IN THE MATTER OF THE RIGHT TO A REFUND UNDER THE ACT OF JUNE 26, 1884 (23 STAT., 53, SEC. 26), OF "ANY FINE, PENALTY, FORFEITURE, EXACTION OR CHARGE ARISING UNDER THE LAWS RELATING TO VESSELS OR SEAMEN."-DINGLEY ACT CASE.

1. The United States is not generally liable for money which it has not received, but which has been tortiously or unlawfully collected by one of its officers.

2. But refunds are made under the act of June 26, 1884 (23 Stat., 53, sec. 26), whether money illegally collected has been paid into the Treasury or not.

3. Said act makes a permanent specific appropriation to pay the refunding claims therein mentioned.

The act of June 26, 1884 (23 Stat., 53), entitled "An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade and for other purposes," and known as the "Dingley act," provides as follows:

"SEC. 26. That whenever any fine, penalty, forfeiture, exaction, or charge arising under the laws relating to vessels or seamen has been paid to any collector of customs or consular officer, and application has been made within one year from such payment for the refunding or remission of the same, the Secretary of the Treasury, if on investigation he finds that such fine, penalty, forfeiture, exaction, or charge was illegally, improperly, or excessively imposed, shall have the power, either before or after the same has been covered into the Treasury, to refund so much of such fine, penalty, forfeiture, exaction, or charge as he may think proper, from any moneys in the Treasury not otherwise appropriated."

The question is submitted to the First Comptroller to decide whether a claim for refunding a "fine, penalty, forfeiture, exaction, or charge illegally, improperly, or excessively imposed," can be paid, unless the money so illegally exacted has been paid into the Treasury.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The United States is not generally liable for money which it has not received, but which has been tortiously or unlawfully collected by one of its officers from a private citizen. Authorities in support of this proposition are cited in Farrar's case, post, 447, note. But it is competent for Congress to provide by statute that money illegally collected by its officers, but not yet paid into the Treasury, may be refunded. The act of June 26, 1884 (23 Stat., 53, sec. 26), does expressly provide for the refunding, in specified cases, of money illegally collected; and this is to be done "either before or after the same money has been covered into the Treasury." It is to be done "whenever" money so illegally exacted "has been paid to any collector of customs or consular officer, and ap

plication has been made within one year from such payment for the refunding." The United States looks to the officer, who has illegally collected the money, to pay it into the Treasury. This act, which is to be liberally construed in furtherance of its objects, makes a permanent specific appropriation for the refunding. Claims will be paid in accordance with the principles stated.

TREASURY DEPARTMENT,

First Comptroller's Office, November 29, 1884.

IN THE MATTER OF THE APPLICATION OF A PRIVATE PERSON FOR A CERTIFIED COPY OF CERTAIN RECORDS AND FILES OF THE TREASURY DEPARTMENT.-CERTIFIED COPY CASE.

1. A regulation of the Treasury Department provides that "no account, document, or paper of any kind, on file in the Department, shall on any occasion be withdrawn by agents, attorneys, or other persons.

2. The same regulation prescribes the conditions on which copies of papers in the Department may be furnished to private individuals.

3. The form of certificate under section 886 of the Revised Statutes referred to. 4. Officers of the executive Departments cannot generally be required by subpoena duces tecum to remove therefrom any record or paper filed therein.

An application is made by a private person to the First Comptroller for permission to withdraw certain papers filed in this office relating to a claim pending therein, or, if such permission cannot be granted, for copies thereof.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

Applications of the character stated are frequent. It is therefore deemed advisable to present in this connection for general information a regulation of the Treasury Department on this subject that has long been in force, and which a blank circular letter of the Department says "must be strictly observed in each and every case." The regulation is as follows:

"No copy of any paper shall be furnished to private individuals, except upon application to, and with the previous written consent of, the Secretary, one of the assistant secretaries, the chief clerk, or the head of the proper Bureau; and no account, document, or paper of any kind, on file in the Department, shall on any occasion be withdrawn by agents, attorneys, or other persons. Upon application for copies of papers on file, or any record of the Department, the rule established in the Treasury order dated October 20, 1830, must be observed, to wit: 'Copies of accounts or other papers on file or of record in the Department are to be furnished only to such persons as may be interested in them, or at their request; if they relate to suits in which the United States are interested,

such copies must be transmitted to the United States attorney having charge of such suits, subject to the inspection of the parties applying for them; and when transmitted to the district attorneys they must be sent through the solicitor of the Treasury, that he may be duly apprised of all the facts communicated to the opposite party. An affidavit showing the necessity of copies must be furnished in all cases."

Various provisions of the Revised Statutes prescribe the mode of authenticating copies of books, records, papers, and documents in the executive Departments and elsewhere, and their effect, as evidence. Rev. Stat., 460, 461, 632, 639, 640, 641, 698, 882-901, 902-908, 997, 1013. Many cases are referred to under, or on the margin of, these sections illustrative of their meaning and effect. The form of certificate proper to be used under section 886 of the Revised Statutes is learnedly discussed by Mr. Justice Harlan in United States v. Pinson, 102 U. S., 548.

It is understood that on one occasion the Secretary of War, in answer to a subpoena duces tecum served on him in behalf of a private person, refused to produce in the Supreme Court of this District records of the War Department, on the ground that copies might be procured, and that their removal from their legal depository while interrupting the transaction of public business, would imperil their safety, and in so refusing he was sustained by the court. This is evidently the correct rule of law on the subject. (1 Wharton on Evidence, 377; Austin v. Evans, 2 Man. and Gr., 430; Thornhill v. Thornhill, 2 Jac. and W., 347.) In Barney v. Schneider (9 Wall. 248), the court, referring to certain appeals made by a party in interest, from the ruling of the collector of the port of New York to the Secretary of the Treasury, said:

"The papers showing this appeal, when filed with the Secretary, became part of the records and archives of his office, and the law is well settled that in such case the originals need not be produced in any trial, but that copies of them, certified by the officer in whose charge they properly are, may be used with the same effect as the originals. If the Government needs these copies she produces them when she proposes to use them. If any one else wants to use them the law provides the means by which such copies can be produced. They are the best attainable evidence, and must be produced, unless some sufficient reason is shown for not doing so. The Government is not bound to furnish either the originals or certified copies to suitors with whom it is contending, unless upon demand at the proper office [for certified copies], and tender of the lawful fees." [Such copies can be furnished.]

The permission now asked, to withdraw papers, is refused. Copies will be furnished when the evidence required by the regulation on the subject is submitted.

TREASURY DEPARTMENT,

First Comptroller's Office, December 3, 1884.

IN THE MATTER OF THE RIGHT OF THE OWNER OF LOTS IN CHARLESTON, SOUTH CAROLINA, TO A REFUND OF MONEY PAID BY HIM, NOVEMBER 21, 1865, TO A DIRECT-TAX COMMISSIONER FOR INTEREST AT TEN PER CENTUM FROM JULY 1, 1862, TO SAID TIME OF PAYMENT, ON DIRECT TAXES ASSESSED AGAINST SAID LOTS.-FARRAR'S CASE.

1. By force of the act of June 20, 1874 (18 Stat., 110, sec. 5), if not without reference to it, neither an annual nor a “permanent annual” appropriation is available to pay any claim except during the fiscal year in which it accrued and during two fiscal years thereafter.

2. The conclusions of Secretary Sherman in his letter of April 20, 1877 (1 Lawrence, Compt. Dec. App., 2d ed., Ch. XIV, pp. 579-591), concurred in.

3. The different classes of appropriations defined.

4. When a provision of the Revised Statutes is clear and unequivocal, resort cannot be had to the statute from which it was taken to ascertain its meaning.

5. On general principles, the statute of limitations does not run against a cestui que trust, until the trustee unequivocally, repudiates the trust.

6. Taylor's case (104 U. S., 221) followed.

7. So far as the Simons' case (19 Court Cl., 629) may be alleged to hold-if it does so hold-that a "permanent annual appropriation" is "a permanent appropriation," or that under such appropriation moneys collected by agents of the Government "without warrant of law shall always be refunded" by the Treasury De

partment, it does not conform to the practice nor to the construction of the statutes adopted in the Treasury Department. Said practice and construction will be continued as heretofore.

8. Construction given to section 2 of the deficiency appropriation act of July 7, 1884 (23 Stat., 254).

9. Claims in certain cases, for the payment of which no appropriation is available, may be allowed by the proper accounting officers and reported to the Secretary of the Treasury to be laid by him before Congress for consideration.

10. Questions arising under the direct tax acts as to interest on assessments of direct taxes may properly await the decision of cases pending in the courts on that subject.

11. The Direct-Tax case (second), ante, 81, explained.

12. Whether the surplus proceeds of direct-tax sales mentioned in section 36 of the act of August 5, 1861 (12 Stat., 304), should have been only "deposited" in the Treasury, or should have been, as it was, "covered" into the Treasury. Quære? 13. Money merely deposited but not covered into the Treasury may, without an appropriation for the purpose, be applied to any purpose specially authorized by statute. 14. Moneys of the United States which have not yet reached the Treasury may, by authority of a statute, be applied as it may direct, even without any formal appropriation act.

November 21, 1865, C. D. Farrar, as executor of S. S. Farrar, paid to W. D. Wording, direct-tax commissioner, $225.12, in full for taxes and interest charged under the direct-tax act of June 7, 1862 (12 Stat., 422) on lots in the city of Charleston, South Carolina, to wit, on

The items of tax are as originally assessed without the fifty per cent. penalty mentioned in the first section of the act of June 7, 1862 (12 Stat., 422). This interest is computed at 10 per cent. from July 1, 1862, to November 21, 1865.

September 24, 1870, the First Comptroller, in an opinion to the Secretary of the Treasury, on a claim for refunding direct taxes, penalty, and interest, paid January 13, 1866, on lands in Texas, held that the fifty per centum penalty mentioned in the first section of the act of June 7, 1862 (12 Stat., 422), "was a fixed addition to the tax to be paid in any event, whether payment was made within the sixty days [mentioned in section three of said act] or subsequently to their expiration." And he held that "this [ten per cent. mentioned in section 7 of the act of June 7, 1862 (12 Stat., 423), as amended by the first section of the act of February 6, 1863 (12 Stat., 640), *] was on his original assessment and commenced at the date of the President's proclamation of July 1, 1862" (12 Stat., 1266). *

*The opinion is as follows:

TREASURY DEPARTMENT, FIRST COMPTROLLER'S Office,

September 24th, 1870.

SIR: I have to acknowledge the receipt of your letter of the 6th inst. referring to this office a letter of the Acting Commissioner of Internal Revenue, dated July 26, 1870, relative to the claim of William J. Jones to have refunded to him certain moneys paid to the Direct Tax Commissioners as taxes, penalty, interest and costs, under the law relating to these subjects.

It is stated that Mr. Jones, a resident of Texas and owner of lands in Galveston County in that State, paid to the Commissioners January 13, 1866

The last three items of which Mr. Jones claims were illegally exacted of him. The act of August 5, 1861 [12 Stat., 294 ], laid a tax of $20,000,000 upon the taxable real estate within the United States, and apportioned it among the several States. Each State was authorized to assume the payment of her portion of the tax within a specified period, and provision was made for the collection of the tax (in cases where the payment should not have been assumed) by officers of the United States.

The act of June 7, 1862 [12 Stats., 422], "For the collection of direct taxes in insurrectionary districts within the United States, and for other purposes," provided for collection through the agency of tax commissioners. The second section of this act required the President on or before the first day of July, 1862, to declare by proclamation [12 Stat., 1266] what States and parts of States were in insurrection; and the proclamation issued in pursuance thereof declared the State of Texas to be in insurrection, and therefore and thereafter the provisions of that act became and were of force in that State.

The first section [12 Stat., 422] provided in substance, that, when in any State or Territory or any portion of either by reason of insurrection or rebellion the civil authority of the United States is so obstructed that the direct taxes cannot be assessed and collected under the provisions of the act of 1861, the same shall be apportioned upon all the lands and lots of ground subject to taxation in such States and Terri