place, and manner that apply to other annual appropriations. Any other construction would permit the most dangerous abuses by allowing the payment from a permanent appropriation of a claim that in any court would be barred by the lapse of time.

"The mere fact that an appropriation is, in form, a permanent [permanent annual, I suppose, is intended.-Comptroller] appropriation, instead of the usual annual appropriation, should not give it greater force or take it out of the general rules as to appropriations. Such an appropriation, from the nature of it, may not in form be covered into the Treasury, but a claim ought not to be paid out of it at a different time nor be passed upon in a different mode than if it were payable out of a current annual appropriation. A claim for captured cotton, or for a mule, or horse, or steamboat lost in the public service, should have no preference over a claim for salary not presented in time. It is no hardship to refer such claims to the Court of Claims.

"To expand an exception in favor of a specific appropriation, so as to cover all permanent appropriations, would be to defeat the plain intent of the law. These permanent annual appropriations are contained in sections 3687, 3688, and 3689, Revised Statutes. They include, among others, the appropriation for the expenses of the collection of the revenue from customs, which is an appropriation in a permanent form of a fixed sum for the service of each fiscal year. They include the appropriation for the interest on the public debt, which is also, in form, a permanent appropriation annually, out of the customs revenue, of a sum fixed by the public securities. They include, also, a multitude of permanent indefinite appropriations declared to be permanent annual appropriations. An amount necessary for each year in the future, for certain purposes, is authorized to be taken from the Treas ury, and these annual appropriations are subject to the same rules, limitations, and qualifications as the usual annual appropriations made by Congress. Any other construction of the act would defeat its object. Money would be taken from the permanent annual appropriation for horses and steamboats lost in the public service, and applied to pay for horses lost twenty years ago; money would be taken from the appropriation for collecting the customs, and used for the payment of claims that accrued twenty years ago, and for the interest thereon. Thus old claims would be paid out of permanent annual appropriations, and would be barred neither by lapse of time nor by adverse decisions, while current appropriations would be covered into the Treasury.

"The Secretary is of the opinion that this is not a fair construction of the law; but that the words 'permanent specific appropriation' should be confined to appropriations such as private bills, where nothing is left to executive officers for examination or inquiry except to identify the party, or to comply with some specific duty pointed out by the specific appropriation."

This able and clear statement, with its concise definitions, strongly emphasizes the necessity of distinguishing an appropriation like that now under consideration from an annual and from a permanent annual appropriation.

Annual appropriations are those for the service of a given year.

*See this vol., 72-74; Revised Statutes, 269, 305, 311, 3691, 3698.

Permanent annual, are those which appropriate a sum fixed, or ascertainable for the specified purposes, during each year, and are made by a law operating continuously through succeeding years by force of its own terms. (Rev. Stats., 1661, 3048, 3670, 3687, 3689.)

2. The authorities show this to be a "permanent specific appropriation." (This vol., pp. 5, 57, 73; 3 Op., 415; 4 Op., 310; 7 Op., 1-14; 13 Op., 288; Kansas Act of January 29, 1861; and 12 Stats., 127.)

3. The repealing act of July 12, 1870, treats the act of 1869 as making a permanent specific appropriation, by declaring that—

"Hereafter [after June 30, 1871, when the repeal took effect] it shall be the duty of the proper Department to submit estimates for the expenses [as the usage was, for annual expenses, and as the law required] and expenditures under these several heads in the usual manner” [i. e., annually.]

III.-There is no law authorizing this claim to be reported to Congres for payment.

It may be useful to trace in part the legislation on this subject. The act of July 12, 1870, (16 Stats., 251,) provided

"That all balances of appropriations contained in the annual appropriation bills, and made specifically for the service of any fiscal year, and remaining unexpended at the expiration of such fiscal year, shall only be applied to the payment of expenses properly incurred during that year, or to the fulfilment of contracts properly made within that year; and such balances not needed for the said purposes shall be carried to the surplus fund: Provided, That this section shall not apply to appropriations known as permanent or indefinite appropriations."

The sixth section provided

"That all balances of appropriations which shall have remained on the books of the Treasury, without being drawn against in the settlement of accounts for two years from the date of the last appropriation made by law, shall be reported by the Secretary of the Treasury to the Auditor of the Treasury, whose duty it is to settle accounts thereunder, and the Auditor shall examine the books of his office, and certify to the Secretary whether such balances will be required in the settlement of any accounts pending in his office; and if it shall appear that such balances will not be required for this purpose, then the Secretary may include such balances in his warrant, whether the head of the proper Department shall have certified that it may be carried into the general Treasury or not. But no appropriation for the payment of the interest or principal of the public debt, or to which Congress may have given a longer duration of law, shall be thus treated."

These sections were carried into the Revised statutes, sections 3690 and 3691.

While these remained in force there was a mode of carrying "unex

pended balances" of annual and of permanent specific appropriations for fixed sums to the surplus fund.

But the sixth section, being section 3691 of the Revised Statutes, was repealed by the act of June 20, 1874, (18 Stats., 110,) amended by act of June 14, 1878, (20 Stats., 130,) except only that the clause in relation to appropriations for interest on the public debt, &c., is left in force.

The fifth section of the act of June 20, 1874, provides

"That from and after the first day of July, 1874, and of each year thereafter, the Secretary of the Treasury shall cause all unexpended balances of appropriations which shall have remained upon the books of the Treasury for two fiscal years to be carried to the surplus fund and covered into the Treasury: Provided, That this provision shall not apply to permanent specific appropriations, appropriations for rivers and harbors, light-houses, fortifications, public buildings, or the pay of the Navy and Marine Corps; * but the appropriations named in this proviso shall continue available until otherwise ordered by Congress. *" (See act March 3, 1875, sec. 5; 18 Stats., 418.)

The act of June 14, 1878, (20 Stats., 130,) provides that

"It shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section, [section 5 of act of June 20, 1874,] that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law."

It is clear that only those claims which arise under annual or permanent annual appropriations can be reported to Congress.

This act was necessary to give authority to examine the claims to which it refers. The Revised Statutes, 236, 268, 277, &c., are not regarded generally as giving authority to adjust controverted claims for the payment of which there is no appropriation. Claims never recognized by law are not within these sections.

Salaries and demands specified in the act, may, however, rest on a different basis. (Winthrop, Dig. Op. Jud.-Adv., 1880, sec. 3, p. 165.) There must be authority by law to adjust claims. In the Floyd Acceptances, 7 Wall., 676, it is said:

"In our structure of government all power is delegated and defined by law, from the President down."

The provision for covering money into the Treasury, (act June 20, 1874,) cannot apply to "permanent specific appropriations." These are

in express terms saved from its operation. The Secretary of the Treasury, as already shown, has said that "permanent [annual] appropriations may not in form be covered into the Treasury," and

a fortiori permanent specific appropriations cannot.

A "permanent specific appropriation" may be (1) specific in amount, or (2) indefinite in amount; thus it may appropriate a fixed sum or an indefinite sufficient sum.

As to permanent indefinite appropriations, there never could or can be any sum to carry to the surplus fund.

Congress has determined that unexpended balances of such appro priations, and others named in the act of June 20, 1874, shall not be carried to the surplus fund, "but shall continue available until otherwise ordered." It will, of course, be necessary occasionally to call the attention of Congress to the subject, so that laws may be passed to authorize such balances to be carried to the surplus fund.

If it were not for this express prohibition on the powers of the Secretary of the Treasury, he could, by virtue of his general authority, carry such balances to the surplus fund, and retransfers back to the appropriation could be made in case any part of such balance should be required; in all which cases, the analogies of the act of July 12, 1870, could be pursued. (Rev. Stats., 161, 248, 251; 18 Stats., 418.)

I have said that the provision for covering money into the Treasury (act June 20, 1874) only applies to annual or permanent annual appropriations.

These appropriations may, however, be definite or indefinite; that is, of fixed sums, or such sum as may be necessary.

The literal reading of the act of June 14, 1878, (20 Stats., 130,) only requires the Secretary of the Treasury to report to Congress

"Claims under [annual or permanent annual] appropriations, the balances of which have been exhausted or carried to the surplus fund under the provisions of said section." (See 18 Stats., 110.)

Now, as there can be no balance exhausted, or carried to the surplus fund, under an indefinite annual or indefinite permanent annual appropriation, a question might arise as to claims presented under such appropriations after three years from the time when these appropriations became available.

The claims could not then be paid. That is settled by the language and policy of the statutes, and by the decision of the Secretary already cited. But the accounting officers of the Treasury Department may, within the five years prescribed in the act of June 14, 1878, (20 Stats., 130,) "receive, examine, and consider the justice and validity" of such

claims, and the Secretary of the Treasury may report them to Congress. This construction is required to carry out the policy of the statutes and the intention of Congress, which was to limit the payment of claims under all (1) annual and (2) permanent annual appropriations to three years from the time they became available, except public debt, &c., mentioned in the last clause of section 3691, Revised Statutes,) and in such cases to furnish a remedy by submitting claims to Congress. This has been decided by my predecessor. (This volume, 73.)

It is often necessary to depart from the mere letter of a statute in order to carry out its real purpose. (Id., 32.)

IV. The claimant presents two questions under this head: First, as to his right to payment; second, as to his means of securing it.

The letter of the First Comptroller of January 6, 1876, is a decision in favor of the right of the claimant to payment. That is res judicata. The amount due him is equally determined.

The second question is more difficult.

The First Comptroller, in effect, decided (1) as a fact that "the appropriation" made by act of April 7, 1869, for the present claim had "been carried to the surplus fund," and (2) as a question of law, that payment can only be made "after Congress shall make a special appropriation for that purpose."

(1.) a. It was a mistake of fact to suppose that any part of the appropriation had been carried to the surplus fund. It had not, and could not, for reasons already stated, have been so carried.

(2.) The decision that, as a question of law, an appropriation by Congress is requisite, being founded in mistake, is not conclusive now. It is not such res judicata as determines the question.

Generally, a ruling on a question of law, as of fact, even if erroneous, must be regarded as final against a claimant, unless the case be reopened according to usage, which has been heretofore considered. (This vol., 9, 57, 70, 79; U. S. vs. Bank of Metropolis, 15 Pet., 378; 5 Op., 125; 10 Op., 259; 12 Op., 358; 15 Op., 315, 423.)

But this rule cannot apply now, because (1) there is no law which authorizes the claim to be reported to Congress, and (2) there is an existing appropriation applicable to its payment; and an erroneous ruling on a question of law must be corrected, else there will be a denial of justice by refusal to execute the law.

If the erroneous ruling had left any legal remedy open to the claimant, it would not now be disturbed. But, as it did not, his legal rights may now be considered, upon principles analogous to those which govern a hearing on a writ of error coram nobis in judicial courts.