that be, or tbe person for whom be is such surety, guarantor, or personal representative has held any office or agency under tbe United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to tbe United States has arisen and exists, and that be or tbe person be represents has applied to tbe proper Department of tbe Government requesting that tbe account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by tbe United States, said court shall, due notice first being given to tbe bead of said Department and to tbe Attorney-General of the United States, proceed to bear the parties and to ascertain tbe amount, if any, due tbe United States on said account.”

In this proceeding we have simply stated the facts for tbe purpose of showing that there is nothing due tbe United States. As is said in tbe former opinion no provision is made for a judgment in favor of plaintiff. Tbe judgment of tbe court as now-rendered settles tbe question of the right of tbe defendants to claim anything from the estate of tbe decedent. Tbe liability of tbe estate to tbe United States is settled by tbe result of this proceeding, as long as it remains unreversed.

No judgment can be rendered in favor of tbe defendants nor any conclusion of indebtedness stated in favor of tbe claimant.  