the preceding remarks, endeavored to point out the most direct application in civil proceedings of the rule that a man shall not be bis vexatus, which rule is in fact included in the general maxim-interest reipublicæ ut sit finis litium." Personal litigation is liable to result in personal and neighborhood strife. The same results do not generally follow adjudications by accounting officers. Hence there is difference between the reasons for the rule of res adjudicata as applied to adjudications by the accounting officers and those by the courts, respectively. See Bell v. McCulloch, 31 Ohio St., 399.

The same conclusive effect follows the judgment of a comptroller charging a private person, corporation, or state, with a liability. (Rev. Stat., 236; Kansas Case. 2 Lawrence, Compt. Dec., 2d ed., 301.)

There are some accounts in which a balance certified by a comptroller is not final and conclusive. Thus, there may be running accounts, on which payments may be erroneously made, and which are open to correction on final settlement. Some questions relating to this class of accounts are exceedingly difficult and embarrassing. (Butler, Att. Gen., May 3, 1834, 2 Op., Att. Gen., 650; Cushing, February 25, 1857, 8 Id., 409; Black, June 4, 1857, 9 Id., 35; Bates, April 25, 1862, 10 Id., 235; Williams, July 10, 1874, 14 Id., 412; Swift Co. v. United States, 105 U. S., 695; Star Route Case, 2 Lawrence, Compt. Dec., 2d ed., 455; 3 Williams, Executors, 6th Am. ed., 2060, 2168, and notes with many authorities cited; Reeside's Appeal, 4 Lawrence, Compt., Dec.)

The execution of the judgment of a Comptroller in certifying a bal. ance due a claimant is by warrant for payment granted by the Secretary of the Treasury (Rev. Stat., 248), and countersigned by the First Comp. troller (Rev. Stat., 269). This is subject to be recalled, and the certified balance may be corrected at any time before final payment. (Bender's Case, 1 Lawrence, Compt. Dec., 2d ed., 351, 405; 10 Op., Att. Gen., 235; 15 Id., 198.) This power exists, because, until payment, the power is not exhausted. (Ex parte Randolph, 2 Brock., 473.)

In Ridgeway's Case (18 Ct. Cl.), the authority of the Commissioner of Internal Revenue to revoke his allowance of a claim was considered, and Richardson, Judge, said:

The power to revoke orders and decrees by courts and public officers under certain circumstances has frequently been recognized and upheld. The only question is as to when that power expires by the consummation of the first acts beyond recall. It was said by the Supreme Court in Bronson v. Schulten (104, U. S, 415):

"It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court. But it is a rule equally well established that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them."

There are no terms for the transaction of business in the Internal Revenue Bureau. There are terms of service of the official head of the Bureau, and frequent changes therein. But the question whether or not a Commissioner is without authority to revoke the decisions and orders of any of his predecessors does not arise in this case, since the allowance sued upon and its revocation were both made by the same Commissioner during his official term of service.

Several cases have heretofore arisen as to the power of the President to revoke a dismissal of a military officer. In Corson v. The United States (17 Ct. Cl., 349), where that subject was under consideration, it was said, referring to the decided cases:

"The purport of all these decisions is that the President, having once dismissed a military officer or accepted his resignation and given notice thereof, so that nothing remains to be done to make the severance complete, cannot again restore him to office except by a new appointment in pursuance of a nomination to and confirmation by the Senate."

*

The statute under which the Commissioner first certified to an allowance in this case provides that: "The Commissioner may refund and pay back all taxes erroneously or illegally assessed or collected," &c.

Until, therefore, the taxes were paid back the action of the Commissioner authorized by the statute was not consummated. The sending of his order to the accounting officers in the course of departmental business did not place it beyond his power of recall. They are officers of the same Department as the Commissioner, and under the same official head. Their duties are to examine accounts and place them in a condition for payment. The processes of the Treasury Department are all ex parte, and are not finally consummated beyond recall until a check has been issued upon a warrant, duly signed by the Secretary of the Treasury, as we have pointed out in former cases. (McKnight's Case, 13 Ct. Cl., 292; Buffalo Bayou R. R. Case, 16 Ct. Cl., 245.)

In Reeside's Appeal (4 Lawrence, Compt. Dec.), it is said:

That there is authority to recall a settlement having a balance certified in favor of a creditor of the United States, and before payment thereon. (Bender's Case, Second, 1 Lawrence, Compt. Dec., 2d ed., 405; Bates, Att. Gen., April 25, 1862; Dart's Case, 10 Op. Att. Gen., 235; Taft, Feb. 7, 1877; 15 Op. Att. Gen., 198.) When a draft is issued and indorsed to a bona fide holder, in payment of such balance, it is too late to recall the settlement.

When a balance is certified in favor of the United States against a private person, corporation, or State, it may be satisfied by set-off, whenever money may be subsequently found due such person, corporation, or State from the United States, or it may be enforced by action in court, so far as such action may be maintainable. (Kansas Case, 2 Lawrence, Compt. Dec., 2d ed., 326.)

On all these subjects, as connected with the courts, there are many and valuable works by learned and able law writers, and thousands of volumes of reported decisions. Judges and lawyers can point to any one of these monuments of learning and say si monumentum quæris circumspice. To some extent, similar monuments of learning, on all questions affecting the executive departments of the national Government, the principles of law therein established and adopted, and the practice therein, are to be erected. The questions considered in this series of opinions and decisions of the First Comptroller may furnish some suggestions, from which learned writers may be aided in putting into form the legal science pertaining to the great Departments of the Government. The claims disposed of each year in these Departments are larger in amount and number than those litigated annually in all the national courts, and require the skill and learning, probably, of almost as many lawyers at the Capitol and in various parts of the United States.

H. Mis. 37-III

In this connection it may be proper to notice another subject of great importance, which it is always necessary to understand, and on which the action and decision of the First Comptroller are sometimes required-THE RELATION OF THE ACCOUNTING OFFICERS TO JUDICIAL AUTHORITY. This relation arises in several forms, which may be separately, but very briefly, noticed under four general heads-(1) judicial authority exercised in aid of accounting officers, (2) judicial authority exercised directly against them, (3) judicial authority seeking to affect their action on claims, and (4) judicial authority affecting claims after the final action of the accounting officers thereon.

I. The jurisdiction of the courts may be invoked in aid of the accounting officers in several forms, which will be briefly referred to.

1. EVIDENCE. - Evidence to enable accounting officers to pass upon claims may be procured through the agency of the judges and courts. (Rev. Stat., 183-187.) Whether the aid thus given be an exercise of purely judicial authority, which Congress may require, or whether it is only exercised by comity, is now immaterial. (The United States v. Ferreira, 13 How., 40; Hayburn's Case, 2 Dallas, 410, note.)

2. INTERPLEADER.-Whenever the rightful ownership of a Government bond or other claim against the United States is in dispute between rival claimants, a bill of interpleader may be filed by the United States, to determine the question. (Vermilye & Co., v. Adams Express Co., 21 Wall., 139; Dugan v. United States, 3 Wheat., 172; United States v. Buford, 3 Pet., 12; Benton v. Woolsey et al., 12 Id., 27; Texas v. White, 7 Wall., 732; Texas v. Hardenberg, 10 Id., 68; Commonwealth v. Emigrant Industrial Savings Bank and another, 98 Mass., 12; The United States v. Bank of the Metropolis, 15 Pet., 401.)

3. There may, perhaps, as to such bonds and claims, be some cases in which controverted questions of ownership arise, when accounting officers will withhold action until the rival claimants, by a proceeding in court, obtain a decree to determine their rights inter se. It is possible, if not probable, that such decree may not be cor sive on accounting officers. Even after such decree, new evidence might und affecting ownership. And it is clear that no such decree can bind the Government, which cannot be a party to it. It would seem, that such aid for accounting officers might be more appropriately invoked in cases in which the rights of rival claimants rest on equitable grounds, since, as a general rule, only the legal rights of parties are examined in the Treasury Department. (Kellogg v. United States, 7 Wall., 363; 3 Op. Att. Gen., 29; 5 Id., 86; 11 Id., 7.) Government bonds are sometimes held by parties in trust, at a specified time to transfer them to cestuis que trust. Complicated questions arise in case of the death of one or more of several trustees, and also as to the rights of cestuis que trust. It may become necessary, by a judicial proceeding, to appoint successors in the trust, and otherwise to determine the rights of the parties, in order that accounting officers may make transfers or payments of the bonds. (Bond Trust Case, 2 Lawrence, Compt. Dec., 2d ed., 201; Bond Continuance Case, Id., 218; Trustee Survivorship Case, Id., 232; Tayloe's Case, 3 Id., 190.) Some of the authorities on this subject are collected in Keyser's Case, 4 Lawrence, Compt. Dec. (Combs v. Hodge et al., 21 How., 397; Texas v. White, 7 Wall., 700; Texas v. Hardenberg, 10 Id., 68; Clark v. Clark et al., 17 How., 315; Board of Liquidation et al. v. McComb, 92 U. S., 531; Walker v. Smith, 21 How., 579; Milnor et al. v. Metz, 16 Pet., 221.)

4. Some claims, upon the request of the proper Auditor or Comptroller, and others by the head of the proper Executive Department, may be referred to the Court of Claims for the action and judgmeut of said court. (Rev. Stat., 1063; Police Case, 1 Lawrence, Compt. Dec., 2d ed., 57; Delaware River Steamboat Co.'s Case, 5 Ct. Cl., 55; The Winnisimmet Co.'s Motion, 12 Id., 319; McKnight's Case, 13 Id., 309.)

5. The act March 3, 1883 (22 Stat., 485, sec. 2), provides :

That when a claim or matter is pending in any of the Executive Departments which may involve controverted questions of fact or law, the head of such Department may transmit the same, with the vouchers, papers, proofs, and documents pertaining thereto, to said court [Court of Claims], and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall not enter judgment thereon, but shall report its findings and opinions to the Department by which it was transmitted for its guidance and action.

"

This does not repeal any statute giving authority or jurisdiction to accounting officers. It leaves their authority unimpaired and their duties unaffected. The "findings and opinions" of the court will doubtless generally be followed in the Executive Departments; and, while they are to be reported to the proper Department "for its guidance and action," they are not declared conclusive. If they had been so intended, the law would have authorized the court to render judgment, as in other cases. The fact that it does not is clear evidence of a purpose to make the action he cou't subject to revision. This act refers to "a claim or matter ** pending in any of the Executive Departments." If a claim, transmitted under this act to the Court of Claims, is pending in 'he Interior Department, the "findings and opinions" of said court will be reported to said Department "for its guidance and action." But, after this, the claim must pass to the proper accounting officers of the Treasury Department for their independent action. The act thus seems more especially designed to aid, in the performance of their duties, those officers of Executive Departments who are not accounting officers. This may be reasonably inferred from its language, and from the fact that it applies to all Executive Departments alike, and that the accounting officers are only in the Treasury Department. It would perhaps seem, therefore, that it can have no application in the Treasury Department beyond that which it provides for other Departments. But it will doubtless furnish valuable aid to the accounting officers. The learning and ability of the eminent judges of the Court of Claims furnish a sufficient guarantee of this.

6. Reference has already been made to the act of March 3, 1875 (18 Stat., 481), upon the subject of set-off. And the duty of accounting officers, and of the Secretary of the Treasury, as related to such officers, has been somewhat considered, in the cases above cited, on this subject, (Georgia Case, 4 Lawrence, Compt. Dec.; Reeside's Appeal, Id.

II. Judicial authority exercised directly against accounting officers. Judicial proceedings against accounting officers may be by (1) mandamus, (2) injunction, (3) civil action, or (4) criminal prosecution.

1. MANDAMUS.-An application for a writ of mandamus by claimants against the United States frequently presents questions between the courts and the accounting officers. In the exercise of the jurisdiction given by law to these officers, they are not subject to control by mandamus, as to the manner in which they shall exercise their official judgment or discretion. (The United States v. Guthrie, 17 How., 284; Brashear v. Mason, 6 Id., 92; Decatur v. Paulding, 14 Pet., 497; Klink's Case, 1 Lawrence, Compt. Dec., 2d ed., 254.) But, "when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance." (Board of Liquidation et al. v. McComb, 92 U. S., 531; Lower et al. v. United States ex. rel., 91 U. S., 536; Kendall v. The United States, 12 Pet., 524.) So, when an accounting officer is required by law to exercise judgment and discretion as to an account, and he refuses to do so, he may be compelled by mandamus to perform his duty. (Ex parte Russell, 13 Wall., 670; Commissioner of Patents v. Whiteley, 4 Id., 534; Reeside v. Walker, 11 How., 272.)

2. INJUNCTION.-An application for a writ of injunction also frequently presents questions between the courts and the accounting officers.

This writ will not lie to control accounting officers in exercising their judgment or discretion on matters, when such exercise is required of them by law. (Gaines v. Thompson, 7 Wall., 347; Walker v. Smith, 21 How., 579; Keyser's Case, 4 Lawrence, Compt. Dec.) But, when a plain official duty requiring no exercise of discretion is to be performed, and such duty is threatened to be violated by some positive unauthorized official act, any person, who will sustain personal loss or injury thereby for which adequate compensation cannot be had at law, may have an injunction to prevent its performance. (Board of Liquidation et al. v. McComb, 92 U. S., 531.)

On the general power of courts by injunction, as affecting claims to be passed upon by accounting officers, some authorities are collected in Keyser's case (4) Lawrence, Compt. Dec.), and in Klink's Case (1 Id., 2d ed., 254, note).

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