Gordon v. United States

74 U.S. 188 (____) 7 Wall. 188

GORDON
v.
UNITED STATES.

Supreme Court of United States.

Mr. Bennett, for the appellant.

Mr. Norton, contra.

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 case,^[†] 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 judgment 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 departure from the rule adopted on the subject, with regard to the allowance of interest. In the argument of the case the Attorney-General said, stating the matters as historical facts:

"The first of these claims was presented to the Secretary 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 has exceeded one million of dollars. But from the first, and in every case 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 the 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 paid this court refused to take jurisdiction and pronounce any opinion on the subject.

Since 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 his predecessors," has discovered a mode of relief for its depletion by allowing forty years' interest 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, 1861, the whole argument urged on behalf of the appellants is founded on a false assumption. It is asserted that this is a case of arbitrament and award, and was binding as such on the government, and that the repeal of the resolution 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 him.^[†] 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 determine the matter in controversy. The resolution under which the secretary assumed to act did not authorize him to make a final adjustment of the matter embraced in it. It did not bind the appellant to an acceptance of the amount reported by the secretary, or that he would cease to clamor for more, after being a fifth time paid the amount of damages awarded to and accepted by him.

The joint resolution of June 1st, 1860, was the fourth resolution which had been passed for the adjustment of the claim of the legal representatives of George Fisher against the United States, for injuries done to his property by the United States troops in 1813. In pursuance of the first three of these resolutions, five different allowances were made in favor 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 treasury, under the joint resolution of April 12th, 1848. Yet the appellant insisted that he was not concluded 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 tribunal. 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 AFFIRMED.

NOTES

[*] 13 Howard, 40.

[†] Page 45.

[*] Bouvier's Law Dictionary, title "Arbitrator."

[†] De Groot v. United States, 5 Wallace, 432.