also laid down in that case that the Commissioner's decision, as to whether or not a claim reached his office in due time, could not be set aside by that court, in the absence of fraud or irregularity; and that neither the First Comptroller nor the Secretary of the Treasury "has authority to review the evidence upon which the Commissioner acted in making such allowances, nor to overrule his findings in matters which the law intrusts to his individual judgment."

So far as the question of the limitation arising under section 3228 of the Revised Statutes is concerned, and there is a denial of the authority and duty of the First Comptroller to determine for himself, before certifying a balance due, whether any claim for refund, upon which an account has been stated by the Auditor, is barred by that section, by reason of non-compliance with its provisions, the conclusion of the court in that case cannot be accepted. That conclusion would require the final accounting officer of the Treasury to abdicate the powers expressly given, and relinquish the duties imposed upon, him by statute. The laws which clothe him with jurisdiction and charge him with responsibility are no more to be disregarded than those under which the Commissioner of Internal Revenue submits to the accounting officers, with his opinion thereon, such claims as the one now under consideration. In McKnight vs. United States (13 Ct. Cls., 309) it was ruled by the same court that the decision of the Commissioner of Internal Revenue is prima facie evidence of a demand; and the general reasoning in that ruling shows that such decision is not conclusive.

It is the duty of the First Comptroller "to countersign all warrants drawn by the Secretary of the Treasury, which shall be warranted by law." (R. S., 269.) This claim cannot be paid without such warrant.

When the statute says that this claim, in order to be entitled to allowance, "must be presented to the Commissioner of Internal-Revenue within two years,” the effect is, that he has no power-as the Court of Claims has said, "for want of jurisdiction”—to allow it if it has not been presented within that period. The statute goes to the power to allow; an executive officer has no authority to waive the statutory limitation. He has no power to do that which the law forbids or does not authorize. (Kendall vs. U. S., 12 Pet., 525.) When an officer has no jurisdiction of a subject, his acts are ultra vires and void. Whatever may be the power of the Commissioner in passing upon a matter over which he has exclusive jurisdiction, his decision on a subject involving the payment of money out of an appropriation made by Congress is by no means final.

This claim cannot be paid until an account is "settled and adjusted," and a warrant for payment duly approved and signed. (R. S., 236, 277.)

The Revised Statutes provide

"SEC. 269. It shall be the duty of the First Comptroller

to countersign all warrants drawn by the Secretary of the Treasury, which shall be warranted by law."

This provision makes it the duty of the First Comptroller to determine whether the payment of this claim is "warranted by law."

Other provisions require this claim to be audited. (R. S., 236, 248, 277, &c.) These provisions, as to the duty of the Fifth Auditor and Comptroller, are in full force, and are to be construed in connection with those giving power to the Commissioner of Internal Revenue, and effect is to be given to all. This rule of construction is familiar to every legal mind. It is not necessary to inquire whether, under it, there is a revisory power over the Commissioner as to the amount proper to allow on claims of this class. (Kaufman's case, 11 Ct. Cls., 659; Woolner's case, 13 Ib., 355; 2 Op., 302; 3 Op., 663; 5 Op., 630; 7 Op., 724; 8 Op., 297; 10 Op., 435; 15 Op., 292; Davis's case, post, 261; Bender's case, post, 317.) If it be conceded that his judgment is final as to this, still the First Comptroller must decide whether payment of that amount is "warranted by law." The duty to make this inquiry carries with it the power to ascertain all facts necessary to determine it. Laws which confer authority "are to be so construed as to include all the necessary means of executing them with effect." (Howard vs. Baillie, 2 H. Bl., 620; 3 Chitty, Comm. and Manuf., 200, 201; Withington vs. Herring, 5 Bing., 442; 1 Bell, Comm., 387, ed. 4; Rogers vs. Kneeland, 10 Wend., 218; Peck vs. Harriott, 6 S. & R., 146.) They include the various means which are justified or allowed by usage. (Story, Agency, secs. 58, 60, 77, 97, 98, 101-106; Paley, 198, n., ed. 3, by Lloyd; Livermore, 103, 104, ed. 1818; Ekins vs. Macklish, Ambler, 184-186.)

The Commissioner of Internal Revenue, in such matters as that now under consideration, exercises a special, statutory, and limited authority. When such authority depends upon the existence of a fact, (as, e. g., the presentation of a claim to him within two years from the accruing of the right of action,) his finding thereon is not conclusive.

The principle here stated follows the analogy of many cases. (Moore vs. Starks, 1 Ohio St., 369; 12 Ib., 635; 17 Ib., 608; Graves vs. Otis, 2 Hill, 466; Sharp vs. Speir, 4 Ib., 76; Sharp vs. Johnson, Id., 92; 5 Ib., 327; The People vs. Cline, 23 Barb., 197; The People vs. Van Alstyne, 32 Ib., 131; The People vs. Goodwin, 5 N. Y., 568; 9 N. Y., 274; 10 N. Y., 328; 23 N. Y., 439; 1 Kern., 33; 2 Ib., 575; 12 Wend., 102; 10 Johns., 161; 1 Denio, 331; 3 Bush, 698; Seatt vs. Vine, 30 L. J. M. C., 207; Legge vs. Pardoe, Id., 108; In re Baker, E. B. & E., 862; 8 E. &

B., 629; 33 L. J. M. C., 131; 31 L. J. M. C., 153; Crepps vs. Durden, 1 Smith's Lead. Cas., 705, and cases cited.)

The right to review the finding of the Commissioner of Internal Revenue upon such question of fact, by those who are called upon to ascertain whether payments may be lawfully made in pursuance thereof, is well supported by the analogy of authorities. (Corry vs. Gaynor, 22 Ohio St., 584; 20 Ib., 349; Hayes vs. Jones, 27 Ib., 218; Roberts vs. Easton, 1 Disney, Ohio, 195; S. C., 19 Ib., 78; People vs. Compton et al., 1 Duer, 512; Davis vs. The Mayor of New York, Id., 451; People vs. Sturtevant, 9 N. Y., 263; Belknap vs. Belknap, 2 Johns. Ch., 463; Mohawk and Hudson R. R. Co. vs. Archer, 6 Paige, 83; 2 Story, Eq., 11th ed., secs. 925-927; Hush vs. Trustees, 1 Vesey, 188; Shadd vs. Aberdeen, 2 Dow, 519; Ager vs. Regents, Cooper, Eq., 77; Blood vs. Sayre, 17 Vt., 609; Cable vs. Cooper, 15 Johns., 157; 2 Hilliard, Torts, 173; Doswell vs. Impey, 1 B. & C., 169; Miller vs. Seare, 2 W. Bl., 1141; Pease vs. Clayton, 1 Best & Smith, 658; Revill vs. Pettit, 3 Met., Ky., 314; Inos vs. Winspear, 18 Cal., 397.)

In such case as this, where there is a question of law as to the jurisdiction of the Commissioner of Internal Revenue, upon which the Fifth Auditor and First Comptroller are required by law to pass, the liability of the Government to make payment is not fixed until their action thereon affirms it. (Rev. Stats., 191, 236, 269; 12 Ct. Cls., 326; 12 Op., 43.) Until this claim has passed the ordeal of the Fifth Auditor and First Comptroller, the claimant has not pursued the statutory remedy to the end. The Treasurer cannot pay such claim simply on the allowance of the Commissioner. The law requires the judgment thereon of the proper Auditor and First Comptroller; these cannot be ignored. How can it be said that the allowance of the Commissioner raises an implied promise or creates a liability on the part of the Government to pay, before their action? Payment before this would be without authority of law. If the First Comptroller has no right to exercise judgment and discretion, but is to act ministerially only in certifying a balance due, the question would arise, upon his refusal so to certify, whether there is a remedy by mandamus; but, until his action is had, the forms which fix the liability of the Government are not complied with. This is well settled. (Brashear vs. Mason, 6 How., 92; Decatur vs. Paulding, 14 Pet., 515; Brain's case, 6 Ct. Cls., 172.) The case of United States vs. Kaufman (96 U. S., 567) is different from that now under discussion. There are some considerations which show that Congress did not intend that any liability should be created against the Government, in such case as this, without a decision by the First Comptroller certifying a liability. (See House Ex. Doc., No. 27, 2d Sess. 45th Cong., 43.)

It is not intended to assume any authority or arrogate any importance not given by law; but, for the purpose of showing the want of power on the part of the Commissioner of Internal Revenue, by his allowance alone, to charge the Government with liability, it is necessary to refer to the authority given by law to the First Comptroller, and which he has no power to waive, modify, or omit to exercise. He is the law officer of last resort in the Treasury Department. No money can be paid from the Treasury without his approval. (Rev. Stats., 269, cl. 3; secs. 305, 3698; ante, 74.) His decision on questions of law over which he has jurisdiction cannot be overruled, in any case, by the Secretary of the Treasury, the Attorney-General, or even the President. (Rev. Stats., 191; 12 Ct. Cls., 326; 12 Op., 43.) On such questions he may overrule the action of the Secretary, and disregard the opinion of the Attorney-General, even when given in answer to a request from the head of a Department. (R. S., 191, 356.)

It is repugnant to reason to suppose that Congress, after expressly revoking, in the act of March 3, 1865, (13 Stats., 483, sec. 3,) the preexisting power of the Commissioner to pay such claims as the present one, intended to give to the allowance of these claims by him a conclusive effect; for this would give his judgment on a question of law supremacy over the judgment of the regular law officer of the Treasury Department, and reduce the latter to the status of a mere ministerial officer as to such claims. (U. S. vs. Ross, 92 U. S., 281; U. S. vs. Pugh, 99 U. S., 270.) Besides the inherent improbability that Congress so intended, such construction would, as to this class of cases, work a repeal of the chief object of the statutes which prescribe the duties of the First Comptroller. There is no repeal in terms of sections 191, 236, 269, of the Revised Statutes, by sections 3220, 3226, 3227, and 3228; and, on well-settled principles, there can be none by implication. These latter sections merely give an authority to the Commissioner to allow claims for a refund of taxes erroneously or illegally assessed or collected, subject to the revision, respectively, of the Fifth Auditor and First Comptroller. The words to "remit, refund, and pay back,” in section 3220, are qualified as to the power of the Commissioner by, and have relation to, sections 191, 236, 269, and 277 of the Revised Statutes. A literal construction of section 3220 would lead to the reductio ad absurdum of requiring the Commissioner to "pay back" money covered into the Treasury. The section, to be operative, must be construed with reference to the provisions of law requiring the usual forms to be pursued to secure payment. The effect of a different construction must be apparent. There are many statutes authorizing various officers to allow claims; but their allowances are subject to the revisory action of

the proper accounting officers of the Treasury Department. If they were not subject to that action, a multitude of claims would be without that examination, audit, and revision which have been deemed by Congress essential, in order to protect the interests as well of the Government as of honest claimants.

The question whether this claim was "presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued," as required by section 3228 of the Revised Statutes, is a question of law arising on the facts; and to say that the decision of the Commissioner on this question of law is final, is to say that the First Comptroller has no power in this case to determine whether the issue of a warrant for payment of the claim is "warranted by law."

The First Comptroller must decide such questions as this, until a court of last resort has otherwise determined. (Com. vs. Whiteley, 4 Wall., 522; Gaines vs. Thompson, 7 Wall., 351; Decatur vs, Paulding, 14 Pet., 515; U. S. vs. Lytle, 5 McL., 9; Police case, ante, 64.)

No balance is due on the account stated by the Fifth Auditor.
TREASURY DEPARTMENT,

First Comptroller's Office, November 10, 1880.

IN THE MATTER OF PAYMENT OF LIGHT-HOUSE KEEPERS. INSPECTORS' CASE.

1. The powers of executive officers are derived from and their duties prescribed by the Constitution, or laws in pursuance thereof.

2 Many powers are incidental and result from general provisions or definitions in acts of Congress, as necessary and proper to carry out their objects.

3. Regulations prescribed in pursuance of authority given by law have the force and effect of law.

4. Usage sufficiently continued gives construction to laws.

5. The President may, by executive order, adopted by the Light-House Board as a regulation, with the approval of the Secretary of the Treasury, transfer from collectors of customs to light-house inspectors the duty of paying salaries to keepers of light-houses.

6. Construction given to Revised Statutes, sections 161, 248, 285, 1153, 1563, 3614, 3648, 3672, 4669, 4672; act June 16, 1880, (21 Stats., 262.)

On October 23, 1880, the Light-House Board addressed a letter to the Secretary of the Treasury, expressing a desire to revise the regulations (Rev. Stats., 4669) of the Light-House Establishment, and saying:

"In this connection the board has the honor to call your attention to that part of the regulations devolving the duty of paying light-keepers' salaries on those collectors of customs acting as superintendents of lights, and to ask authority to so change the regulations as to devolve this duty on light-house inspectors.