
    EDWARD L. JORDAN v. THE UNITED STATES.
    [No. 13377.
    Decided January 21, 1884.]
    
      On the Facts.
    
    Citizens of Tennessee become liable for two income taxes of equal amount; one the general, the other the special, war income tax; the first payable June 30, the second October 1, 1864. After a number of persons have paid both taxes, the Secretary of the Treasury issues a circular exempting persons in Tennessee from the payment of the first. Congress subsequently pass the Act 29th July, 1882, refunding to these persons by name certain amounts, equal to the total of both taxes, but reciting that they are for taxes collected contrary to the Secretary’s circular. The Treasury pays only so much as was exempted by the circular.
    I.Congress, by the Act 29i7i July, 1882 (22 Stat. L., p. 723, ch. 359), determined not only what particular citizens of Tennessee should have relief for income taxes assessed and paid during the war, but also the exact amount which should be paid to each one of them.
    II.Congress in that enactment were not dealing with legal rights, for the claimants had none, and technicalities should not be considered in granting relief.
    III. It would be an unwarrantable assumption of power to review the facts and reasons which Congress gives in the numerous acts passed for the relief of persons and to deprive such persons of moneys appropriated for them.
    IV. A mistake of fact upon which the action of Congress is predicated does not control the positive enactment founded upon it.
    V.Recitals abound in special acts for the relief of individuals, and neither the executive officers nor the judiciary can require facts recited to be proved before the parties can obtain the money granted to them.
    VI.The phrase, “The Secretary of the Treasury is authorized and directed to pay," &c., is a common formula in special and private acts, and in the absence of words implying discretionary power it gives none.
    VII.Where Congress appropriate a specific amount for the relief of a person named in the act, this court has jurisdiction under Revised Stat- . ntes, $ 1059. The claim is “founded upon a law of Congress."
    
    
      
      The Reporters’ statement of the case:
    This ease the claimant brought by the voluntary filing of his petition. The following are the facts as found by the court:
    I. After the passage of the Act of July 29, 1882, chapter 359 (22 Stat. L., 723), the claimant was paid upon a Treasury warrant, dated November 2,1882, the sum of $1,145, on account of the appropriation made in his favor by said act, and he has been refused any further payment on account thereof.
    II. At the request of the counsel for the defendants the following additional facts were also found:
    Claimant resided in the second collection district of Tennessee, in Rutherford County. May 5, 1864, an internal-revenue assessor was first appointed for this district. August 30,1864, an assessment division of the district, comprising Rutherford County, was first established. June 6,1865, the claimant paid the collector of this district $1,1.45 as annual income tax for the year 1863, under the requirements of the Aet of July 1, 1862, chapter 119 (12 Stat. L., 473, 474), and $1,145 as the special 5 per cent, war income tax for the year 1863, under the requirements of the Joint Resolution of July 4, 1864, No. 77 (13 Stat. L., 417). June 21, 1865, the Secretary of the Treasury issued Special Circular No. 16, containing the following, among other, regulations:
    “ Section 46 of the internal-revenue act approved June 30, 1864 (13 Stats., 240), provides that whenever the authority of the United States shall have been re-established in any State where the execution of the laws had previously been impossible, the provisions of the act shall be put in force in such State, with such modification of inapplicable regulations in regard to assessment, levy, time, and manner of collection as may be directed by the Department.
    “"Without waiving- in any degree the rights of the government in respect to taxes that have heretofore accrued, or assuming to exonerate the tax-payer from his legal responsibility for such taxes, the Department does not deem it advisable to insist at present upon their payment, so' far as they were payable prior to the establishment of a collection district embracing the territory in which the tax-payer resides.
    “ But assessors in the several collection districts recently established in the States lately in insurrection are directed to require returns and to make assessments for the several classes of taxes for the appropriate legal period preceding the first regular day on which a tax becomes due after the establishment of the district.
    “ In the States of Virginia, Tennessee, and Louisiana collection districts were some time since established, with such boundaries as to include territory in which it has but recently become possible to enforce the laws of the United States. In those districts the rule laid down above will be so modified as to require the assessment and collection of the first taxes which become due after the establishment of assessment divisions in the particular locality.”
    June 19, 1873, the Secretary of the Treasury addressed to the Commissioner of Internal Revenue the following letter, which is referred to in the act of Congress mentioned in Finding I:
    “Treasury Department,
    “Office of the Secretary,
    “ Washington, June 19,1873.
    “ Sir : I have considered the claim of William Gosling and others, applicants for refunding taxes alleged to have been illegally collected, included in schedule No. 243 from your office, and am of opinion that under the existing laws the taxes paid by these parties were legally paid and should not be refunded. But I fully recognize the hardship of the case, and desire that such claimants may receive relief from Congress.
    “ I have therefore to suggest that .you will in your next annual report, or on any other occasion which you may deem more fitting, recommend the passage of a special act authorizing the refunding of all taxes paid by residents of the insurrectionary States which under Department circular of June 21, 1865, should not have been collected, such refunding to be made whether the tax in question was collected before or after the issue of the circular.
    “ I am, very respectfully,
    “William A. Richardson,
    “ Secretary of the Treasury.”
    
    After the jiassage of said act the Commissioner of Internal Revenue addressed the following letter to the Secretary of the Treasury:
    “ Treasury Department,
    “ Office of Internal Revenue,
    “ Washington, Sept. 6, 1882.
    “ Hon. Charles J. Folger,
    “ Secretary of the Treasury:
    
    “ Sir : I have the honor to transmit herewith for your action the following claims for the refunding of taxes assessed and collected contrary to the provisions of regulations, special No. 16, issued June 21, 1865, viz:
    #######
    Edward L. Jordan.............................. $2,290 00
    [with other names mentioned in said act, and the amount therein specified set against each name].
    “Under an act, Private No. 176, approved July 29,1882, you are authorized and directed to remit, refund, and pay back the taxes so assessed upon and collected from these and certain other claimants.
    “ The remainder of the claims will be forwarded as soon as they are in proper form.
    “ Yery respectfully,
    “ H. (J. Rogers,
    
      “Acting Commissioner.
    
    * Upon which was indorsed the following order:
    “ Treasury Department, September 11,1882.
    “ By virtue of the authority conferred upon the Secretary of the Treasury by “An act for the relief of citizens of Tennessee” (Private No. 176), approved July 29, 1882, I hereby direct the payment of the several sums specified in the within letter to the persons or their legal representatives therein named, in accordance with said act.
    “ EL F. French,
    
      “Acting SecretaryP
    
    Subsequently, after this action had been commenced, the following indorsement was made thereon:
    “ Treasury Department, December 7, 1882.
    
      “ The foregoing order of September 11, 1882, is construed to mean only that such sums shall be refunded or paid as were collected from the persons within named contrary to the provisions of the regulations issued by the Secretary of the Treasury under date of June 21, 1865, mentioned in said act, and effect is to be given to said order accordingly.
    “ Chas. J. Folger,
    “ Sec’y, &cP
    
    
      Mr. G. F. Benjamin for the claimant:
    1. The order of the First Comptroller is null and void, because the statute directing payment to the petitioner singles out the Secretary of the Treasury as the ministerial officer to execute the legislative will, and therefore .bars any revisory or appellate jurisdiction that might otherwise reside in the First Comptroller. (Bank of Greenoastle v. U. 8., 15 C. 0., 225, .230; Savings Bank v. Ü. 8., 16 O. C., 335, 350; Barnett et al. v. U. 8., id., 515, 521.)
    2. The terms of the statute amount to a positive direction 4o pay a specific sum to the petitioner, whose account is thereby exempted from review by the Comptroller. (Riley v. U. S., 1 C. 0., 299, 301; Hall v. U. 8., 17 O. 0., 39, 45.)
    3. It does not appear that the' payment of the full sum •claimed would be otherwise than comformable to the purpose and spirit as well as the language of the act. The Secretary’s •letter of June 19, 1873, draws no such distinction between the •“ annual income tax ” and the “ special war tax ” as that drawn by the Comptroller in his so-called opinion.
    
      Mr. George L. Douglass (with whom was the Assistant Attorney-General) for the defendants:
    This case presents substantially but one issue, and that is as to the proper construction of the special act of July 29, 1882.
    The allowance is indeed prima facie evidence of the debt, but it is “ conclusive” only “ until impeached for fraud or mistake” (Kaufman’s Case, 96 U. S., 567); and a mistake as to his powers or jurisdiction is a mistake of the most fatal character. (Davis’s Case, 17 C. Cls. E.; 292.)
    If the Acting Secretary’s order meant that the persons named were to be repaid “in accordance with the act” such •taxes as they had paid “ contrary to the regulations,” and at the same time peremptorily allowed this claimant $2,290, it ■stands impeached for a “mistake” too plain for argument. Assuming, therefore, that claimant’s interpretation of the Acting Secretary’s order be correct, his position is not bettered thereby, for in either case we are obliged to fall back upon the act itself to ascertain the powers of the Secretary and the ■rights of the claimant.
    Whatever may have been the effect of the Secretary’s order, it is clear that, under the decision in Eidgway’s Case (18 C. Cls. E., 714), he could modify or rescind his allowance at any time before it was “consummated beyond recall” by actual payment.
   Richardson, J.,

delivered the opinion of the court:

On the 29th of July, 1882, Congress passed the following act (22 Stat. L., 723):

1882, Chap. 359. — An Act fpr the relief of citizens of Tennessee.
“ Be it enacted, &c., That the Secretary of the Treasury be, and he is hereby, authorized and directed to remit, refund, and pay back, out of any moneys in the Treasury not otherwise appropriated, to the following-named citizens of Tennessee, or the legal representatives of such as are deceased, the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations issued by the Secretary of the Treasury under date .of June twenty-first, eighteen hundred and sixty-five, and published in special circular numbered sixteen from the Internal Revenue Office of that date, said refunding having been recommended by the Secretary of the Treasury under date of June nineteenth, eighteen hundred and seventy-three—
“ That is to say:

To William Campbell.......... $8 96

Thomas Dean................................ 47 60

J. B. Dixon........ 13 36

J esse Evans.. .^................................ 48 80

A. H. Evans . /............................... 84 20

Martin Euless................. 9 20

The estate of Preston Frazier, deceased........ 168 00

All of Bedford County, Tennessee.

To J. B. Jeffries...............-.................. . 16 64

Winston W. Gill.............................. 169 60

Joshua M. Hix............................... 14 80

Thomas Lipscomb............................ 99 92

Bryant Landis............... 33 20

William Little................................. 209 04

Thomas B. Marks...........................:. • 28 15

James S. Newton............................. 119 60

Ambrose L. Parks............................ 43 76

Absalom Reeves.........................:____ 37 60

The estate of Alfred Ransom, deceased......... 26 40

G: D. Stephenson............................. 14 00

Mike Shoffher................................ 40 00

Price C. Steele................................ 112 00

Matthew Shearon............................ 38 00

Richard H. Sims ............................ 36 80

William J. Shoffher......................... 56 80

Newton Thompson, second.................... 17 60

J. F. Thompson.....................,......... 11 20

To Lewis Tillman................................ $40 00

Thomas C. Whiteside......................... 80 00

The estate of E. D. Winsett, deceased.......... 35 60

Jackson Wallace ............................. 17 60

Harbert Wiggins.......................... 42 00

A. L. Adams................................. 56 00

Joseph Anderson.............•................ 15 20

William A. Allen ............................. 77 60

Thomas W. Buchanan......................... 192 00

John A. Blakemore........................... 48 00

Charles L. Cannon............................ 26; 00

John L. Cooper........... 118 80

J. H. Cunningham........................... 19 20

John Cortner ................................ 26 00

Lewis Market................................. 868 50

William Gosling............................. 794 00

John J. Jarrett............................... 36 40

Wilson Tarrentine........................... 32 00

All of the county of Bedford, Tennessee.

To George W. Smith............................. 122 00

The estate of Samuel Winston, deceased........ 356 00

Ellis Suttle................................... 104 75

All of Rutherford County, Tennessee.

To George W. House........................ 62 04

Thomas A. Elliott............................ 232 00

Stephen H. Singleton................¡........ 273 00

William H. Wallace..................... 90 40

Susan Rucker........ 88 00

Thomas B. Miles.............................. 164 00

The estate of James G. De Jarnette, deceased .. 283 20

Morris Cross ................................ 32 00

Isham R. Peebles............................. 202 67

William Bosson............................. 232 00

M. H. Alexander............................. 267 68

Emanuel Rosenfield.......................... 42 24

The estate of Thomas Hord, deceased.......... 113 12

Edwin H. Ewing............................. 68 24

Benjamin Beaty............................. 600 16

James M. Haynes............................. 352 00

The estate of Luckett Davis, deceased......... 399 12

Alfred Ross................................. 259 12

Samuel B. Watkins........................... 128 24

John W. Richardson ......................... 500 08

The estate of M. Burgess Wade, deceased...... '528 00

Willie Brown................................ 324 80

Robert D. Reed.............................. 152 00

The estate of John B. Ivimbro, deceased........ 48 00

The estate of James Bass, deceased............ 55 20

Peyton Randolph............................ 44 00

To Edward L. Jordan............................$2,290 00

M. F. Jordan............... 272 00

Felix G. Miller .........................*---- 197 92

S. E. Parrish............................. 83 20

Elizabeth M. Smith......................... . 274 56

Joseph Watkins.............................. 384 00

All of Rutherford County, Tennessee.

To Asa Faulkner, of Warren County, Tennessee ... 2, 700 00

And to William H. Ladd, of Williamson County, Tennessee ...................................... 866 36

“ Said persons and each of them having filed their claims in the office of the Commissioner of Internal Revenue prior to the sixth of June, eighteen hundred and seventv-three.
“ July 29, 1882.”

On the part of the defendants it is contended that this act does not appropriate to the parties named the specific sums mentioned therein, but only so much thereof in each case as is shown to have been assessed and collected contrary to- the provisions of the circular issued by the Secretary of the Treasury under date of June 21, 1865.

In our opinion the act does not admit of that interpretation, nor leave open any question for this court or the accounting officers of the Treasury except the identity of-the claimants with the persons therein named. The language of, the act taken together is too clear to admit of doubt that Congress undertook, as it had a right to do, to determine not only ■ what particular citizens of Tennessee by name should have1' relief, but also the exact amount which should be paid to each one of them.

The act begins by authorizing and directing the Secretary of the Treasury to remit, refund, and pay back “ to the following-named citizens of Tennessee, or the legal representatives of such as are deceased, the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations issued by the Secretary of the Treasury under date of June 21,1865, that is to say;” and then follow the names of eighty-one persons, with the specific amount to be paid to each, carried out in dollars and cents with great minuteness, varying from $8.96 to $2,700.

Had the enactment ended with the general language immediately preceding the words “ that is to say,” the position taken on the part of the defendants would be correct, because there would have been no method of determining who were the persons intended, or the amount to be paid to each, except through investigation and proof of the facts referred to. Congress did not see fit thus to leave the matter, but immediately thereafter proceeded to specify exactly what particular cases they intended to reach, and exactly to what extent they granted relief in each. They preceded this explicit specification by the important and significant words, “that is to say.” This, phrase is synonymous with “in other words,” “namely,” “to particularize,” “ to be more explicit,” and is employed to convey in a more specific form the meaning and intent of the preceding words. What follows such a phrase must govern what precedes it, so far as there is any difference, because it is the more carefully chosen language of the author to explain his meaning.

Congress, through its committees, when the bill was drafted, or at other stages of its progress, starting with the idea of refunding the taxes of those from whom collections had been made contrary to the provisions of the Treasury circular, seem to have considered in some form and to have passed upon the separate case of each claimant, to the large number of eighty-one, extending the act to great length as compared with what it would have been had the particular names and amounts been' omitted. In doing so they were not bound by the general principle of relief first enunciated, and it is easy to see how, finding some claims in which, though the taxes had not been paid strictly contrary to the Treasury circular referred to, yet they had been assessed and paid under similar circumstances of hardship, and ought in justice to be refunded as much in that case as in the other, they determined to class them together and to grant relief to all alike.

The facts put into the findings at the request of the defendants, even if competent to control the construction of the enactment in any particular, show how Congress might very naturally and with great propriety have proceeded in precisely that manner in framing this act.

The facts are these: The claimant was a citizen of Rutherford County, Tennessee, in the years 1863 and 1864. As such he became liable for two income taxes of equal amount for the year 1863, one the general income tax under the Act of July 1,1862, chapter 119 (12 Stat. L., 373, 374), and the other the special war income tax under tbe Joint Resolution of July 4,1864, No. 77 (13 Stat. L., 417). The first'was made payable June 30, 1864, and the second October 1, 1864.

Rutherford County, as well as the other counties named in the act,, had been in a disturbed condition by the war during the whole year 1863, at times overrun in part by the military forces of the one side and of the other, and the United States had not been able to protect its citizens from burdens imposed by the public enemy nor to secure them in the peaceful pursuit of their occupations. It was not until August 30, 1864, eight months after the expiration of the year for which", these taxes were assessed had expired, that ah internal-revenue assessment division was established in the county. When so established the assessor proceeded to assess upon the claimant and other citizens the income taxes of both classes for the year 1863, and the claimant paid his assessments so made June 6, 1865, Fifteen days after such payment, on the 21st of June, 1865, the Secretary of the Treasury issued a circular in which he stated that he did not deem it advisable to insist, for the present, upon the payment of taxes by citizens in districts where the execution of the laws had been impossible, so far as they were payable prior to the establishment of a collection district embraced in the territory in which the tax-payer resides.”

On examining the reason given therein by the Secretary for his action in issuing the circular of June 21, 1865, we find it to apply with equal force to the refund of the special war income tax as to that of the annual income tax for the same year, without reference to technicalities. The only difference between the two classes of taxes is that one became payable two months before and the other two months after the establishment of the collection district in the count5T. But the exact date which the laws had fixed for the payment of the taxes was not the material point on which the circular was founded.

The substantial reason why the citizens of Rutherford County and any other counties in Tennessee should be relieved from the burdens of the harsh laws of taxation imposed upon them, was that during the whole year 1863, for which they had been assessed, they were outside of the protection of the United States Government. The accidental circumstance that in the course of the succeeding year a collection district was established there, in the interval of the three months between the periods fixed by law for the payment of the different taxes, did not affect the merits of the case, nor is it probable that it influenced the action of the Secretary of the Treasury. The hardship of subjecting people thus situated to taxation was precisely the same in both cases.

Congress might well have taken that just and liberal view of the matter, considering that taxes'assessed under such circumstances, whether collected before or after the issuing of the Treasury circular, or whether they were general income taxes or special war income taxes, payable the one before and the other after the collection district was established, they might have held that all came within the spirit if not the exact terms of the Secretary’s circular, and were equally entitled to relief. To give effect to such conclusion it was not necessary to set out in the act their interpretation of the circular to which reference was made, nor the reasons why they departed from its strict application in every case in passing upon the separate claims before them. It must not be overlooked that Congress was not dealing with legal rights under the circular, for the claimants had acquired no such rights, and therefore mere technicalities would not be much considered in granting relief.

But whatever induced Congress to take up the several cases of the numerous persons named in the act, and to grant to them from the public Treasury the specific sums of money therein mentioned, whether it was for reasons set out in the act itself, or for other and different reasons, their action is final and conclusive, and cannot be reviewed by this court nor by any executive officers. It would be an unwarranted assumption of power to review elsewhere the facts and reasons which Congress states for granting money in any of the numerous special acts passed for the relief, of individuals persons, and to deprive such persons of the money appropriated for them, merely because it is held here or in the Treasury Department that the conclusions of the act are not warranted by the facts and reasons upon which they purport to be founded.

The act now under consideration makes reference to other facts besides that of the Treasury circular, and if one is to be inquired into all may be.

The act recites that the Secretary of the Treasury, under a given date, recommended the action taken by Congress, and also that the persons named, and each of them, had “filed their claims in the office of the Commissioner of Internal Bevenue prior to the 6th of June, 1873.” There is no more reason why it should be made to appear that Congress was right in assuming that the claims allowed came within the terms of the Treasury circular than in assuming that the Secretary had recommended each and every one of them, and that they had all been filed with the Commissioner prior to June 6, 1873. Congress might have been mistaken in one or all these particulars, but they so enacted, and whatever is enacted, right or wrong, constitutes the law and the facts of the case.

A mistake of fact upon which the action of Congress is predicated does not control the positive enactment founded upon, it. Such a mistake might be a good cause for the repeal of an act by the power which passed it, but would be no justification for a court or the executive officers to set it aside or to restrict its effect.

This act is not peculiar on account of its recital of facts. Such recitals abound in the multitude of special acts passed for the relief of individual persons, and to require all the facts recited to be proved in court or elsewhere before the parties can obtain the money granted to them would be an unjustifiable hardship. ' Take, for example, the Act August 7, 1882, chapter 482 (22 Stat. L., 737): It authorizes and directs the Secretary of the Treasury to pay to the executors of F. the sum of $7,684.70, “to reimburse the estate of the said F. for losses sustained by him while Secretary of the Senate in making good the deficit in the accounts of the financial clerk. No one would seriously urge, we think, that Congress had not fixed the amount to be paid, but had left it to be determined by)proof before the accounting officers, or before this court, if suit should be brought, of the exact amount of losses incurred.

In that act, as well as in the one involved in the present suit, we find an entire absence of words implying the vesting of discretionary power over the matter in any public officer or court, such as are found in another class of acts where it is clearly intended to leave the payment of money, in whole or in part, to the judgment of others upon further investigation. Instead of merely authorizing the Secretary to pay, as is frequently the case, it authorizes and directs him to do so. The words “or so much thereof as may be uecessary,” common in appropriation acts, following and qualifying amounts appropriated, are omitted. In this act, at the beginning of the list, are inserted the words already commented upon, “that is to say,” which particularize and make definite and explicit the amounts to be paid. Sometimes express instructions are inserted directing a re-examination and settlement by the accounting officers or others, but no such directions are to be found in this act.

The mere fact that it is the Secretary of the Treasury who is authorized and directed to pay the money does not clothe Mm with discretionary power in the matter. That direction is a common formula in special or private acts, and does not take the case out of the ordinary rules and practices for the settlement of accounts in the Treasury Department.

The claimant’s right to the money rests? upon the act of Congress, and does not depend upon any order of the Secretary. The refusal of that officer or of the accounting officers to pay it or to order it to be paid cannot defeat the right which the claimant derives from higher authority, the law-making power.

Having been refused payment at the Treasury, the claimant has a remedy in this court, because his claim is founded upon a law of Congress, and so is within the express terms of Revised Statutes, section 1059, conferring jurisdiction on the Court of Claims.

Judgment will be entered for the claimant for the sum of $1,145.  