
    RICHARD H. & JAMES PORTER v. THE UNITED STATES.
    [No. 14509.
    Decided May 11, 1885.]
    
      On the Proofs.
    
    The Third Auditor in 1861 makes an award for impressed cattle, horses, and mules of $10,100, which is disapproved by the Secretary of the Treasury. In 1864 the same Auditor makes a new award for the horses and mules of $750, ‘‘in lieu of the former award.” This is accepted without protest. An. action being brought in this court upon the first award, judgment is rendered, by consent, on a general demurrer, dismissing the petition.
    I. Where there has been a contest in the Treasury Department concerning an award made by the Third Auditor in 1861 for impressed property, under the Act ‘¿d March, 1849 (9 Stat. L., p. 414, § 2), accepl anee of a second award made in lieu of the first for a less amount will conclude the party.
    
      II.The Secretary of the Treasury may not have had authority to revise an award of the Third Auditor for impressed property in 1864, hut if he disapproved and refused to sign a warrant for its payment, the matter became a subject of contention and hence of compromise.
    III. Whether property was impressed into the military service is a jurisdictional question under the Act 1849, which may be inquired -into in any judicial proceeding based upon a judgment or award of the Third Auditor.
    IV. A judgment on general demurrer rendered by consent of the claimant is equivalent to a judgment on the merits, and operates as a bar to a subsequent action upon the same cause.
    
      ■The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. On the day of the date thereof the Third Auditor of the Treasury Department made the following:
    “ Treasury Department,
    “Third Auditor’s Opeice,
    
      “May 10, 1861.
    “ In pursuance of an act of Congress approved 3d of March, 1849, entitled “An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,” and of an opinion of the Attorney-General dated April 25,1861, it is adjudged that there is due from the United States to James and Richard H. Porter, for property impressed by order of Colonel Johnson, then in command of the United States forces en route for Utah, and lost by them in the fall of 1857 while transporting goods from Atchison, Kansas Territory, to Camp Scott, Utah Territory, and which said property was in the service aforesaid, as follows:
    One hundred and seventy head of cattle, at $55 per head. $9,350
    Five horses and mules, at $150 each. 750
    And this sum. 10,100
    is payable to the claimants present.
    “R. J. Atkinson,
    
      “Third Auditor.”
    II. “ Treasury Department,
    “First Auditor’s Oeeioe,
    
      “May 10,1861.
    “ I hereby certify that from an official copy of an award of the Third Auditor, No. 1679, made in pursuance of an act of Congress approved March 3d, 1849, entitled “An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,” and of an ■opinion of the Attorney-General dated April 25, 1861, there is due from tbe United States, for the loss of property while in the military service aforesaid, to James and Richard H. Porter the sum of ten thousand and one hundred dollars, being the valuation of property impressed by order of Colonel Johnston while in command of the United States forces en route for Utah, and lost by them in the fall of 1857, while transporting goods from Atchison, Kansas Territory, to Camp Scott, Utah Territory, viz:
    One hundred and seventy head of cattle, at $55 per head. $9,350
    Five horses and mules, at $150 each. 750
    Total. 10,100
    which sum I certify is payable to the claimants present.
    “T. L. Smith,
    
      “First Auditor.
    
    “$10,100.
    “ To the First Comptroller of the Treasury.
    “ Comptroller’s Office.
    “ I admit and certify the above balance this 10th day of May, 1861.
    “Elisha Whittlesey,
    
      “Comptroller.
    
    
      “ To the Register of the Treasury.”
    III. The Secretary of the Treasury having refused to sign a warrant, the said Auditor reconsidered his action in the premises, and on the dace thereof made the following:
    “Award No. 2139.] “ Treasury Department,
    “Third Auditor’s Office,
    
      “April 16, 1864.
    “ In pursuance of an act of Congress approved 3d of March, 1849, entitled “An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States,” it is adjudged that there is due from the United States to James and Richard H. Porter, for ñve mules and horses impressed into the service of the United States, and died for want of forage whilst employed therein, viz: For three mules and two horses, at $150 each, $750; and this sum of $750 is payable to the claimants present.
    “This award is made in lien of award No. 1679, dated May 10, 1861, which said award has not been paid by the Secretary of the Treasury, but has been returned to this office by direction of the Secretary, through the First Comptroller, as per letter dated April 16, 1864, to this effect, and also advising' the Third Auditor that the account stated therein had been canceled. “R. J. A'JICINSON,
    
      “Auditor.”
    
    
      IY. “Comptroller’s Opeice.
    “ I admit and certify the above sum of $750, this 10th day of April, 1864, being the award of 3d Auditor, as per his statement No. 2139 herewith.
    “E. W. Tayler,
    “ Comptroller.
    
    
      “Draft No. 8237 on Treasury, warrant No. 814.
    “$750.] “Treasury of the United States,
    “ Washington, April 18, 1864.
    “At sight pay to James and Eichard H. Porter, or order, seven hundred and fifty dollars.
    “F. E. Spinner,
    
      “Treasurer of the United States.
    
    “Treasurer ü. S., Washington.
    
    “(Stamped :) Paid by Treasurer U. S.
    “ (Indorsed:) James and E. H. Porter. Lewis Johnson & Co., hauliers, Apr. 19,1864.”
    Y. In the year 1874 the claimants filed a petition in the Court of Claims, founded on the award f>f the Third Auditor on the 10th of May, 1861. To that petition a general demurrer was filed by the defendants, and on the 18th of Jauuary, 1875, and by the consent of the attorney for claimant, the demurrer was sustained and the petition dismissed. The cause of action embraced in said claim is identical with the cause of action alleged in the petition in this cause.
    YI. The evidence before the Third Auditor shows that the one hundred and seventy head of cattle named in the so-called award of May 10, 1861, were not impressed into the military service.
    
      Mr. G. jE. Creeey and Mr. A. L. Merriman for the claimant:
    It will be seen that a broad distinction was made between .these claims, as to their adjustment and final settlement, and those submitted to the Third Auditor under the law of March 3,1817, and subsequent acts. His decisions in the latter cases must be examined and reviewed by the Second Comptroller ; with respect to the former there is no such requirement. In express terms the findings of the Auditor were made final.
    Where a statute imposes a particular duty upon an executive officer, and he has performed the duty according to his understanding of the law, there is no appeal from his action or his decision unless such appeal is expressly provided by law. His decision is final and conclusive. (See 16 Op., 317; 1 id., 624; 2 id., 481-482; 5 id., 275; 11 id., 14; United States v. Ferriera, 13 Howard, 40.) It was said by Chief Justice Taney, in the case where jurisdiction in a class of claims had been conferred by statute upon the Secretary of the Treasury, that his decision was “ final and conclusive”; that “ it would not be disturbed by an appeal to this or any other court, or in any other way, without the authority of an act of Congress.”
    When, therefore, the account in this case was adjudicated by the Third Auditor, and he had certified his judgment, it became a liquidated demand — a demand, in the language of the law, to be paid at the Treasury of the United States. It was binding upon all the officers of the government. The case had passed from the jurisdiction of the only officer to whom the law gave authority to consider it, and had become, res judieate. Neither the Auditor nor any other officer of the government had control over it. The judgment belonged to the Messrs. Porter, to whom the law gave the right to demand payment of it at the Treasury.
    As regards the effect óf the act of July 28, 1866 (14 Stat. L., 327), which substitutes for the fourth section of the act of 184b a provision that the findings of the Auditor shall be submitted to the Second Comptroller for revision, it need only be said that it cannot reach back to a matter passed into judgment in 1861.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    1. The court has not jurisdiction, (1) because the claim is not pending in any department; (2) because it is forever barred by the judgment of this court in a former suit; (3) because the accounting officers are forbidden by section 3480 to pay to James Porter any claim which existed prior to April 13,1861 and in the absence of evidence it will be impossible for the court to say what is the share of Richard H. Porter. (See Hart v. U. S., 16 C. Cls. R., 459.)
    2. The Third Auditor was without jurisdiction to make the so-called award, and it is competent for this court to inquire into the existence of facts essential to that jurisdiction. (Thomp
      
      ■son v. Whitman, 18 Wall., 457; Oalpin v. Page, 18 Wall., 351 ; Pennoyer v. Neff, 95 U. S. B., 730.)
    3. Acceptance by claimants of the $750 awarded in lieu of the original was an acquiescence in the substitution and in the cancellation of the original so-called award.
    4. The allowance of May 10, 1861, on its face, shows that it was not the decision of the Third Auditor. The words “ and of an opinion of the Attorney-General” are fatal.
   Weldon, J.,

delivered the opinion of the court:

The subject-matter of the petition was certified to this court by the Secretary of the Treasury under 1063 of the Bevised Statutes, and the facts are briefly as follows:

On the 10th day of May, 1861, the Third Auditor of the Treasury, under the act of the 3d of March, 1849, to provide for the payment of horses and other property lost or destroyed in the military service of the United States, certified that the claimants were entitled to the sum of $10,100 for property impressed by order of Col. A. S. Johnston while in command of the United States forces in one of the Western Territories in the year 1857.

The claim is predicated upon that, as an award binding upon the United States.

To the claimants’ right of recovery the defendants interpose, first, that said award, made on the 10th of May, 1861, was reconsidered by the Auditor on the 16th of April, 1864, and the same was by him annulled by a second finding on said last date; second, that the claim was prosecuted iu this court in the year 1875, and that a judgment on demurrer was rendered, which in law prevents the successful maintenance of this suit; third, that the matter is res judicate in the department, it having been passed upon adversely by all the Secretaries of the Treasury from the year 1861 to 1884; fourth, that the accounting officers were forbidden to pay one of the claimants, James Porter, under section 3480, as shown by the allegations of the petition; fifth, that the Third Auditor was without jurisdiction to make the so-called award, the facts not being sufficient in law to establish his jurisdiction of the subject-matter of the claim.

It is not necessary to consider all of these defenses in detail. The finding by tbe Third Auditor in May, 1861, being unsatisfactory to the Treasury Department, the Secretary refused to sign a warrant for the amount of the claim ; and in so far as he had the power to reject the application for payment he did so. In April, 1864, the same Auditor reconsidered the question of allowance and made the award of April 16, 1864. It is insisted by the counsel for the claimants that when the award of 1861 was made the power of the Auditor was exhausted; that the award of that date gave to the claimants a vested right for so much money; that the action of the officer in 1864 was in law a nullity and did not affect the legal rights of the petitioners as found in the award of 1861.

In the view which we have taken it is not necessary to discuss and determine the power of the Third Auditor after the finding of May, 1861.

Whatever may be said of the legal right of the officer to reconsider his action and determine a different result, it is clear from the terms of the second finding that he intended by his second order to supersede the first and allow the sum of $750 only, instead of the sum of $10,100.

At the time the second order was made there had been a contest, extending through several years, between the claimants - and the government, as to the payment of the damages incident to the act of Colonel Johnston in the year 1857; that order was made in place of the former order allowing the sum of $10,100; its results were accepted by the claimants without protest or objection, and it would be doing violence to the facts shown in this case to assume that the receipt of $750 was given and taken as a mere payment on the amount of the original award.

The second order says, “ This award is make in lieu of award ' No. 1679,” dated May 10, 1861; and it is being made in lieu of said award, the payment made under it, on the 19th day of May, 1864* must be held to be in lieu of the money provided by the first award, unless an intention to the contrary appears from the act or declaration of the parties. The award of the Auditor did not make consnmnate the claim of the petitioners in the Treasury Department.

The Secretary disagreed with the finding of that officer and refused to sign a warrant for its payment, although he may not have had a right to refuse. That was the condition of the claim up to April, 1864, the time of the last order. That refusal made, it a subject of contention, and when the new award was made and the money paid and accepted under it without objection or protest, it must be held as having been accepted in lieu of what was provided in the award of 1861.

This court, at the present term, in the case of Cape Ann Granite Company (ante, p. 1), has decided that parties may save their rights against the receipt of money in full of a claim by protesting against it as such; but where the circumstances of the transaction indicate a purpose on both sides that the payment shall operate as a settlement of the claim, then the transaction will have the legal effect indicated by both parties.

Under the act of 1849 the question whether the property was impressed into the military service of the United States is a jurisdictional fact, which may always be inquired into in any subsequent judicial proceeding based upon the judgment or award of the Auditor. Even the judgment of a court of general jurisdiction may always be attacked, either upon the question of the jurisdiction of the person or subject matter of the controversy. (Thompson v. Whitman, 18 Wall., 457; Gulpin v. Page, 18 Wall., 351; Pennoyer v. Niff, 95 U. S. R., 730.)

The findings show that the Third Auditor was without jurisdiction in making the first award.

In the year 1874 a suit was commenced in this court by the . petitioners, founded on the same cause of action embraced in the petition in this case. To the petition a general demurrer was filed by the United States, and, by the consent of the attorneys for the claimants, said demurrer was sustained and cause dismissed. That in legal effect in this court is equivalent to a judgment on the merits of the case, and operates in law as a bar to the petitioners’ right to recover in this proceeding. (Gould’s Pleading, page 444, sec. 43; 2 Black. R., 827; 1 Mod., 207; Meigs’s Case, ante, p. 181.)

For the reason suggested in this opinion it is the«judgment of the court that the petition be dismissed.

Nott, J.,

concurring:

I assent to so much of the opinion of the court as holds that the Third Auditor was without jurisdiction of the claim, and that the present action is barred by the recovery in the former suit.  